Section 112.5  Incorporation by reference

 

Any rules or standards of an agency of the United States or of a nationally recognized organization or association that are incorporated by reference in this Part are incorporated as of the date specified and do not include any later amendments or editions.

 

(Source:  Added at 21 Ill. Reg. 2210, effective February 1, 1997)

 

Section 112.10  Utilization review hearings

 

a)         Utilization review hearings shall be conducted in accordance with Sections 3-207, 3-405, 3-903, 3-910, 4-209, 4-312, 4-704 and 4-709 of the Code.  When a person who is evaluated as being mildly or moderately mentally retarded, resides in a Department mental health facility and objects to the facility director's certification of the treatment and habilitation plan or the appropriateness of the setting, a utilization review hearing shall be conducted in accordance with Section 112.20(g). b)      Definitions

 

            "Aftercare."  The continuation of needed care and services of a recipient discharged from a state-operated facility within an appropriate setting with individualized follow-up services.

 

            "Code." The Mental Health and Developmental Disabilities Code [405 ILCS 5].

 

            "Day."  As used in this Section and in Section 112.20 means calendar day unless otherwise indicated.

 

            "Department."  The Department of Human Services.

 

            "Discharge."  The full release of any person admitted under the provisions of the Code, or transferred under the provisions of Sections 3-8-5, 3-8-6, 3-10-5 and 3-10-6 of the Unified Code of Corrections [730 ILCS 5/8-5, 8-6, 10-5 and 10-6] for treatment or habilitation.

 

            "Facility Director."  The director or hospital administrator of a mental health or developmental disabilities facility.

 

            "Guardian."  The plenary guardian of the person or limited guardian of the person with specific court authority to make mental health decisions on the person's behalf. (Section 11a-14 of the Probate Act of 1975 [755 ILCS 5/11a-14].)  It does not include a guardian ad litem or person in loco parentis or with power of attorney.

 

            "Guardian ad litem."  A person appointed by the court to defend or represent the interests of a minor or alleged legally disabled during a guardianship proceeding or in other matters.  This person has no right to interfere with the minor's or alleged legally disabled person or estate.

 

            "In loco parentis."  Any individual, other than a parent or legal guardian, who has the primary functional responsibility of providing food, shelter, medical care and education to a minor.

 

            "Person subject to involuntary admission."  A person who is mentally ill and who because of his or her illness:

 

            is reasonably expected to inflict serious physical harm on him/herself or another in the near future; or

 

            is unable to provide for his or her basic physical needs so as to guard himself or herself from serious harm.  (Section 1-119 of the Code)

 

            "Responsible relative."  The spouse or, if the recipient is under 18 years of age, the parent of a recipient of services. (Section 1-124 of the Code)

 

            "Secretary."  The Secretary of the Department of Human Services or his or her designee, or the Manager of the Office of Clinical Services when applicable pursuant to Section 1-108 of the Code.

 

            "Transfer."  The movement of a recipient from one Department facility to another Department facility or to a Veterans' Administration facility.  This does not include movement from a Department facility to a non-Department facility (other than to a Veterans' Administration facility) or movement between separate units or discrete portions of the same facility.  It also does not include the discharge of a recipient.

 

c)         Notice requirements

 

1)         Notice of denial of admission

            Whenever a person seeking admission to a Department facility is denied admission by the facility, the person shall be given within two hours written notice of his or her right to request a review of the denial of the facility's decision on the Notice of Denial of Admission and Right to Request Review form.

 

2)         Notice of non-emergency transfer

 

A)        Whenever a recipient who has been in a Department facility for more than seven days is to be transferred to another facility, the facility director shall give written notice of the proposed transfer on the "Notice of Transfer" form, to the persons identified in Sections 4-206 and 4-709 of the Code at least 14 days prior to the scheduled transfer.

 

B)        Notice of transfer and the right to object shall be given to recipients being transferred to the Chester Mental Health Center even when such recipients have been in the Department facility for less than seven days and to the adult recipient's attorney, guardian, if any, and responsible relative and to the minor recipient's attorney, parent, guardian or person in loco parentis who executed the application for admission in accordance with Section 3-910 of the Code.  Except in an emergency, as specified in subsection (c)(3) of this Section, no transfer shall proceed pending the facility director's decision or any administrative or judicial review of that decision which is permitted by law.  (See subsection (e)(3) for waiver provisions.)

 

3)         Notice of emergency transfer

            In an emergency, when the health of the recipient or the physical safety of the recipient or others is imminently imperiled and appropriate care and services are not available where the recipient is located, a recipient shall be transferred to another facility as soon as transfer arrangements can be made, provided that notice is given in accordance with subsection (c)(2) of this Section, as soon as possible but not later than 48 hours after the transfer. If an emergency transfer cannot be effected within 48 hours after the decision to transfer, the transfer shall proceed only as a non-emergency transfer with prior written notice of the right to object as provided in Sections 3-910 and 4-709 of the Code and subsection (c)(2) of this Section.

 

4)         Notice of discharge

 

A)        Recipient in a mental health facility

 

i)          Adult – Notice shall be given to the adult recipient, the recipient's attorney, and guardian, if any, on the "Notice of Discharge" form, at least seven days prior to the date of intended discharge.

 

ii)         Minor – Notice shall be given to his or her attorney, his or her parent, guardian, or person in loco parentis who executed the application for admission, and to the minor if he or she is 12 years of age or older, on the "Notice of Discharge" form, at least seven days prior to the date of intended discharge.

 

B)        Recipient in a developmental disabilities facility

 

i)          Notice shall be given at least 14 days prior to the date of discharge.

 

ii)         Notice shall be given on the "Notice of Discharge" form, to the recipient, if he or she is 12 years of age or older, to the recipient's attorney and guardian, if any, to the person who executed the application for admission and to the resident school district if the recipient is receiving educational services.

 

C)        Discharge pending a hearing or review

            No discharge shall proceed pending the facility director's decision or any administrative or judicial review of that decision which is permitted by law, except that persons temporarily admitted under Section 4-311 of the Code shall not stay beyond 30 days plus the additional time up to the hearing.

 

5)         Notice contents

 

A)        All notices for transfers or discharge shall include:

 

i)          The reasons for the transfer or discharge;

 

ii)         A statement of the right to object; and

 

iii)        The address and telephone number of the Guardianship and Advocacy Commission.

 

B)        All notices of denial of admission shall include:

 

i)          A statement of the right to request a review of the denial; and

 

ii)         The address and telephone number of the Guardianship and Advocacy Commission.

 

C)        If the recipient's or guardian's primary language is not English or if the recipient or guardian is hearing impaired and/or vision impaired, arrangements must be made to provide for an adequate explanation in the person's primary language in accordance with the Department's rule at 59 Ill. Adm. Code 111.20 or preferred method of communication of the recipient's right to request a review.  Arrangements will be made to secure the services of an interpreter who is fluent in the recipient's or guardian's primary language to explain the notice to the recipient or guardian.

 

6)         Manner of service of notices

            All notices required by Sections 3-405(a), 3-903(a), 3-910, 4-312(a), 4-704(a) and 4-709 of the Code shall be served personally on the recipient and/or objector whenever possible.  A copy of the notice, signed by the recipient in acknowledgment of service, shall be placed in the recipient's clinical record.  When personal service is not possible, first class mail shall be used to serve notice on the recipient and/or objector and any other person entitled to receive notice.

 

7)         Aftercare and case coordination

Aftercare and case coordination shall be provided to all discharged and conditionally discharged recipients in accordance with the Department's rules at 59 Ill. Adm. Code 125 (Recipient Discharge/Linkage/Aftercare).

 

d)        Requests for review of denial of admission

 

1)         To a mental health facility

 

A)        Adult – A review of a denial of admission may be requested by the person seeking admission or, with the person's consent, by an interested person on his or her behalf.

 

B)        Minor – The request may be made by the minor's attorney, by his or her parent, guardian or person in loco parentis who executed the application for admission, or by the minor if the minor is 16 years of age or older.

 

2)         To a developmental disabilities facility

            A review of the denial of admission may be requested by the person who executed the application for admission or by the attorney or guardian of the person for whom admission is sought.

 

3)         Manner of requesting review

            The request for review must be submitted, in writing, to the facility director of the facility to which admission was sought within 14 days after the denial.  Facility staff shall notify the recipient or other persons requesting review that staff are available to assist in contacting the Guardianship and Advocacy Commission and to prepare a written request for review of a denial of admission.

 

4)         Admission pending review

An individual requesting review of admission denial does not have a right to admission pending the outcome of the hearing and review.

 

e)         Objection to a transfer or discharge

 

1)         Transfer of a recipient

 

A)        Adult recipient in a mental health facility

            A recipient may object to his or her transfer or the recipient's attorney, guardian, or responsible relative may object on the recipient's behalf.

 

B)        Minor recipient in a mental health facility

            The minor's attorney, the person who executed the application for admission, or the minor, if the minor is 12 years of age or older, may object to the transfer.

 

C)        Recipient in a developmental disabilities facility

            A recipient may object to his or her transfer or any person entitled to receive notice under subsection (c)(2) of this Section, may object on the recipient's behalf.

 

D)        Manner of making an objection

            An objection to a transfer must be submitted, in writing, prior to the transfer or within 14 days after an emergency transfer to the facility director of the facility where the recipient is located.  Facility staff shall notify the recipient or other persons objecting to a transfer that staff are available to assist in contacting the Guardianship and Advocacy Commission and to prepare a written objection to a transfer.

 

2)         Discharge of a recipient

 

A)        In a mental health facility

 

i)          Adult – A recipient may object to his or her discharge or the recipient's attorney or guardian may object on the recipient's behalf.

 

ii)         Minor – The minor's attorney, the person who executed the application for admission, or the minor, if the minor is 12 years of age or older, may object to the discharge.

 

B)        In a developmental disabilities facility

            The recipient, if he or she is 12 years of age or older, may object to the discharge or conditional discharge, or the recipient's attorney or guardian, or the person who executed the application for admission, may object on the recipient's behalf.

 

C)        Manner of making an objection

            All objections to a discharge must be submitted, in writing, to the facility director of the facility where the recipient is located prior to the discharge.  Facility staff shall notify the recipient or other persons objecting to a discharge that staff are available to assist in contacting the Guardianship and Advocacy Commission and to prepare a written objection to a discharge.

 

3)         Waiver of hearing

 

A)        Any person entitled to request a hearing regarding a denial of admission, a discharge or a transfer may waive his or her hearing thereon.  If a legally competent adult recipient or legal representative on the recipient's behalf waives his/her hearing, a request for a hearing made by another person will not be honored.

 

B)        A waiver shall be deemed effective only if all of the following conditions are satisfied:

 

i)          The person has been advised of his or her rights to object and to have a hearing;

 

ii)         The person has been advised of and understands the consequences of waiving such hearing; and

 

iii)        The person has expressed his or her waiver of the hearing in writing.

 

C)        All waivers shall be filed in the recipient's medical record along with the notice.  The record should:

 

i)          Reflect that the recipient was advised and understood the consequences of the waiver; and

 

ii)         Indicate who made the decision that the recipient understood the consequences of the waiver.

 

D)        When a waiver of a hearing has been made in accordance with subsection (e)(3)(B)(iii) of this Section, the Department may proceed to implement its transfer or discharge.

 

E)        If the person, or legal representative on that person's behalf, withdraws the waiver prior to the expiration of the 14-day period for transfer or the seven-day period for discharge, such action shall be considered a formal objection and a hearing shall be scheduled.  The responsibility for the hearing shall be with the transferring or discharging facility.

 

f)         The utilization review committee

            Each Department facility director shall recommend individuals to serve on a utilization review committee(s) in accordance with Sections 3-207 and 4-209 of the Code to hear requests for review and objections received under the Code. The recommendations shall be sent to the Secretary or his or her designee for approval or denial.

 

1)         The committee shall consist of at least three and not more than seven members, who shall represent at least two different professional clinical disciplines, trained and equipped to deal with the recipient's clinical and treatment needs (for persons with mental illness) or habilitation needs (for persons with developmental disabilities) or both types of needs for those persons with dual diagnosis in accordance with Section 112.20(g)(3).  Clinical disciplines include psychiatry, psychology, medicine, nursing, social work, or the other disciplines that qualify a person to be a qualified mental retardation professional, as defined in Section 112.20(d).

 

A)        The committee membership may be permanent or rotating, at the facility director's discretion and must be approved by the Secretary; or

 

B)        The facility director shall not recommend himself/herself or designee, or any staff member involved in the decision to admit, transfer or discharge the recipient to be a committee member or to participate in the committee's decision on any request for review or objection.

 

2)         The facility director, or at the facility director's discretion, the committee, shall appoint, from the committee's membership, a chairperson who shall have the duties and responsibilities as set forth in subsection (g)(2)(A) of this Section.

 

g)         The utilization review hearing

 

1)         General provisions

 

A)        Scheduling the hearing

            Upon receipt of a request for a review or an objection, the facility director shall schedule a hearing to be held at the facility within seven working days.  If the hearing is to review an objection to a transfer, the hearing shall be held at the transferring facility.  When an emergency transfer has taken place, the hearing will be held at the receiving facility, provided that the hearing may be held at the transferring facility when the facility director of the receiving facility finds that either of the parties would not be able to completely present witnesses or evidence at a hearing at the receiving facility within the specified time.

 

B)        Notice of hearing

            The recipient and objector, and the representative or attorney of each, shall be informed, in writing, of the time, place and date of the hearing either personally or by first class mail at least 72 hours before the hearing.

 

C)        Continuances

            The committee chairperson, at his or her sole discretion, may grant a continuance of the hearing at the request of the Department or the recipient or objector if he or she determines that a continuance would not adversely affect the rights of either of the parties to present evidence and witnesses.

 

D)        Representative

            The recipient and objector may be represented at the hearing by any person of his or her choice, subject to the provisions of subsection (g)(2)(A)(iv) of this Section.

 

E)        Witnesses

            The Department and the recipient and objector may present evidence orally and in writing and may present argument.  The facility director or designee shall appoint one or more persons to present the Department's case at the hearing.

 

F)         Right to be present

            Unless waived by the recipient or his or her attorney, the recipient or the objector (if not the recipient) has the right to be present at the hearing as well as responsible relatives and other interested persons designated by the recipient.

 

2)         Hearing procedures

 

A)        Duties of the chairperson

            The chairperson is responsible for the orderly conduct of the utilization review hearing.  He or she shall conduct the hearing so that both the facility and the objector are allowed to present their evidence and arguments completely.  To these ends, the chairperson has the following authorities and responsibilities, including, but not limited to:

 

i)          Requiring the Department to present its evidence prior to hearing evidence from the recipient or objector;

 

ii)         Prescribing the order of presentation within the Department's or objector's presentation to accommodate witnesses' schedules or respond to inquiries from committee members;

 

iii)        Terminating the taking of testimony when the committee is satisfied that both parties have presented all relevant information related to the facility's decision;

 

iv)        Declaring an individual ineligible to represent the recipient or objector due to his or her employment by the Department.  If the chairperson declares an individual ineligible, he or she shall give the recipient an opportunity to secure a substitute within seven days.  This shall not be used to prevent a Department employee from testifying on behalf of the recipient;

 

v)         Taking official notice on the record of generally recognized technical, scientific or clinical facts within the Department's specialized knowledge;

 

vi)        Insuring that a complete and accurate record of the hearing is made by an audio tape or stenographic recording;

 

vii)       Insuring that the committee's findings of fact, conclusions and recommendations are in compliance with subsection (i)(2) of this Section.

 

B)        Evidence

 

i)          The committee shall not be bound by the rules of evidence or procedure, but shall conduct the proceedings in a manner that insures both parties are allowed to present their evidence and arguments completely.

 

ii)         When the hearing will be expedited and the interests of the parties will not be prejudiced, all or any part of the evidence may be received in written form if disclosed to all other parties, at least two days, excluding weekends and holidays, prior to the hearing.

 

iii)        Any party or representative may ask questions of any other party or witness, and the committee may ask questions of any party or witness. Questions impeaching the witnesses' character or credentials shall be prohibited.

 

iv)        If the chairperson takes notice of any generally recognized technical, scientific, or clinical facts within the Department's specialized knowledge, he or she shall so inform the recipient and objector and shall afford them an opportunity to contest the material so noticed.  The committee may use the Department's experience, technical competence and specialized knowledge in its evaluation of the evidence.

 

h)         Standards

 

1)         For denial of admission to a mental health facility

 

A)        Informal and voluntary

            The person may be denied admission if he or she is not clinically suitable for admission.  This standard applies to all persons age 16 years or older who have executed their own application for admission.  (See Sections 3-300(a), 3-400 and 3-502 of the Code.)

 

B)        Application for a minor executed by his or her parent(s), guardian or person in loco parentis

 

            The minor may be denied admission if the minor:

 

i)          Does not have a mental illness or emotional disturbance; or

 

ii)         Does not have a mental illness or emotional disturbance of such severity that hospitalization is necessary; or

 

iii)        Has a mental illness or emotional disturbance of such severity that the minor's hospitalization is necessary but the minor is unlikely to benefit from inpatient treatment.  (See Section 3-503(a) of the Code.)

 

C)        Application for a minor is executed by another person 18 or older

            The minor may be denied admission if those conditions listed in subsection (h)(1)(B) of this Section are present or if the minor is not in such condition that immediate hospitalization is necessary.  (See Section 3-504(a) of the Code.)

 

2)         For denial of admission to a developmental disabilities facility

 

A)        Administrative admission

            A person may be denied admission if he or she is not clinically suitable for admission.  (See Section 4-302 of the Code.)

 

B)        Temporary admission

            A person may be denied admission if:

 

i)          He or she is not developmentally disabled; or

 

ii)         The parent or guardian will not benefit from respite care; or

 

iii)        There is no crisis which necessitates immediate temporary residential services.  (See Section 4-311 of the Code.)

 

3)         For transfer from a mental health facility

 

A)        All transfers occurring more than seven days after admission

            The facility director may transfer a recipient if the transfer is clinically advisable and consistent with the recipient's treatment needs as defined by the recipient's individual treatment plan.  (See Section 3-908 of the Code.)

 

B)        Emergency transfers

            A recipient may be transferred as soon as the transfer can be arranged when the health of the recipient or the physical safety of the recipient or others is imminently imperiled and appropriate care is not available at the facility where the recipient is located.  (See Section 3-910(b) of the Code.)  If an emergency transfer cannot be effected within 48 hours after the decision to transfer, the transfer shall proceed only as a non-emergency transfer with prior written notice of the right to object as provided in Section 3-910 of the Code and subsection (c)(2).

 

C)        Transfer to a more restrictive facility

            A recipient may be transferred if the transfer is clinically advisable and consistent with the recipient's treatment needs as defined by the recipient's individual treatment plan and is required for the safety of the recipient or others.  (See Sections 3-908 and 3-910(d) of the Code.)

 

D)        Transfer of minors to adult units

            A minor recipient may be placed in the same unit with adult recipients if:

 

i)          The placement is to a medical unit because of a physical illness; or

 

ii)         The minor recipient is between 13 and 18 years of age and temporary security measures are needed.  (See Section 7 of the Mental Health and Developmental Disabilities Administrative Act [20 ILCS 1705/7].)

 

4)         For transfer from a developmental disabilities facility

 

A)        All transfers occurring more than seven days after admission

            The facility director may transfer a recipient if the transfer is appropriate and consistent with the recipient's habilitation needs as defined by the recipient's individual habilitation plan.  A facility which is close to the recipient's place of residence shall be preferred unless the recipient requests otherwise or unless compelling reasons exist for preferring another facility.  (See Section 4-707 of the Code.)

 

B)        Emergency transfers

            A recipient may be transferred as soon as the transfer can be arranged when the health of the recipient or the physical safety of the recipient or others is imminently imperiled and appropriate care and services are not available at the facility where the recipient is located.  (See Section 4-709(a) of the Code.) If an emergency transfer cannot be effected within 48 hours after the decision to transfer, the transfer shall proceed only as a non-emergency transfer with prior written notice of the right to object and provided in Section 4-709 of the Code and subsection (c)(2) of this Section.

 

C)        Transfers to a more restrictive facility

            A recipient may be transferred if the transfer is appropriate and consistent with the recipient's habilitation needs as defined by the recipient's individual habilitation plan and the transfer is reasonably required for the safety of the recipient or others.  (See Sections 4-707 and 4-709(c) of the Code.)

 

D)        Transfer of minors to adult units

            A minor recipient may be placed in the same unit with adult recipients if:

 

i)          The placement is to a medical unit because of a physical illness; or

 

ii)         The minor recipient is between 13 and 18 years of age and temporary security measures are needed.  (See Section 7 of the Mental Health and Developmental Disabilities Administrative Act.)

 

5)         For all discharges

            For all discharges, the Department must not only prove by evidence offered at the hearing that the standards cited in subsections (f)(6) and(7) of this Section have been met, but must also determine and have in writing the determination that the recipient to be discharged is not currently in need of hospitalization and:

 

A)        Is able to live independently in the community; or

 

B)        Requires further oversight and supervisory care for which arrangements have been made with responsible relatives or a supervised residential program approved by the Department; or

 

C)        Requires further personal care or general oversight as defined in the Nursing Home Care Act [210 ILCS 45], for which placement arrangements have been made with a family home or other licensed facility approved by the Department under Section 15 of the Mental Health and Developmental Disabilities Administrative Act [20 ILCS 1705/15].

 

6)         For discharges from a mental health facility

 

A)        Voluntary, informal or minor admissions

            The facility director may discharge any voluntary, informal or minor recipient who is clinically suitable for discharge.  (See Section 3-902(a) of the Code.)

 

B)        Involuntary admissions

            The facility director shall discharge any recipient who is admitted on a court order for involuntary admission when the recipient is no longer subject to involuntary admission, unless voluntary admission is requested and the recipient is clinically suitable.  (See Sections 1-119 and 3-902(b) of the Code.)

 

C)        Transfers from Department of Corrections

            The facility director shall release to the Department of Corrections any recipient transferred to the Department from the Department of Corrections under the provisions of Sections 3-8-5, or 3-10-5 of the Unified Code of Corrections when the recipient is no longer subject to involuntary admission, if he or she is 18 or older, or if the recipient no longer meets the standard for admission of a minor to a mental health facility if he or she is 17 or younger. (See Sections 3-8-6 or 3-10-6 of the Unified Code of Corrections.)

 

7)         For discharges from a developmental disabilities facility

 

A)        Administrative and temporary admissions

            The facility director may discharge any recipient who is suitable for discharge.  (See Section 4-701(a) of the Code.)

 

B)        Conditional discharge

            The facility director may grant a conditional discharge to a recipient when conditional discharge is appropriate and consistent with the recipient's habilitation needs.  (See Section 4-702(a) of the Code.)

 

C)        Judicial admissions

            A recipient admitted to a facility upon court order for judicial admission may be discharged when the recipient no longer meets the standard for judicial admission, unless administrative admission is requested and the recipient is clinically suitable.  (See Sections 4-500 and 4-701(b) of the Code.)

 

D)        Transfers from Department of Corrections

The facility shall release to the Department of Corrections any recipient transferred to the Department from the Department of Corrections under the provisions of Sections 3-8-5, or 3-10-5 of the Unified Code of Corrections when the recipient no longer meets the standard for judicial admission, if he or she is 18 or older, or if the recipient is suitable for administrative admission to a developmental disability facility, if he or she is 17 or younger.  (See Sections 3-8-6 or 3-10-6 of the Unified Code of Corrections.)

 

i)          The committee's findings of fact, conclusions and recommendations

 

1)         Within three working days after the conclusion of the utilization review hearing, the committee shall submit to the facility director its written findings of fact, conclusions and recommendations.  The committee shall not consider or decide questions of law.

 

2)         Findings of fact, conclusions and recommendations shall be separately stated and so labeled.  Findings of fact shall be based exclusively on the evidence and on matters officially noticed.  The Department has the burden of proof in all utilization review hearings.

 

A)        Findings of fact

            To conclude that the Department has sustained its burden of proof, the committee must find that the Department has established the facts by substantial evidence.  Substantial evidence is such evidence as a reasonable person can accept as adequate to support a conclusion (i.e., consists of more than a scintilla of evidence but somewhat less than a preponderance).

 

B)        Conclusions and recommendations

 

i)          If the committee finds that the Department has established the facts by substantial evidence, it shall make its written conclusion that the decision was based on substantial evidence and shall recommend that the decision be upheld.

 

ii)         The committee shall recommend that the decision be overturned if it concludes that the Department has not sustained its burden of proof.

 

C)        Manner of service of the committee's recommendations

 

A copy of the committee's recommendations, with its factual findings and conclusions, shall be given to the recipient and objector at the time the recommendations are submitted to the facility director.  Service may be made either personally or by certified first class mail.

 

j)          Facility director decision

            The facility director shall review the committee hearing record to determine if the evidence supports the committee's findings of fact, conclusions and recommendations.  The facility director shall not consider or decide issues of law nor participate in reviewing the committee's recommendations in those instances in which the facility director made the original decision which was appealed.  In such circumstances, the facility director shall appoint a designee to review the committee's findings, conclusions and recommendations.

 

1)         Decision

            Within seven days, excluding Saturdays, Sundays and holidays, after receipt of the committee's recommendations, the facility director shall either accept or reject the recommendations and shall state the reasons for accepting or rejecting the recommendations.  The facility director shall provide a concise statement explaining the bases for his or her decision.

 

2)         Manner of service of notice

            The facility director shall give written notice using the "Notice of Facility Director's Decision" form, either by personal delivery or by certified first class mail, to the recipient and objector and their attorneys or representatives within the seven days specified in subsection (j)(1) of this Section.

 

3)         Right to review

 

A)        The facility director shall, in every case, advise the recipient and objector that if further review of his or her decision is desired, it may be obtained by requesting review by the Secretary, in writing to the facility director, within seven working days of receipt of the decision.

 

B)         If the facility director rejects the committee's recommendations or if the recipient or objector requests a review of the facility director's decision, the facility director shall forward a copy of his or her decision, the committees' recommendations and the hearing record to the Secretary, within two working days.

 

k)        Review by the Secretary

 

1)         How requested

            Whenever a recipient or objector requests that the Secretary review the facility director's decision, such request must be in writing, either to the facility director or the Secretary.  The person submitting the request must state the reasons he or she believes that the facility director's decision is incorrect.

 

2)         Time for request

            The person submitting the request for review must submit it within seven days after receipt of the facility director's decision.  If he or she does not submit a request for review within this period, the facility director's decision shall be deemed final and reviewable in accordance with the Administrative Review Law [735 ILCS 5/Art. III].

 

3)         Scope of the review

            The Secretary's review shall extend to all questions of law and of fact presented by the entire record of the utilization review hearing and the facility director's decision.  The Secretary shall not consider any additional evidence.  The committee's findings and conclusions on questions of fact shall be presumed to be true and correct.

 

4)         The Secretary's authority

            The Secretary shall, in reviewing any facility director's decision, have the authority, if he or she deems it necessary to reach a decision as to any question of fact or law based on the complete record:

 

A)        To dismiss a request for review as moot or not ready for adjudication;

 

B)        To approve or disapprove the facility director's decision in whole or in part;

 

C)        To reverse and remand the facility director's decision in whole or in part and, in such case, to state the questions requiring further hearing or proceedings and to give such other instructions as deemed proper;

 

D)        To remand the committee for the purpose of taking additional evidence when from the state of the record of the hearing, it shall appear that such is necessary to resolve the issues raised at the hearing.

 

5)         Manner of service of decision

            The Secretary's decision shall be served on the recipient and objector and their attorneys or representatives, either by personal delivery or by certified first class mail, addressed to the recipient and objector at his or her last known address no later than 30 days after the person has submitted the request for the review.

 

6)         Final administrative decision

            The Secretary's decision shall constitute the Department's final administrative decision and no application for rehearing will be entertained. The decision is then reviewable in accordance with the Administrative Review Law.

 

(Source:  Amended at 23 Ill. Reg. 10327, effective August 10, 1999)

 

Section 112.20  Admission, treatment and habilitation of mentally retarded persons

 

Mentally retarded persons shall be admitted to Department facilities in accordance with the following procedures.

 

a)         Admission

Persons shall be admitted to Department facilities based on an assessment of their current individual needs and not solely on the basis of inclusion in a particular diagnostic category, identification by a sub-average intelligence test score, or consideration of a past history of hospitalization or residential placement.

 

b)         Treatment and habilitation plans

Treatment and habilitation plans formulated for persons in Department facilities shall be governed by and conform to the Sections 3-209 and 4-309 of the Code.

 

c)         Classification

All diagnoses of retardation shall be defined according to the Diagnostic and Statistical Manual of Mental Disorders, Revised Third Edition (DSM-III-R) (American Psychiatric Association, 1987 with no later editions or amendments).

 

d)         Definitions

 

"Developmental disability facility."  A facility or section thereof licensed or operated by or under contract with the State or a political subdivision thereof and which admits persons with a developmental disability for residential or habilitation services (Section 1-107 of the Code).

 

"Mental health facility."  Any facility operated by the Department or any unit within such a facility which is used for the treatment of persons who are mentally ill as provided in Chapter 3 of the Code.

 

"Mental retardation."  Significantly subaverage intellectual functioning:  an intelligence quotient (IQ) of 70 or below on an individually administered IQ test; concurrent deficits or impairments in adaptive behavior, the person's age being taken into consideration; onset before the age of 18.  There are four subtypes based on IQ levels:  mild mental retardation (50-55 to 70), moderate mental retardation (35-40 to 50-55) severe mental retardation (20-25 to 35-40) and profound mental retardation (below 20 or 25).

 

"Qualified mental retardation professional (QMRP)" (42 CFR 483 et seq., 1988, with no later editions or amendments). Any of the following persons who have specialized training in the following areas or one year experience working with or treating the mentally retarded:

 

An educator with a degree in education from an accredited program.

 

A physical therapist licensed in accordance with Section 2 of the Illinois Physical Therapy Act [225 ILCS 90/2].

 

An occupational therapist licensed pursuant to Section 3 of the Illinois Occupational Therapy Practice Act [225 ILCS 75/3].

 

A physician licensed by the State of Illinois to practice medicine or osteopathy pursuant to Section 3 of the Medical Practice Act of 1987 [225 ILCS 60/3].

 

A licensed psychologist with a doctorate from an accredited program pursuant to Section 10 of the Clinical Psychologist Licensing Act [225 ILCS 15/10].

 

A registered nurse with a valid current Illinois registration to practice as a registered professional nurse pursuant to Section 4 of the Illinois Nursing Act of 1987 [225 ILCS 65/4].

 

A speech-language pathologist or audiologist licensed pursuant to Section 7 of the Illinois Speech-Language Pathology and Audiology Practice Act [225 ILCS 110/7].

 

A licensed social worker or a licensed clinical social worker with at least a master's degree pursuant to Section 9A of the Clinical Social Work and Social Work Practice Act [225 ILCS 20/9A].

 

A therapeutic recreation specialist who is a graduate of an accredited program and eligible for certification by the National Council for Therapeutic Recreation Certification.

 

A rehabilitation counselor who is certified by the Commission on Rehabilitation Counselor Certification.

 

e)         Severely or profoundly mentally retarded persons

 

1)         Any person admitted to a Department mental health facility with an admitting diagnosis of severe or profound mental retardation shall be transferred to a developmental disabilities facility or unit within 72 hours after admission unless transfer is contra-indicated by the person's medical condition documented by the evaluating physician.

 

2)         Any person who is diagnosed as severely or profoundly mentally retarded while in a Department mental health facility shall be transferred to a developmental disabilities facility or unit within 72 hours after such diagnosis unless the transfer is contra-indicated by the person's medical condition as documented by the evaluating physician.

 

f)         Mildly or moderately mentally retarded persons

 

1)         Any person admitted to a Department of mental health facility who may be mildly or moderately mentally retarded in the clinical judgment of facility staff, including those who are also mentally ill, shall be evaluated by a multi-disciplinary team which includes a qualified mental retardation professional as defined in subsection (d) of this Section.  The evaluation shall be consistent with Section 4-300(b) of the Code and shall include:

 

A)        A written assessment whether the person needs a habilitation plan consistent with Section 4-309 of the Code;

 

B)        A written habilitation plan if the written assessment determines that such plan is required, and

 

C)        A written determination whether the admitting facility is capable of providing the specified habilitation services.

 

2)         This evaluation shall occur within a reasonable period of time, but in no case shall exceed 14 days after admission.  In all events, a treatment plan shall be prepared for the person within three days after admission, and reviewed and updated every 30 days, consistent with Section 3-209 of the Code.

 

3)         A mentally retarded person shall not reside in a Department mental health facility unless the person is evaluated and is determined to be mentally ill and the facility director determines that appropriate treatment and habilitation are available and will be provided to such person at the facility.  In all such cases the mental health facility director shall certify in writing within 30 days of the completion of the evaluation and every 30 days thereafter, that the person has been appropriately evaluated, that services specified in the treatment and habilitation plans are being provided and that the setting in which services are being provided is appropriate to the person's needs.  The certifications shall be filed in the recipient's record.

 

4)         If the facility director determines that appropriate treatment and habilitation services are not available or that the setting in which services are provided are not appropriate to the recipient's needs, the facility director shall seek a placement for the recipient that is appropriate to his or her needs.  Transfers and discharges shall be carried out in accordance with Section 112.20.

 

g)        Utilization review

 

1)         A person residing in a Department mental health facility who is evaluated as being mildly or moderately mentally retarded, an attorney or advocate representing the person, or a guardian of such person may object to the facility director's certification required in subsection (f)(3) of this Section, the treatment and habilitation plans, or the appropriateness or setting and request a utilization review as provided in Sections 3-207 and 4-209 of the Code.

 

2)         Notice requirements

 

A)        After evaluation

Within 24 hours after an evaluation as required by subsection (f)(1) of this Section or the certification(s) as required by subsection (f)(3) of this Section, the mental health facility director shall give written notice to each person evaluated as being mildly or moderately retarded, or to each person certified, the person's attorney and guardian, if any, or in the case of a minor to his or her attorney, to the parent, guardian or person in loco parentis and to the minor if he or she is 12 years of age or older, of his or her right to request a utilization review of the facility director's determination that such person is appropriately placed or is receiving appropriate services.

 

B)        Notice contents

All notices given pursuant to this subsection shall provide the address and telephone number of the Chicago office of the Legal Advocacy Service of the Guardianship and Advocacy Commission and the instructions that the person or his or her guardian may contact that office for assistance. Facility staff shall notify the recipient or guardian that staff are available to assist in contacting the Legal Advocacy Service.  If the recipient's or guardian's primary language is not English, arrangements must be made to provide an adequate explanation in the person's primary language of the nature of the recipient's right to request review.  If a staff member is available who is fluent in the language required, he or she should be requested to explain the notice to the recipient or guardian.

 

3)         The utilization review committee

The utilization review committee shall be appointed in accordance with Section 112.10(f), with the exception that the committee shall include as one of its members a qualified mental retardation professional as defined in subsection (d) of this Section.  If all the qualified mental retardation professionals at the facility were involved in the decision on which the hearing will be held, the facility director shall request that the appropriate deputy director for facility operations assign a qualified mental retardation professional from another facility to the committee for that hearing.

 

4)         The utilization review hearing

            The utilization review hearing shall be conducted in accordance with Section 112.10(g).

 

5)         Standards

            The following standards shall be used by the committee in reaching its decision:

 

A)        Certification as mildly or moderately mentally retarded

            Whether there is substantial evidence to support the diagnosis of an individual as mildly or moderately mentally retarded.

 

B)        Receiving appropriate services

            Whether there is substantial evidence to support the conclusion that the person is receiving services that are called for in his or her treatment and habilitation plans, and that those services are appropriate and necessary in accordance with the person's treatment and habilitation goals and objectives.

 

C)        Appropriate setting

            Whether there is substantial evidence that the person is placed in a setting (unit or facility) that is appropriate to meet the person's treatment and habilitation needs, and that the individual's service needs can be met at the unit or facility.

 

6)         The committee's findings of facts, conclusions and recommendations.

            The committee's findings of facts, conclusions and recommendations shall be made in accordance with Section 112.10(i).

 

7)         The facility director's decision

            The facility director's decision shall be made in accordance with Section 112.10(j).

 

8)         Review by the Secretary

            Review of the facility director's decision by the Secretary shall be in accordance with Section 112.10(k).

 

9)         Final administrative decision

            The decision of the facility director or the decision of the Secretary shall be subject to review in accordance with the Administrative Review Law.

 

(Source:  Added at 13 Ill. Reg. 20344, effective December 19, 1989)

 

Section 112.30  Recipient physical and dental examinations and informed consent for services

 

To provide the highest possible quality of humane and rehabilitative care and treatment for all recipients in the care of the Department and to promote public health and safety, all recipients in Department facilities shall receive comprehensive physical and dental examinations.

 

a)         Physical examination

 

1)         Each person admitted to the Department in accordance with the Code [405 ILCS 5] shall have a thorough physical examination on admission and annually thereafter (see Section 1-119(2) of the Code). Persons with mental illness shall be examined within 24 hours in accordance with the Mental Health Standards (Joint Commission on Accreditation of Healthcare Organizations (JCAHO), One Renaissance Boulevard, Oakbrook Terrace, Illinois 60681, 1995) or the Accreditation Manual for Hospitals (Joint Commission on Accreditation of Healthcare Organizations (JCAHO), One Renaissance Boulevard, Oakbrook Terrace, Illinois  60681, 1996).  In accordance with 77 Ill. Adm. Code 350 (Intermediate Care for the Developmentally Disabled Facilities Code) (ICFDD), persons with developmental disabilities shall be examined within 72 hours.  This requirement may be waived in the judgment of the admitting physician only if such an examination was done within three days prior to admission and the results are received by the facility and are entered into the recipient's clinical record.

 

A)        The examination shall include an evaluation of the recipient's condition, including height, weight, blood pressure and vital signs, diagnoses, plan of medical treatment, recommendations for care, including personal care needs, treatment orders, permission for participation in activity programs, as appropriate, and any other examinations that are required by the accrediting agencies cited in subsection (a)(1) of this Section, as well as the Standards for Services for People with Developmental Disabilities (Accreditation Council for Services for People with Developmental Disabilities (Council) 8100 Professional Place, Suite 204, Landover, Maryland 20785, 1990).  The examination shall also include a visual check of the oral cavity, including lips, teeth, gums and tongue.  Referral to a dental hygienist or dentist shall be completed if clinically indicated.  Plans of medical treatment, recommendations for care and treatment orders shall be recorded in the recipient's individualized services plan as defined in Sections 3-209 and 4-309 of the Code.

 

B)        The presence or absence of communicable or infectious diseases shall be noted by the examining physician with recommendations given for curing or controlling the disease, as applicable.  Communicable or infectious diseases shall be reported in accordance with Department of Public Health rules:  

 

i)          77 Ill. Adm. Code 690 (Control of Communicable Diseases Code);

 

ii)         77 Ill. Adm. Code 693 (Control of Sexually Transmissible Diseases Code); and

 

iii)        77 Ill. Adm. Code 697 (AIDS Confidentiality and Testing Code).

 

2)         An electrocardiogram (EKG) shall be provided within three days after admission, excluding Saturdays, Sundays, and holidays, for any recipient age 40 or over, except that an admission EKG need not be repeated on readmission if one was provided within the previous  12 months during a prior admission, unless otherwise clinically indicated by the examining physician.

 

3)         A Papanicolaou (Pap) smear uterine cytologic examination for cancer shall be offered to all female recipients admitted or readmitted to a Department facility who are 20 years of age and over, or under 20 years of age if sexually active, unless the examining physician considers the examination contraindicated, the examination has been performed within the previous year and the results were normal, or the examination is refused by the recipient on the counsel of the examining physician or on her own judgment.  Results of tests performed outside the facility shall be obtained and entered into the recipient's clinical record.  A Pap smear uterine cytologic examination shall be offered and recommended annually. The examining physician shall document in the recipient's clinical record the results of the Pap smear, whether or not the test was contraindicated, or that the recipient refused the examination.

 

4)         In the event that the recipient's psychiatric, behavioral, or medical condition is such that the physical examination as described in subsection (a)(1)(A) of this Section cannot be completed within the times stated in subsection (a)(1) of this Section, the examining physician may extend the time frame until the recipient's condition has improved to allow the completion of the examination.  Every 72 hours the examining physician shall record in the recipient's clinical record the condition preventing a complete physical examination and the continuation of the recipient's condition until the physical examination has been completed.  If the recipient's physical examination is delayed in excess of 30 days, such delay shall require notice from the examining physician to the facility director, and a special conference of the treatment team to identify a course of action designed to protect the recipient from inappropriate treatment based on inadequate information.

 

b)         Dental examination

 

1)         Persons with developmental disabilities shall have a comprehensive diagnostic dental examination, including extra- and intra-oral examinations within 30 calendar days after admission, unless the admitting physician waives this requirement.  The admitting physician shall record the reason for the waiver in the recipient's clinical record.

 

A)        The examination report shall include an evaluation of the recipient's dental condition, diagnoses, plan of treatment, recommendations for oral health care and dental hygiene, and treatment orders.

 

B)        The physician may extend the time for conduct of the dental examination; however, the physician must record the reason for the extension in the recipient's clinical record.  If the recipient's dental examination is delayed in excess of 30 days, such delay shall require notice from the examining physician to the facility director, and a special conference of the treatment team to identify a course of action designed to protect the recipient from inappropriate treatment based on inadequate information.

 

2)         Persons with mental illness shall have a comprehensive diagnostic dental examination, including extra- and intra-oral examinations, within six months after admission.  If the recipient's condition is such that a dental examination is necessary less than six months after admission, a referral to a dentist or dental hygienist shall be made.

 

c)         Schedule for examinations and treatment plan

 

1)         Physical examinations shall be repeated annually.  In accordance with Section 7 of the Mental Health and Developmental Disabilities Administrative Act [20 ILCS 1705/7], dental examinations shall be repeated every 18 months for recipients with mental illness while residing in Department facilities.  In accordance with the Standards for Services for People with Developmental Disabilities (Accreditation Council for Services for People with Developmental Disabilities, 8100 Professional Place, Suite 204, Landover, Maryland 20785, 1990,) dental examinations shall be repeated annually for recipients with developmental disabilities while residing in Department facilities.  These examinations shall be performed by a licensed dentist or a registered hygienist and shall be independent of periodic reviews such as the use of medications, blood levels of drugs and gingivitis checks.

 

2)         If a recipient has been in the facility or is transferred from another facility, the receiving facility shall perform comprehensive diagnostic examinations if the individualized services plan does not provide a treatment plan for medical and dental services for the recipient.

 

3)         On completion of the comprehensive diagnostic examinations, a treatment plan for any medical and dental services shall be established as part of the recipient's individualized services plan.

 

A)        Such a plan will include procedures to address the special dental care needs of recipients who receive medication known to promote tooth decay or gum disease.

 

B)        Such a plan will include a procedure to address the prevention and treatment of tardive dyskenesia.

 

d)         Informed consent

            Informed consent is defined as permission for a procedure freely granted by a person or persons authorized by law to give consent to services and treatment plans, i.e., the recipient, guardian (if the recipient is under guardianship) or parent (if the recipient is under age 18).  Informed consent is based on the full disclosure to the authorized person of the information required to make the decision intelligently, including a description of the procedure, the possible benefits and the risks and the alternative(s) to the procedure.

 

1)         For the purposes of this Section, the person(s) authorized to give consent shall be informed of the treatment plan for medical and dental services, and shall be provided with the information necessary to give informed consent.  The documented agreement to the individualized services plan will obviate the need for specific agreement to the treatment plan for medical and dental services.

 

2)         The person(s) authorized to give consent shall be informed of the method whereby he or she can exercise the right to refuse medical and dental services.

 

3)         For services listed below, the person(s) authorized to give consent shall be informed that if an objection is not received prior to performance of services, consent shall be implied for the treatment plan:

 

A)        Dental - preventive procedures (such as prophylaxis, topical fluoride, periodontal scaling, and gingival curettage,) and restorative procedures (such as, fillings and local anesthesia).

 

B)        Medical - non-psychotropic medication, endoscopy not involving anesthesia, exercise regimens and sutures.

 

4)         A written consent, signed by the person authorized to give consent, shall be required for all other procedures, including general anesthesia, surgery (both medical and dental) and radiation therapy.  The written consent shall be specific to the procedure or course of therapy to be used and shall only apply to a particular procedure performed at a particular time or to a course of therapy of which the procedure is a part.  An additional consent shall be obtained for each subsequent procedure.  A consent authorizing a specific Department staff person to perform a procedure is specific to that staff person.

 

5)         If consent is denied by the person authorized to consent, medical or dental procedures shall not be provided except pursuant to subsection (d)(6) of this Section.  Such refusal shall be documented in the recipient's clinical record.

 

6)         In accordance with Section 2-111 of the Code, when a medical or dental emergency exists, if the physician or licensed dentist who examines the recipient determines that the recipient is not capable of giving informed consent, essential medical or dental procedures may be provided without consent.  No physician nor licensed dentist shall be liable for a non-negligent good faith determination that a medical or dental emergency exists.  The nature of the emergency shall be documented in the recipient's clinical record and notice shall be given to the recipient, the legal guardian or parent(s).

 

e)         Communicating examination findings

            Significant or negative examination findings obtained from the recipient's physical examination results of laboratory tests as they become known shall be communicated to the recipient or, if the recipient is under guardianship, to the recipient's guardian, or, if the recipient is a minor to the recipient's parent or guardian.  The fact that such findings were communicated to the recipient, parent or guardian shall be documented in the recipient's clinical record.

 

(Source:  Amended at 21 Ill. Reg. 2210, effective February 1, 1997)

 

 

Section 112.40  Release and burial of deceased recipients

 

a)         Burial of recipients in facility cemeteries and bodies removed from the facility require the services of a licensed funeral director. All records pertaining to the recipient's death must be completed as outlined in Section 18 of the Vital Records Act [410 ILCS 535/18].

 

b)         Facility directors shall make every effort to have relatives, friends, conservators, or interested organizations assume charge of and the expense of burying bodies.  Assets of the recipient or burial allowances to which he is entitled shall be used to the extent that they are available within limitations set forth in the Department's rule at 59 Ill. Adm. Code Section 110.20.  If the family of a recipient requests burial of the recipient in a cemetery plot owned by or available to the recipient or his family, the facility may grant such request and pay all or part of the funeral expense, if the cost cannot be borne by the family or from the recipient's assets.  The amounts paid by the facility in such cases shall not exceed the rate paid for State burials by that facility.  The Department may accept partial payment of the cost of burials made at State expense from relatives or conservators of recipients who are unable to bear the total cost.

 

c)         Recipients buried in facility cemeteries shall receive their last rites in keeping with their religious faith. The medical record librarian shall maintain an accurate record of all bodies placed in the facility cemeteries. All graves shall be plainly marked with number or name and number, and the cemeteries shall be kept in a tidy, presentable condition.

 

d)         Unclaimed bodies required to be buried at State expense may be turned over to the Demonstrators Association as joint representative of the Illinois medical schools.  Before the body is taken by this organization, an appropriate funeral service shall be held.  The Demonstrators Association shall bear all expenses of removing and shipping such bodies.  The clause on the death certificate in all such cases shall read "Surrendered to the Illinois Demonstrators Association" in lieu of place of burial.

 

(Source:  Effective October 1, 1969)

 

Section 112.50  Tuberculosis control program (Repealed)

 

(Source:  Repealed at 10 Ill. Reg. 11894, effective July 1, 1986.)

 

Section 112.70  Protection of human subjects

 

a)         The purpose of this Section is to safeguard the rights and welfare of human subjects participating in research, development, demonstration, clinical trials or other such activities.

 

b)         Persons who conduct any activity which may place a human subject at risk must adhere to the Departmental Guidelines on the Protection of Human Subjects, under any or all of the following conditions:

 

1)         The activity is conducted by a Department employee;

 

2)         The activity involves the participation of Department service recipients or personnel as subjects, regardless of the person conducting it; or

 

3)         The activity takes place in a Department facility, regardless of the person conducting it or the subjects participating.

 

(Source:  Effective October 15, 1973)

 

Section 112.80  Use of Narcotics and Psychotropic Medications in Department Facilities

 

a)         In accordance with Section 5.1 of the Mental Health and Developmental Disabilities Administrative Act [20 ILCS 1705/5.1], a listing of medication with maximum dosages shall be issued yearly by the Mental Health and Developmental Disabilities Services Pharmacy and Therapeutics Committee.  This list of narcotics and psychotropic medications shall represent the official listing of such medications authorized for use in Department facilities.

 

1)         For the purposes of this Section, "psychotropic medications" refers to medications:

 

A)        used for antipsychotic, antidepressant, antimanic and/or antianxiety purposes as listed in the American Hospital Formulary Service (AHFS) Drug Information Manual (American Society of Health-System Pharmacists, 7272 Wisconsin Avenue, Bethesda, Maryland 20814 (2000) (AGENCY NOTE:  this document is published annually and updated quarterly)); the Physician's Desk Reference  (PDR) (Medical Economics Company, Five Paragon Drive, Montvale, NJ 07645-1742 (2000) (AGENCY NOTE:  this document is published annually)); and the Drug Facts and Comparisons (Facts and Comparisons, 111 West Port Plaza, Suite 300, St. Louis, Missouri 63146-3098) (2001) (AGENCY NOTE:  this document is published annually and updated monthly)); or

 

B)        where there is a body of peer reviewed medical literature supporting its use.

 

2)         "Narcotics" refers to those medications listed as narcotics in the references in subsection (a)(1)(A).

 

b)         The Department shall establish a Pharmacy and Therapeutics Committee under the auspices of Mental Health and Developmental Disabilities Services, which shall serve as the vehicle for compliance with 20 ILCS 1705/5.1 as it relates to the establishment of medications that may be utilized within Departmental institutions.  The Pharmacy and Therapeutics Committee shall consist of the Administrator of Mental Health and Developmental Disabilities Services, the Chief of Clinical Services for the Office of Mental Health, the Clinical Director for the Office of Developmental Disabilities, the Nursing Coordinator for the Office of Mental Health, the Nursing Coordinator for the Office of Developmental Disabilities, a facility medical director from the Office of Mental Health, a facility medical director from the Office of Developmental Disabilities, the Deputy Director of Pharmacy Services, and the Manager of the Bureau of Pharmacy and Clinical Support Services.  The Chairperson of the Pharmacy and Therapeutics Committee shall be the Manager of the Bureau of Pharmacy and Clinical Support Services or his/her designee.  The Chairperson shall appoint, as necessary, additional members representing a broad scope of disciplines.  The Pharmacy and Therapeutics Committee shall review, at least annually, all medications within the pharmaceutical classes appearing on the Central Formulary, relative to their clinical efficacy and safety for either retention or removal from usage within the Department.  The Chairperson may incorporate recommended changes to the Department's Central Formulary based upon his/her professional judgment.  The Chairperson may, based on his/her professional judgment, order the immediate discontinuation of the use of a medication within the Department's State-operated facilities if it is withdrawn from marketing in the United States or when the U.S. Food and Drug Administration rescinds its approval for marketing in the United States, or when the Pharmacy and Therapeutics Committee recommends discontinuation based on information from Department experience with the medication, or from the medical literature, that the medication lacks clinical efficacy or is unsafe.

 

c)         The official departmental listing of medication that contains those medications utilized as narcotics and psychotropic medications is the Department's Central Formulary. It shall be updated at least annually and forwarded to each State-operated facility.  An additional listing shall be supplied to each State-operated facility that will contain, for each listed psychotropic and narcotic, the Department's maximum daily dose and other criteria relative to safe, effective pharmacotherapies.

 

d)         Medications not appearing in the Department's Central Formulary that are newly approved for marketing and labeled for psychotropic indications by the U.S. Food and Drug Administration within the previous 12 months shall be prescribed only on the written interim authorization of the Chairperson of the Department's Pharmacy and Therapeutics Committee.   The use of any such medication shall be requested by submission of Form IL 462-0705, Formulary Addition Request Form 705. At its next scheduled meeting, the Department's Pharmacy and Therapeutics Committee shall review the medication and shall approve or disapprove the use of the medication in Department facilities on the basis of available scientific information.  Written notice of the Committee's decision will be given to facility directors, facility medical directors and facility pharmacy directors.

 

e)         Medications not appearing in the Department's Central Formulary that are approved for marketing by the U.S. Food and Drug Administration, but are not labeled by the U.S. Food and Drug Administration for psychotropic indications, whose use for psychotropic indications is listed in the professional references identified in subsection (a), shall be prescribed only on the written interim authorization of the Department's Chairperson of the Pharmacy and Therapeutics  Committee based upon the submission of Form IL 462-0705A, Non-Formulary Request Form 705A . The Pharmacy and Therapeutics Committee shall review the medication at its next scheduled meeting for permanent approval or removal on the basis of available scientific information and shall give written notice to facility directors, facility medical directors and facility pharmacy directors of its decision.

 

f)         Medications appearing in the Department's Central Formulary that are approved for marketing by the U.S. Food and Drug Administration, but are neither labeled for psychotropic indications by the U.S. Food and Drug Administration nor listed as having psychotropic indications in the professional references identified in subsection (a), for which there is medical literature supporting  their use for psychotropic indications, may be prescribed by the attending physician for up to three calendar days.  The attending physician shall document the reason for such use in the recipient's medical record and shall notify the facility's medical director of the use no later than the next working day after administration of the medication.  If the medication is to be utilized for more than three calendar days, authorization shall be obtained from the facility's medical director who is responsible for applying to the Chairperson of the Pharmacy and Therapeutics Committee for authorization. The facility medical director may authorize continuation of the use of the medication for up to seven calendar days beyond the initial three-day period (total of 10 calendar days), at which point medication must be discontinued without the authorization. The written response of the Chairperson of the Pharmacy and Therapeutics Committee, or his /her designee, shall be filed in the recipient's medical record together with a copy of the medical director's application.

 

g)         Use of any medication not authorized pursuant to subsections (a) through (f) for psychotropic purposes is prohibited, unless its use has been approved for research in writing by the Chairperson of the Mental Health and Developmental Disabilities Services Pharmacy and Therapeutics Committee, based upon the Committee's review and authorization of the research.

 

h)         Based upon peer-reviewed professional literature and clinical evaluations of facility Formulary Addition Request Forms, the Pharmacy and Therapeutics Committee shall develop and maintain the Department's official formulary of medication that may be used within Department in-patient facilities.

 

(Source:  Amended at 25 Ill. Reg. 10834, effective August 2, 2001)

 

Section 112.90  Administration of Psychotropic Medications and ECT

 

This Section addresses the use of psychotropic medications or electroconvulsive therapy (ECT) in the treatment of patients receiving services within Department programs.

 

Definitions

 

            "Authorized involuntary treatment" means psychotropic medication or electroconvulsive therapy, including those tests and related procedures that are essential for the safe and effective administration of the treatment. [405 ILCS 5/1-121.5]

 

            "Capable" means the ability of the recipient to make reasoned decisions regarding treatment/habilitation alternatives.

 

            "Code" means the Mental Health and Developmental Disabilities Code [405 ILCS 5].

 

            "Electroconvulsive therapy (ECT)" means the use of electrical stimulation, for therapeutic ends, to induce a generalized seizure.

 

            "Guardianship" refers to the legal relationship between an adult recipient or ward and a court appointed guardian, including a public guardian such as the Office of State Guardian.  Illinois guardians may make legally binding decisions on behalf of wards in personal or financial affairs, or both.  For the purposes of this Part, the guardian must have court authority to make personal decisions for the ward.  Guardians with personal decision-making authority will typically act under a plenary guardianship.  A plenary guardian is one who has full decision-making authority over the person without restrictions. However, a guardian may also legitimately act under a temporary or a limited guardianship in which the guardian has clearly defined medical decision-making authority.  A parent of an adult recipient without guardianship is not legally authorized to make binding decisions on behalf of a recipient. When doubt exists as to the decision-making authority of a guardian, the guardian shall supply either letters of office or a copy of a court order documenting legal authority  to act on behalf of the ward.

 

            "Informed consent" means the voluntary and knowing choice by a recipient or his/her legal guardian.

 

            "Lack of capacity" means the inability, due to mental impairment, to make reasoned decisions regarding treatment/habilitation alternatives, including the taking of medication, by evaluating, among other factors, information about the likelihood of therapeutic benefits and the risk of side effects.

 

            "Legally and clinically competent recipient" means an individual who is not under guardianship and has the capacity to make reasoned decisions and give informed consent.

 

            "Legally and clinically incompetent recipient" means an individual under guardianship or who lacks the capacity to make reasoned decisions and give informed consent.

 

            "Long-acting psychotropic medication" means psychotropic medications, including but not limited to Haldol Decanoate and Prolixin Decanoate, that are designed so that a single dose will have an intended clinical effect for a period of at least 48 hours. [405 ILCS 5/1-113.5]

 

            "Medical Coordinator" means the Medical Coordinator for Mental Health (if the recipient resides in a mental health facility) or the Medical Coordinator for Developmental Disabilities (if the recipient resides in a developmental disabilities facility).

 

            "Medication", as used in this Section, means psychotropic medication.

 

            "Psychotropic medication" means medication used for antipsychotic, antidepressant, antimanic, antianxiety, behavioral modification or behavioral management purposes, as listed in the Physician's Desk Reference (PDR), Drug Information Manual and Drug Facts and Comparisons, as incorporated by Section 112.80(a), or where there is a body of peer reviewed medical literature supporting its use.

 

            "Substitute decision maker" means a person who possesses the authority to make decisions under the Powers of Attorney for Health Care Law [755 ILCS 45/Art. IV] or under the Mental Health Treatment Preference Declaration Act [755 ILCS 43].  [405 ILCS 5/1-110.5]

 

            Procedures

 

a)         Evaluation

 

1)         No psychotropic medication or electroconvulsive therapy (ECT) shall be prescribed for a recipient unless examinations have been conducted in accordance with Section 112.30.  The prescribing physician shall conduct the examinations personally, or shall review the record of the examinations.  The prescribing physician shall record, sign, and date (with time) the prescription. The prescribing physician shall also document in the recipient's clinical record any appropriate clinical information.

 

2)         With regard to psychotropic medication on an emergency basis, the requirements of subsection (a)(1) need not be met when the prescribing physician has determined by personal observation or from information supplied by another clinician with thorough knowledge of the recipient's current clinical condition that the recipient is in need of immediate medication in order to prevent the recipient from causing serious and imminent physical harm to self or others.

 

b)         Informed Consent

            Prior to prescribing psychotropic medications or ECT in non-emergency situations, a physician shall ascertain and document whether the recipient is capable of giving informed consent.

 

1)         Legally and Clinically Competent Recipients

 

A)        If the recipient is able to give informed consent, the physician shall advise the recipient, in writing, of the following:

 

i)          nature and purpose of the proposed treatment;

 

ii)         whether the proposed treatment requires periodic testing/procedures to ensure safety/efficacy;

 

iii)        side effects, risks and benefits of the proposed treatment;

 

iv)        prognosis and risks without the proposed treatment;

 

v)         alternative treatments and their risks, side effects, benefits and efficacy; and

 

vi)        the right to refuse the proposed treatment.

 

B)        The required information shall be given to the recipient in a manner consistent with his/her ability to understand, including regular use of sign language for any deaf or hard of hearing individual for whom sign language is a primary mode of communication.

 

C)        Informed written consent shall be obtained from the recipient.

 

D)        If the recipient has previously executed a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act or a health care power of attorney under the Power of Attorney for Health Care Law, the facility is required to act in accordance with that declaration or power of attorney.

 

2)         Legally and Clinically Incompetent Recipients

 

A)        Prior to prescribing psychotropic medications or ECT in non-emergency situations, a physician shall advise the recipient and the recipient's guardian or substitute decision maker, in writing, of the following:

 

i)          nature and purpose of the proposed treatment;

 

ii)         whether the proposed treatment requires periodic testing/procedures to ensure safety/efficacy;

 

iii)        side effects and risks of the proposed treatment;

 

iv)        prognosis and risks without the proposed treatment;

 

v)         alternative treatments and their risks, side effects, benefits and efficacy; and

 

vi)        the right to refuse the proposed treatment.

 

B)        The required information shall be given to the recipient and the recipient's guardian or substitute decision maker in a manner consistent with his/her ability to understand, including regular use of sign language for any deaf or hard of hearing individual for whom sign language is a primary mode of communication.

 

C)        The recipient shall be asked if he/she agrees to receive the proposed treatment.  If the recipient does not object, informed written consent shall be obtained from the recipient's guardian or substitute decision maker and shall be documented in the recipient's medical record.  If the recipient has no guardian or substitute decision maker or if the guardian or substitute decision maker does not provide such informed written consent, any treatment must proceed in accordance with subsection (c) (Refusal of Treatment).

 

D)        If the recipient objects to the proposed treatment, any treatment must proceed in accordance with subsection (c) (Refusal of Treatment).

 

E)        If the recipient has previously executed a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act or a health care power of attorney under the Power of Attorney for Health Care Law, the facility is required to act in accordance with that declaration or power of attorney.

 

c)         Refusal of Treatment

            A recipient's refusal to receive psychotropic medication or ECT does not in itself constitute an emergency.  Such refusal, as documented in the clinical record, shall be honored except in the following circumstances:

 

1)         Emergencies

            In an emergency, when treatment is necessary to prevent a recipient from causing serious and imminent physical harm to self or others.

 

A)        In such an emergency, a member of the treatment/habilitation team shall document in the recipient's clinical record that the staff have explored alternative treatment options to contain the emergency.  The documentation shall include a written explanation of the reasons why alternative treatments are not appropriate.

 

B)        For administration of psychotropic medications the prescribing physician or a nurse in consultation with a physician shall document his/her determination that an emergency exists based on a personal examination of the individual.  Administration of the medication shall be accompanied by a physician's order.

 

C)        In prescribing psychotropic medications on an emergency basis the prescribing physician shall examine the recipient and document his/her determination of the initial emergency and response, including the circumstances leading up to the need for emergency treatment, in the recipient's clinical record as soon as possible, but within 24 hours. Psychotropic medication may not be continued unless the need for such medication is redetermined at least every 24 hours and the circumstances demonstrating that need are set forth in the recipient's clinical record.  A redetermination is based on a personal examination of the recipient by a physician or a nurse with the consultation of a physician.

 

D)        Treatment shall not be administered over a recipient's refusal under Section 2-107 of the Mental Health and Developmental Disabilities Code for a period in excess of 72 hours, excluding Saturdays, Sundays and holidays, unless the treating physician with the support of the treatment/habilitation team files a petition for a court order under Section 2-107.1 of the Code and the treatment continues to be necessary in order to prevent the recipient from causing serious and imminent physical harm to self or others.  If no such petition is filed, treatment must be discontinued.

 

E)        A restriction of rights form shall be completed for each administration of emergency treatment.

 

F)         ECT may be administered over a patient's refusal only with a court order and prior written physician's order or in emergency situations as defined in Section 2-107 of the Code.

 

G)        Upon commencement of services, or as soon thereafter as the condition of the recipient permits, the facility shall advise the recipient as to the circumstances under which the use of emergency forced medication is permitted under Section 2-107(a) of the Mental Health and Developmental Disabilities Code [405 ILCS 5/2-200(d)].

 

            Concurrently, the facility shall ask the recipient which form of intervention he/she would prefer if any of these circumstances arise.  The recipient's preference shall be documented in the clinical record and communicated by the facility to the recipient's guardian or substitute decision maker, if any.  If any such circumstances arise, the facility shall give due consideration to the preferences of the recipient regarding which form of intervention to use as communicated to the facility by the recipient or as stated in the recipient's advance directive.

 

H)        Under no circumstances may long-acting psychotropic medications be administered under Section 2-107 of the Code.

 

I)         Under no circumstances may ECT be administered to a minor recipient without a court order.

 

2)         Administration of Treatment on Court Order

 

A)        If the treating physician, with the support of the treatment/habilitation team, determines that psychotropic medication or ECT is clinically indicated for a recipient who does not at the time pose an imminent risk of serious physical harm to self or others, and the situation described in subsections (b)(2)(c) or (b)(2)(D) of this Part applies, the facility may file a petition in the circuit court under Section 2-107.1 of the Code for court-ordered treatment.

 

B)        If the treating physician, with the support of the treatment/habilitation team, files a petition under Section 2-107.1 of the Code, a physician shall examine the recipient and address the following issues for the court:

 

i)          whether the recipient has a serious mental illness or developmental disability;

 

ii)         whether, because of the mental illness or  developmental disability, the recipient exhibits any one the following: deterioration of his/her ability to function, suffering, or threatening behavior;

 

iii)        whether the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in subsection (c)(2)(B)(ii) or the repeated episodic occurrence of such symptoms;

 

iv)        whether the predicted benefits of the treatment will outweigh any possible harm;

 

v)         whether the recipient lacks the capacity to make a reasoned decision about the treatment;

 

vi)        whether other less restrictive treatment methods have been explored and found to be inappropriate;

 

vii)       the specific treatments proposed, including dosage range and/or frequency of administration, as applicable; and

 

viii)      if the petition seeks authorization for testing and other procedures, the physician shall include a statement that such testing and procedures are essential for the safe and effective administration of the treatment.

 

C)        If the court grants the petition for involuntary treatment pursuant to Section 2-107.1 of the Code, the recipient may be administered treatment over his/her refusal (or the guardian's or substitute decision maker's refusal if the recipient was legally incompetent but did not object) within the constraints and for the duration of the court order.

 

d)         Monitoring of Treatment

 

1)         Documentation

 

A)        The attending physician shall examine and document the status of the recipient's condition in the recipient's clinical record as often as the recipient's clinical condition warrants but no less often than every 30 calendar days.  Documentation of the rationale for treatment, including type, dosage or frequency of the proposed treatment as applicable, shall be included. Beneficial effects and significant side effects as well as their treatment and/or management or the absence of treatment and/or management shall also be noted.

 

B)        Facility staff shall document in the recipient's clinical record additional clinical information such as assessments, evaluations or laboratory results as they become available.

 

2)         Treatment Review

 

A)        When a recipient at a State-operated mental health facility has been receiving psychotropic medications and/or ECT continuously or regularly for a period of three months, and if such treatment is continued, every six months thereafter for so long as the treatment shall continue, the facility medical director, or  other physician designated by the facility director, shall convene a treatment review panel.

 

B)        The panel shall consist of representatives from at least two of the following clinical disciplines: psychiatry, medicine, clinical pharmacy and nursing.  At least one panel member shall be a physician with expertise in the use of psychotropic medication (for example, psychiatrist or behavioral neurologist).

 

C)        At least 7 days prior to the date of the treatment review panel meeting, the recipient, guardian or substitute decision maker, if any, and any person designated under Section 2-200(b) of the Mental Health and Developmental Disabilities Code shall be given written notification of the time and place of the treatment review panel meeting.  The notice shall also advise the recipient of his/her right to designate some person to attend the meeting and assist the recipient in accordance with Section 2-107.2 of the Mental Health and Developmental Disabilities Code.

 

D)        The panel shall provide a recommendation concerning the suitability of continued treatment.

 

E)        If, during the course of the treatment review panel meeting, the recipient advises the committee that he/she no longer agrees to continue receiving medication or ECT, or if the recipient has a guardian or substitute decision maker and the guardian or substitute decision maker refuses medication or ECT for the recipient, the treatment shall be discontinued, except when the recipient is receiving treatment pursuant to subsections (c)(1) and (c)(2) of this Section.

 

i)          If the panel determines that the recipient is receiving appropriate treatment and that the benefit to the recipient outweighs the risk of harm to the recipient, treatment shall be continued, provided that the recipient does not object (and the guardian or substitute decision maker, if any, does not refuse).  (See Section 2-107.2 of the Code.)

 

ii)         If the findings of the treatment review panel are not in agreement with the current treatment plan, revision shall be considered by the treatment/habilitation team.

 

iii)        If there is disagreement on the implementation of the panel recommendations, the facility medical director or lead physician (designated by the facility director) shall review the case and make a final decision.  The facility medical director (or lead physician) may consult with the appropriate Medical Coordinator in making a final determination.

 

F)         The participation of the recipient and guardian or substitute decision maker if any, and the recommendations of the treatment review panel shall be recorded in the recipient's clinical record.

 

3)         Annual ECT Report

            The Department of Human Services shall summarize on an annual basis all quarterly reports (prepared in accordance with Section 2-110.1 of the Mental Health and Developmental Disabilities Code) from State-operated hospitals or facilities at which ECT is performed.

 

(Source:  Amended at 25 Ill. Reg. 10834, effective August 2, 2001)