HB5659 101ST GENERAL ASSEMBLY

LRB101 17646 SPS 67073 b

101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB5659

Introduced , by Rep. Lawrence Walsh, Jr.

SYNOPSIS AS INTRODUCED:

225 ILCS 85/30	from Ch. 111, par. 4150
225 ILCS 85/35.22 new

Amends the Pharmacy Practice Act. Provides that the Department of Financial and Professional Regulation may refuse to issue or renew a license, may revoke a license, or may suspend, place on probation, fine, or take any disciplinary or non-disciplinary action against a license subject to the approval of the Disciplinary Review Board (rather than as the Department may deem proper). Creates the Disciplinary Review Board to approve findings and actions taken by the Department in regard to disciplinary matters under the Act. Provides that the Department may not deny an application for licensure or take any other disciplinary or non-disciplinary action against a license without approval from the Disciplinary Review Board. Effective immediately.

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Pharmacy Practice Act is amended by changing Section 30 and by adding Section 35.22 as follows:

(225 ILCS 85/30) (from Ch. 111, par. 4150)

(Section scheduled to be repealed on January 1, 2023)

Sec. 30. Refusal, revocation, suspension, or other discipline.

(a) The Department may refuse to issue or renew, or may revoke a license, or may suspend, place on probation, fine, or take any disciplinary or non-disciplinary action, subject to the approval of the Disciplinary Review Board as the Department may deem proper, including fines not to exceed $10,000 for each violation, with regard to any licensee for any one or combination of the following causes:

1. Material misstatement in furnishing information to the Department.

2. Violations of this Act, or the rules promulgated hereunder.

3. Making any misrepresentation for the purpose of obtaining licenses.

4. A pattern of conduct which demonstrates incompetence or unfitness to practice.

5. Aiding or assisting another person in violating any provision of this Act or rules.

6. Failing, within 60 days, to respond to a written request made by the Department for information.

7. Engaging in unprofessional, dishonorable, or unethical conduct of a character likely to deceive, defraud or harm the public.

8. Adverse action taken by another state or jurisdiction against a license or other authorization to practice as a pharmacy, pharmacist, registered certified pharmacy technician, or registered pharmacy technician that is the same or substantially equivalent to those set forth in this Section, a certified copy of the record of the action taken by the other state or jurisdiction being prima facie evidence thereof.

9. Directly or indirectly giving to or receiving from any person, firm, corporation, partnership, or association any fee, commission, rebate or other form of compensation for any professional services not actually or personally rendered. Nothing in this item 9 affects any bona fide independent contractor or employment arrangements among health care professionals, health facilities, health care providers, or other entities, except as otherwise prohibited by law. Any employment arrangements may include provisions for compensation, health insurance, pension, or other employment benefits for the provision of services within the scope of the licensee's practice under this Act. Nothing in this item 9 shall be construed to require an employment arrangement to receive professional fees for services rendered.

10. A finding by the Department that the licensee, after having his license placed on probationary status has violated the terms of probation.

11. Selling or engaging in the sale of drug samples provided at no cost by drug manufacturers.

12. Physical illness, including but not limited to, deterioration through the aging process, or loss of motor skill which results in the inability to practice the profession with reasonable judgment, skill or safety.

13. A finding that licensure or registration has been applied for or obtained by fraudulent means.

14. Conviction by plea of guilty or nolo contendere, finding of guilt, jury verdict, or entry of judgment or sentencing, including, but not limited to, convictions, preceding sentences of supervision, conditional discharge, or first offender probation, under the laws of any jurisdiction of the United States that is (i) a felony or (ii) a misdemeanor, an essential element of which is dishonesty, or that is directly related to the practice of pharmacy.

15. Habitual or excessive use or addiction to alcohol, narcotics, stimulants or any other chemical agent or drug which results in the inability to practice with reasonable judgment, skill or safety.

16. Willfully making or filing false records or reports in the practice of pharmacy, including, but not limited to false records to support claims against the medical assistance program of the Department of Healthcare and Family Services (formerly Department of Public Aid) under the Public Aid Code.

17. Gross and willful overcharging for professional services including filing false statements for collection of fees for which services are not rendered, including, but not limited to, filing false statements for collection of monies for services not rendered from the medical assistance program of the Department of Healthcare and Family Services (formerly Department of Public Aid) under the Public Aid Code.

18. Dispensing prescription drugs without receiving a written or oral prescription in violation of law.

19. Upon a finding of a substantial discrepancy in a Department audit of a prescription drug, including controlled substances, as that term is defined in this Act or in the Illinois Controlled Substances Act.

20. Physical or mental illness or any other impairment or disability, including, without limitation: (A) deterioration through the aging process or loss of motor skills that results in the inability to practice with reasonable judgment, skill or safety; or (B) mental incompetence, as declared by a court of competent jurisdiction.

21. Violation of the Health Care Worker Self-Referral Act.

22. Failing to sell or dispense any drug, medicine, or poison in good faith. "Good faith", for the purposes of this Section, has the meaning ascribed to it in subsection (u) of Section 102 of the Illinois Controlled Substances Act. "Good faith", as used in this item (22), shall not be limited to the sale or dispensing of controlled substances, but shall apply to all prescription drugs.

23. Interfering with the professional judgment of a pharmacist by any licensee under this Act, or the licensee's agents or employees.

24. Failing to report within 60 days to the Department any adverse final action taken against a pharmacy, pharmacist, registered pharmacy technician, or registered certified pharmacy technician by another licensing jurisdiction in any other state or any territory of the United States or any foreign jurisdiction, any governmental agency, any law enforcement agency, or any court for acts or conduct similar to acts or conduct that would constitute grounds for discipline as defined in this Section.

25. Failing to comply with a subpoena issued in accordance with Section 35.5 of this Act.

26. Disclosing protected health information in violation of any State or federal law.

27. Willfully failing to report an instance of suspected abuse, neglect, financial exploitation, or self-neglect of an eligible adult as defined in and required by the Adult Protective Services Act.

28. Being named as an abuser in a verified report by the Department on Aging under the Adult Protective Services Act, and upon proof by clear and convincing evidence that the licensee abused, neglected, or financially exploited an eligible adult as defined in the Adult Protective Services Act.

29. Using advertisements or making solicitations that may jeopardize the health, safety, or welfare of patients, including, but not be limited to, the use of advertisements or solicitations that:

(A) are false, fraudulent, deceptive, or misleading; or

(B) include any claim regarding a professional service or product or the cost or price thereof that cannot be substantiated by the licensee.

30. Requiring a pharmacist to participate in the use or distribution of advertisements or in making solicitations that may jeopardize the health, safety, or welfare of patients.

31. Failing to provide a working environment for all pharmacy personnel that protects the health, safety, and welfare of a patient, which includes, but is not limited to, failing to:

(A) employ sufficient personnel to prevent fatigue, distraction, or other conditions that interfere with a pharmacist's ability to practice with competency and safety or creates an environment that jeopardizes patient care;

(B) provide appropriate opportunities for uninterrupted rest periods and meal breaks;

(C) provide adequate time for a pharmacist to complete professional duties and responsibilities, including, but not limited to:

(i) drug utilization review;

(ii) immunization;

(iii) counseling;

(iv) verification of the accuracy of a prescription; and

(v) all other duties and responsibilities of a pharmacist as listed in the rules of the Department.

32. Introducing or enforcing external factors, such as productivity or production quotas or other programs against pharmacists, student pharmacists or pharmacy technicians, to the extent that they interfere with the ability of those individuals to provide appropriate professional services to the public.

33. Providing an incentive for or inducing the transfer of a prescription for a patient absent a professional rationale.

(b) The Department may refuse to issue or may suspend the license of any person who fails to file a return, or to pay the tax, penalty or interest shown in a filed return, or to pay any final assessment of tax, penalty or interest, as required by any tax Act administered by the Illinois Department of Revenue, until such time as the requirements of any such tax Act are satisfied.

(c) The Department shall revoke any license issued under the provisions of this Act or any prior Act of this State of any person who has been convicted a second time of committing any felony under the Illinois Controlled Substances Act, or who has been convicted a second time of committing a Class 1 felony under Sections 8A-3 and 8A-6 of the Illinois Public Aid Code. A person whose license issued under the provisions of this Act or any prior Act of this State is revoked under this subsection (c) shall be prohibited from engaging in the practice of pharmacy in this State.

(d) Fines may be imposed in conjunction with other forms of disciplinary action, but shall not be the exclusive disposition of any disciplinary action arising out of conduct resulting in death or injury to a patient. Fines shall be paid within 60 days or as otherwise agreed to by the Department. Any funds collected from such fines shall be deposited in the Illinois State Pharmacy Disciplinary Fund.

(e) The entry of an order or judgment by any circuit court establishing that any person holding a license or certificate under this Act is a person in need of mental treatment operates as a suspension of that license. A licensee may resume his or her practice only upon the entry of an order of the Department based upon a finding by the Board that he or she has been determined to be recovered from mental illness by the court and upon the Board's recommendation that the licensee be permitted to resume his or her practice.

(f) The Department shall issue quarterly to the Board a status of all complaints related to the profession received by the Department.

(g) In enforcing this Section, the Board or the Department, upon a showing of a possible violation, may compel any licensee or applicant for licensure under this Act to submit to a mental or physical examination or both, as required by and at the expense of the Department. The examining physician, or multidisciplinary team involved in providing physical and mental examinations led by a physician consisting of one or a combination of licensed physicians, licensed clinical psychologists, licensed clinical social workers, licensed clinical professional counselors, and other professional and administrative staff, shall be those specifically designated by the Department. The Board or the Department may order the examining physician or any member of the multidisciplinary team to present testimony concerning this mental or physical examination of the licensee or applicant. No information, report, or other documents in any way related to the examination shall be excluded by reason of any common law or statutory privilege relating to communication between the licensee or applicant and the examining physician or any member of the multidisciplinary team. The individual to be examined may have, at his or her own expense, another physician of his or her choice present during all aspects of the examination. Failure of any individual to submit to a mental or physical examination when directed shall result in the automatic suspension of his or her license until such time as the individual submits to the examination. If the Board or Department finds a pharmacist, registered certified pharmacy technician, or registered pharmacy technician unable to practice because of the reasons set forth in this Section, the Board or Department shall require such pharmacist, registered certified pharmacy technician, or registered pharmacy technician to submit to care, counseling, or treatment by physicians or other appropriate health care providers approved or designated by the Department as a condition for continued, restored, or renewed licensure to practice. Any pharmacist, registered certified pharmacy technician, or registered pharmacy technician whose license was granted, continued, restored, renewed, disciplined, or supervised, subject to such terms, conditions, or restrictions, and who fails to comply with such terms, conditions, or restrictions or to complete a required program of care, counseling, or treatment, as determined by the chief pharmacy coordinator, shall be referred to the Secretary for a determination as to whether the licensee shall have his or her license suspended immediately, pending a hearing by the Board. In instances in which the Secretary immediately suspends a license under this subsection (g), a hearing upon such person's license must be convened by the Board within 15 days after such suspension and completed without appreciable delay. The Department and Board shall have the authority to review the subject pharmacist's, registered certified pharmacy technician's, or registered pharmacy technician's record of treatment and counseling regarding the impairment.

(h) An individual or organization acting in good faith, and not in a willful and wanton manner, in complying with this Section by providing a report or other information to the Board, by assisting in the investigation or preparation of a report or information, by participating in proceedings of the Board, or by serving as a member of the Board shall not, as a result of such actions, be subject to criminal prosecution or civil damages. Any person who reports a violation of this Section to the Department is protected under subsection (b) of Section 15 of the Whistleblower Act.

(i) Members of the Board shall have no liability in any action based upon any disciplinary proceedings or other activity performed in good faith as a member of the Board. The Attorney General shall defend all such actions unless he or she determines either that there would be a conflict of interest in such representation or that the actions complained of were not in good faith or were willful and wanton.

If the Attorney General declines representation, the member shall have the right to employ counsel of his or her choice, whose fees shall be provided by the State, after approval by the Attorney General, unless there is a determination by a court that the member's actions were not in good faith or were willful and wanton.

The member must notify the Attorney General within 7 days of receipt of notice of the initiation of any action involving services of the Board. Failure to so notify the Attorney General shall constitute an absolute waiver of the right to a defense and indemnification.

The Attorney General shall determine, within 7 days after receiving such notice, whether he or she will undertake to represent the member.

(Source: P.A. 100-497, eff. 9-8-17; 101-621, eff. 1-1-20.)

(225 ILCS 85/35.22 new)

Sec. 35.22. Disciplinary Review Board.

(a) There is created in the Department the Disciplinary Review Board to approve findings and actions taken by the Department in regard to disciplinary matters under Section 30 of this Act. The Disciplinary Review Board shall consist of 9 members selected by the Governor from a list of recommendations submitted by the Association of Indian American Pharmacists, the Illinois Pharmacists Association, and the Illinois Retail Merchants Association. The result of any disciplinary hearing brought under this Act must be approved by the Disciplinary Review Board before a report is submitted to the Department.

(b) The Department may not deny an application for licensure or take any other disciplinary or non-disciplinary action against a license without approval from the Disciplinary Review Board.

(c) The Disciplinary Review Board shall review decisions involving the refusal to issue or renew a license or decisions to take disciplinary action against a license. The Disciplinary Review Board shall review decisions issued no more than 18 months prior to the effective date of this amendatory Act of the 101st General Assembly.

Section 99. Effective date. This Act takes effect upon becoming law.