HB3784 102ND GENERAL ASSEMBLY

LRB102 13605 KMF 18954 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
HB3784

Introduced 2/22/2021, by Rep. Aaron M. Ortiz

SYNOPSIS AS INTRODUCED:

55 ILCS 5/3-15003.7 new
730 ILCS 5/3-6-2	from Ch. 38, par. 1003-6-2

Amends the Counties Code and the Unified Code of Corrections. Provides that if an incarcerated person is capable of providing consent, no medical procedure shall be performed without such informed consent.

A BILL FOR

AN ACT concerning criminal law.

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

Section 5. The Counties Code is amended by adding Section 3-15003.7 as follows:

(55 ILCS 5/3-15003.7 new)

Sec. 3-15003.7. Informed Consent. Notwithstanding any provision of law to the contrary, if an incarcerated person is capable of providing consent, no medical procedure shall be performed without such informed consent.

Section 10. The Unified Code of Corrections is amended by changing Section 3-6-2 as follows:

(730 ILCS 5/3-6-2) (from Ch. 38, par. 1003-6-2)

Sec. 3-6-2. Institutions and facility administration.

(a) Each institution and facility of the Department shall be administered by a chief administrative officer appointed by the Director. A chief administrative officer shall be responsible for all persons assigned to the institution or facility. The chief administrative officer shall administer the programs of the Department for the custody and treatment of such persons.

(b) The chief administrative officer shall have such assistants as the Department may assign.

(c) The Director or Assistant Director shall have the emergency powers to temporarily transfer individuals without formal procedures to any State, county, municipal or regional correctional or detention institution or facility in the State, subject to the acceptance of such receiving institution or facility, or to designate any reasonably secure place in the State as such an institution or facility and to make transfers thereto. However, transfers made under emergency powers shall be reviewed as soon as practicable under Article 8, and shall be subject to Section 5-905 of the Juvenile Court Act of 1987. This Section shall not apply to transfers to the Department of Human Services which are provided for under Section 3-8-5 or Section 3-10-5.

(d) The Department shall provide educational programs for all committed persons so that all persons have an opportunity to attain the achievement level equivalent to the completion of the twelfth grade in the public school system in this State. Other higher levels of attainment shall be encouraged and professional instruction shall be maintained wherever possible. The Department may establish programs of mandatory education and may establish rules and regulations for the administration of such programs. A person committed to the Department who, during the period of his or her incarceration, participates in an educational program provided by or through the Department and through that program is awarded or earns the number of hours of credit required for the award of an associate, baccalaureate, or higher degree from a community college, college, or university located in Illinois shall reimburse the State, through the Department, for the costs incurred by the State in providing that person during his or her incarceration with the education that qualifies him or her for the award of that degree. The costs for which reimbursement is required under this subsection shall be determined and computed by the Department under rules and regulations that it shall establish for that purpose. However, interest at the rate of 6% per annum shall be charged on the balance of those costs from time to time remaining unpaid, from the date of the person's parole, mandatory supervised release, or release constituting a final termination of his or her commitment to the Department until paid.

(d-5) A person committed to the Department is entitled to confidential testing for infection with human immunodeficiency virus (HIV) and to counseling in connection with such testing, with no copay to the committed person. A person committed to the Department who has tested positive for infection with HIV is entitled to medical care while incarcerated, counseling, and referrals to support services, in connection with that positive test result. Implementation of this subsection (d-5) is subject to appropriation.

(e) A person committed to the Department who becomes in need of medical or surgical treatment but is incapable of giving consent thereto shall receive such medical or surgical treatment by the chief administrative officer consenting on the person's behalf. Before the chief administrative officer consents, he or she shall obtain the advice of one or more physicians licensed to practice medicine in all its branches in this State. If such physician or physicians advise:

(1) that immediate medical or surgical treatment is required relative to a condition threatening to cause death, damage or impairment to bodily functions, or disfigurement; and

(2) that the person is not capable of giving consent to such treatment; the chief administrative officer may give consent for such medical or surgical treatment, and such consent shall be deemed to be the consent of the person for all purposes, including, but not limited to, the authority of a physician to give such treatment.

Notwithstanding any provision of law to the contrary, if an incarcerated person is capable of providing consent, no medical procedure shall be performed without such informed consent.

(e-5) If a physician providing medical care to a committed person on behalf of the Department advises the chief administrative officer that the committed person's mental or physical health has deteriorated as a result of the cessation of ingestion of food or liquid to the point where medical or surgical treatment is required to prevent death, damage, or impairment to bodily functions, the chief administrative officer may authorize such medical or surgical treatment.

(f) In the event that the person requires medical care and treatment at a place other than the institution or facility, the person may be removed therefrom under conditions prescribed by the Department. Neither the Department of Corrections nor the Department of Juvenile Justice may require a committed person or person committed to any facility operated by the Department of Juvenile Justice, as set forth in Section 3-2.5-15 of this Code, to pay any co-payment for receiving medical or dental services.

(f-5) The Department shall comply with the Health Care Violence Prevention Act.

(g) Any person having sole custody of a child at the time of commitment or any woman giving birth to a child after her commitment, may arrange through the Department of Children and Family Services for suitable placement of the child outside of the Department of Corrections. The Director of the Department of Corrections may determine that there are special reasons why the child should continue in the custody of the mother until the child is 6 years old.

(h) The Department may provide Family Responsibility Services which may consist of, but not be limited to the following:

(1) family advocacy counseling;

(2) parent self-help group;

(3) parenting skills training;

(4) parent and child overnight program;

(5) parent and child reunification counseling, either separately or together, preceding the inmate's release; and

(6) a prerelease reunification staffing involving the family advocate, the inmate and the child's counselor, or both and the inmate.

(i) (Blank).

(j) Any person convicted of a sex offense as defined in the Sex Offender Management Board Act shall be required to receive a sex offender evaluation prior to release into the community from the Department of Corrections. The sex offender evaluation shall be conducted in conformance with the standards and guidelines developed under the Sex Offender Management Board Act and by an evaluator approved by the Board.

(k) Any minor committed to the Department of Juvenile Justice for a sex offense as defined by the Sex Offender Management Board Act shall be required to undergo sex offender treatment by a treatment provider approved by the Board and conducted in conformance with the Sex Offender Management Board Act.

(l) Prior to the release of any inmate committed to a facility of the Department or the Department of Juvenile Justice, the Department must provide the inmate with appropriate information verbally, in writing, by video, or other electronic means, concerning HIV and AIDS. The Department shall develop the informational materials in consultation with the Department of Public Health. At the same time, the Department must also offer the committed person the option of testing for infection with human immunodeficiency virus (HIV), with no copayment for the test. Pre-test information shall be provided to the committed person and informed consent obtained as required in subsection (d) of Section 3 and Section 5 of the AIDS Confidentiality Act. The Department may conduct opt-out HIV testing as defined in Section 4 of the AIDS Confidentiality Act. If the Department conducts opt-out HIV testing, the Department shall place signs in English, Spanish and other languages as needed in multiple, highly visible locations in the area where HIV testing is conducted informing inmates that they will be tested for HIV unless they refuse, and refusal or acceptance of testing shall be documented in the inmate's medical record. The Department shall follow procedures established by the Department of Public Health to conduct HIV testing and testing to confirm positive HIV test results. All testing must be conducted by medical personnel, but pre-test and other information may be provided by committed persons who have received appropriate training. The Department, in conjunction with the Department of Public Health, shall develop a plan that complies with the AIDS Confidentiality Act to deliver confidentially all positive or negative HIV test results to inmates or former inmates. Nothing in this Section shall require the Department to offer HIV testing to an inmate who is known to be infected with HIV, or who has been tested for HIV within the previous 180 days and whose documented HIV test result is available to the Department electronically. The testing provided under this subsection (l) shall consist of a test approved by the Illinois Department of Public Health to determine the presence of HIV infection, based upon recommendations of the United States Centers for Disease Control and Prevention. If the test result is positive, a reliable supplemental test based upon recommendations of the United States Centers for Disease Control and Prevention shall be administered.

Prior to the release of an inmate who the Department knows has tested positive for infection with HIV, the Department in a timely manner shall offer the inmate transitional case management, including referrals to other support services.

(m) The chief administrative officer of each institution or facility of the Department shall make a room in the institution or facility available for substance use disorder services to be provided to committed persons on a voluntary basis. The services shall be provided for one hour once a week at a time specified by the chief administrative officer of the institution or facility if the following conditions are met:

(1) the substance use disorder service contacts the chief administrative officer to arrange the meeting;

(2) the committed person may attend the meeting for substance use disorder services only if the committed person uses pre-existing free time already available to the committed person;

(3) all disciplinary and other rules of the institution or facility remain in effect;

(4) the committed person is not given any additional privileges to attend substance use disorder services;

(5) if the substance use disorder service does not arrange for scheduling a meeting for that week, no substance use disorder services shall be provided to the committed person in the institution or facility for that week;

(6) the number of committed persons who may attend a substance use disorder meeting shall not exceed 40 during any session held at the correctional institution or facility;

(7) a volunteer seeking to provide substance use disorder services under this subsection (m) must submit an application to the Department of Corrections under existing Department rules and the Department must review the application within 60 days after submission of the application to the Department; and

(8) each institution and facility of the Department shall manage the substance use disorder services program according to its own processes and procedures.

For the purposes of this subsection (m), "substance use disorder services" means recovery services for persons with substance use disorders provided by volunteers of recovery support services recognized by the Department of Human Services.

(Source: P.A. 100-759, eff. 1-1-19; 100-1051, eff. 1-1-19; 101-81, eff. 7-12-19; 101-86, eff. 1-1-20.)