HB3977ham003 102ND GENERAL ASSEMBLY

Rep. Lindsey LaPointe

Filed: 3/1/2022

10200HB3977ham003 LRB102 15075 LNS 37134 a

AMENDMENT TO HOUSE BILL 3977

AMENDMENT NO. ______. Amend House Bill 3977, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the First Responders Behavioral Healthcare Bill of Rights Act.

Section 5. Purposes. The General Assembly recognizes the difficult nature of the job of first responder, including trauma endured by first responders in the performance of their duties. It is the intent of the General Assembly to ensure that first responders, including police, firefighters, and emergency medical technicians across this State, have full access to supportive and responsive behavioral health services and treatment. The General Assembly recognizes that these services should be responsive to the individual's needs and must be kept confidential. The General Assembly recognizes that the administration and provision of these services both recognize and reduce the historical barrier of stigma and a lack of confidentiality that first responders face when attempting to access behavioral health services and treatment.

Section 10. Definitions. In this Act:

"Behavioral health" means mental health, health relating to substance use, or both.

"Behavioral healthcare" means services, treatment, medication, and other measures to overcome, mitigate, or prevent a behavioral health issue. Such services, treatment, medication, and other measures qualify as "behavioral healthcare" even if there is no formal diagnosis of a specific condition.

"Employee" includes a first responder employed by a unit of local government, school district, public or private hospital, or ambulance service. "Employee" also includes a public safety telecommunicator.

"Employer" means a unit of local government, a school district, or a public or private hospital or ambulance service that employs first responders. "Employer" includes a board that is responsible for hiring and promoting first responders and public safety telecommunicators.

"First responder" means a law enforcement officer or fireman as defined in Section 2 of the Line of Duty Compensation Act or an emergency medical technician (EMT) as defined in Section 3.50 of the Emergency Medical Services (EMS) Systems Act.

"Patient" means:

(1) a person who is admitted as an inpatient or resident of a public or private mental health facility for mental health treatment under Chapter III of the Mental Health and Developmental Disabilities Code as an informal admission, a voluntary admission, a minor admission, an emergency admission, or an involuntary admission, unless the treatment was solely for an alcohol abuse disorder; or

(2) a person who voluntarily or involuntarily receives mental health treatment as an outpatient or is otherwise provided services by a public or private mental health facility, and who poses a clear and present danger to oneself or to others.

"Record" means any record kept by a therapist or by an agency in the course of providing behavioral health services to a first responder concerning the first responder and the services provided. "Record" includes the personal notes of the therapist or agency. "Record" includes all records maintained by a court that have been created in connection with, in preparation for, or as a result of the filing of any petition or certificate under Chapter II, Chapter III, or Chapter IV of the Mental Health and Developmental Disabilities Code and includes the petitions, certificates, dispositional reports, treatment plans, and reports of diagnostic evaluations and of hearings under Article VIII of Chapter III or under Article V of Chapter IV of that Code. "Record" does not include information that has been deidentified in accordance with HIPAA, as specified in 45 CFR 164.514. "Record" does not include a reference to the receipt of behavioral health services noted during a patient history and physical or other summary of care.

"Substance use" means the ingestion of one or more of the following: alcohol; caffeine; cannabis; hallucinogens; inhalants; opioids; sedatives, hypnotics, and anxiolytics; stimulants; tobacco; and other unknown intoxicating substances that the employee reasonably believes is interfering, or could interfere, either directly or indirectly, with the performance the employee's job duties.

Section 15. Rights to behavioral healthcare.

(a) First responders and public safety telecommunicators have the following rights:

(1) The right of full access to behavioral health services and treatment that are responsive to the needs of the individual and the professions of police, emergency medical technician (EMT), firefighter, and public safety telecommunicator.

(2) The right to seek, or access if required or requested, services and treatment for behavioral health needs without fear of repercussions by the employer or supervisor and without fear of reprisal.

(3) The right, in the course of seeking services and treatment for behavioral health, that all records, notes, and conclusions by the treatment provider shall not be shared with an employer unless otherwise mandated by law.

(4) The right of an employee not to be compelled by the employer under the threat of discipline to release any records related to behavioral health.

(5) The right to have behavioral health records not be used in any disciplinary or other proceeding against the employee. If the employee waives the rights under this paragraph, the employee retains the right to set the scope of records that can be used in any disciplinary or other proceeding against the employee, including, but not limited to, treatment dates, facilities, actual or suspected diagnoses, and program completion status.

The employee's records from a fitness for duty exam related to the employee's behavioral health shall only be used in a determination or proceeding against the employee if the fitness for duty exam was ordered in connection with that determination or proceeding.

(6) The right of an employee to seek treatment in any geographic area without restrictions or limitations imposed by the employer.

(7) The right to have behavioral health services and treatment in a manner that reduces barriers to those services and treatment.

(8) The right to have the employer destroy and disregard any behavioral health records that the employer obtained pursuant to the employee's unsuccessful pursuit of benefits under workers' compensation, pensions, and other programs.

If a first responder waives any rights under this subsection, the right shall only be deemed waived to the extent specified by the first responder.

(b) The rights guaranteed to first responders in subsection (a) are judicially enforceable. An aggrieved employee may, under the Civil Practice Law, bring an action for damages, attorney's fees, or injunctive relief against an employer for violating subsection (a).

(c) An employee who seeks behavioral health services or treatment because of the use of an illicit substance is not subject to discipline by his or her employer for the use of the illicit substance unless a criminal act was carried out as a consequence of using that illicit substance.

(d) An employer is responsible for the costs of any behavioral health services and treatment obtained by an employee under this Act.".