HB1453 94TH GENERAL ASSEMBLY

LRB094 04183 DRJ 36190 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB1453

Introduced 02/10/05, by Rep. Randall M. Hultgren - Patricia R. Bellock - Dan Reitz - Brandon W. Phelps - David Reis

SYNOPSIS AS INTRODUCED:

New Act
225 ILCS 60/22	from Ch. 111, par. 4400-22
225 ILCS 60/23	from Ch. 111, par. 4400-23

Creates the Woman's Right to Know Act and amends the Medical Practice Act of 1987. Provides that an abortion shall not be performed or induced unless the woman has given her voluntary and informed consent, and states guidelines for determining whether a woman's consent is voluntary and informed. Requires the Department of Public Health to publish printed materials and an informational video concerning certain prenatal services. Requires a physician to inform a woman of the existence of a medical emergency that necessitates an immediate abortion to avert her death or serious injury. Effective 120 days after becoming law.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT in relation to health.

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

Section 1. Short title. This Act may be cited as the Woman's Right to Know Act.

Section 5. Legislative findings and intent.

(a) The General Assembly of the State of Illinois finds that:

(1) Many women now seek or are encouraged to undergo elective abortions without full knowledge of the medical and psychological risks of abortion, development of the unborn child, or alternatives to abortion. An abortion decision is often made under stressful circumstances.

(2) The knowledgeable exercise of a woman's decision to have an elective abortion depends on the extent to which the woman receives sufficient information to make a voluntary and informed choice between 2 alternatives of great consequence: carrying a child to birth or undergoing an abortion.

(3) The U.S. Supreme Court has stated: "In attempting to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed." (Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 U.S. 2791, 2823 (1992).

(4) The decision to abort "is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences." (Planned Parenthood v. Danforth, 428 U.S. 52, 67 (1976).

(5) It is essential to the psychological and physical well-being of a woman considering an elective abortion that she receive complete and accurate information on all options available to her in dealing with her pregnancy.

(6) Women who seek elective abortions at abortion clinics do not have a prior patient-physician relationship with the physician who is to perform or induce the abortion, normally do not return to the facility for post-operative care, and normally do not continue a patient-physician relationship with the physician who performed or induced the abortion. In most instances, the woman's only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to receive personal counseling by the physician concerning her decision. Because of this, certain safeguards are necessary to protect a woman's right to know.

(7) A reasonable waiting period is critical to ensure that a woman has the fullest opportunity to give her voluntary and informed consent before she elects to undergo an abortion.

(b) Based on the findings in subsection (a), it is the intent of the legislature in enacting this Act to further the important and compelling State interests in all of the following:

(1) Protecting the life and health of the woman subject to an elective abortion and, to the extent constitutionally permissible, the life of her unborn child.

(2) Fostering the development of standards of professional conduct in the practice of abortion.

(3) Ensuring that prior to the performance or inducement of an elective abortion, the woman considering an elective abortion receives personal counseling by the physician and is given a full range of information regarding her pregnancy, her unborn child, the abortion, the medical and psychological risks of abortion, and available alternatives to the abortion.

(4) Reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. Planned Parenthood v. Casey, 112 S. Ct. 2971, 2823 (1992).

(5) Ensuring that a woman who decides to have an elective abortion gives her voluntary and informed consent to the abortion procedure.

Section 10. Definitions. As used in this Act:

"Abortion" means the use of any instrument, medicine, drug, or other substance or device to terminate the pregnancy of a woman known to be pregnant with an intention other than to increase the probability of a live birth, to preserve the life or health of a child after birth, or to remove a dead fetus.

"Department" means the Department of Public Health of the State of Illinois.

"Medical emergency" means any condition that, on the basis of the physician's reasonable medical judgment, so complicates the medical condition of a pregnant female as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.

"Probable gestational age of the unborn child" means the number of weeks that have elapsed from the probable time of fertilization of a woman's ovum, based on the information provided by the woman as to the time of her last menstrual period, her medical history, a physical examination performed by the physician who is to perform or induce the abortion or by any other physician, and any appropriate laboratory tests performed on her.

"Qualified person assisting the physician" means a licensed social worker, a registered nurse, or a physician assistant to whom a physician who is to perform or induce an abortion has delegated the responsibility, as the physician's agent, for providing the information required under Section 15.

"Referring physician" means a physician, as defined in this Act, who is other than the physician who is to perform the abortion.

"Physician" means any person licensed to practice medicine in all its branches under the Medical Practice Act of 1987.

"Viability" means the state of fetal development when, in the judgment of the physician based on the particular facts of the case before him or her and in light of the most advanced medical technology and information available to him or her, there is a reasonable likelihood of sustained survival of the unborn child outside the body of his or her mother, with or without artificial support.

Section 15. Informed consent requirement.

(a) An abortion shall not be performed or induced unless the woman upon whom the abortion is to be performed or induced has given her voluntary and informed consent.

(b) Consent under this Section to an abortion is voluntary only if the consent is given freely and without coercion by any person.

(c) Except in the case of a medical emergency, consent to an abortion is voluntary and informed if and only if:

(1) At least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion or the referring physician has, in person, orally informed the woman of all of the following:

(A) The name of the physician who will perform the abortion.

(B) Whether, according to the reasonable medical judgment of the physician, the woman is pregnant.

(C) The probable gestational age of the unborn child at the time that the information is provided.

(D) The particular medical risks, if any, associated with the woman's pregnancy.

(E) The probable anatomical and physiological characteristics of the woman's unborn child at the time the information is given.

(F) The details of the medical or surgical method that would be used in performing or inducing the abortion.

(G) The medical risks associated with the particular abortion procedure that would be used, including but not limited to the medical risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies, and infertility.

(H) The recommended general medical instructions for the woman to follow after an abortion to enhance her safe recovery and the name and telephone number of a physician to call if complications arise after the abortion.

(I) If, in the reasonable medical judgment of the physician, the woman's unborn child has reached viability, that the physician who is to perform or induce the abortion or a second physician is required to take all reasonable steps necessary to maintain the life and health of the child.

(J) Any other information that a reasonable patient would consider material and relevant to a decision of whether to carry a child to birth or to undergo an abortion.

(K) That the woman may withdraw her consent to have an abortion at any time before the abortion is performed or induced.

(L) That, except as provided in Section 25, the woman is not required to pay any amount for performance or inducement of the abortion until at least 24 hours have elapsed after the requirements of this Section are met.

(2) Except as provided in Section 25, at least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion, a qualified person assisting the physician, or another physician has, in person, orally informed the woman of all of the following:

(A) Medical assistance benefits may be available for prenatal care, childbirth, and neonatal care, and that more detailed information on the availability of such assistance is contained in the printed materials given to her and informational video available to her and described in Section 20.

(B) That the printed materials and informational video described in Section 20 describe the unborn child and list agencies that offer alternatives to abortion.

(C) That the father of the unborn child is liable for assistance in the support of the woman's child, if born, even if the father has offered to pay for the abortion. In the case of rape or incest, this information may be omitted.

(D) The probable gestational age of the unborn child at the time the abortion is to be performed, and, if the unborn child is viable or has reached the gestational age of 24 weeks, that (i) the unborn child may be able to survive outside the womb; (ii) the woman has the right to request the physician to use the method of abortion that is most likely to preserve the life of the unborn child; and (iii) if the unborn child is born alive, the attending physician has the legal obligation to take all reasonable steps necessary to maintain the life and health of the child.

(E) That the woman has the right to receive and review the printed materials and informational video described in Section 20.

(F) That the physician or qualified person assisting the physician must (i) physically give the materials to the woman and must, in person, orally inform her that the materials are free of charge, have been provided by the State, and describe the unborn child and list agencies that offer alternatives to abortion and that the physician or other person will provide her with the current updated copies of the printed materials free of charge.

(3) The information that is required under subdivisions (c)(1) and (c)(2) is provided to the woman in an individual setting that protects her privacy, maintains the confidentiality of her decision, and ensures that the information she receives focuses on her individual circumstances. This paragraph (3) may not be construed to prevent the woman from having a family member or legal guardian, or any other person of her choice, present during her private counseling.

(4) Whoever provides the information that is required under subdivision (c)(1) or (c)(2), or both, provides adequate opportunity for the woman to ask questions, including questions concerning the pregnancy, her unborn child, abortion, and adoption, and provides the information that is requested or indicates to the woman where she can obtain the information.

(4.5) Whoever provides the information that is required under subdivision (c)(1) or (c)(2), or both, identifies himself or herself by name and position.

(5) The woman certifies in writing on a form that the Department shall provide, prior to performance or inducement of the abortion, that the information that is required under subdivisions (c)(1) and (c)(2) has been provided to her in the manner specified in subdivision (c)(3), that she has been offered the information described in Section 20, and that all of her questions, as specified under subdivision (c)(4) have been answered in a satisfactory manner. The physician who is to perform or induce the abortion or the qualified person assisting the physician shall write on the certification form the name of the physician who is to perform or induce the abortion. The physician or qualified person assisting the physician shall indicate on the certification form who provided the information to the woman and when it was provided.

(6) Prior to the performance or the inducement of the abortion, the physician who is to perform or induce the abortion or the qualified person assisting the physician receives the written certification that is required under subdivision (c)(5). The physician or qualified person assisting the physician shall place the certification in the woman's medical record and shall provide the woman with a copy of the certification.

(7) If the woman considering an abortion has been adjudicated incompetent, the requirements to provide information to the woman under Section 15 apply to also require provision of the information to the person appointed as the woman's guardian.

Section 20. Publication of materials.

(a) Within 120 days after this Act becomes law, the Department shall cause to be published, in English, Spanish, and other languages spoken by a significant number of State residents, as determined by the Department, printed materials and an informational video. The printed materials shall be in an easily comprehensible format and printed in type of not less than 12-point size. The Department shall update on an annual basis the following materials:

(1) Geographically indexed materials that are designed to inform a woman about public and private agencies, including adoption agencies, available to assist her through pregnancy, upon childbirth, and while the child is dependent. The materials shall include a comprehensive list of the agencies available, a description of the services that they offer, and a description of the manner in which they may be contacted, including telephone numbers and addresses. The materials shall include a toll-free, 24-hour telephone number that may be called to obtain an oral listing of available agencies and services in the locality of the caller and a description of the services that the agencies offer and the manner in which they may be contacted. The materials shall provide information on the availability of governmentally funded programs that serve pregnant women and children. Services identified for the woman shall include temporary assistance for needy families, medical assistance for pregnant women and children, the availability of family or medical leave, child care services, child support laws, and programs and the credit for expenses for household and dependent care and services necessary for gainful employment. The materials shall state that it is unlawful to perform an abortion for which consent has been coerced, that the father of a child is liable for assistance in the support of the child, even in instances in which the father has offered to pay for an abortion, and that adoptive parents may pay the costs of prenatal care, childbirth, and neonatal care. The material shall include the following statement: "There are many public and private agencies willing and able to help you to carry your child to term, and to assist you and your child after your child is born, whether you choose to keep your child or to place her or him for adoption. The State of Illinois strongly urges you to contact one or more of these agencies before making a final decision about abortion. The law requires that your physician or his or her agent give you the opportunity to call agencies like these before you undergo an abortion." The materials shall include information, for a woman whose pregnancy is the result of sexual assault or incest, on legal protections available to the woman and her child if she wishes to oppose establishment of paternity or to terminate the father's parental rights.

(2) Materials, including photographs, pictures, or drawings, that are designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments for the first 16 weeks of her pregnancy and at 4-week gestational increments from the 17th week of the pregnancy to full term, including any relevant information regarding the time at which the unborn child could possibly be viable. The pictures or drawings must contain the dimensions of the unborn child and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental, and designed to convey only accurate scientific information about the unborn child at the various gestational ages, including appearance, mobility, brain and heart activity and function, tactile sensitivity, and the presence of internal organs and external members. The materials shall also contain objective, accurate information describing the methods of abortion procedures commonly employed, the medical and psychological risks commonly associated with each such procedure, including the risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies, and infertility, and the medical risks commonly associated with carrying a child to birth.

(3) A certification form for use under subdivision (c)(5) of Section 15 that lists, in a check-off format, all of the information required to be provided under that Section.

The Department shall produce a standardized videotape that may be used statewide, presenting the information described in subdivisions (a)(1) and (a)(2) in accordance with the requirements of those subdivisions. In preparing the video, the Department may summarize and make reference to the printed comprehensive list of geographically indexed names and services described in subdivision (a)(1). The videotape shall show, in addition to the information described in subdivisions (a)(1) and (a)(2), an ultrasound of the heartbeat of an unborn child at 4 to 5 weeks gestational age, at 6 to 8 weeks gestational age, and at each month thereafter, until viability. That information shall be presented in an objective, unbiased manner designed to convey only accurate scientific information.

The printed materials and videotape required under this Section shall be available at no cost from the Department, upon request and in appropriate number, to any physician, medical facility, or hospital.

(b) A physician who intends to perform or induce an abortion or a referring physician, who reasonably believes that he or she might have a patient for whom the information in subsection (a) is required to be given, shall request a reasonably adequate number of the materials that are described in subsection (a) from the Department.

Section 25. Medical emergencies. If a medical emergency exists, the physician who is to perform or induce the abortion necessitated by the medical emergency shall inform the woman, prior to the abortion if possible, of the medical indications supporting the physician's reasonable medical judgment that an immediate abortion is necessary to avert her death or that a 24-hour delay in performance or inducement of an abortion will create a serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions. If possible, the physician shall obtain the woman's written consent prior to the abortion. The physician shall certify these medical indications in writing and place the certification in the woman's medical record.

Section 30. Pregnancy as the result of sexual assault or incest. A woman seeking an abortion may waive the 24-hour period required under subdivision (c)(1) of Section 15, if the woman alleges that the pregnancy is the result of sexual assault.

Section 35. Violation; penalty. A physician's violation of this Act is grounds for disciplinary action under the Medical Practice Act of 1987.

Section 40. Common law rights. Nothing in this Act limits the common law rights of a person that are not in conflict with this Act.

Section 50. Construction. Nothing in this Act shall be construed as creating or recognizing a right to abortion or as making lawful an abortion that is otherwise unlawful.

Section 55. Severability. If any provision, word, phrase, or clause of this Act or its application to any person or circumstance is held invalid, the invalidity of that provision or application does not affect the provisions, words, phrases, clauses, or applications of the Act which can be given effect without the invalid provision, word, phrase, clause, or application, and to this end the provisions, words, phrases, and clauses of this Act are declared to be severable.

Section 90. The Medical Practice Act of 1987 is amended by changing Sections 22 and 23 as follows:

(225 ILCS 60/22) (from Ch. 111, par. 4400-22)

Sec. 22. Disciplinary action.

(A) The Department may revoke, suspend, place on probationary status, or take any other disciplinary action as the Department may deem proper with regard to the license or visiting professor permit of any person issued under this Act to practice medicine, or to treat human ailments without the use of drugs and without operative surgery upon any of the following grounds:

(1) Performance of an elective abortion in any place, locale, facility, or institution other than:

(a) a facility licensed pursuant to the Ambulatory Surgical Treatment Center Act;

(b) an institution licensed under the Hospital Licensing Act; or

(c) an ambulatory surgical treatment center or hospitalization or care facility maintained by the State or any agency thereof, where such department or agency has authority under law to establish and enforce standards for the ambulatory surgical treatment centers, hospitalization, or care facilities under its management and control; or

(d) ambulatory surgical treatment centers, hospitalization or care facilities maintained by the Federal Government; or

(e) ambulatory surgical treatment centers, hospitalization or care facilities maintained by any university or college established under the laws of this State and supported principally by public funds raised by taxation.

(2) Performance of an abortion procedure in a wilful and wanton manner on a woman who was not pregnant at the time the abortion procedure was performed.

(3) The conviction of a felony in this or any other jurisdiction, except as otherwise provided in subsection B of this Section, whether or not related to practice under this Act, or the entry of a guilty or nolo contendere plea to a felony charge.

(4) Gross negligence in practice under this Act.

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

(6) Obtaining any fee by fraud, deceit, or misrepresentation.

(7) Habitual or excessive use or abuse of drugs defined in law as controlled substances, of alcohol, or of any other substances which results in the inability to practice with reasonable judgment, skill or safety.

(8) Practicing under a false or, except as provided by law, an assumed name.

(9) Fraud or misrepresentation in applying for, or procuring, a license under this Act or in connection with applying for renewal of a license under this Act.

(10) Making a false or misleading statement regarding their skill or the efficacy or value of the medicine, treatment, or remedy prescribed by them at their direction in the treatment of any disease or other condition of the body or mind.

(11) Allowing another person or organization to use their license, procured under this Act, to practice.

(12) Disciplinary action of another state or jurisdiction against a license or other authorization to practice as a medical doctor, doctor of osteopathy, doctor of osteopathic medicine or doctor of chiropractic, a certified copy of the record of the action taken by the other state or jurisdiction being prima facie evidence thereof.

(13) Violation of any provision of this Act or of the Medical Practice Act prior to the repeal of that Act, or violation of the rules, or a final administrative action of the Director, after consideration of the recommendation of the Disciplinary Board.

(14) Dividing with anyone other than physicians with whom the licensee practices in a partnership, Professional Association, limited liability company, or Medical or Professional Corporation any fee, commission, rebate or other form of compensation for any professional services not actually and personally rendered. Nothing contained in this subsection prohibits persons holding valid and current licenses under this Act from practicing medicine in partnership under a partnership agreement, including a limited liability partnership, in a limited liability company under the Limited Liability Company Act, in a corporation authorized by the Medical Corporation Act, as an association authorized by the Professional Association Act, or in a corporation under the Professional Corporation Act or from pooling, sharing, dividing or apportioning the fees and monies received by them or by the partnership, corporation or association in accordance with the partnership agreement or the policies of the Board of Directors of the corporation or association. Nothing contained in this subsection prohibits 2 or more corporations authorized by the Medical Corporation Act, from forming a partnership or joint venture of such corporations, and providing medical, surgical and scientific research and knowledge by employees of these corporations if such employees are licensed under this Act, or from pooling, sharing, dividing, or apportioning the fees and monies received by the partnership or joint venture in accordance with the partnership or joint venture agreement. Nothing contained in this subsection shall abrogate the right of 2 or more persons, holding valid and current licenses under this Act, to each receive adequate compensation for concurrently rendering professional services to a patient and divide a fee; provided, the patient has full knowledge of the division, and, provided, that the division is made in proportion to the services performed and responsibility assumed by each.

(15) A finding by the Medical Disciplinary Board that the registrant after having his or her license placed on probationary status or subjected to conditions or restrictions violated the terms of the probation or failed to comply with such terms or conditions.

(16) Abandonment of a patient.

(17) Prescribing, selling, administering, distributing, giving or self-administering any drug classified as a controlled substance (designated product) or narcotic for other than medically accepted therapeutic purposes.

(18) Promotion of the sale of drugs, devices, appliances or goods provided for a patient in such manner as to exploit the patient for financial gain of the physician.

(19) Offering, undertaking or agreeing to cure or treat disease by a secret method, procedure, treatment or medicine, or the treating, operating or prescribing for any human condition by a method, means or procedure which the licensee refuses to divulge upon demand of the Department.

(20) Immoral conduct in the commission of any act including, but not limited to, commission of an act of sexual misconduct related to the licensee's practice.

(21) Wilfully making or filing false records or reports in his or her practice as a physician, including, but not limited to, false records to support claims against the medical assistance program of the Department of Public Aid under the Illinois Public Aid Code.

(22) Wilful omission to file or record, or wilfully impeding the filing or recording, or inducing another person to omit to file or record, medical reports as required by law, or wilfully failing to report an instance of suspected abuse or neglect as required by law.

(23) Being named as a perpetrator in an indicated report by the Department of Children and Family Services under the Abused and Neglected Child Reporting Act, and upon proof by clear and convincing evidence that the licensee has caused a child to be an abused child or neglected child as defined in the Abused and Neglected Child Reporting Act.

(24) Solicitation of professional patronage by any corporation, agents or persons, or profiting from those representing themselves to be agents of the licensee.

(25) Gross and wilful and continued overcharging for professional services, including filing false statements for collection of fees for which services are not rendered, including, but not limited to, filing such false statements for collection of monies for services not rendered from the medical assistance program of the Department of Public Aid under the Illinois Public Aid Code.

(26) A pattern of practice or other behavior which demonstrates incapacity or incompetence to practice under this Act.

(27) Mental illness or disability which results in the inability to practice under this Act with reasonable judgment, skill or safety.

(28) Physical illness, including, but not limited to, deterioration through the aging process, or loss of motor skill which results in a physician's inability to practice under this Act with reasonable judgment, skill or safety.

(29) Cheating on or attempt to subvert the licensing examinations administered under this Act.

(30) Wilfully or negligently violating the confidentiality between physician and patient except as required by law.

(31) The use of any false, fraudulent, or deceptive statement in any document connected with practice under this Act.

(32) Aiding and abetting an individual not licensed under this Act in the practice of a profession licensed under this Act.

(33) Violating state or federal laws or regulations relating to controlled substances.

(34) Failure to report to the Department any adverse final action taken against them by another licensing jurisdiction (any other state or any territory of the United States or any foreign state or country), by any peer review body, by any health care institution, by any professional society or association related to practice under this Act, by any governmental agency, by any law enforcement agency, or by any court for acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this Section.

(35) Failure to report to the Department surrender of a license or authorization to practice as a medical doctor, a doctor of osteopathy, a doctor of osteopathic medicine, or doctor of chiropractic in another state or jurisdiction, or surrender of membership on any medical staff or in any medical or professional association or society, while under disciplinary investigation by any of those authorities or bodies, for acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this Section.

(36) Failure to report to the Department any adverse judgment, settlement, or award arising from a liability claim related to acts or conduct similar to acts or conduct which would constitute grounds for action as defined in this Section.

(37) Failure to transfer copies of medical records as required by law.

(38) Failure to furnish the Department, its investigators or representatives, relevant information, legally requested by the Department after consultation with the Chief Medical Coordinator or the Deputy Medical Coordinator.

(39) Violating the Health Care Worker Self-Referral Act.

(40) Willful failure to provide notice when notice is required under the Parental Notice of Abortion Act of 1995.

(41) Failure to establish and maintain records of patient care and treatment as required by this law.

(42) Entering into an excessive number of written collaborative agreements with licensed advanced practice nurses resulting in an inability to adequately collaborate and provide medical direction.

(43) Repeated failure to adequately collaborate with or provide medical direction to a licensed advanced practice nurse.

(44) Willful failure to provide a woman with the information required under subdivision (c)(1) or (c)(2) of Section 15 of the Woman's Right to Know Act.

All proceedings to suspend, revoke, place on probationary status, or take any other disciplinary action as the Department may deem proper, with regard to a license on any of the foregoing grounds, must be commenced within 3 years next after receipt by the Department of a complaint alleging the commission of or notice of the conviction order for any of the acts described herein. Except for the grounds numbered (8), (9) and (29), no action shall be commenced more than 5 years after the date of the incident or act alleged to have violated this Section. In the event of the settlement of any claim or cause of action in favor of the claimant or the reduction to final judgment of any civil action in favor of the plaintiff, such claim, cause of action or civil action being grounded on the allegation that a person licensed under this Act was negligent in providing care, the Department shall have an additional period of one year from the date of notification to the Department under Section 23 of this Act of such settlement or final judgment in which to investigate and commence formal disciplinary proceedings under Section 36 of this Act, except as otherwise provided by law. The time during which the holder of the license was outside the State of Illinois shall not be included within any period of time limiting the commencement of disciplinary action by the Department.

The entry of an order or judgment by any circuit court establishing that any person holding a license under this Act is a person in need of mental treatment operates as a suspension of that license. That person may resume their practice only upon the entry of a Departmental order based upon a finding by the Medical Disciplinary Board that they have been determined to be recovered from mental illness by the court and upon the Disciplinary Board's recommendation that they be permitted to resume their practice.

The Department may refuse to issue or take disciplinary action concerning 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 as determined by the Illinois Department of Revenue.

The Department, upon the recommendation of the Disciplinary Board, shall adopt rules which set forth standards to be used in determining:

(a) when a person will be deemed sufficiently rehabilitated to warrant the public trust;

(b) what constitutes dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud, or harm the public;

(c) what constitutes immoral conduct in the commission of any act, including, but not limited to, commission of an act of sexual misconduct related to the licensee's practice; and

(d) what constitutes gross negligence in the practice of medicine.

However, no such rule shall be admissible into evidence in any civil action except for review of a licensing or other disciplinary action under this Act.

In enforcing this Section, the Medical Disciplinary Board, upon a showing of a possible violation, may compel any individual licensed to practice under this Act, or who has applied for licensure or a permit pursuant to 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 physicians shall be those specifically designated by the Disciplinary Board. The Medical Disciplinary Board or the Department may order the examining physician to present testimony concerning this mental or physical examination of the licensee or applicant. No information shall be excluded by reason of any common law or statutory privilege relating to communication between the licensee or applicant and the examining physician. 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 mental or physical examination, when directed, shall be grounds for suspension of his or her license until such time as the individual submits to the examination if the Disciplinary Board finds, after notice and hearing, that the refusal to submit to the examination was without reasonable cause. If the Disciplinary Board finds a physician unable to practice because of the reasons set forth in this Section, the Disciplinary Board shall require such physician to submit to care, counseling, or treatment by physicians approved or designated by the Disciplinary Board, as a condition for continued, reinstated, or renewed licensure to practice. Any physician, whose license was granted pursuant to Sections 9, 17, or 19 of this Act, or, continued, reinstated, renewed, disciplined or supervised, subject to such terms, conditions or restrictions who shall fail to comply with such terms, conditions or restrictions, or to complete a required program of care, counseling, or treatment, as determined by the Chief Medical Coordinator or Deputy Medical Coordinators, shall be referred to the Director for a determination as to whether the licensee shall have their license suspended immediately, pending a hearing by the Disciplinary Board. In instances in which the Director immediately suspends a license under this Section, a hearing upon such person's license must be convened by the Disciplinary Board within 15 days after such suspension and completed without appreciable delay. The Disciplinary Board shall have the authority to review the subject physician's record of treatment and counseling regarding the impairment, to the extent permitted by applicable federal statutes and regulations safeguarding the confidentiality of medical records.

An individual licensed under this Act, affected under this Section, shall be afforded an opportunity to demonstrate to the Disciplinary Board that they can resume practice in compliance with acceptable and prevailing standards under the provisions of their license.

The Department may promulgate rules for the imposition of fines in disciplinary cases, not to exceed $5,000 for each violation of this Act. 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. Any funds collected from such fines shall be deposited in the Medical Disciplinary Fund.

(B) The Department shall revoke the license or visiting permit of any person issued under this Act to practice medicine or to treat human ailments without the use of drugs and without operative surgery, 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 or visiting permit is revoked under this subsection B of Section 22 of this Act shall be prohibited from practicing medicine or treating human ailments without the use of drugs and without operative surgery.

(C) The Medical Disciplinary Board shall recommend to the Department civil penalties and any other appropriate discipline in disciplinary cases when the Board finds that a physician willfully performed an abortion with actual knowledge that the person upon whom the abortion has been performed is a minor or an incompetent person without notice as required under the Parental Notice of Abortion Act of 1995. Upon the Board's recommendation, the Department shall impose, for the first violation, a civil penalty of $1,000 and for a second or subsequent violation, a civil penalty of $5,000.

(D) The Medical Disciplinary Board shall recommend to the Department civil penalties and any other appropriate discipline in disciplinary cases when the Board finds that a physician willfully performed an abortion without providing the woman with the information required under subdivision (c)(1) or (c)(2) of Section 15 of the Woman's Right to Know Act. Upon the Board's recommendation, the Department shall impose, for the first violation, a civil penalty of $1,000 and for a second or subsequent violation, a civil penalty of $5,000.

(Source: P.A. 89-18, eff. 6-1-95; 89-201, eff. 1-1-96; 89-626, eff. 8-9-96; 89-702, eff. 7-1-97; 90-742, eff. 8-13-98.)

(225 ILCS 60/23) (from Ch. 111, par. 4400-23)

Sec. 23. Reports relating to professional conduct and capacity.

(A) Entities required to report.

(1) Health care institutions. The chief administrator or executive officer of any health care institution licensed by the Illinois Department of Public Health shall report to the Disciplinary Board when any person's clinical privileges are terminated or are restricted based on a final determination, in accordance with that institution's by-laws or rules and regulations, that a person has either committed an act or acts which may directly threaten patient care, and not of an administrative nature, or that a person may be mentally or physically disabled in such a manner as to endanger patients under that person's care. Such officer also shall report if a person accepts voluntary termination or restriction of clinical privileges in lieu of formal action based upon conduct related directly to patient care and not of an administrative nature, or in lieu of formal action seeking to determine whether a person may be mentally or physically disabled in such a manner as to endanger patients under that person's care. The Medical Disciplinary Board shall, by rule, provide for the reporting to it of all instances in which a person, licensed under this Act, who is impaired by reason of age, drug or alcohol abuse or physical or mental impairment, is under supervision and, where appropriate, is in a program of rehabilitation. Such reports shall be strictly confidential and may be reviewed and considered only by the members of the Disciplinary Board, or by authorized staff as provided by rules of the Disciplinary Board. Provisions shall be made for the periodic report of the status of any such person not less than twice annually in order that the Disciplinary Board shall have current information upon which to determine the status of any such person. Such initial and periodic reports of impaired physicians shall not be considered records within the meaning of The State Records Act and shall be disposed of, following a determination by the Disciplinary Board that such reports are no longer required, in a manner and at such time as the Disciplinary Board shall determine by rule. The filing of such reports shall be construed as the filing of a report for purposes of subsection (C) of this Section.

(2) Professional associations. The President or chief executive officer of any association or society, of persons licensed under this Act, operating within this State shall report to the Disciplinary Board when the association or society renders a final determination that a person has committed unprofessional conduct related directly to patient care or that a person may be mentally or physically disabled in such a manner as to endanger patients under that person's care.

(3) Professional liability insurers. Every insurance company which offers policies of professional liability insurance to persons licensed under this Act, or any other entity which seeks to indemnify the professional liability of a person licensed under this Act, shall report to the Disciplinary Board the settlement of any claim or cause of action, or final judgment rendered in any cause of action, which alleged negligence in the furnishing of medical care by such licensed person when such settlement or final judgment is in favor of the plaintiff.

(4) State's Attorneys. The State's Attorney of each county shall report to the Disciplinary Board all instances in which a person licensed under this Act is convicted or otherwise found guilty of the commission of any felony. The State's Attorney of each county may report to the Disciplinary Board through a verified complaint any instance in which the State's Attorney believes that a physician has willfully violated the requirements to provide information to a woman under subdivision (c)(1) or (c)(2) of Section 15 of the Woman's Right to Know Act. The State's Attorney of each county may report to the Disciplinary Board through a verified complaint any instance in which the State's Attorney believes that a physician has willfully violated the notice requirements of the Parental Notice of Abortion Act of 1995.

(5) State agencies. All agencies, boards, commissions, departments, or other instrumentalities of the government of the State of Illinois shall report to the Disciplinary Board any instance arising in connection with the operations of such agency, including the administration of any law by such agency, in which a person licensed under this Act has either committed an act or acts which may be a violation of this Act or which may constitute unprofessional conduct related directly to patient care or which indicates that a person licensed under this Act may be mentally or physically disabled in such a manner as to endanger patients under that person's care.

(B) Mandatory reporting. All reports required by items (34), (35), and (36) of subsection (A) of Section 22 and by Section 23 shall be submitted to the Disciplinary Board in a timely fashion. The reports shall be filed in writing within 60 days after a determination that a report is required under this Act. All reports shall contain the following information:

(1) The name, address and telephone number of the person making the report.

(2) The name, address and telephone number of the person who is the subject of the report.

(3) The name or other means of identification of any patient or patients whose treatment is a subject of the report, provided, however, no medical records may be revealed without the written consent of the patient or patients.

(4) A brief description of the facts which gave rise to the issuance of the report, including the dates of any occurrences deemed to necessitate the filing of the report.

(5) If court action is involved, the identity of the court in which the action is filed, along with the docket number and date of filing of the action.

(6) Any further pertinent information which the reporting party deems to be an aid in the evaluation of the report.

The Department shall have the right to inform patients of the right to provide written consent for the Department to obtain copies of hospital and medical records. The Disciplinary Board or Department may exercise the power under Section 38 of this Act to subpoena copies of hospital or medical records in mandatory report cases alleging death or permanent bodily injury when consent to obtain records is not provided by a patient or legal representative. Appropriate rules shall be adopted by the Department with the approval of the Disciplinary Board.

When the Department has received written reports concerning incidents required to be reported in items (34), (35), and (36) of subsection (A) of Section 22, the licensee's failure to report the incident to the Department under those items shall not be the sole grounds for disciplinary action.

Nothing contained in this Section shall act to in any way, waive or modify the confidentiality of medical reports and committee reports to the extent provided by law. Any information reported or disclosed shall be kept for the confidential use of the Disciplinary Board, the Medical Coordinators, the Disciplinary Board's attorneys, the medical investigative staff, and authorized clerical staff, as provided in this Act, and shall be afforded the same status as is provided information concerning medical studies in Part 21 of Article VIII of the Code of Civil Procedure.

(C) Immunity from prosecution. Any individual or organization acting in good faith, and not in a wilful and wanton manner, in complying with this Act by providing any report or other information to the Disciplinary Board, or assisting in the investigation or preparation of such information, or by participating in proceedings of the Disciplinary Board, or by serving as a member of the Disciplinary Board, shall not, as a result of such actions, be subject to criminal prosecution or civil damages.

(D) Indemnification. Members of the Disciplinary Board, the Medical Coordinators, the Disciplinary Board's attorneys, the medical investigative staff, physicians retained under contract to assist and advise the medical coordinators in the investigation, and authorized clerical staff shall be indemnified by the State for any actions occurring within the scope of services on the Disciplinary Board, done in good faith and not wilful and wanton in nature. 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 wilful and wanton.

Should the Attorney General decline 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 wilful 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 Disciplinary 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.

(E) Deliberations of Disciplinary Board. Upon the receipt of any report called for by this Act, other than those reports of impaired persons licensed under this Act required pursuant to the rules of the Disciplinary Board, the Disciplinary Board shall notify in writing, by certified mail, the person who is the subject of the report. Such notification shall be made within 30 days of receipt by the Disciplinary Board of the report.

The notification shall include a written notice setting forth the person's right to examine the report. Included in such notification shall be the address at which the file is maintained, the name of the custodian of the reports, and the telephone number at which the custodian may be reached. The person who is the subject of the report shall submit a written statement responding, clarifying, adding to, or proposing the amending of the report previously filed. The statement shall become a permanent part of the file and must be received by the Disciplinary Board no more than 60 days after the date on which the person was notified by the Disciplinary Board of the existence of the original report.

The Disciplinary Board shall review all reports received by it, together with any supporting information and responding statements submitted by persons who are the subject of reports. The review by the Disciplinary Board shall be in a timely manner but in no event, shall the Disciplinary Board's initial review of the material contained in each disciplinary file be less than 61 days nor more than 180 days after the receipt of the initial report by the Disciplinary Board.

When the Disciplinary Board makes its initial review of the materials contained within its disciplinary files, the Disciplinary Board shall, in writing, make a determination as to whether there are sufficient facts to warrant further investigation or action. Failure to make such determination within the time provided shall be deemed to be a determination that there are not sufficient facts to warrant further investigation or action.

Should the Disciplinary Board find that there are not sufficient facts to warrant further investigation, or action, the report shall be accepted for filing and the matter shall be deemed closed and so reported to the Director. The Director shall then have 30 days to accept the Medical Disciplinary Board's decision or request further investigation. The Director shall inform the Board in writing of the decision to request further investigation, including the specific reasons for the decision. The individual or entity filing the original report or complaint and the person who is the subject of the report or complaint shall be notified in writing by the Director of any final action on their report or complaint.

(F) Summary reports. The Disciplinary Board shall prepare, on a timely basis, but in no event less than one every other month, a summary report of final actions taken upon disciplinary files maintained by the Disciplinary Board. The summary reports shall be sent by the Disciplinary Board to every health care facility licensed by the Illinois Department of Public Health, every professional association and society of persons licensed under this Act functioning on a statewide basis in this State, the American Medical Association, the American Osteopathic Association, the American Chiropractic Association, all insurers providing professional liability insurance to persons licensed under this Act in the State of Illinois, the Federation of State Medical Licensing Boards, and the Illinois Pharmacists Association.

(G) Any violation of this Section shall be a Class A misdemeanor.

(H) If any such person violates the provisions of this Section an action may be brought in the name of the People of the State of Illinois, through the Attorney General of the State of Illinois, for an order enjoining such violation or for an order enforcing compliance with this Section. Upon filing of a verified petition in such court, the court may issue a temporary restraining order without notice or bond and may preliminarily or permanently enjoin such violation, and if it is established that such person has violated or is violating the injunction, the court may punish the offender for contempt of court. Proceedings under this paragraph shall be in addition to, and not in lieu of, all other remedies and penalties provided for by this Section.

(Source: P.A. 89-18, eff. 6-1-95; 89-702, eff. 7-1-97; 90-699, eff. 1-1-99.)

Section 99. Effective date. This Act takes effect 120 days after becoming law.