SB2204ham002 94TH GENERAL ASSEMBLY

Rep. Paul D. Froehlich

Filed: 3/28/2006

09400SB2204ham002 LRB094 15519 LCT 57778 a

AMENDMENT TO SENATE BILL 2204

AMENDMENT NO. ______. Amend Senate Bill 2204, AS AMENDED, by replacing everything after the enacting clause with the following:

"Section 5. The Mental Health and Developmental Disabilities Code is amended by changing Section 2-107.1 as follows:

(405 ILCS 5/2-107.1) (from Ch. 91 1/2, par. 2-107.1)

Sec. 2-107.1. Administration of authorized involuntary treatment upon application to a court.

(a) An adult recipient of services and the recipient's guardian, if the recipient is under guardianship, and the substitute decision maker, if any, shall be informed of the recipient's right to refuse medication. The recipient and the recipient's guardian or substitute decision maker shall be given the opportunity to refuse generally accepted mental health or developmental disability services, including but not limited to medication.

(a-5) Notwithstanding the provisions of Section 2-107 of this Code, authorized involuntary treatment may be administered to an adult recipient of services without the informed consent of the recipient under the following standards:

(1) Any person 18 years of age or older, including any guardian, may petition the circuit court for an order authorizing the administration of authorized involuntary treatment to a recipient of services. The petition shall state that the petitioner has made a good faith attempt to determine whether the recipient has executed a power of attorney for health care under the Powers of Attorney for Health Care Law or a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act and to obtain copies of these instruments if they exist. If either of the above-named instruments is available to the petitioner, the instrument or a copy of the instrument shall be attached to the petition as an exhibit. The petitioner shall deliver a copy of the petition, and notice of the time and place of the hearing, to the respondent, his or her attorney, any known agent or attorney-in-fact, if any, and the guardian, if any, no later than 3 days prior to the date of the hearing. Service of the petition and notice of the time and place of the hearing may be made by transmitting them via facsimile machine to the respondent or other party. Upon receipt of the petition and notice, the party served, or the person delivering the petition and notice to the party served, shall acknowledge service. If the party sending the petition and notice does not receive acknowledgement of service within 24 hours, service must be made by personal service.

The petition may include a request that the court authorize such testing and procedures as may be essential for the safe and effective administration of the authorized involuntary treatment sought to be administered, but only where the petition sets forth the specific testing and procedures sought to be administered.

If a hearing is requested to be held immediately following the hearing on a petition for involuntary admission, then the notice requirement shall be the same as that for the hearing on the petition for involuntary admission, and the petition filed pursuant to this Section shall be filed with the petition for involuntary admission.

(2) The court shall hold a hearing within 7 days of the filing of the petition. The People, the petitioner, or the respondent shall be entitled to a continuance of up to 7 days as of right. An additional continuance of not more than 7 days may be granted to any party (i) upon a showing that the continuance is needed in order to adequately prepare for or present evidence in a hearing under this Section or (ii) under exceptional circumstances. The court may grant an additional continuance not to exceed 21 days when, in its discretion, the court determines that such a continuance is necessary in order to provide the recipient with an examination pursuant to Section 3-803 or 3-804 of this Act, to provide the recipient with a trial by jury as provided in Section 3-802 of this Act, or to arrange for the substitution of counsel as provided for by the Illinois Supreme Court Rules. The hearing shall be separate from a judicial proceeding held to determine whether a person is subject to involuntary admission but may be heard immediately preceding or following such a judicial proceeding and may be heard by the same trier of fact or law as in that judicial proceeding.

(3) Unless otherwise provided herein, the procedures set forth in Article VIII of Chapter 3 of this Act, including the provisions regarding appointment of counsel, shall govern hearings held under this subsection (a-5).

(4) Authorized involuntary treatment shall not be administered to the recipient unless it has been determined by clear and convincing evidence that all of the following factors are present. In determining whether a person meets the criteria specified in the following paragraphs (A) through (G), the court may consider evidence of the person's history of serious violence, repeated past pattern of specific behavior, actions related to the person's illness, or past outcomes of various treatment options. :

(A) That the recipient has a serious mental illness or developmental disability.

(B) That because of said mental illness or developmental disability, the recipient currently exhibits any one of the following: (i) deterioration of his or her ability to function, as compared to the recipient's ability to function prior to the current onset of symptoms of the mental illness or disability for which treatment is presently sought, (ii) suffering, or (iii) threatening behavior.

(C) That the illness or disability has existed for a period marked by the continuing presence of the symptoms set forth in item (B) of this subdivision (4) or the repeated episodic occurrence of these symptoms.

(D) That the benefits of the treatment outweigh the harm.

(E) That the recipient lacks the capacity to make a reasoned decision about the treatment.

(F) That other less restrictive services have been explored and found inappropriate.

(G) If the petition seeks authorization for testing and other procedures, that such testing and procedures are essential for the safe and effective administration of the treatment.

(5) In no event shall an order issued under this Section be effective for more than 90 days. A second 90-day period of involuntary treatment may be authorized pursuant to a hearing that complies with the standards and procedures of this subsection (a-5). Thereafter, additional 180-day periods of involuntary treatment may be authorized pursuant to the standards and procedures of this Section without limit. If a new petition to authorize the administration of authorized involuntary treatment is filed at least 15 days prior to the expiration of the prior order, and if any continuance of the hearing is agreed to by the recipient, the administration of the treatment may continue in accordance with the prior order pending the completion of a hearing under this Section.

(6) An order issued under this subsection (a-5) shall designate the persons authorized to administer the authorized involuntary treatment under the standards and procedures of this subsection (a-5). Those persons shall have complete discretion not to administer any treatment authorized under this Section. The order shall also specify the medications and the anticipated range of dosages that have been authorized and may include a list of any alternative medications and range of dosages deemed necessary.

(b) A guardian may be authorized to consent to the administration of authorized involuntary treatment to an objecting recipient only under the standards and procedures of subsection (a-5).

(c) Notwithstanding any other provision of this Section, a guardian may consent to the administration of authorized involuntary treatment to a non-objecting recipient under Article XIa of the Probate Act of 1975.

(d) Nothing in this Section shall prevent the administration of authorized involuntary treatment to recipients in an emergency under Section 2-107 of this Act.

(e) Notwithstanding any of the provisions of this Section, authorized involuntary treatment may be administered pursuant to a power of attorney for health care under the Powers of Attorney for Health Care Law or a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act.

(Source: P.A. 92-16, eff. 6-28-01; 93-573, eff. 8-21-03.)

Section 10. The Health Care Workplace Violence Prevention Act is amended by changing Section 35 as follows:

(405 ILCS 90/35)

Sec. 35. Pilot project; task force.

(a) The Department of Human Services and the Department of Public Health shall initially implement this Act as a 2-year pilot project in which only the following health care workplaces shall participate:

(1) The Chester Mental Health Center.

(2) The Alton Mental Health Center.

(3) The Douglas Singer Mental Health Center.

(4) The Andrew McFarland Mental Health Center.

(5) The Jacksonville Developmental Center.

Each health care workplace participating in the pilot project shall comply with this Act as provided in this Act.

(b) The Governor shall convene a 11-member 6-member task force consisting of the following: one member appointed by the President of the Senate; one member appointed by the Minority Leader of the Senate; one member appointed by the Speaker of House of Representatives; one member appointed by the Minority Leader of the House of Representatives; one representative from a statewide association representing licensed registered professional nurses; one licensed registered professional nurse involved in direct patient care, appointed by the Governor; one representative of an organization representing State, county, and municipal employees, appointed by the Governor; one representative of an organization representing public employees, appointed by the Governor; and 3 representatives of the Department of Human Services, with one representative from the Division of Mental Health, one representative from the Division of Developmental Disabilities, and one representative from the Division of Rehabilitation Services of the Department of Human Services. The task force shall submit a report to the Illinois General Assembly by January 1, 2008 that shall (i) evaluate the effectiveness of the health care workplace violence prevention pilot project in the facilities participating in the pilot project and (ii) make recommendations concerning the implementation of workplace violence prevention programs in all health care workplaces.

(c) The Department of Human Services shall provide all necessary administrative support to the task force.

(Source: P.A. 94-347, eff. 7-28-05.)

Section 15. The Code of Criminal Procedure of 1963 is amended by changing Sections 104-13, 104-17, and 104-24 and by adding Section 104-17.5 as follows:

(725 ILCS 5/104-13) (from Ch. 38, par. 104-13)

Sec. 104-13. Fitness Examination.

(a) When the issue of fitness involves the defendant's mental condition, the court shall order an examination of the defendant by one or more licensed physicians, clinical psychologists, or psychiatrists chosen by the court. No physician, clinical psychologist or psychiatrist employed by or under contract with the Department of Human Services or the Department of Corrections shall be ordered to perform, in his official capacity, an examination under this Section.

(b) If the issue of fitness involves the defendant's physical condition, the court shall appoint one or more physicians and in addition, such other experts as it may deem appropriate to examine the defendant and to report to the court regarding the defendant's condition.

(c) An examination ordered under this Section shall be given at the place designated by the person who will conduct the examination, except that if the defendant is being held in custody, the examination shall take place at such location as the court directs. No examinations under this Section shall be ordered to take place at mental health or developmental disabilities facilities operated by the Department of Human Services. If the defendant fails to keep appointments without reasonable cause or if the person conducting the examination reports to the court that diagnosis requires hospitalization or extended observation, the court may order the defendant admitted to an appropriate facility for an examination, other than a screening examination, for not more than 7 days. The court may, upon a showing of good cause, grant an additional 7 days to complete the examination.

(d) Release on bail or on recognizance shall not be revoked and an application therefor shall not be denied on the grounds that an examination has been ordered.

(e) Upon request by the defense and if the defendant is indigent, the court may appoint, in addition to the expert or experts chosen pursuant to subsection (a) of this Section, a qualified expert selected by the defendant to examine him and to make a report as provided in Section 104-15. Upon the filing with the court of a verified statement of services rendered, the court shall enter an order on the county board to pay such expert a reasonable fee stated in the order.

(Source: P.A. 89-507, eff. 7-1-97.)

(725 ILCS 5/104-17) (from Ch. 38, par. 104-17)

Sec. 104-17. Commitment for Treatment; Treatment Plan.

(a) If the defendant is eligible to be or has been released on bail or on his own recognizance, the court shall select the least physically restrictive form of treatment therapeutically appropriate and consistent with the treatment plan.

(b) If the defendant's disability is mental, the court may order him placed for treatment in the custody of the Department of Human Services, or the court may order him placed in the custody of any other appropriate public or private mental health facility or treatment program which has agreed to provide treatment to the defendant; or, if the defendant is concurrently serving a felony sentence of imprisonment in the Department of Corrections, the court shall order the Department of Human Services to perform a placement evaluation and to submit a written placement recommendation based upon the treatment and security needs of the defendant and the safety of staff and other recipients of services, which the court shall use to determine whether to place the defendant for treatment in the Department of Corrections or the Department of Human Services. The court may order the defendant placed in the Department of Corrections or the Department of Human Services. The written placement recommendation shall be sent to the court, the State, and the defense within 21 days of the order. If the defendant is placed in the custody of the Department of Human Services, the defendant shall be placed in a secure setting unless the court determines that there are compelling reasons why such placement is not necessary. If the defendant is remanded to the Department of Corrections for treatment, the Department of Human Services, upon request by the Department of Corrections, shall provide consultation and other resources required to assist in rendering the person fit to stand trial, including, but not limited to, providing ongoing training, sharing personal service contract personnel, and, in individual cases, agreeing to a transfer to a Department of Human Services facility pursuant to Section 3-8-5 of the Unified Code of Corrections. During the period of time required to determine the appropriate placement the defendant shall remain in jail or other correctional setting. Upon completion of the placement process, the sheriff shall be notified and shall transport the defendant to the designated facility. Except for defendants remanded to the custody of the Department of Corrections, the The placement may be ordered either on an inpatient or an outpatient basis.

(c) If the defendant's disability is physical, the court may order him placed under the supervision of the Department of Human Services, which shall place and maintain the defendant in a suitable treatment facility or program, or the court may order him placed in an appropriate public or private facility or treatment program which has agreed to provide treatment to the defendant; or, if the defendant is concurrently serving a felony sentence of imprisonment in the Department of Corrections, the court shall order the Department of Human Services to perform a placement evaluation and to submit a written placement recommendation based upon the treatment and security needs of the defendant and the safety of staff and other recipients of services, which the court shall use to determine whether to place the defendant for treatment in the Department of Corrections or the Department of Human Services. The written placement recommendation shall be sent to the court, the State, and the defense within 21 days of the order. If the defendant is remanded to the Department of Corrections for treatment, the Department of Human Services, upon request by the Department of Corrections, shall provide consultation and other resources required to assist in rendering the person fit to stand trial. Except for defendants remanded to the custody of the Department of Corrections, the The placement may be ordered either on an inpatient or an outpatient basis.

(d) The clerk of the circuit court shall transmit to the Department, agency or institution, if any, to which the defendant is remanded for treatment, the following:

(1) a certified copy of the order to undergo treatment;

(2) the county and municipality in which the offense was committed;

(3) the county and municipality in which the arrest took place; and

(4) all additional matters which the Court directs the clerk to transmit.

(e) Within 30 days of entry of an order to undergo treatment, the person supervising the defendant's treatment shall file with the court, the State, and the defense a report assessing the facility's or program's capacity to provide appropriate treatment for the defendant and indicating his opinion as to the probability of the defendant's attaining fitness within a period of one year from the date of the finding of unfitness. If the report indicates that there is a substantial probability that the defendant will attain fitness within the time period, the treatment supervisor shall also file a treatment plan which shall include:

(1) A diagnosis of the defendant's disability;

(2) A description of treatment goals with respect to rendering the defendant fit, a specification of the proposed treatment modalities, and an estimated timetable for attainment of the goals;

(3) An identification of the person in charge of supervising the defendant's treatment.

(f) Within 60 days after the effective date of this amendatory Act of the 94th General Assembly, the Department of Human Services and the Department of Corrections shall enter into an interagency agreement for the sharing of resources to effectuate the services required for the evaluation, treatment, and report writing required by the Department of Corrections pursuant to this Section. The cost of these services shall be provided by the Department of Human Services.

(Source: P.A. 89-507, eff. 7-1-97.)

(725 ILCS 5/104-17.5 new)

Sec. 104-17.5. Fitness for trial; administration of authorized involuntary medication upon application to a court.

(a) Generally. Involuntary medication may be administered to an adult defendant without the informed consent of the defendant by order of the circuit court pursuant to the procedures and standards set forth in this Section. Notwithstanding any other provisions of this Section, a defendant in the custody of the Department of Human Services may also be administered medication as provided in the Mental Health and Developmental Disabilities Code. A defendant in the custody of the Department of Corrections may also be administered medication as provided in the rules and regulations of the Department of Corrections.

(b) Definition. For purposes of this Section, "authorized involuntary medication" means:

(1) Psychotropic medication whose use for anti-psychotic, antidepressant, anti-manic, anti-anxiety, behavioral modification, or behavioral management purposes is listed in the latest edition of the AMA Drug Evaluations or Physician's Desk Reference or that is administered for any of these purposes.

(2) Tests and other related procedures that are essential for the safe and effective administration of a psychotropic medication.

(c) Petition. The State on behalf of a facility director may petition the circuit court for an order authorizing the administration of authorized involuntary medication to a defendant. The petition shall include:

(1) A copy of the defendant's power of attorney for health care under the Illinois Power of Attorney Act, a declaration for mental health under the Mental Health Treatment Preference Declaration Act, or a statement by the petitioner that a good faith attempt was made to determine whether such instruments exist and that none were found to exist.

(2) A treatment plan with diagnosis, proposed medications and their dosages and side effects, any alternative medications and their dosages and side effects, testing and procedures essential for the safe and effective administration of the authorized involuntary medication, and the staff members responsible for implementing the treatment plan.

(3) If applicable, specific testing and procedures sought to be administered and a request that the court authorize such testing and procedures as may be essential for the safe and effective administration of the authorized involuntary medication sought to be administered.

(4) A statement that other, less restrictive services have been explored and found inappropriate or, taking account of less intrusive alternatives, the authorized involuntary medication is necessary to render the defendant fit.

If the defendant is in the custody of the Department of Human Services, the statement shall include a statement that the defendant was evaluated and could not be medicated under Section 2-102, 2-107, or 2-107.1 of the Mental Health and Developmental Disabilities Code.

If the defendant is in the custody of the Department of Corrections, the statement shall include a statement that the defendant was evaluated and could not be medicated under the Department of Corrections Rules for Involuntary Administration of Psychotropic Medication under 20 Illinois Administrative Code 415.

(d) Service of petition and notice. No later than 7 days prior to the date of the hearing, the petitioner shall deliver a copy the petition and notice of the time and place of the hearing to the defendant, his or her attorney, any known agent or attorney-in-fact, if any, and the guardian, if any. Service may be made by facsimile transmission, mail, or in person. Upon receipt of the petition and notice, the party served, or the person delivering the petition and notice to the party served, shall acknowledge service. If the sending party does not receive acknowledgment of service within 24 hours, service must be made by personal service.

(e) Hearing. The court shall hold a hearing within 14 days after the filing of the petition. The people or the petitioner shall be entitled to a continuance of not more than 7 days as of right. An additional continuance of not more than 7 days may be granted to any party (i) upon a showing that the continuance is needed in order to adequately prepare for or present evidence in a hearing under this Section or (ii) under exceptional circumstances. The court may grant an additional continuance not to exceed 21 days when, in its discretion, the court determines that such a continuance is necessary to provide the defendant an examination, a trial by jury, or substitution of counsel as provided for by the Illinois Supreme Court Rules.

(f) Evidence. Authorized involuntary medication shall not be administered to the defendant unless it has been determined by clear and convincing evidence that all of the following factors are present:

(1) The defendant has a serious mental illness or developmental disability.

(2) The authorized involuntary medication is medically appropriate.

(3) The authorized involuntary medication is substantially likely to render the defendant fit to stand trial.

(4) The authorized involuntary medication is substantially unlikely to have side effects that may undermine the fairness of the trial.

(5) Other, less restrictive services have been explored and found inappropriate or, taking account of less intrusive alternatives, the authorized involuntary medication is necessary significantly to further important governmental trial-related interests.

(6) If the petition seeks authorization for testing and other procedures, such testing and procedures are essential for the safe and effective administration of the medication.

(g) Order. An order issued under this Section shall designate the persons authorized to administer the authorized involuntary medication under the standards and procedures of this Section. Those persons shall have complete discretion not to administer any medication authorized under this Section. The order shall also specify the medication and the anticipated range of dosages that have been authorized and may include a list of any alternative medications and range of dosages deemed necessary. Alternatively, the court may order the proposed treatment plan that was presented in the petition.

(h) Duration of order. In no event shall an order issued under this Section be effective for more than 90 days. A second 90-day period of involuntary medication may be authorized pursuant to this Section. Thereafter, additional 180-day periods of involuntary medication may be authorized pursuant to the standards and procedures of this Section without limit. If a new petition is filed at least 15 days prior to the expiration of the prior order and the defendant agrees to a hearing continuance, the administration of the medication may continue in accordance with the prior order pending the completion of a hearing under this Section.

(i) Power of attorney or declaration for mental health treatment. Notwithstanding any other provisions of this Section, authorized involuntary treatment may be administered pursuant to a power of attorney for health care under the Illinois Power of Attorney Act or a declaration for mental health treatment under the Mental Health Treatment Preference Declaration Act.

(725 ILCS 5/104-24) (from Ch. 38, par. 104-24)

Sec. 104-24. Time Credit.

(a) Time spent in custody pursuant to orders issued under Section 104-17 or 104-20 or pursuant to a commitment to the Department of Human Services following a finding of unfitness or incompetency under prior law, shall be credited against any sentence imposed on the defendant in the pending criminal case or in any other case arising out of the same conduct.

(b) A defendant serving a felony sentence of imprisonment in the Department of Corrections concurrently with time spent in the custody of the Department of Corrections pursuant to an order issued under this Article shall not remain in the Department of Corrections pursuant to this Article at the expiration of the felony sentence. Upon completion of the time served under all felony sentences of imprisonment, the Department of Corrections shall notify the court of any defendant still in custody pursuant to this Article, and the court shall evaluate the defendant for placement with the Department of Human Services in accordance with the provisions of this Article. A court order of commitment to the Department of Human Services shall serve as a condition of any remaining term of mandatory supervised release or parole.

(Source: P.A. 89-507, eff. 7-1-97.)

Section 20. The Unified Code of Corrections is amended by changing Sections 3-6-2, 3-8-5, and 5-2-4 as follows:

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

(Text of Section before amendment by P.A. 94-696)

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.

(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. The Department shall require the committed person receiving medical or dental services on a non-emergency basis to pay a $2 co-payment to the Department for each visit for medical or dental services. The amount of each co-payment shall be deducted from the committed person's individual account. A committed person who has a chronic illness, as defined by Department rules and regulations, shall be exempt from the $2 co-payment for treatment of the chronic illness. A committed person shall not be subject to a $2 co-payment for follow-up visits ordered by a physician, who is employed by, or contracts with, the Department. A committed person who is indigent is exempt from the $2 co-payment and is entitled to receive medical or dental services on the same basis as a committed person who is financially able to afford the co-payment. Notwithstanding any other provision in this subsection (f) to the contrary, any person committed to any facility operated by the Juvenile Division, as set forth in subsection (b) of Section 3-2-5 of this Code, is exempt from the co-payment requirement for the duration of confinement in those facilities.

(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) Prior to the release of any inmate who has a documented history of intravenous drug use, and upon the receipt of that inmate's written informed consent, the Department shall provide for the testing of such inmate for infection with human immunodeficiency virus (HIV) and any other identified causative agent of acquired immunodeficiency syndrome (AIDS). The testing provided under this subsection shall consist of an enzyme-linked immunosorbent assay (ELISA) test or such other test as may be approved by the Illinois Department of Public Health. If the test result is positive, the Western Blot Assay or more reliable confirmatory test shall be administered. All inmates tested in accordance with the provisions of this subsection shall be provided with pre-test and post-test counseling. Notwithstanding any provision of this subsection to the contrary, the Department shall not be required to conduct the testing and counseling required by this subsection unless sufficient funds to cover all costs of such testing and counseling are appropriated for that purpose by the General Assembly.

(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 Corrections-Juvenile Division 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, the Department must provide the inmate with the option of testing for infection with human immunodeficiency virus (HIV), as well as counseling in connection with such testing, with no copayment for the test. At the same time, the Department shall require each such inmate to sign a form stating that the inmate has been informed of his or her rights with respect to the testing required to be offered under this subsection (l) and providing the inmate with an opportunity to indicate either that he or she wants to be tested or that he or she does not want to be tested. The Department, in consultation with the Department of Public Health, shall prescribe the contents of the form. The testing provided under this subsection (l) shall consist of an enzyme-linked immunosorbent assay (ELISA) test or any other test approved by the Department of Public Health. If the test result is positive, the Western Blot Assay or more reliable confirmatory test 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.

Implementation of this subsection (l) is subject to appropriation.

(Source: P.A. 93-616, eff. 1-1-04; 93-928, eff. 1-1-05; 94-629, eff. 1-1-06.)

(Text of Section after amendment by P.A. 94-696)

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.

(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.

(e-10) A person committed to the Department who has a mental illness or developmental disability and who, because of that mental illness or developmental disability, exhibits (i) deterioration of his or her ability to function, (ii) suffering, or (iii) threatening behavior may be administered involuntary psychotropic medications, provided that (A) the illness or disability has existed for a period marked by the continuing presence of the symptoms sent forth or repeated episodic occurrence of these symptoms, (B) the benefits of the treatment outweigh the harm, and (C) the committed person lacks the capacity to make a reasoned decision about the treatment. The Department may establish rules and regulations for the administration of such psychotropic medication. For the purpose of this Section, "psychotropic medication" means medication whose use for anti-psychotic, antidepressant, anti-manic, anti-anxiety, behavioral modification, or behavioral management purposes is listed in the latest edition of the AMA Drug Evaluations or Physician's Desk Reference or that is administered for any of these purposes. "Psychotropic medication" includes tests and other related procedures that are essential for the safe and effective administration of a psychotropic medication.

(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. The Department shall require the committed person receiving medical or dental services on a non-emergency basis to pay a $2 co-payment to the Department for each visit for medical or dental services. The amount of each co-payment shall be deducted from the committed person's individual account. A committed person who has a chronic illness, as defined by Department rules and regulations, shall be exempt from the $2 co-payment for treatment of the chronic illness. A committed person shall not be subject to a $2 co-payment for follow-up visits ordered by a physician, who is employed by, or contracts with, the Department. A committed person who is indigent is exempt from the $2 co-payment and is entitled to receive medical or dental services on the same basis as a committed person who is financially able to afford the co-payment. Notwithstanding any other provision in this subsection (f) to the contrary, any person committed to any facility operated by the Department of Juvenile Justice, as set forth in Section 3-2.5-15 of this Code, is exempt from the co-payment requirement for the duration of confinement in those facilities.

(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) Prior to the release of any inmate who has a documented history of intravenous drug use, and upon the receipt of that inmate's written informed consent, the Department shall provide for the testing of such inmate for infection with human immunodeficiency virus (HIV) and any other identified causative agent of acquired immunodeficiency syndrome (AIDS). The testing provided under this subsection shall consist of an enzyme-linked immunosorbent assay (ELISA) test or such other test as may be approved by the Illinois Department of Public Health. If the test result is positive, the Western Blot Assay or more reliable confirmatory test shall be administered. All inmates tested in accordance with the provisions of this subsection shall be provided with pre-test and post-test counseling. Notwithstanding any provision of this subsection to the contrary, the Department shall not be required to conduct the testing and counseling required by this subsection unless sufficient funds to cover all costs of such testing and counseling are appropriated for that purpose by the General Assembly.

(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, the Department must provide the inmate with the option of testing for infection with human immunodeficiency virus (HIV), as well as counseling in connection with such testing, with no copayment for the test. At the same time, the Department shall require each such inmate to sign a form stating that the inmate has been informed of his or her rights with respect to the testing required to be offered under this subsection (l) and providing the inmate with an opportunity to indicate either that he or she wants to be tested or that he or she does not want to be tested. The Department, in consultation with the Department of Public Health, shall prescribe the contents of the form. The testing provided under this subsection (l) shall consist of an enzyme-linked immunosorbent assay (ELISA) test or any other test approved by the Department of Public Health. If the test result is positive, the Western Blot Assay or more reliable confirmatory test 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.

Implementation of this subsection (l) is subject to appropriation.

(Source: P.A. 93-616, eff. 1-1-04; 93-928, eff. 1-1-05; 94-629, eff. 1-1-06; 94-696, eff. 6-1-06.)

(730 ILCS 5/3-8-5) (from Ch. 38, par. 1003-8-5)

Sec. 3-8-5. Transfer to Department of Human Services.

(a) The Department shall cause inquiry and examination at periodic intervals to ascertain whether any person committed to it may be subject to involuntary admission, as defined in Section 1-119 of the Mental Health and Developmental Disabilities Code, or pursuant to Section 5-2-4 of this Code, or meets the standard for judicial admission as defined in Section 4-500 of the Mental Health and Developmental Disabilities Code, or is an addict, alcoholic or intoxicated person as defined in the Alcoholism and Other Drug Abuse and Dependency Act, or is committed by a court for treatment or a treatment plan pursuant to Article 104 of the Code of Criminal Procedure of 1963. The Department may provide special psychiatric or psychological or other counseling or treatment to such persons in a separate institution within the Department, or the Director of the Department of Corrections may transfer such persons other than addicts, alcoholics or intoxicated persons to the Department of Human Services for observation, diagnosis and treatment, subject to the approval of the Director of the Department of Human Services, for a period of not more than 6 months, if the person consents in writing to the transfer. The person shall be advised of his right not to consent, and if he does not consent, such transfer may be effected only by commitment under paragraphs (c) and (d) of this Section.

(b) The person's spouse, guardian or nearest relative and his attorney of record shall be advised of their right to object, and if objection is made, such transfer may be effected only by commitment under paragraph (c) of this Section. Notices of such transfer shall be mailed to such person's spouse, guardian or nearest relative and to the attorney of record marked for delivery to addressee only at his last known address by certified mail with return receipt requested together with written notification of the manner and time within which he may object thereto.

(c) If a committed person does not consent to his transfer to the Department of Human Services or if a person objects under paragraph (b) of this Section, or if the Department of Human Services determines that a transferred person requires commitment to the Department of Human Services for more than 6 months, or if the person's sentence will expire within 6 months, the Director of the Department of Corrections shall file a petition in the circuit court of the county in which the correctional institution or facility is located requesting the transfer of such person to the Department of Human Services. A certificate of a psychiatrist, clinical psychologist or, if admission to a developmental disability facility is sought, of a physician that the person is in need of commitment to the Department of Human Services for treatment or habilitation shall be attached to the petition. Copies of the petition shall be furnished to the named person and to the state's attorneys of the county in which the correctional institution or facility is located and the county in which the named person was committed to the Department of Corrections.

(d) The court shall set a date for a hearing on the petition within the time limit set forth in the Mental Health and Developmental Disabilities Code. The hearing shall be conducted in the manner prescribed by the Mental Health and Developmental Disabilities Code. If the person is found to be in need of commitment to the Department of Human Services for treatment or habilitation, the court may commit him to that Department.

(e) Nothing in this Section shall limit the right of the Director or the chief administrative officer of any institution or facility to utilize the emergency admission provisions of the Mental Health and Developmental Disabilities Code with respect to any person in his custody or care. The transfer of a person to an institution or facility of the Department of Human Services under paragraph (a) of this Section does not discharge the person from the control of the Department.

(Source: P.A. 88-670, eff. 12-2-94; 89-507, eff. 7-1-97.)

(730 ILCS 5/5-2-4) (from Ch. 38, par. 1005-2-4)

Sec. 5-2-4. Proceedings after Acquittal by Reason of Insanity.

(a) After a finding or verdict of not guilty by reason of insanity under Sections 104-25, 115-3 or 115-4 of The Code of Criminal Procedure of 1963, the defendant shall be ordered to the Department of Human Services for an evaluation as to whether he is in need of mental health services; or, if the defendant is concurrently serving a felony sentence of imprisonment in the Department of Corrections, the court shall order the Department of Human Services to perform a placement evaluation and to submit a written placement recommendation based upon the treatment and security needs of the defendant and the safety of staff and other recipients of services, which the court shall use to determine whether to place the defendant for treatment in the Department of Corrections or the Department of Human Services. The court may order the defendant placed in the Department of Corrections or the Department of Human Services. The written placement recommendation shall be sent to the court, the State, and the defense within 21 days of the order. For persons concurrently serving a felony sentence of imprisonment in the Department of Corrections, placement evaluations shall occur in the jail or other correctional setting. The order shall specify whether the evaluation shall be conducted on an inpatient or outpatient basis. If the evaluation is to be conducted on an inpatient basis, the defendant shall be placed in a secure setting unless the Court determines that there are compelling reasons why such placement is not necessary.

(a-0.2) After the evaluation and during the period of time required to determine the appropriate placement, the defendant shall remain in jail. Upon completion of the placement process the sheriff shall be notified and shall transport the defendant to the designated facility.

(a-0.4) If the defendant is concurrently serving a felony sentence of imprisonment in the Department of Corrections, the court shall use the placement recommendation submitted by the Department of Human Services to determine whether to place the defendant in the Department of Corrections or the Department of Human Services. In addition, if the defendant is placed in the Department of Corrections:

(1) The Department of Corrections, and not the Department of Human Services, shall provide all evaluations, reports, and treatment pursuant to subsections (a), (a-0.6), (b-15), and (d) of this Section.

(2) The provisions relating to privileges, home visits, non-secure settings, conditional release, or discharge do not apply while the defendant is concurrently serving a felony sentence of imprisonment in the Department of Corrections.

(3) The provisions in subsections (a-0.8), (b), (b-10), and (h) shall not apply.

(4) The Department of Human Services, upon request by the Department of Corrections, shall provide consultation and other resources required to assist in treatment, including, but not limited to, providing ongoing training, sharing personal service contract personnel, and, in individual cases, agreeing to a transfer to a Department of Human Services facility pursuant to Section 3-8-5.

(a-0.6) The Department shall provide the Court with a report of its evaluation within 30 days of the date of this order. The Court shall hold a hearing as provided under the Mental Health and Developmental Disabilities Code to determine if the individual is: (a) in need of mental health services on an inpatient basis; (b) in need of mental health services on an outpatient basis; (c) a person not in need of mental health services. The Court shall enter its findings.

(a-0.8) If the defendant is found to be in need of mental health services on an inpatient care basis, the Court shall order the defendant to the Department of Human Services. The defendant shall be placed in a secure setting unless the Court determines that there are compelling reasons why such placement is not necessary. Such defendants placed in a secure setting shall not be permitted outside the facility's housing unit unless escorted or accompanied by personnel of the Department of Human Services or with the prior approval of the Court for unsupervised on-grounds privileges as provided herein. Any defendant placed in a secure setting pursuant to this Section, transported to court hearings or other necessary appointments off facility grounds by personnel of the Department of Human Services, shall be placed in security devices or otherwise secured during the period of transportation to assure secure transport of the defendant and the safety of Department of Human Services personnel and others. These security measures shall not constitute restraint as defined in the Mental Health and Developmental Disabilities Code. If the defendant is found to be in need of mental health services, but not on an inpatient care basis, the Court shall conditionally release the defendant, under such conditions as set forth in this Section as will reasonably assure the defendant's satisfactory progress and participation in treatment or rehabilitation and the safety of the defendant and others. If the Court finds the person not in need of mental health services, then the Court shall order the defendant discharged from custody.

(a-1) (1) Definitions. : For the purposes of this Section:

(A) (Blank).

(B) "In need of mental health services on an inpatient basis" means: a defendant who has been found not guilty by reason of insanity but who due to mental illness is reasonably expected to inflict serious physical harm upon himself or another and who would benefit from inpatient care or is in need of inpatient care.

(C) "In need of mental health services on an outpatient basis" means: a defendant who has been found not guilty by reason of insanity who is not in need of mental health services on an inpatient basis, but is in need of outpatient care, drug and/or alcohol rehabilitation programs, community adjustment programs, individual, group, or family therapy, or chemotherapy.

(D) "Conditional Release" means: the release from either the custody of the Department of Human Services or the custody of the Court of a person who has been found not guilty by reason of insanity under such conditions as the Court may impose which reasonably assure the defendant's satisfactory progress in treatment or habilitation and the safety of the defendant and others. The Court shall consider such terms and conditions which may include, but need not be limited to, outpatient care, alcoholic and drug rehabilitation programs, community adjustment programs, individual, group, family, and chemotherapy, random testing to ensure the defendant's timely and continuous taking of any medicines prescribed to control or manage his or her conduct or mental state, and periodic checks with the legal authorities and/or the Department of Human Services. The Court may order as a condition of conditional release that the defendant not contact the victim of the offense that resulted in the finding or verdict of not guilty by reason of insanity or any other person. The Court may order the Department of Human Services to provide care to any person conditionally released under this Section. The Department may contract with any public or private agency in order to discharge any responsibilities imposed under this Section. The Department shall monitor the provision of services to persons conditionally released under this Section and provide periodic reports to the Court concerning the services and the condition of the defendant. Whenever a person is conditionally released pursuant to this Section, the State's Attorney for the county in which the hearing is held shall designate in writing the name, telephone number, and address of a person employed by him or her who shall be notified in the event that either the reporting agency or the Department decides that the conditional release of the defendant should be revoked or modified pursuant to subsection (i) of this Section. Such conditional release shall be for a period of five years. However, the defendant, the person or facility rendering the treatment, therapy, program or outpatient care, the Department, or the State's Attorney may petition the Court for an extension of the conditional release period for an additional 5 years. Upon receipt of such a petition, the Court shall hold a hearing consistent with the provisions of subsections this paragraph (a), (a-0.2), (a-0.4), (a-0.6), and (a-0.8), this subsection (a-1), and subsection paragraph (f) of this Section, shall determine whether the defendant should continue to be subject to the terms of conditional release, and shall enter an order either extending the defendant's period of conditional release for an additional 5 year period or discharging the defendant. Additional 5-year periods of conditional release may be ordered following a hearing as provided in this Section. However, in no event shall the defendant's period of conditional release continue beyond the maximum period of commitment ordered by the Court pursuant to paragraph (b-5) (b) of this Section. These provisions for extension of conditional release shall only apply to defendants conditionally released on or after August 8, 2003 the effective date of this amendatory Act of the 93rd General Assembly. However the extension provisions of Public Act 83-1449 apply only to defendants charged with a forcible felony.

(E) "Facility director" means the chief officer of a mental health or developmental disabilities facility or the chief administrator of a Department of Corrections facility or his or her designee or the supervisor of a program of treatment or habilitation or his or her designee. "Designee" may include a physician, clinical psychologist, social worker, nurse, or clinical professional counselor.

(b) If the Court finds the defendant in need of mental health services on an inpatient basis, the admission, detention, care, treatment or habilitation, treatment plans, review proceedings, including review of treatment and treatment plans, and discharge of the defendant after such order shall be under the Mental Health and Developmental Disabilities Code, except that the initial order for admission of a defendant acquitted of a felony by reason of insanity shall be for an indefinite period of time.

(b-5) The Such period of commitment shall not exceed the maximum length of time that the defendant would have been required to serve, less credit for good behavior as provided in Section 5-4-1 of the Unified Code of Corrections, before becoming eligible for release had he been convicted of and received the maximum sentence for the most serious crime for which he has been acquitted by reason of insanity. The Court shall determine the maximum period of commitment by an appropriate order.

(b-10) During the this period of commitment time, the defendant shall not be permitted to be in the community in any manner, including but not limited to off-grounds privileges, with or without escort by personnel of the Department of Human Services, unsupervised on-grounds privileges, discharge or conditional or temporary release, except by a plan as provided in this Section. In no event shall a defendant's continued unauthorized absence be a basis for discharge.

(b-15) Not more than 30 days after admission and every 60 days thereafter so long as the initial order remains in effect, the facility director shall file a treatment plan report in writing with the court and forward a copy of the treatment plan report to the clerk of the court, the State's Attorney, and the defendant's attorney, if the defendant is represented by counsel, or to a person authorized by the defendant under the Mental Health and Developmental Disabilities Confidentiality Act to be sent a copy of the report. The report shall include an opinion as to whether the defendant is currently in need of mental health services on an inpatient basis or in need of mental health services on an outpatient basis. The report shall also summarize the basis for those findings and provide a current summary of the following items from the treatment plan: (1) an assessment of the defendant's treatment needs, (2) a description of the services recommended for treatment, (3) the goals of each type of element of service, (4) an anticipated timetable for the accomplishment of the goals, and (5) a designation of the qualified professional responsible for the implementation of the plan. The report may also include unsupervised on-grounds privileges, off-grounds privileges (with or without escort by personnel of the Department of Human Services), home visits and participation in work programs, but only where such privileges have been approved by specific court order, which order may include such conditions on the defendant as the Court may deem appropriate and necessary to reasonably assure the defendant's satisfactory progress in treatment and the safety of the defendant and others.

(c) Every defendant acquitted of a felony by reason of insanity and subsequently found to be in need of mental health services shall be represented by counsel in all proceedings under this Section and under the Mental Health and Developmental Disabilities Code.

(1) The Court shall appoint as counsel the public defender or an attorney licensed by this State.

(2) Upon filing with the Court of a verified statement of legal services rendered by the private attorney appointed pursuant to paragraph (1) of this subsection, the Court shall determine a reasonable fee for such services. If the defendant is unable to pay the fee, the Court shall enter an order upon the State to pay the entire fee or such amount as the defendant is unable to pay from funds appropriated by the General Assembly for that purpose.

(d) When the facility director determines that:

(1) the defendant is no longer in need of mental health services on an inpatient basis; and

(2) the defendant may be conditionally released because he or she is still in need of mental health services or that the defendant may be discharged as not in need of any mental health services; or

(3) the defendant no longer requires placement in a secure setting;

the facility director shall give written notice to the Court, State's Attorney and defense attorney. Such notice shall set forth in detail the basis for the recommendation of the facility director, and specify clearly the recommendations, if any, of the facility director, concerning conditional release. Any recommendation for conditional release shall include an evaluation of the defendant's need for psychotropic medication, what provisions should be made, if any, to ensure that the defendant will continue to receive psychotropic medication following discharge, and what provisions should be made to assure the safety of the defendant and others in the event the defendant is no longer receiving psychotropic medication. Within 30 days of the notification by the facility director, the Court shall set a hearing and make a finding as to whether the defendant is:

(i) (blank); or

(ii) in need of mental health services in the form of inpatient care; or

(iii) in need of mental health services but not subject to inpatient care; or

(iv) no longer in need of mental health services; or

(v) no longer requires placement in a secure setting.

Upon finding by the Court, the Court shall enter its findings and such appropriate order as provided in subsections subsection (a), (a-0.2), (a-0.4), (a-0.6), (a-0.8), and (a-1) of this Section.

(e) A defendant admitted pursuant to this Section, or any person on his behalf, may file a petition for treatment plan review, transfer to a non-secure setting within the Department of Human Services or discharge or conditional release under the standards of this Section in the Court which rendered the verdict. Upon receipt of a petition for treatment plan review, transfer to a non-secure setting or discharge or conditional release, the Court shall set a hearing to be held within 120 days. Thereafter, no new petition may be filed for 180 days without leave of the Court.

(f) The Court shall direct that notice of the time and place of the hearing be served upon the defendant, the facility director, the State's Attorney, and the defendant's attorney. If requested by either the State or the defense or if the Court feels it is appropriate, an impartial examination of the defendant by a psychiatrist or clinical psychologist as defined in Section 1-103 of the Mental Health and Developmental Disabilities Code who is not in the employ of the Department of Human Services shall be ordered, and the report considered at the time of the hearing.

(g) The findings of the Court shall be established by clear and convincing evidence. The burden of proof and the burden of going forth with the evidence rest with the defendant or any person on the defendant's behalf when a hearing is held to review a petition filed by or on behalf of the defendant. The evidence shall be presented in open Court with the right of confrontation and cross-examination. Such evidence may include, but is not limited to:

(1) whether the defendant appreciates the harm caused by the defendant to others and the community by his or her prior conduct that resulted in the finding of not guilty by reason of insanity;

(2) Whether the person appreciates the criminality of conduct similar similiar to the conduct for which he or she was originally charged in this matter;

(3) the current state of the defendant's illness;

(4) what, if any, medications the defendant is taking to control his or her mental illness;

(5) what, if any, adverse physical side effects the medication has on the defendant;

(6) the length of time it would take for the defendant's mental health to deteriorate if the defendant stopped taking prescribed medication;

(7) the defendant's history or potential for alcohol and drug abuse;

(8) the defendant's past criminal history;

(9) any specialized physical or medical needs of the defendant;

(10) any family participation or involvement expected upon release and what is the willingness and ability of the family to participate or be involved;

(11) the defendant's potential to be a danger to himself, herself, or others; and

(12) any other factor or factors the Court deems appropriate.

(h) Before the court orders that the defendant be discharged or conditionally released, it shall order the facility director to establish a discharge plan that includes a plan for the defendant's shelter, support, and medication. If appropriate, the court shall order that the facility director establish a program to train the defendant in self-medication under standards established by the Department of Human Services. If the Court finds, consistent with the provisions of this Section, that the defendant is no longer in need of mental health services it shall order the facility director to discharge the defendant. If the Court finds, consistent with the provisions of this Section, that the defendant is in need of mental health services, and no longer in need of inpatient care, it shall order the facility director to release the defendant under such conditions as the Court deems appropriate and as provided by this Section. Such conditional release shall be imposed for a period of 5 years as provided in paragraph (1) (D) of subsection (a-1) (a) and shall be subject to later modification by the Court as provided by this Section. If the Court finds consistent with the provisions in this Section that the defendant is in need of mental health services on an inpatient basis, it shall order the facility director not to discharge or release the defendant in accordance with subsections paragraph (b), (b-5), (b-10), and (b-15) of this Section.

(i) If within the period of the defendant's conditional release the State's Attorney determines that the defendant has not fulfilled the conditions of his or her release, the State's Attorney may petition the Court to revoke or modify the conditional release of the defendant. Upon the filing of such petition the defendant may be remanded to the custody of the Department, or to any other mental health facility designated by the Department, pending the resolution of the petition. Nothing in this Section shall prevent the emergency admission of a defendant pursuant to Article VI of Chapter III of the Mental Health and Developmental Disabilities Code or the voluntary admission of the defendant pursuant to Article IV of Chapter III of the Mental Health and Developmental Disabilities Code. If the Court determines, after hearing evidence, that the defendant has not fulfilled the conditions of release, the Court shall order a hearing to be held consistent with the provisions of paragraph (f) and (g) of this Section. At such hearing, if the Court finds that the defendant is in need of mental health services on an inpatient basis, it shall enter an order remanding him or her to the Department of Human Services or other facility. If the defendant is remanded to the Department of Human Services, he or she shall be placed in a secure setting unless the Court determines that there are compelling reasons that such placement is not necessary. If the Court finds that the defendant continues to be in need of mental health services but not on an inpatient basis, it may modify the conditions of the original release in order to reasonably assure the defendant's satisfactory progress in treatment and his or her safety and the safety of others in accordance with the standards established in paragraph (1) (D) of subsection (a-1) (a). Nothing in this Section shall limit a Court's contempt powers or any other powers of a Court.

(j) An order of admission under this Section does not affect the remedy of habeas corpus.

(k) In the event of a conflict between this Section and the Mental Health and Developmental Disabilities Code or the Mental Health and Developmental Disabilities Confidentiality Act, the provisions of this Section shall govern.

(l) This amendatory Act shall apply to all persons who have been found not guilty by reason of insanity and who are presently committed to the Department of Mental Health and Developmental Disabilities (now the Department of Human Services).

(m) The Clerk of the Court shall, after the entry of an order of transfer to a non-secure setting of the Department of Human Services or discharge or conditional release, transmit a certified copy of the order to the Department of Human Services, and the sheriff of the county from which the defendant was admitted. The Clerk of the Court shall also transmit a certified copy of the order of discharge or conditional release to the Illinois Department of State Police, to the proper law enforcement agency for the municipality where the offense took place, and to the sheriff of the county into which the defendant is conditionally discharged. The Illinois Department of State Police shall maintain a centralized record of discharged or conditionally released defendants while they are under court supervision for access and use of appropriate law enforcement agencies.

(n) Within 60 days after the effective date of this amendatory Act of the 94th General Assembly, the Department of Human Services and the Department of Corrections shall enter into an interagency agreement for the sharing of resources to effectuate the services required for the evaluation, treatment, and report writing required by the Department of Corrections pursuant to this Section. The cost of these services shall be provided by the Department of Human Services.

(Source: P.A. 93-78, eff. 1-1-04; 93-473, eff. 8-8-03; revised 1-22-04.)

Section 95. No acceleration or delay. Where this Act makes changes in a statute that is represented in this Act by text that is not yet or no longer in effect (for example, a Section represented by multiple versions), the use of that text does not accelerate or delay the taking effect of (i) the changes made by this Act or (ii) provisions derived from any other Public Act.

Section 99. Effective date. This Act takes effect upon becoming law, except that Sections 15 and 20 take effect January 1, 2007.".