HB1336 97TH GENERAL ASSEMBLY

LRB097 06705 RLC 46792 b

97TH GENERAL ASSEMBLY
State of Illinois
2011 and 2012
HB1336

Introduced 2/9/2011, by Rep. Constance A. Howard

SYNOPSIS AS INTRODUCED:

New Act
5 ILCS 430/15-10
20 ILCS 415/19c.1	from Ch. 127, par. 63b119c.1
225 ILCS 60/22	from Ch. 111, par. 4400-22

Creates the Prohibition of Torture on Prisoners and Detainees by Health Care Professionals Act. Prohibits Acts of torture and improper treatment perpetrated upon prisoners and detainees. Establishes standards of conduct relating to health care professionals who provide care to prisoners and detainees. Amends various Acts to make corresponding changes. Effective January 1, 2012.

A BILL FOR

AN ACT concerning torture of prisoners and detainees by health care professionals.

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 Prohibition of Torture on Prisoners and Detainees by Health Care Professionals Act.

Section 5. Legislative policy and intent. This legislation is based on, and is intended to give effect to, international treaties and standards; federal, State and local law; and professional standards relating to torture, improper treatment of prisoners, and related matters. It is guided by 2 basic principles: (1) health care professionals shall be dedicated to providing the highest standard of health care, with compassion and respect for human dignity and rights; and (2) torture and improper treatment of prisoners are wrong and inconsistent with the practice of the health care professions. The General Assembly finds that the conduct prohibited by this Act violates the ethical and legal obligations of licensed health care professionals. This legislation will further protect the professionalism of Illinois State licensed health care professionals by authorizing and obligating them to refuse to participate in torture and improper treatment of prisoners, which in turn will protect the life and health of the people of the State and those with whom Illinois licensed health care professionals interact. A health care professional who comes to the aid of a prisoner should not be presumed to be in violation when she or he is fulfilling the ethical principle of beneficence. In contrast, a health care professional who, for example, attends to a prisoner in order to allow torture or improper treatment to commence or continue, is not acting beneficently. Such practices are inconsistent with professional ethics and standards and are violations of this legislation. The General Assembly is mindful that ordinarily there are limits on the State's jurisdiction relating to conduct outside the State or under federal authority. However, it is proper for the State to regulate health care professional licensure in relation to a professional's conduct, even where the conduct occurs outside the State; certain wrongful out-of-state conduct is already grounds for professional discipline. Therefore, it is the General Assembly's intent that this legislation be applied to the fullest extent possible.

Section 10. Definitions. As used in this Act, unless the context clearly requires otherwise, the following terms have the following meanings:

"Health care professional" means any person licensed, registered, certified, or exempt to practice under the Acupuncture Practice Act, Clinical Psychologist Licensing Act, Clinical Social Work and Social Work Practice Act, Illinois Dental Practice Act, Dietetic and Nutrition Services Practice Act, Marriage and Family Therapy Licensing Act, Massage Licensing Act, Medical Practice Act of 1987, Naprapathic Practice Act, Nurse Practice Act, Illinois Occupational Therapy Practice Act, Illinois Optometric Practice Act of 1987, Orthotics, Prosthetics, and Pedorthics Practice Act, Pharmacy Practice Act, Illinois Physical Therapy Act, Physician Assistant Practice Act of 1987, Podiatric Medical Practice Act of 1987, Respiratory Care Practice Act, Professional Counselor and Clinical Professional Counselor Licensing Act, Perfusionist Practice Act, or the Registered Surgical Assistant and Registered Surgical Technologist Title Protection Act.

"Torture" means any intentional act or intentional omission by which severe pain or suffering, whether physical or mental, is inflicted on a person for such purposes as obtaining from the person or from a third person information or a confession, punishing the person for an act the person or a third person has committed (including the holding of a belief or membership in any group) or is suspected of having committed, or intimidating or coercing the person or a third person, or for any reason based on discrimination of any kind. "Torture" does not include pain or suffering arising only from, inherent in, or incidental to lawful sanction.

"Improper treatment" means (i) cruel, inhuman or degrading, treatment or punishment as defined by applicable international treaties and their corresponding interpreting bodies; or cruel and unusual punishment as defined in the United States Constitution; or (ii) any violation of subsection (d), (e), (f), or (g) of Section 15 of this Act.

"Torture" and "improper treatment" shall be interpreted in accordance with applicable international treaties, principles, and standards as well as the decisions, observations, and recommendations of the corresponding interpreting bodies. It is not an element of either "torture" or "improper treatment" that such acts be committed by a government or non-government actor, entity, or official; under color of law; or not under color of law.

"Prisoner" means any person who is subject to punishment, detention, incarceration, interrogation, intimidation or coercion, regardless of whether such action is performed or committed by a government or non-government actor, entity, or official; under color of law; or not under color of law.

"Adversely affect" a person's physical or mental health or condition does not include causing adverse effects that may arise from treatment or care when that treatment or care is performed in accordance with generally applicable legal, health, and professional standards and for the purposes of evaluating, treating, protecting, or improving the person's health.

"Interrogation" means the questioning related to law enforcement, the enforcement of rules or regulations of a closed institution (such as a jail or other detention facility, police facility, prison, immigration facility, or psychiatric or military facility) or to military and national security intelligence gathering, designed to prevent harm or danger to individuals, the public, or national security, whether by a government or non-government actor, entity, or official. "Interrogation" shall also include questioning to aid or accomplish any illegal activity or purpose, whether by a government or non-government actor, entity, or official.

Section 15. Standards of conduct.

(a) It is an element of any violation of this Act that the actor knew or reasonably should have known that his or her conduct is of the kind prohibited under this Act. If a health care professional who operates in a closed institution, such as a jail or other detention facility, police facility, prison, immigration facility or psychiatric or military facility, is not given access by the institution to the information necessary to ascertain whether torture or improper treatment has occurred, is occurring, or will occur, in order to assess the nature of his or her conduct as covered by this Act, the health care professional must presume that the prisoner faces risk of torture or improper treatment.

(b) Every health care professional shall provide every prisoner under his or her professional care with care or treatment consistent with generally applicable legal, health, and professional standards to the extent that he or she is reasonably able to do so under the circumstances, including protecting the confidentiality of patient information.

(c) In all clinical assessments relating to a prisoner, whether for therapeutic or evaluative purposes, health care professionals shall exercise their professional judgment independent of the interests of a government or other third party.

(d) No health care professional shall apply his or her knowledge or skills in relation to, engage in any professional relationship with, or perform professional services in relation to any prisoner where the purpose is not solely to evaluate, treat, protect, or improve the physical or mental health or condition of the prisoner, except as permitted by subsections (b) and (c) of this Section.

(e) No health care professional shall engage, directly or indirectly, in any act which constitutes participation in, complicity in, incitement to, assistance in, planning or design of, or attempt or conspiracy to commit torture or improper treatment of a prisoner. Prohibited forms of engagement include but are not limited to: (1) providing means, knowledge, or skills, including clinical findings or treatment, with the intent to facilitate the practice of torture or improper treatment; (2) permitting his or her knowledge, skills, or clinical findings or treatment to be used in the process of or to facilitate torture or improper treatment; (3) examining, evaluating, or treating a prisoner to certify whether torture or improper treatment can begin, be continued, or be resumed; (4) being present while torture or improper treatment is being administered; (5) omitting or suppressing indications of torture or improper treatment from records or reports; and (6) altering health care records or reports to hide, misrepresent, or destroy evidence of torture or improper treatment.

(f) No health care professional shall apply his or her knowledge or skills or perform any professional service in order to assist in the punishment, detention, incarceration, intimidation, or coercion of a prisoner when such assistance is provided in a manner that may adversely affect the physical or mental health or condition of the prisoner, except as permitted by subsection (c) or (d) of this Section.

(g) No health care professional shall participate in the interrogation of a prisoner, including being present in the interrogation room, asking or suggesting questions, advising on the use of specific interrogation techniques, monitoring the interrogation, or medically or psychologically evaluating a person for the purpose of identifying potential interrogation methods or strategies. however, this subsection shall not bar a health care professional from engaging in conduct under subsection (d) of this Section.

(h) A health care professional may engage in the following conduct so long as it does not violate subsections (d) through (g) of this Section, it does not adversely affect the physical or mental health or condition of a prisoner or potential subject, and is not otherwise unlawful:

(1) appropriately participating or aiding in the investigation, prosecution, or defense of a criminal, administrative, or civil matter;

(2) participating in an act that restrains a prisoner or temporarily alters the physical or mental activity of a prisoner, where the act complies with generally applicable legal, health, and professional standards, is necessary for the protection of the physical or mental health, condition, or safety of the prisoner, other prisoners, or persons caring for, guarding, or confining the prisoner;

(3) training related to the following purposes, so long as it is not provided in support of specific ongoing or anticipated interrogations:

(A) recognizing and responding to persons with physical or mental illness or conditions,

(B) the possible physical and mental effects of particular techniques and conditions of interrogation, or

(C) the development of effective interrogation strategies not involving the practice of torture or improper treatment.

Section 20. Duty to report. A health care professional who has reasonable grounds (not based solely on publicly available information) to believe that torture, improper treatment, or other conduct in violation of this Act has occurred, is occurring, or will occur shall, as soon as is possible without jeopardizing the physical safety of himself or herself, the prisoner, or other parties, report such conduct to:

(1) a government agency that the health care professional reasonably believes has legal authority to punish or prevent the continuation of torture or the improper treatment of a prisoner or conduct in violation of this Act and is reasonably likely to attempt to do so; or

(2) a governmental or non-governmental entity that the health care professional reasonably believes will notify such a government agency of the torture or the improper treatment of a prisoner or conduct in violation of this Act or take other action to publicize or prevent such torture, treatment or conduct; and

(3) In addition to reporting under paragraph (1) or (2) of this Section:

(A) in the case of an alleged violation by a health care professional licensed under the Medical Practice Act of 1987, a report shall be filed with the Illinois State Medical Disciplinary Board; and

(B) in the case of an alleged violation by any other health care professional licensed, registered, or certified under any other licensing law, a report shall be filed with the Illinois State Medical Disciplinary Board; provided that for the purpose of this paragraph, where a person holds a license, registration, or certification under the laws of a jurisdiction other than this State that is for a profession substantially comparable to one listed in Section 10, the person shall be deemed to be a health care professional and the person's license, registration, or certification shall be deemed to be under the appropriate State law.

Section 25. Mitigation. The following may be considered in full or partial mitigation of a violation of this Act by the health care professional:

(1) compliance with Section 19c.1 of the Personnel Code; or

(2) cooperation in good faith with an investigation of a violation of this Act.

Section 30. Applicability. This Act applies to conduct taking place within or outside the State of Illinois, and without regard to whether the conduct is committed by a governmental or non-governmental entity, official, or actor or under actual or asserted color of law.

Section 35. Scope of practice not expanded. This Act shall not be construed to expand the lawful scope of practice of any health care professional.

Section 40. Construction. This Act shall not be construed to mean that:

(1) conduct described by this Act does not already violate State law or constitute professional misconduct; or

(2) conduct other than that described by this Act does not violate other State law or otherwise constitute professional misconduct.

Section 105. The State Officials and Employees Ethics Act is amended by changing Section 15-10 as follows:

(5 ILCS 430/15-10)

Sec. 15-10. Protected activity. An officer, a member, a State employee, or a State agency shall not take any retaliatory action against a State employee because the State employee does any of the following:

(1) Discloses or threatens to disclose to a supervisor or to a public body an activity, policy, or practice of any officer, member, State agency, or other State employee that the State employee reasonably believes is in violation of a law, rule, or regulation.

(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by any officer, member, State agency, or other State employee.

(3) Assists or participates in a proceeding to enforce the provisions of this Act.

(4) Reports or threatens to report any violation of the Prohibition of Torture on Prisoners and Detainees by Health Care Professionals Act relating to participation in torture or improper treatment of prisoners by health care professionals.

(Source: P.A. 93-615, eff. 11-19-03; 93-617, eff. 12-9-03.)

Section 110. The Personnel Code is amended by changing Section 19c.1 as follows:

(20 ILCS 415/19c.1) (from Ch. 127, par. 63b119c.1)

Sec. 19c.1. (1) In any case involving any disclosure of information by an employee which the employee reasonably believes evidences-

(i) a violation of any law, rule, or regulation; or

(ii) mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety if the disclosure is not specifically prohibited by law, the identity of the employee may not be disclosed without the consent of the employee during any investigation of the information and any related matters; or .

(iii) reports or threatens to report any violation of the Prohibition of Torture on Prisoners and Detainees by Health Care Professionals Act relating to participation in torture or improper treatment of prisoners by health care professionals.

(2) No disciplinary action shall be taken against any employee for the disclosure of any alleged prohibited activity under investigation or for any related activity. For the purposes of this Section, disciplinary action means any retaliatory action taken against an employee, including but not limited to reprimand, suspension, discharge, demotion or denial of promotion or transfer; however, this subsection (2) does not apply to any report of a violation of the Prohibition of Torture on Prisoners and Detainees by Health Care Professionals Act relating to participation in torture or improper treatment of prisoners by health care professionals.

(Source: P.A. 85-470.)

Section 115. The Medical Practice Act of 1987 is amended by changing Section 22 as follows:

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

(Section scheduled to be repealed on November 30, 2011)

(Text of Section WITH the changes made by P.A. 94-677, which has been held unconstitutional)

Sec. 22. Disciplinary action.

(A) The Department may revoke, suspend, place on probationary status, refuse to renew, 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;

(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;

(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 Secretary, after consideration of the recommendation of the Disciplinary Board.

(14) Violation of the prohibition against fee splitting in Section 22.2 of this Act.

(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 Healthcare and Family Services (formerly 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 Healthcare and Family Services (formerly 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, legend drugs, or ephedra, as defined in the Ephedra Prohibition Act.

(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 provide 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.

(43) Repeated failure to adequately collaborate with a licensed advanced practice nurse.

Except for actions involving the ground numbered (26), 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 5 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), (26), and (29), no action shall be commenced more than 10 years after the date of the incident or act alleged to have violated this Section. For actions involving the ground numbered (26), a pattern of practice or other behavior includes all incidents alleged to be part of the pattern of practice or other behavior that occurred or a report pursuant to Section 23 of this Act received within the 10-year period preceding the filing of the complaint. 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 2 years 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 Secretary 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 Secretary 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 $10,000 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 the Methamphetamine Control and Community Protection 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.

(Source: P.A. 94-566, eff. 9-11-05; 94-677, eff. 8-25-05; 95-331, eff. 8-21-07; 96-608, eff. 8-24-09; 96-1000, eff. 7-2-10.)

(Text of Section WITHOUT the changes made by P.A. 94-677, which has been held unconstitutional)

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;

(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;

(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) Violation of the prohibition against fee splitting in Section 22.2 of this Act.

(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 Healthcare and Family Services (formerly 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 Healthcare and Family Services (formerly 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 provide 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.

(43) Repeated failure to adequately collaborate with a licensed advanced practice nurse.

(44) Any violation of the Prohibition of Torture on Prisoners and Detainees by Health Care Professionals Act relating to participation in torture or improper treatment of prisoners by health care professionals, subject to mitigation under that 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 the Methamphetamine Control and Community Protection 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.

(Source: P.A. 94-566, eff. 9-11-05; 95-331, eff. 8-21-07; 96-608, eff. 8-24-09; 96-1000, eff. 7-2-10.)

Section 997. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 999. Effective date. This Act takes effect January 1, 2012.