HB1157ham008 98TH GENERAL ASSEMBLY

Rep. Kelly M. Cassidy

Filed: 3/12/2013

09800HB1157ham008 LRB098 08477 RLC 42693 a

AMENDMENT TO HOUSE BILL 1157

AMENDMENT NO. ______. Amend House Bill 1157, AS AMENDED, by inserting the following in its proper numeric sequence:

"Section 160. The Nursing Home Care Act is amended by changing Section 3-119 as follows:

(210 ILCS 45/3-119) (from Ch. 111 1/2, par. 4153-119)

Sec. 3-119. (a) The Department, after notice to the applicant or licensee, may suspend, revoke or refuse to renew a license in any case in which the Department finds any of the following:

(1) There has been a substantial failure to comply with this Act or the rules and regulations promulgated by the Department under this Act. A substantial failure by a facility shall include, but not be limited to, any of the following:

(A) termination of Medicare or Medicaid certification by the Centers for Medicare and Medicaid Services; or

(B) a failure by the facility to pay any fine assessed under this Act after the Department has sent to the facility at least 2 notices of assessment that include a schedule of payments as determined by the Department, taking into account extenuating circumstances and financial hardships of the facility.

(2) Conviction of the licensee, or of the person designated to manage or supervise the facility, of a felony, or of 2 or more misdemeanors involving moral turpitude, during the previous 5 years as shown by a certified copy of the record of the court of conviction.

(3) Personnel is insufficient in number or unqualified by training or experience to properly care for the number and type of residents served by the facility.

(4) Financial or other resources are insufficient to conduct and operate the facility in accordance with standards promulgated by the Department under this Act.

(5) The facility is not under the direct supervision of a full-time administrator, as defined by regulation, who is licensed, if required, under the Nursing Home Administrators Licensing and Disciplinary Act.

(6) The facility has committed 2 Type "AA" violations within a 2-year period.

(7) There has been a substantial failure to comply with the provisions of subsection (b) of Section 12 of the Mental Health and Developmental Disabilities Confidentiality Act.

(b) Notice under this Section shall include a clear and concise statement of the violations on which the nonrenewal or revocation is based, the statute or rule violated and notice of the opportunity for a hearing under Section 3-703.

(c) If a facility desires to contest the nonrenewal or revocation of a license, the facility shall, within 10 days after receipt of notice under subsection (b) of this Section, notify the Department in writing of its request for a hearing under Section 3-703. Upon receipt of the request the Department shall send notice to the facility and hold a hearing as provided under Section 3-703.

(d) The effective date of nonrenewal or revocation of a license by the Department shall be any of the following:

(1) Until otherwise ordered by the circuit court, revocation is effective on the date set by the Department in the notice of revocation, or upon final action after hearing under Section 3-703, whichever is later.

(2) Until otherwise ordered by the circuit court, nonrenewal is effective on the date of expiration of any existing license, or upon final action after hearing under Section 3-703, whichever is later; however, a license shall not be deemed to have expired if the Department fails to timely respond to a timely request for renewal under this Act or for a hearing to contest nonrenewal under paragraph (c).

(3) The Department may extend the effective date of license revocation or expiration in any case in order to permit orderly removal and relocation of residents.

(e) The Department may impose fines on hospitals, not to exceed $500 per occurrence, for failing to report the admission of a person for mental health treatment when the admission would disqualify the person from receiving or retaining a Firearm Owner's Identification Card under subsection (e) of Section 8 of the Firearm Owners Identification Card Act.

The Department may refuse to issue or may suspend 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.

(Source: P.A. 95-331, eff. 8-21-07; 96-1372, eff. 7-29-10.)

Section 165. The Hospital Licensing Act is amended by changing Section 7 as follows:

(210 ILCS 85/7) (from Ch. 111 1/2, par. 148)

Sec. 7. (a) The Director after notice and opportunity for hearing to the applicant or licensee may deny, suspend, or revoke a permit to establish a hospital or deny, suspend, or revoke a license to open, conduct, operate, and maintain a hospital in any case in which he finds that there has been a substantial failure to comply with the provisions of this Act, the Hospital Report Card Act, or the Illinois Adverse Health Care Events Reporting Law of 2005, or subsection (b) of Section 12 of the Mental Health and Developmental Disabilities Confidentiality Act, or the standards, rules, and regulations established by virtue of any of those Acts. The Department may impose fines on hospitals, not to exceed $500 per occurrence, for failing to (1) initiate a criminal background check on a patient that meets the criteria for hospital-initiated background checks, or (2) report the death of a person known to be a resident of a facility licensed under the MR/DD Community Care Act to the coroner or medical examiner within 24 hours as required by Section 6.09a of this Act, or (3) report the admission of a person for mental health treatment when the admission would disqualify the person from receiving or retaining a Firearm Owner's Identification Card under subsection (e) of Section 8 of the Firearm Owners Identification Card Act. In assessing whether to impose such a fine for failure to initiate a criminal background check, the Department shall consider various factors including, but not limited to, whether the hospital has engaged in a pattern or practice of failing to initiate criminal background checks. Money from fines shall be deposited into the Long Term Care Provider Fund.

(b) Such notice shall be effected by registered mail or by personal service setting forth the particular reasons for the proposed action and fixing a date, not less than 15 days from the date of such mailing or service, at which time the applicant or licensee shall be given an opportunity for a hearing. Such hearing shall be conducted by the Director or by an employee of the Department designated in writing by the Director as Hearing Officer to conduct the hearing. On the basis of any such hearing, or upon default of the applicant or licensee, the Director shall make a determination specifying his findings and conclusions. In case of a denial to an applicant of a permit to establish a hospital, such determination shall specify the subsection of Section 6 under which the permit was denied and shall contain findings of fact forming the basis of such denial. A copy of such determination shall be sent by registered mail or served personally upon the applicant or licensee. The decision denying, suspending, or revoking a permit or a license shall become final 35 days after it is so mailed or served, unless the applicant or licensee, within such 35 day period, petitions for review pursuant to Section 13.

(c) The procedure governing hearings authorized by this Section shall be in accordance with rules promulgated by the Department and approved by the Hospital Licensing Board. A full and complete record shall be kept of all proceedings, including the notice of hearing, complaint, and all other documents in the nature of pleadings, written motions filed in the proceedings, and the report and orders of the Director and Hearing Officer. All testimony shall be reported but need not be transcribed unless the decision is appealed pursuant to Section 13. A copy or copies of the transcript may be obtained by any interested party on payment of the cost of preparing such copy or copies.

(d) The Director or Hearing Officer shall upon his own motion, or on the written request of any party to the proceeding, issue subpoenas requiring the attendance and the giving of testimony by witnesses, and subpoenas duces tecum requiring the production of books, papers, records, or memoranda. All subpoenas and subpoenas duces tecum issued under the terms of this Act may be served by any person of full age. The fees of witnesses for attendance and travel shall be the same as the fees of witnesses before the Circuit Court of this State, such fees to be paid when the witness is excused from further attendance. When the witness is subpoenaed at the instance of the Director, or Hearing Officer, such fees shall be paid in the same manner as other expenses of the Department, and when the witness is subpoenaed at the instance of any other party to any such proceeding the Department may require that the cost of service of the subpoena or subpoena duces tecum and the fee of the witness be borne by the party at whose instance the witness is summoned. In such case, the Department in its discretion, may require a deposit to cover the cost of such service and witness fees. A subpoena or subpoena duces tecum issued as aforesaid shall be served in the same manner as a subpoena issued out of a court.

(e) Any Circuit Court of this State upon the application of the Director, or upon the application of any other party to the proceeding, may, in its discretion, compel the attendance of witnesses, the production of books, papers, records, or memoranda and the giving of testimony before the Director or Hearing Officer conducting an investigation or holding a hearing authorized by this Act, by an attachment for contempt, or otherwise, in the same manner as production of evidence may be compelled before the court.

(f) The Director or Hearing Officer, or any party in an investigation or hearing before the Department, may cause the depositions of witnesses within the State to be taken in the manner prescribed by law for like depositions in civil actions in courts of this State, and to that end compel the attendance of witnesses and the production of books, papers, records, or memoranda.

(Source: P.A. 96-1372, eff. 7-29-10; 97-38, eff. 6-28-11.)

Section 210. The Firearm Owners Identification Card Act is amended by changing Sections 8, 8.1, 8.2, and 9 as follows:

(430 ILCS 65/8) (from Ch. 38, par. 83-8)

Sec. 8. The Department of State Police has authority to deny an application for or to revoke and seize a Firearm Owner's Identification Card previously issued under this Act only if the Department finds that the applicant or the person to whom such card was issued is or was at the time of issuance:

(a) A person under 21 years of age who has been convicted of a misdemeanor other than a traffic offense or adjudged delinquent;

(b) A person under 21 years of age who does not have the written consent of his parent or guardian to acquire and possess firearms and firearm ammunition, or whose parent or guardian has revoked such written consent, or where such parent or guardian does not qualify to have a Firearm Owner's Identification Card;

(c) A person convicted of a felony under the laws of this or any other jurisdiction;

(d) A person addicted to narcotics;

(e) A person who has been a patient of a mental institution within the past 5 years or has been adjudicated as a mental defective;

(f) A person whose mental condition is of such a nature that it poses a clear and present danger to the applicant, any other person or persons or the community;

For the purposes of this Section, "mental condition" means a state of mind determined to be inconsistent with the possession of weapons as determined by a treating clinical psychologist or physician or manifested by threatening behavior, for example violent, suicidal, threatening or assaultive behavior as determined by a clinician, school administrator, or law enforcement official.

(g) A person who is intellectually disabled;

(h) A person who intentionally makes a false statement in the Firearm Owner's Identification Card application;

(i) An alien who is unlawfully present in the United States under the laws of the United States;

(i-5) An alien who has been admitted to the United States under a non-immigrant visa (as that term is defined in Section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26))), except that this subsection (i-5) does not apply to any alien who has been lawfully admitted to the United States under a non-immigrant visa if that alien is:

(1) admitted to the United States for lawful hunting or sporting purposes;

(2) an official representative of a foreign government who is:

(A) accredited to the United States Government or the Government's mission to an international organization having its headquarters in the United States; or

(B) en route to or from another country to which that alien is accredited;

(3) an official of a foreign government or distinguished foreign visitor who has been so designated by the Department of State;

(4) a foreign law enforcement officer of a friendly foreign government entering the United States on official business; or

(5) one who has received a waiver from the Attorney General of the United States pursuant to 18 U.S.C. 922(y)(3);

(j) (Blank);

(k) A person who has been convicted within the past 5 years of battery, assault, aggravated assault, violation of an order of protection, or a substantially similar offense in another jurisdiction, in which a firearm was used or possessed;

(l) A person who has been convicted of domestic battery, aggravated domestic battery, or a substantially similar offense in another jurisdiction committed before, on or after January 1, 2012 (the effective date of Public Act 97-158). If the applicant or person who has been previously issued a Firearm Owner's Identification Card under this Act knowingly and intelligently waives the right to have an offense described in this paragraph (l) tried by a jury, and by guilty plea or otherwise, results in a conviction for an offense in which a domestic relationship is not a required element of the offense but in which a determination of the applicability of 18 U.S.C. 922(g)(9) is made under Section 112A-11.1 of the Code of Criminal Procedure of 1963, an entry by the court of a judgment of conviction for that offense shall be grounds for denying an application for and for revoking and seizing a Firearm Owner's Identification Card previously issued to the person under this Act;

(m) (Blank);

(n) A person who is prohibited from acquiring or possessing firearms or firearm ammunition by any Illinois State statute or by federal law;

(o) A minor subject to a petition filed under Section 5-520 of the Juvenile Court Act of 1987 alleging that the minor is a delinquent minor for the commission of an offense that if committed by an adult would be a felony;

(p) An adult who had been adjudicated a delinquent minor under the Juvenile Court Act of 1987 for the commission of an offense that if committed by an adult would be a felony; or

(q) A person who is not a resident of the State of Illinois, except as provided in subsection (a-10) of Section 4.

(Source: P.A. 96-701, eff. 1-1-10; 97-158, eff. 1-1-12; 97-227, eff. 1-1-12; 97-813, eff. 7-13-12; 97-1131, eff. 1-1-13.)

(430 ILCS 65/8.1) (from Ch. 38, par. 83-8.1)

Sec. 8.1. Mental health notifications to Circuit Clerk to notify Department of State Police.

(a) The Circuit Clerk shall, in the form and manner required by the Supreme Court, notify the Department of State Police of all final dispositions of cases for which the Department has received information reported to it under Sections 2.1 and 2.2 of the Criminal Identification Act.

(b) Upon adjudication of any individual as a mental defective, as defined in Section 1.1 or as provided in paragraph (3.5) of subsection (c) of Section 104-26 of the Code of Criminal Procedure of 1963, the court shall direct the circuit court clerk to immediately notify the Department of State Police, Firearm Owner's Identification (FOID) department, and shall forward a copy of the court order to the Department.

(c) The Department of Human Services shall, in the form and manner required by the Department of State Police, report all information collected under subsection (b) of Section 12 of the Mental Health and Developmental Disabilities Confidentiality Act for the purpose of determining whether an individual who may be or may have been a patient in a mental institution is disqualified under State or federal law because of that status from (1) receiving or retaining a Firearm Owner's Identification Card or (2) purchasing a weapon.

(d) Any clinical psychologist or physician treating an individual whose mental condition is of such a nature that it poses a clear and present danger to the individual, any other person or persons or the community shall report the identity of that person and his or her assessment of that person's mental condition to the Department of State Police within 24 hours.

(e) Any college or university that finds one of its students has a mental condition of such a nature that it poses a clear and present danger to the student, any other person or persons or the student population shall report the identity of that person and his or her assessment of that student's mental condition to the Department of State Police within 24 hours.

(f) The Department of State Police shall adopt rules to implement this Section.

(Source: P.A. 97-1131, eff. 1-1-13.)

(430 ILCS 65/8.2)

Sec. 8.2. Firearm Owner's Identification Card denial or revocation.

(a) The Department of State Police shall deny an application or shall revoke and seize a Firearm Owner's Identification Card previously issued under this Act if the Department finds that the applicant or person to whom such card was issued is or was at the time of issuance subject to any an existing order of protection interim, emergency, or plenary issued under the Illinois Domestic Violence Act of 1986 or the Stalking No Contact Order Act.

(b) The Department of State Police shall provide notice of all revocations made under subsection (a) of this Section or Section 8 of this Act, and the reason therefor to all law enforcement agencies with jurisdiction to assist with the revocation and seizure of the Firearm Owner's Identification Card.

(Source: P.A. 96-701, eff. 1-1-10.)

(430 ILCS 65/9) (from Ch. 38, par. 83-9)

Sec. 9. Notice of denial or revocation.

(a) Every person whose application for a Firearm Owner's Identification Card is denied, and every holder of such a Card whose Card is revoked or seized, shall receive a written notice from the Department of State Police stating specifically the grounds upon which his application has been denied or upon which his Identification Card has been revoked.

(b) Any person who has received notice from the Department of State Police stating his or her card is revoked shall immediately return the card to the Department of State Police. Failure to return the card is a petty offense with a minimum fine of $100. After being served notice, a person who uses his or her revoked card to purchase any firearm, firearm ammunition, or firearm ammunition feeding device is guilty of a Class 4 felony.

(Source: P.A. 97-1131, eff. 1-1-13.)

Section 345. The Mental Health and Developmental Disabilities Confidentiality Act is amended by changing Section 12 as follows:

(740 ILCS 110/12) (from Ch. 91 1/2, par. 812)

Sec. 12. (a) If the United States Secret Service or the Department of State Police requests information from a mental health or developmental disability facility, as defined in Section 1-107 and 1-114 of the Mental Health and Developmental Disabilities Code, relating to a specific recipient and the facility director determines that disclosure of such information may be necessary to protect the life of, or to prevent the infliction of great bodily harm to, a public official, or a person under the protection of the United States Secret Service, only the following information may be disclosed: the recipient's name, address, and age and the date of any admission to or discharge from a facility; and any information which would indicate whether or not the recipient has a history of violence or presents a danger of violence to the person under protection. Any information so disclosed shall be used for investigative purposes only and shall not be publicly disseminated. Any person participating in good faith in the disclosure of such information in accordance with this provision shall have immunity from any liability, civil, criminal or otherwise, if such information is disclosed relying upon the representation of an officer of the United States Secret Service or the Department of State Police that a person is under the protection of the United States Secret Service or is a public official.

For the purpose of this subsection (a), the term "public official" means the Governor, Lieutenant Governor, Attorney General, Secretary of State, State Comptroller, State Treasurer, member of the General Assembly, member of the United States Congress, Judge of the United States as defined in 28 U.S.C. 451, Justice of the United States as defined in 28 U.S.C. 451, United States Magistrate Judge as defined in 28 U.S.C. 639, Bankruptcy Judge appointed under 28 U.S.C. 152, or Supreme, Appellate, Circuit, or Associate Judge of the State of Illinois. The term shall also include the spouse, child or children of a public official.

(b) All The Department of Human Services (acting as successor to the Department of Mental Health and Developmental Disabilities) and all public or private hospitals, nursing homes or long term care facilities, colleges or universities providing mental health services to its student population, and mental health facilities are required, as hereafter described in this subsection, to furnish the Department of Human Services (acting as successor to the Department of Mental Health and Developmental Disabilities) State Police only such information as defined by the Department of State Police that is may be required for the sole purpose of determining whether an individual who may be or may have been a patient is disqualified under State or federal law because of that status from (1) receiving or retaining a Firearm Owner's Identification Card or (2) purchasing a weapon, and submitting identifying information regarding the disqualified individual to the National Instant Criminal Background Check System Index program under subsection (e) or (f) of Section 8 of the Firearm Owners Identification Card Act or 18 U.S.C. 922(g) and (n). All public or private hospitals, nursing homes or long term care facilities, and mental health facilities shall, in the form and manner required by the Department, provide such information as shall be necessary for the Department to comply with the reporting requirements to the Department of State Police in the manner required by the Department of State Police. Such information shall be furnished within 7 days after admission to a public or private hospital, nursing home or long term care facility, or mental health facility or the provision of services to a patient described in clause (2) of this subsection (b). Any such information disclosed under this subsection shall remain privileged and confidential, and shall only not be used and redisclosed as provided by , except as required by clause (e)(2) of Section 3.1 of the Firearm Owners Identification Card Act and may not be , nor utilized for any other purpose. The method of requiring the providing of such information shall guarantee that no information is released beyond what is necessary for this purpose. In addition, the information disclosed shall be provided by the Department within the time period established by Section 24-3 of the Criminal Code of 2012 regarding the delivery of firearms. The method used shall be sufficient to provide the necessary information within the prescribed time period, which may include periodically providing lists to the Department of Human Services or any public or private hospital or mental health facility of Firearm Owner's Identification Card applicants on which the Department or hospital shall indicate the identities of those individuals who are to its knowledge disqualified from having a Firearm Owner's Identification Card for reasons described herein. The Department may provide for a centralized source of information for the State on this subject under its jurisdiction.

Any person, institution, or agency, under this Act, participating in good faith in the reporting or disclosure of records and communications otherwise in accordance with this provision or with rules, regulations or guidelines issued by the Department shall have immunity from any liability, civil, criminal or otherwise, that might result by reason of the action. For the purpose of any proceeding, civil or criminal, arising out of a report or disclosure in accordance with this provision, the good faith of any person, institution, or agency so reporting or disclosing shall be presumed. The full extent of the immunity provided in this subsection (b) shall apply to any person, institution or agency that fails to make a report or disclosure in the good faith belief that the report or disclosure would violate federal regulations governing the confidentiality of alcohol and drug abuse patient records implementing 42 U.S.C. 290dd-3 and 290ee-3.

For purposes of this subsection (b) only, the following terms shall have the meaning prescribed:

(1) "Hospital" means only that type of institution which is providing full-time residential facilities and treatment.

(2) "Patient" shall include only: (i) a person who is an in-patient or resident of any public or private hospital or mental health facility or (ii) a person who is an out-patient or provided services by a public or private hospital or mental health facility whose mental condition is of such a nature that it is manifested by violent, suicidal, threatening, or assaultive behavior or reported behavior, for which there is a reasonable belief by a physician, clinical psychologist, or qualified examiner that the condition poses a clear and present or imminent danger to the patient, any other person or the community meaning the patient's condition poses a clear and present danger in accordance with subsection (f) of Section 8 of the Firearm Owners Identification Card Act. The terms physician, clinical psychologist, and qualified examiner are defined in Sections 1-120, 1-103, and 1-122 of the Mental Health and Developmental Disabilities Code.

(3) "Mental health facility" is defined by Section 1-114 of the Mental Health and Developmental Disabilities Code.

(c) Upon the request of a peace officer who takes a person into custody and transports such person to a mental health or developmental disability facility pursuant to Section 3-606 or 4-404 of the Mental Health and Developmental Disabilities Code or who transports a person from such facility, a facility director shall furnish said peace officer the name, address, age and name of the nearest relative of the person transported to or from the mental health or developmental disability facility. In no case shall the facility director disclose to the peace officer any information relating to the diagnosis, treatment or evaluation of the person's mental or physical health.

For the purposes of this subsection (c), the terms "mental health or developmental disability facility", "peace officer" and "facility director" shall have the meanings ascribed to them in the Mental Health and Developmental Disabilities Code.

(d) Upon the request of a peace officer or prosecuting authority who is conducting a bona fide investigation of a criminal offense, or attempting to apprehend a fugitive from justice, a facility director may disclose whether a person is present at the facility. Upon request of a peace officer or prosecuting authority who has a valid forcible felony warrant issued, a facility director shall disclose: (1) whether the person who is the subject of the warrant is present at the facility and (2) the date of that person's discharge or future discharge from the facility. The requesting peace officer or prosecuting authority must furnish a case number and the purpose of the investigation or an outstanding arrest warrant at the time of the request. Any person, institution, or agency participating in good faith in disclosing such information in accordance with this subsection (d) is immune from any liability, civil, criminal or otherwise, that might result by reason of the action.

(Source: P.A. 96-193, eff. 8-10-09; 97-1150, eff. 1-25-13.)".