Full Text of HB1965 102nd General Assembly
HB1965 102ND GENERAL ASSEMBLY |
| | 102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022 HB1965 Introduced 2/17/2021, by Rep. Norine K. Hammond SYNOPSIS AS INTRODUCED: |
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Amends the Nursing Home Care Act. In provisions requiring the Department of Public Health to adopt a protocol specifying how informed consent for psychotropic medication may be obtained or refused that requires a discussion between the resident or the resident's surrogate decision maker and the resident's physician, a registered pharmacist, or a licensed nurse about the possible risks and benefits of a recommended medication and the use of standardized consent forms designated by the Department, (i) removes language prohibiting the registered pharmacist from being a dispensing pharmacist for the facility where the resident lives and (ii) specifies that a licensed nurse includes a licensed practical nurse. Provides that specified forms shall be designated (rather than developed) by the Department and may be able to be downloaded from a website designated by the Department (other than the Department's official website). Provides that the maximum possible period for informed consent shall be until a change in the prescription occurs as to the change in the type of psychotropic medication or an increase in dosage (rather than a change in dosage), unless the physician's order for which informed consent was given provides for an increase in dosage. Effective immediately.
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| | A BILL FOR |
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| 1 | | AN ACT concerning regulation.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Nursing Home Care Act is amended by | 5 | | changing Section 2-106.1 as follows: | 6 | | (210 ILCS 45/2-106.1)
| 7 | | Sec. 2-106.1. Drug treatment.
| 8 | | (a) A resident shall not be given unnecessary drugs. An
| 9 | | unnecessary drug is any drug used in an excessive dose, | 10 | | including in
duplicative therapy; for excessive duration; | 11 | | without adequate
monitoring; without adequate indications for | 12 | | its use; or in the
presence of adverse consequences that | 13 | | indicate the drugs should be reduced or
discontinued. The | 14 | | Department shall adopt, by rule, the standards
for unnecessary
| 15 | | drugs
contained in interpretive guidelines issued by the | 16 | | United States Department of
Health and Human Services for the | 17 | | purposes of administering Titles XVIII and XIX of
the Social | 18 | | Security Act.
| 19 | | (b) Except in the case of an emergency, psychotropic | 20 | | medication shall not be administered without the informed
| 21 | | consent of the resident or the resident's surrogate decision | 22 | | maker. "Psychotropic medication"
means medication that
is used | 23 | | for or listed as used for psychotropic, antidepressant, |
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| 1 | | antimanic, or
antianxiety behavior modification or behavior | 2 | | management purposes in the latest
editions of the AMA Drug | 3 | | Evaluations or the Physician's Desk Reference. "Emergency" has | 4 | | the same meaning as in Section 1-112 of the Nursing Home Care | 5 | | Act. A facility shall (i) document the alleged emergency in | 6 | | detail, including the facts surrounding the medication's need, | 7 | | and (ii) present this documentation to the resident and the | 8 | | resident's representative. The No later than January 1, 2021, | 9 | | the Department shall adopt, by rule, a protocol specifying how | 10 | | informed consent for psychotropic medication may be obtained | 11 | | or refused. The protocol shall require, at a minimum, a | 12 | | discussion between (i) the resident or the resident's | 13 | | surrogate decision maker and (ii) the resident's physician, a | 14 | | registered pharmacist (who is not a dispensing pharmacist for | 15 | | the facility where the resident lives) , or a licensed nurse , | 16 | | including, but not limited to, a licensed practical nurse, | 17 | | about the possible risks and benefits of a recommended | 18 | | medication and the use of standardized consent forms | 19 | | designated by the Department. The protocol shall include | 20 | | informing the resident, surrogate decision maker, or both of | 21 | | the existence of a copy of: the resident's care plan; the | 22 | | facility policies and procedures adopted in compliance with | 23 | | subsection (b-15) of this Section; and a notification that the | 24 | | most recent of the resident's care plans and the facility's | 25 | | policies are available to the resident or surrogate decision | 26 | | maker upon request. Each form designated developed by the |
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| 1 | | Department (i) shall be written in plain language, (ii) shall | 2 | | be able to be downloaded from the Department's official | 3 | | website or another website designated by the Department , (iii) | 4 | | shall include information specific to the psychotropic | 5 | | medication for which consent is being sought, and (iv) shall | 6 | | be used for every resident for whom psychotropic drugs are | 7 | | prescribed. The Department shall utilize the rules, protocols, | 8 | | and forms developed and implemented under the Specialized | 9 | | Mental Health Rehabilitation Act of 2013 in effect on the | 10 | | effective date of this amendatory Act of the 101st General | 11 | | Assembly, except to the extent that this Act requires a | 12 | | different procedure, and except that the maximum possible | 13 | | period for informed consent shall be until: (1) a change in the | 14 | | prescription occurs, either as to type of psychotropic | 15 | | medication or increase in dosage , unless the physician's order | 16 | | for which informed consent was given provides for an increase | 17 | | in dosage ; or (2) a resident's care plan changes. The | 18 | | Department may further amend the rules after January 1, 2021 | 19 | | pursuant to existing rulemaking authority. In addition to | 20 | | creating those forms, the Department shall approve the use of | 21 | | any other informed consent forms that meet criteria developed | 22 | | by the Department. At the discretion of the Department, | 23 | | informed consent forms may include side effects that the | 24 | | Department reasonably believes are more common, with a | 25 | | direction that more complete information can be found via a | 26 | | link on the Department's website to third-party websites with |
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| 1 | | more complete information, such as the United States Food and | 2 | | Drug Administration's website. The Department or a facility | 3 | | shall incur no liability for information provided on a consent | 4 | | form so long as the consent form is substantially accurate | 5 | | based upon generally accepted medical principles and if the | 6 | | form includes the website links. | 7 | | Informed consent shall be sought from the resident. For | 8 | | the purposes of this Section, "surrogate decision maker" means | 9 | | an individual representing the resident's interests as | 10 | | permitted by this Section. Informed consent shall be sought by | 11 | | the resident's guardian of the person if one has been named by | 12 | | a court of competent jurisdiction. In the absence of a | 13 | | court-ordered guardian, informed consent shall be sought from | 14 | | a health care agent under the Illinois Power of Attorney Act | 15 | | who has authority to give consent. If neither a court-ordered | 16 | | guardian of the person nor a health care agent under the | 17 | | Illinois Power of Attorney Act is available and the attending | 18 | | physician determines that the resident lacks capacity to make | 19 | | decisions, informed consent shall be sought from the | 20 | | resident's attorney-in-fact designated under the Mental Health | 21 | | Treatment Preference Declaration Act, if applicable, or the | 22 | | resident's representative. | 23 | | In addition to any other penalty prescribed by law, a | 24 | | facility that is found to have violated this subsection, or | 25 | | the federal certification requirement that informed consent be | 26 | | obtained before administering a psychotropic medication, shall |
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| 1 | | thereafter be required to obtain the signatures of 2 licensed | 2 | | health care professionals on every form purporting to give | 3 | | informed consent for the administration of a psychotropic | 4 | | medication, certifying the personal knowledge of each health | 5 | | care professional that the consent was obtained in compliance | 6 | | with the requirements of this subsection.
| 7 | | (b-5) A facility must obtain voluntary informed consent, | 8 | | in writing, from a resident or the resident's surrogate | 9 | | decision maker before administering or dispensing a | 10 | | psychotropic medication to that resident. | 11 | | (b-10) No facility shall deny continued residency to a | 12 | | person on the basis of the person's or resident's, or the | 13 | | person's or resident's surrogate decision maker's, refusal of | 14 | | the administration of psychotropic medication, unless the | 15 | | facility can demonstrate that the resident's refusal would | 16 | | place the health and safety of the resident, the facility | 17 | | staff, other residents, or visitors at risk. | 18 | | A facility that alleges that the resident's refusal to | 19 | | consent to the administration of psychotropic medication will | 20 | | place the health and safety of the resident, the facility | 21 | | staff, other residents, or visitors at risk must: (1) document | 22 | | the alleged risk in detail; (2) present this documentation to | 23 | | the resident or the resident's surrogate decision maker, to | 24 | | the Department, and to the Office of the State Long Term Care | 25 | | Ombudsman; and (3) inform the resident or his or her surrogate | 26 | | decision maker of his or her right to appeal to the Department. |
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| 1 | | The documentation of the alleged risk shall include a | 2 | | description of all nonpharmacological or alternative care | 3 | | options attempted and why they were unsuccessful. | 4 | | (b-15) Within 100 days after the effective date of any | 5 | | rules adopted by the Department under subsection (b) of this | 6 | | Section, all facilities shall implement written policies and | 7 | | procedures for compliance with this Section. When the | 8 | | Department conducts its annual survey of a facility, the | 9 | | surveyor may review these written policies and procedures and | 10 | | either: | 11 | | (1) give written notice to the facility that the | 12 | | policies or procedures are sufficient to demonstrate the | 13 | | facility's intent to comply with this Section; or | 14 | | (2) provide written notice to the facility that the | 15 | | proposed policies and procedures are deficient, identify | 16 | | the areas that are deficient, and provide 30 days for the | 17 | | facility to submit amended policies and procedures that | 18 | | demonstrate its intent to comply with this Section. | 19 | | A facility's failure to submit the documentation required | 20 | | under this subsection is sufficient to demonstrate its intent | 21 | | to not comply with this Section and shall be grounds for review | 22 | | by the Department. | 23 | | All facilities must provide training and education on the | 24 | | requirements of this Section to all personnel involved in | 25 | | providing care to residents and train and educate such | 26 | | personnel on the methods and procedures to effectively |
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| 1 | | implement the facility's policies. Training and education | 2 | | provided under this Section must be documented in each | 3 | | personnel file. | 4 | | (b-20) Upon the receipt of a report of any violation of | 5 | | this Section, the Department shall investigate and, upon | 6 | | finding sufficient evidence of a violation of this Section, | 7 | | may proceed with disciplinary action against the licensee of | 8 | | the facility. In any administrative disciplinary action under | 9 | | this subsection, the Department shall have the discretion to | 10 | | determine the gravity of the violation and, taking into | 11 | | account mitigating and aggravating circumstances and facts, | 12 | | may adjust the disciplinary action accordingly. | 13 | | (b-25) A violation of informed consent that, for an | 14 | | individual resident, lasts for 7 days or more under this | 15 | | Section is, at a minimum, a Type "B" violation. A second | 16 | | violation of informed consent within a year from a previous | 17 | | violation in the same facility regardless of the duration of | 18 | | the second violation is, at a minimum, a Type "B" violation. | 19 | | (b-30) Any violation of this Section by a facility may be | 20 | | enforced by an action brought by the Department in the name of | 21 | | the People of Illinois for injunctive relief, civil penalties, | 22 | | or both injunctive relief and civil penalties. The Department | 23 | | may initiate the action upon its own complaint or the | 24 | | complaint of any other interested party. | 25 | | (b-35) Any resident who has been administered a | 26 | | psychotropic medication in violation of this Section may bring |
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| 1 | | an action for injunctive relief, civil damages, and costs and | 2 | | attorney's fees against any facility responsible for the | 3 | | violation. | 4 | | (b-40) An action under this Section must be filed within 2 | 5 | | years of either the date of discovery of the violation that | 6 | | gave rise to the claim or the last date of an instance of a | 7 | | noncompliant administration of psychotropic medication to the | 8 | | resident, whichever is later. | 9 | | (b-45) A facility subject to action under this Section | 10 | | shall be liable for damages of up to $500 for each day after | 11 | | discovery of a violation that the facility violates the | 12 | | requirements of this Section. | 13 | | (b-55) The rights provided for in this Section are | 14 | | cumulative to existing resident rights. No part of this | 15 | | Section shall be interpreted as abridging, abrogating, or | 16 | | otherwise diminishing existing resident rights or causes of | 17 | | action at law or equity. | 18 | | (c) The requirements of
this Section are intended to | 19 | | control in a conflict
with the requirements of Sections 2-102 | 20 | | and 2-107.2
of the Mental Health and Developmental | 21 | | Disabilities Code with respect to the
administration of | 22 | | psychotropic medication.
| 23 | | (Source: P.A. 101-10, eff. 6-5-19.)
| 24 | | Section 99. Effective date. This Act takes effect upon | 25 | | becoming law.
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