Full Text of SB2265 102nd General Assembly
SB2265sam001 102ND GENERAL ASSEMBLY | Sen. Dave Syverson Filed: 4/15/2021
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| 1 | | AMENDMENT TO SENATE BILL 2265
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 2265 by replacing | 3 | | everything after the enacting clause with the following:
| 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 |
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| 1 | | purposes of administering Titles XVIII and XIX of
the Social | 2 | | Security Act.
| 3 | | (b) Except in the case of an emergency, psychotropic | 4 | | medication shall not be administered without the informed
| 5 | | consent of the resident or the resident's surrogate decision | 6 | | maker. "Psychotropic medication"
means medication that
is used | 7 | | for or listed as used for psychotropic, antidepressant, | 8 | | antimanic, or
antianxiety behavior modification or behavior | 9 | | management purposes in the latest
editions of the AMA Drug | 10 | | Evaluations or the Physician's Desk Reference. "Emergency" has | 11 | | the same meaning as in Section 1-112 of the Nursing Home Care | 12 | | Act. A facility shall (i) document the alleged emergency in | 13 | | detail, including the facts surrounding the medication's need, | 14 | | and (ii) present this documentation to the resident and the | 15 | | resident's representative. The No later than January 1, 2021, | 16 | | the Department shall adopt, by rule, a protocol specifying how | 17 | | informed consent for psychotropic medication may be obtained | 18 | | or refused. The protocol shall require, at a minimum, a | 19 | | discussion between (i) the resident or the resident's | 20 | | surrogate decision maker and (ii) the resident's physician, a | 21 | | registered pharmacist (who is not a dispensing pharmacist for | 22 | | the facility where the resident lives) , or a licensed nurse , | 23 | | including, but not limited to, a licensed practical nurse, | 24 | | about the possible risks and benefits of a recommended | 25 | | medication and the use of standardized consent forms | 26 | | designated by the Department. The protocol shall include |
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| 1 | | informing the resident, surrogate decision maker, or both of | 2 | | the existence of a copy of: the resident's care plan; the | 3 | | facility policies and procedures adopted in compliance with | 4 | | subsection (b-15) of this Section; and a notification that the | 5 | | most recent of the resident's care plans and the facility's | 6 | | policies are available to the resident or surrogate decision | 7 | | maker upon request. Each form designated or developed by the | 8 | | Department (i) shall be written in plain language, (ii) shall | 9 | | be able to be downloaded from the Department's official | 10 | | website or another website designated by the Department , (iii) | 11 | | shall include information specific to the psychotropic | 12 | | medication for which consent is being sought, and (iv) shall | 13 | | be used for every resident for whom psychotropic drugs are | 14 | | prescribed. The Department shall utilize the rules, protocols, | 15 | | and forms developed and implemented under the Specialized | 16 | | Mental Health Rehabilitation Act of 2013 in effect on the | 17 | | effective date of this amendatory Act of the 101st General | 18 | | Assembly, except to the extent that this Act requires a | 19 | | different procedure, and except that the maximum possible | 20 | | period for informed consent shall be until: (1) a change in the | 21 | | prescription occurs, either as to type of psychotropic | 22 | | medication or an increase or decrease in dosage , dosage range, | 23 | | or titration schedule of the prescribed medication that was | 24 | | not included in the original informed consent ; or (2) a | 25 | | resident's care plan changes. The Department may further amend | 26 | | the rules after January 1, 2021 pursuant to existing |
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| 1 | | rulemaking authority. In addition to creating those forms, the | 2 | | Department shall approve the use of any other informed consent | 3 | | forms that meet criteria developed by the Department. At the | 4 | | discretion of the Department, informed consent forms may | 5 | | include side effects that the Department reasonably believes | 6 | | are more common, with a direction that more complete | 7 | | information can be found via a link on the Department's | 8 | | website to third-party websites with more complete | 9 | | information, such as the United States Food and Drug | 10 | | Administration's website. The Department or a facility shall | 11 | | incur no liability for information provided on a consent form | 12 | | so long as the consent form is substantially accurate based | 13 | | upon generally accepted medical principles and if the form | 14 | | includes the website links. | 15 | | Informed consent shall be sought from the resident. For | 16 | | the purposes of this Section, "surrogate decision maker" means | 17 | | an individual representing the resident's interests as | 18 | | permitted by this Section. Informed consent shall be sought by | 19 | | the resident's guardian of the person if one has been named by | 20 | | a court of competent jurisdiction. In the absence of a | 21 | | court-ordered guardian, informed consent shall be sought from | 22 | | a health care agent under the Illinois Power of Attorney Act | 23 | | who has authority to give consent. If neither a court-ordered | 24 | | guardian of the person nor a health care agent under the | 25 | | Illinois Power of Attorney Act is available and the attending | 26 | | physician determines that the resident lacks capacity to make |
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| 1 | | decisions, informed consent shall be sought from the | 2 | | resident's attorney-in-fact designated under the Mental Health | 3 | | Treatment Preference Declaration Act, if applicable, or the | 4 | | resident's representative. | 5 | | In addition to any other penalty prescribed by law, a | 6 | | facility that is found to have violated this subsection, or | 7 | | the federal certification requirement that informed consent be | 8 | | obtained before administering a psychotropic medication, shall | 9 | | thereafter be required to obtain the signatures of 2 licensed | 10 | | health care professionals on every form purporting to give | 11 | | informed consent for the administration of a psychotropic | 12 | | medication, certifying the personal knowledge of each health | 13 | | care professional that the consent was obtained in compliance | 14 | | with the requirements of this subsection.
| 15 | | (b-5) A facility must obtain voluntary informed consent, | 16 | | in writing, from a resident or the resident's surrogate | 17 | | decision maker before administering or dispensing a | 18 | | psychotropic medication to that resident. When informed | 19 | | consent is not required for a change in dosage, the facility | 20 | | shall note in the resident's file that the resident was | 21 | | informed of the dosage change prior to the administration of | 22 | | the medication or that verbal, written, or electronic notice | 23 | | has been communicated to the resident's surrogate decision | 24 | | maker that a change in dosage has occurred. | 25 | | (b-10) No facility shall deny continued residency to a | 26 | | person on the basis of the person's or resident's, or the |
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| 1 | | person's or resident's surrogate decision maker's, refusal of | 2 | | the administration of psychotropic medication, unless the | 3 | | facility can demonstrate that the resident's refusal would | 4 | | place the health and safety of the resident, the facility | 5 | | staff, other residents, or visitors at risk. | 6 | | A facility that alleges that the resident's refusal to | 7 | | consent to the administration of psychotropic medication will | 8 | | place the health and safety of the resident, the facility | 9 | | staff, other residents, or visitors at risk must: (1) document | 10 | | the alleged risk in detail; (2) present this documentation to | 11 | | the resident or the resident's surrogate decision maker, to | 12 | | the Department, and to the Office of the State Long Term Care | 13 | | Ombudsman; and (3) inform the resident or his or her surrogate | 14 | | decision maker of his or her right to appeal to the Department. | 15 | | The documentation of the alleged risk shall include a | 16 | | description of all nonpharmacological or alternative care | 17 | | options attempted and why they were unsuccessful. | 18 | | (b-15) Within 100 days after the effective date of any | 19 | | rules adopted by the Department under subsection (b) of this | 20 | | Section, all facilities shall implement written policies and | 21 | | procedures for compliance with this Section. When the | 22 | | Department conducts its annual survey of a facility, the | 23 | | surveyor may review these written policies and procedures and | 24 | | either: | 25 | | (1) give written notice to the facility that the | 26 | | policies or procedures are sufficient to demonstrate the |
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| 1 | | facility's intent to comply with this Section; or | 2 | | (2) provide written notice to the facility that the | 3 | | proposed policies and procedures are deficient, identify | 4 | | the areas that are deficient, and provide 30 days for the | 5 | | facility to submit amended policies and procedures that | 6 | | demonstrate its intent to comply with this Section. | 7 | | A facility's failure to submit the documentation required | 8 | | under this subsection is sufficient to demonstrate its intent | 9 | | to not comply with this Section and shall be grounds for review | 10 | | by the Department. | 11 | | All facilities must provide training and education on the | 12 | | requirements of this Section to all personnel involved in | 13 | | providing care to residents and train and educate such | 14 | | personnel on the methods and procedures to effectively | 15 | | implement the facility's policies. Training and education | 16 | | provided under this Section must be documented in each | 17 | | personnel file. | 18 | | (b-20) Upon the receipt of a report of any violation of | 19 | | this Section, the Department shall investigate and, upon | 20 | | finding sufficient evidence of a violation of this Section, | 21 | | may proceed with disciplinary action against the licensee of | 22 | | the facility. In any administrative disciplinary action under | 23 | | this subsection, the Department shall have the discretion to | 24 | | determine the gravity of the violation and, taking into | 25 | | account mitigating and aggravating circumstances and facts, | 26 | | may adjust the disciplinary action accordingly. |
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| 1 | | (b-25) A violation of informed consent that, for an | 2 | | individual resident, lasts for 7 days or more under this | 3 | | Section is, at a minimum, a Type "B" violation. A second | 4 | | violation of informed consent within a year from a previous | 5 | | violation in the same facility regardless of the duration of | 6 | | the second violation is, at a minimum, a Type "B" violation. | 7 | | (b-30) Any violation of this Section by a facility may be | 8 | | enforced by an action brought by the Department in the name of | 9 | | the People of Illinois for injunctive relief, civil penalties, | 10 | | or both injunctive relief and civil penalties. The Department | 11 | | may initiate the action upon its own complaint or the | 12 | | complaint of any other interested party. | 13 | | (b-35) Any resident who has been administered a | 14 | | psychotropic medication in violation of this Section may bring | 15 | | an action for injunctive relief, civil damages, and costs and | 16 | | attorney's fees against any facility responsible for the | 17 | | violation. | 18 | | (b-40) An action under this Section must be filed within 2 | 19 | | years of either the date of discovery of the violation that | 20 | | gave rise to the claim or the last date of an instance of a | 21 | | noncompliant administration of psychotropic medication to the | 22 | | resident, whichever is later. | 23 | | (b-45) A facility subject to action under this Section | 24 | | shall be liable for damages of up to $500 for each day after | 25 | | discovery of a violation that the facility violates the | 26 | | requirements of this Section. |
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| 1 | | (b-55) The rights provided for in this Section are | 2 | | cumulative to existing resident rights. No part of this | 3 | | Section shall be interpreted as abridging, abrogating, or | 4 | | otherwise diminishing existing resident rights or causes of | 5 | | action at law or equity. | 6 | | (c) The requirements of
this Section are intended to | 7 | | control in a conflict
with the requirements of Sections 2-102 | 8 | | and 2-107.2
of the Mental Health and Developmental | 9 | | Disabilities Code with respect to the
administration of | 10 | | psychotropic medication.
| 11 | | (Source: P.A. 101-10, eff. 6-5-19.)
| 12 | | Section 99. Effective date. This Act takes effect upon | 13 | | becoming law.".
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