Illinois General Assembly - Full Text of SB3288
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Full Text of SB3288  103rd General Assembly

SB3288sam001 103RD GENERAL ASSEMBLY

Sen. Robert Peters

Filed: 3/20/2024

 

 


 

 


 
10300SB3288sam001LRB103 37694 JRC 70975 a

1
AMENDMENT TO SENATE BILL 3288

2    AMENDMENT NO. ______. Amend Senate Bill 3288 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Mental Health and Developmental
5Disabilities Confidentiality Act is amended by changing
6Sections 2 and 11 as follows:
 
7    (740 ILCS 110/2)  (from Ch. 91 1/2, par. 802)
8    Sec. 2. The terms used in this Act, unless the context
9requires otherwise, have the meanings ascribed to them in this
10Section.
11    "Agent" means a person who has been legally appointed as
12an individual's agent under a power of attorney for health
13care or for property.
14    "Business associate" has the meaning ascribed to it under
15HIPAA, as specified in 45 CFR 160.103.
16    "Confidential communication" or "communication" means any

 

 

10300SB3288sam001- 2 -LRB103 37694 JRC 70975 a

1communication made by a recipient or other person to a
2therapist or to or in the presence of other persons during or
3in connection with providing mental health or developmental
4disability services to a recipient. Communication includes
5information which indicates that a person is a recipient.
6"Communication" does not include information that has been
7de-identified in accordance with HIPAA, as specified in 45 CFR
8164.514.
9    "Covered entity" has the meaning ascribed to it under
10HIPAA, as specified in 45 CFR 160.103.
11    "Guardian" means a legally appointed guardian or
12conservator of the person.
13    "Health information exchange" or "HIE" means a health
14information exchange or health information organization that
15oversees and governs the electronic exchange of health
16information.
17    "HIE purposes" means those uses and disclosures (as those
18terms are defined under HIPAA, as specified in 45 CFR 160.103)
19for activities of an HIE which are permitted under federal
20law.
21    "HIPAA" means the Health Insurance Portability and
22Accountability Act of 1996, Public Law 104-191, and any
23subsequent amendments thereto and any regulations promulgated
24thereunder, including the Security Rule, as specified in 45
25CFR 164.302-18, and the Privacy Rule, as specified in 45 CFR
26164.500-34.

 

 

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1    "Integrated health system" means an organization with a
2system of care which incorporates physical and behavioral
3healthcare and includes care delivered in an inpatient and
4outpatient setting.
5    "Interdisciplinary team" means a group of persons
6representing different clinical disciplines, such as medicine,
7nursing, social work, and psychology, providing and
8coordinating the care and treatment for a recipient of mental
9health or developmental disability services. The group may be
10composed of individuals employed by one provider or multiple
11providers.
12    "Mental health or developmental disabilities services" or
13"services" includes but is not limited to examination,
14diagnosis, evaluation, treatment, training, pharmaceuticals,
15aftercare, habilitation or rehabilitation.
16    "Personal notes" means:
17        (i) information disclosed to the therapist in
18    confidence by other persons on condition that such
19    information would never be disclosed to the recipient or
20    other persons;
21        (ii) information disclosed to the therapist by the
22    recipient which would be injurious to the recipient's
23    relationships to other persons, and
24        (iii) the therapist's speculations, impressions,
25    hunches, and reminders.
26    "Parent" means a parent or, in the absence of a parent or

 

 

10300SB3288sam001- 4 -LRB103 37694 JRC 70975 a

1guardian, a person in loco parentis.
2    "Recipient" means a person who is receiving or has
3received mental health or developmental disabilities services.
4    "Record" means any record kept by a therapist or by an
5agency in the course of providing mental health or
6developmental disabilities service to a recipient concerning
7the recipient and the services provided. "Records" includes
8all records maintained by a court that have been created in
9connection with, in preparation for, or as a result of the
10filing of any petition or certificate under Chapter II,
11Chapter III, or Chapter IV of the Mental Health and
12Developmental Disabilities Code and includes the petitions,
13certificates, dispositional reports, treatment plans, and
14reports of diagnostic evaluations and of hearings under
15Article VIII of Chapter III or under Article V of Chapter IV of
16that Code. Record does not include the therapist's personal
17notes, if such notes are kept in the therapist's sole
18possession for his own personal use and are not disclosed to
19any other person, except the therapist's supervisor,
20consulting therapist or attorney. If at any time such notes
21are disclosed, they shall be considered part of the
22recipient's record for purposes of this Act. "Record" does not
23include information that has been de-identified in accordance
24with HIPAA, as specified in 45 CFR 164.514. "Record" does not
25include a reference to the receipt of mental health or
26developmental disabilities services noted during a patient

 

 

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1history and physical or other summary of care.
2    "Record custodian" means a person responsible for
3maintaining a recipient's record.
4    "Research" has the meaning ascribed to it under HIPAA as
5specified in 45 CFR 164.501.
6    "Therapist" means a psychiatrist, physician, psychologist,
7social worker, or nurse providing mental health or
8developmental disabilities services or any other person not
9prohibited by law from providing such services or from holding
10himself out as a therapist if the recipient reasonably
11believes that such person is permitted to do so. Therapist
12includes any successor of the therapist.
13    "Therapeutic relationship" means the receipt by a
14recipient of mental health or developmental disabilities
15services from a therapist. "Therapeutic relationship" does not
16include independent evaluations for a purpose other than the
17provision of mental health or developmental disabilities
18services.
19(Source: P.A. 103-508, eff. 8-4-23.)
 
20    (740 ILCS 110/11)  (from Ch. 91 1/2, par. 811)
21    Sec. 11. Disclosure of records and communications. Records
22and communications may be disclosed:
23        (i) in accordance with the provisions of the Abused
24    and Neglected Child Reporting Act, subsection (u) of
25    Section 5 of the Children and Family Services Act, or

 

 

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1    Section 7.4 of the Child Care Act of 1969;
2        (ii) when, and to the extent, a therapist, in his or
3    her sole discretion, determines that disclosure is
4    necessary to initiate or continue civil commitment or
5    involuntary treatment proceedings under the laws of this
6    State or to otherwise protect the recipient or other
7    person against a clear, imminent risk of serious physical
8    or mental injury or disease or death being inflicted upon
9    the recipient or by the recipient on himself or another;
10        (iii) when, and to the extent disclosure is, in the
11    sole discretion of the therapist, necessary to the
12    provision of emergency medical care to a recipient who is
13    unable to assert or waive his or her rights hereunder;
14        (iv) when disclosure is necessary to collect sums or
15    receive third party payment representing charges for
16    mental health or developmental disabilities services
17    provided by a therapist or agency to a recipient under
18    Chapter V of the Mental Health and Developmental
19    Disabilities Code or to transfer debts under the
20    Uncollected State Claims Act; however, disclosure shall be
21    limited to information needed to pursue collection, and
22    the information so disclosed shall not be used for any
23    other purposes nor shall it be redisclosed except in
24    connection with collection activities;
25        (v) when requested by a family member, the Department
26    of Human Services may assist in the location of the

 

 

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1    interment site of a deceased recipient who is interred in
2    a cemetery established under Section 26 of the Mental
3    Health and Developmental Disabilities Administrative Act;
4        (vi) in judicial proceedings under Article VIII of
5    Chapter III and Article V of Chapter IV of the Mental
6    Health and Developmental Disabilities Code and proceedings
7    and investigations preliminary thereto, to the State's
8    Attorney for the county or residence of a person who is the
9    subject of such proceedings, or in which the person is
10    found, or in which the facility is located, to the
11    attorney representing the petitioner in the judicial
12    proceedings, to the attorney representing the recipient in
13    the judicial proceedings, to any person or agency
14    providing mental health services that are the subject of
15    the proceedings and to that person's or agency's attorney,
16    to any court personnel, including but not limited to
17    judges and circuit court clerks, and to a guardian ad
18    litem if one has been appointed by the court. Information
19    disclosed under this subsection shall not be utilized for
20    any other purpose nor be redisclosed except in connection
21    with the proceedings or investigations. Copies of any
22    records provided to counsel for a petitioner shall be
23    deleted or destroyed at the end of the proceedings and
24    counsel for petitioner shall certify to the court in
25    writing that he or she has done so. At the request of a
26    recipient or his or her counsel, the court shall issue a

 

 

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1    protective order insuring the confidentiality of any
2    records or communications provided to counsel for a
3    petitioner;
4        (vii) when, and to the extent disclosure is necessary
5    to comply with the requirements of the Census Bureau in
6    taking the federal Decennial Census;
7        (viii) when, and to the extent, in the therapist's
8    sole discretion, disclosure is necessary to warn or
9    protect a specific individual against whom a recipient has
10    made a specific threat of violence where there exists a
11    therapist-recipient relationship or a special
12    recipient-individual relationship;
13        (ix) in accordance with the Sex Offender Registration
14    Act;
15        (x) in accordance with the Rights of Crime Victims and
16    Witnesses Act;
17        (xi) in accordance with Section 6 of the Abused and
18    Neglected Long Term Care Facility Residents Reporting Act;
19        (xii) in accordance with Section 55 of the Abuse of
20    Adults with Disabilities Intervention Act;
21        (xiii) to an HIE as specifically allowed under this
22    Act for HIE purposes and in accordance with any applicable
23    requirements of the HIE; and
24        (xiv) to a law enforcement agency in connection with
25    the investigation or recovery of a person who has left a
26    mental health or developmental disability facility as

 

 

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1    defined in Section 1-107 or 1-114 of the Mental Health and
2    Developmental Disabilities Code or the custody of the
3    Department of Human Services without being duly discharged
4    or being free to do so; however, disclosure shall be
5    limited to identifying information as defined in Section
6    12.2 of this Act; and .
7        (xv) for research in accordance with the requirements
8    set forth under HIPAA. Without limiting the generality of
9    the foregoing, any authorization obtained in connection
10    with research that meets the requirements of 45 CFR
11    164.508(c) shall be exempt from the consent requirements
12    of Section 5 of this Act.
13    Any person, institution, or agency, under this Act,
14participating in good faith in the making of a report under the
15Abused and Neglected Child Reporting Act or in the disclosure
16of records and communications under this Section, shall have
17immunity from any liability, civil, criminal or otherwise,
18that might result by reason of such action. For the purpose of
19any proceeding, civil or criminal, arising out of a report or
20disclosure under this Section, the good faith of any person,
21institution, or agency so reporting or disclosing shall be
22presumed.
23(Source: P.A. 98-378, eff. 8-16-13; 99-216, eff. 7-31-15.)".