Public Act 90-0538 of the 90th General Assembly
Public Act 90-0538
SB317 Re-enrolled LRB9001503SMdv
AN ACT regarding health services, amending named Acts.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Public Aid Code is amended by
changing Sections 4-19, 5-16.3, and 8A-6, and by adding
Sections 5-16.10, 5-16.11, 8A-13, 8A-14, 8A-15, 8A-16, and
8A-17 as follows:
(305 ILCS 5/4-19)
Sec. 4-19. Demonstration project; treatment; AFDC. The
Department, in cooperation with the Department of Alcoholism
and Substance Abuse, is authorized to conduct a demonstration
project in which clients who are identified as having an
alcohol or substance abuse problem must, as a condition of
eligibility for assistance under this Article, participate in
an alcohol or substance abuse treatment program. The
Department shall, by rule, establish (i) the sites for the
demonstration program, (ii) the methods for determining
whether a client has an alcohol or substance abuse problem,
and (iii) the sanctions for failure to cooperate. The
demonstration program shall terminate on January 1, 2000. At
the end of the demonstration program, the program may be
extended expended, by rule, to other areas of the State or
the entire State. The Department shall apply for all
appropriate waivers of federal requirements necessary to
implement this Section.
(305 ILCS 5/5-16.3)
(Text of Section before amendment by P.A. 89-507)
Sec. 5-16.3. System for integrated health care services.
(a) It shall be the public policy of the State to adopt,
to the extent practicable, a health care program that
encourages the integration of health care services and
manages the health care of program enrollees while preserving
reasonable choice within a competitive and cost-efficient
environment. In furtherance of this public policy, the
Illinois Department shall develop and implement an integrated
health care program consistent with the provisions of this
Section. The provisions of this Section apply only to the
integrated health care program created under this Section.
Persons enrolled in the integrated health care program, as
determined by the Illinois Department by rule, shall be
afforded a choice among health care delivery systems, which
shall include, but are not limited to, (i) fee for service
care managed by a primary care physician licensed to practice
medicine in all its branches, (ii) managed health care
entities, and (iii) federally qualified health centers
(reimbursed according to a prospective cost-reimbursement
methodology) and rural health clinics (reimbursed according
to the Medicare methodology), where available. Persons
enrolled in the integrated health care program also may be
offered indemnity insurance plans, subject to availability.
For purposes of this Section, a "managed health care
entity" means a health maintenance organization or a managed
care community network as defined in this Section. A "health
maintenance organization" means a health maintenance
organization as defined in the Health Maintenance
Organization Act. A "managed care community network" means
an entity, other than a health maintenance organization, that
is owned, operated, or governed by providers of health care
services within this State and that provides or arranges
primary, secondary, and tertiary managed health care services
under contract with the Illinois Department exclusively to
enrollees of the integrated health care program. A managed
care community network may contract with the Illinois
Department to provide only pediatric health care services. A
county provider as defined in Section 15-1 of this Code may
contract with the Illinois Department to provide services to
enrollees of the integrated health care program as a managed
care community network without the need to establish a
separate entity that provides services exclusively to
enrollees of the integrated health care program and shall be
deemed a managed care community network for purposes of this
Code only to the extent of the provision of services to those
enrollees in conjunction with the integrated health care
program. A county provider shall be entitled to contract
with the Illinois Department with respect to any contracting
region located in whole or in part within the county. A
county provider shall not be required to accept enrollees who
do not reside within the county.
Each managed care community network must demonstrate its
ability to bear the financial risk of serving enrollees under
this program. The Illinois Department shall by rule adopt
criteria for assessing the financial soundness of each
managed care community network. These rules shall consider
the extent to which a managed care community network is
comprised of providers who directly render health care and
are located within the community in which they seek to
contract rather than solely arrange or finance the delivery
of health care. These rules shall further consider a variety
of risk-bearing and management techniques, including the
sufficiency of quality assurance and utilization management
programs and whether a managed care community network has
sufficiently demonstrated its financial solvency and net
worth. The Illinois Department's criteria must be based on
sound actuarial, financial, and accounting principles. In
adopting these rules, the Illinois Department shall consult
with the Illinois Department of Insurance. The Illinois
Department is responsible for monitoring compliance with
these rules.
This Section may not be implemented before the effective
date of these rules, the approval of any necessary federal
waivers, and the completion of the review of an application
submitted, at least 60 days before the effective date of
rules adopted under this Section, to the Illinois Department
by a managed care community network.
All health care delivery systems that contract with the
Illinois Department under the integrated health care program
shall clearly recognize a health care provider's right of
conscience under the Right of Conscience Act. In addition to
the provisions of that Act, no health care delivery system
that contracts with the Illinois Department under the
integrated health care program shall be required to provide,
arrange for, or pay for any health care or medical service,
procedure, or product if that health care delivery system is
owned, controlled, or sponsored by or affiliated with a
religious institution or religious organization that finds
that health care or medical service, procedure, or product to
violate its religious and moral teachings and beliefs.
(b) The Illinois Department may, by rule, provide for
different benefit packages for different categories of
persons enrolled in the program. Mental health services,
alcohol and substance abuse services, services related to
children with chronic or acute conditions requiring
longer-term treatment and follow-up, and rehabilitation care
provided by a free-standing rehabilitation hospital or a
hospital rehabilitation unit may be excluded from a benefit
package if the State ensures that those services are made
available through a separate delivery system. An exclusion
does not prohibit the Illinois Department from developing and
implementing demonstration projects for categories of persons
or services. Benefit packages for persons eligible for
medical assistance under Articles V, VI, and XII shall be
based on the requirements of those Articles and shall be
consistent with the Title XIX of the Social Security Act.
Nothing in this Act shall be construed to apply to services
purchased by the Department of Children and Family Services
and the Department of Mental Health and Developmental
Disabilities under the provisions of Title 59 of the Illinois
Administrative Code, Part 132 ("Medicaid Community Mental
Health Services Program").
(c) The program established by this Section may be
implemented by the Illinois Department in various contracting
areas at various times. The health care delivery systems and
providers available under the program may vary throughout the
State. For purposes of contracting with managed health care
entities and providers, the Illinois Department shall
establish contracting areas similar to the geographic areas
designated by the Illinois Department for contracting
purposes under the Illinois Competitive Access and
Reimbursement Equity Program (ICARE) under the authority of
Section 3-4 of the Illinois Health Finance Reform Act or
similarly-sized or smaller geographic areas established by
the Illinois Department by rule. A managed health care entity
shall be permitted to contract in any geographic areas for
which it has a sufficient provider network and otherwise
meets the contracting terms of the State. The Illinois
Department is not prohibited from entering into a contract
with a managed health care entity at any time.
(c-5) A managed health care entity may not engage in
door-to-door marketing activities or marketing activities at
an office of the Illinois Department or a county department
in order to enroll in the entity's health care delivery
system persons who are enrolled in the integrated health care
program established under this Section. The Illinois
Department shall adopt rules defining "marketing activities"
prohibited by this subsection (c-5).
Before a managed health care entity may market its health
care delivery system to persons enrolled in the integrated
health care program established under this Section, the
Illinois Department must approve a marketing plan submitted
by the entity to the Illinois Department. The Illinois
Department shall adopt guidelines for approving marketing
plans submitted by managed health care entities under this
subsection. Besides prohibiting door-to-door marketing
activities and marketing activities at public aid offices,
the guidelines shall include at least the following:
(1) A managed health care entity may not offer or
provide any gift, favor, or other inducement in marketing
its health care delivery system to integrated health care
program enrollees. A managed health care entity may
provide health care related items that are of nominal
value and pre-approved by the Illinois Department to
prospective enrollees. A managed health care entity may
also provide to enrollees health care related items that
have been pre-approved by the Illinois Department as an
incentive to manage their health care appropriately.
(2) All persons employed or otherwise engaged by a
managed health care entity to market the entity's health
care delivery system to integrated health care program
enrollees or to supervise that marketing shall register
with the Illinois Department.
The Inspector General appointed under Section 12-13.1 may
conduct investigations to determine whether the marketing
practices of managed health care entities participating in
the integrated health care program comply with the
guidelines.
(d) A managed health care entity that contracts with the
Illinois Department for the provision of services under the
program shall do all of the following, solely for purposes of
the integrated health care program:
(1) Provide that any individual physician licensed
under the Medical Practice Act of 1987 to practice
medicine in all its branches, any pharmacy, any federally
qualified health center, and any podiatrist, that
consistently meets the reasonable terms and conditions
established by the managed health care entity, including
but not limited to credentialing standards, quality
assurance program requirements, utilization management
requirements, financial responsibility standards,
contracting process requirements, and provider network
size and accessibility requirements, must be accepted by
the managed health care entity for purposes of the
Illinois integrated health care program. Notwithstanding
the preceding sentence, only a physician licensed to
practice medicine in all its branches shall act as a
primary care physician within a managed health care
entity for purposes of the Illinois integrated health
care program. Any individual who is either terminated
from or denied inclusion in the panel of physicians of
the managed health care entity shall be given, within 10
business days after that determination, a written
explanation of the reasons for his or her exclusion or
termination from the panel. This paragraph (1) does not
apply to the following:
(A) A managed health care entity that
certifies to the Illinois Department that:
(i) it employs on a full-time basis 125
or more Illinois physicians licensed to
practice medicine in all of its branches; and
(ii) it will provide medical services
through its employees to more than 80% of the
recipients enrolled with the entity in the
integrated health care program; or
(B) A domestic stock insurance company
licensed under clause (b) of class 1 of Section 4 of
the Illinois Insurance Code if (i) at least 66% of
the stock of the insurance company is owned by a
professional corporation organized under the
Professional Service Corporation Act that has 125 or
more shareholders who are Illinois physicians
licensed to practice medicine in all of its branches
and (ii) the insurance company certifies to the
Illinois Department that at least 80% of those
physician shareholders will provide services to
recipients enrolled with the company in the
integrated health care program.
(2) Provide for reimbursement for providers for
emergency care, as defined by the Illinois Department by
rule, that must be provided to its enrollees, including
an emergency room screening fee, and urgent care that it
authorizes for its enrollees, regardless of the
provider's affiliation with the managed health care
entity. Providers shall be reimbursed for emergency care
at an amount equal to the Illinois Department's
fee-for-service rates for those medical services rendered
by providers not under contract with the managed health
care entity to enrollees of the entity.
(3) Provide that any provider affiliated with a
managed health care entity may also provide services on a
fee-for-service basis to Illinois Department clients not
enrolled in a managed health care entity.
(4) Provide client education services as determined
and approved by the Illinois Department, including but
not limited to (i) education regarding appropriate
utilization of health care services in a managed care
system, (ii) written disclosure of treatment policies and
any restrictions or limitations on health services,
including, but not limited to, physical services,
clinical laboratory tests, hospital and surgical
procedures, prescription drugs and biologics, and
radiological examinations, and (iii) written notice that
the enrollee may receive from another provider those
services covered under this program that are not provided
by the managed health care entity.
(5) Provide that enrollees within its system may
choose the site for provision of services and the panel
of health care providers.
(6) Not discriminate in its enrollment or
disenrollment practices among recipients of medical
services or program enrollees based on health status.
(7) Provide a quality assurance and utilization
review program that (i) for health maintenance
organizations meets the requirements of the Health
Maintenance Organization Act and (ii) for managed care
community networks meets the requirements established by
the Illinois Department in rules that incorporate those
standards set forth in the Health Maintenance
Organization Act.
(8) Issue a managed health care entity
identification card to each enrollee upon enrollment.
The card must contain all of the following:
(A) The enrollee's signature.
(B) The enrollee's health plan.
(C) The name and telephone number of the
enrollee's primary care physician.
(D) A telephone number to be used for
emergency service 24 hours per day, 7 days per week.
The telephone number required to be maintained
pursuant to this subparagraph by each managed health
care entity shall, at minimum, be staffed by
medically trained personnel and be provided
directly, or under arrangement, at an office or
offices in locations maintained solely within the
State of Illinois. For purposes of this
subparagraph, "medically trained personnel" means
licensed practical nurses or registered nurses
located in the State of Illinois who are licensed
pursuant to the Illinois Nursing Act of 1987.
(9) Ensure that every primary care physician and
pharmacy in the managed health care entity meets the
standards established by the Illinois Department for
accessibility and quality of care. The Illinois
Department shall arrange for and oversee an evaluation of
the standards established under this paragraph (9) and
may recommend any necessary changes to these standards.
The Illinois Department shall submit an annual report to
the Governor and the General Assembly by April 1 of each
year regarding the effect of the standards on ensuring
access and quality of care to enrollees.
(10) Provide a procedure for handling complaints
that (i) for health maintenance organizations meets the
requirements of the Health Maintenance Organization Act
and (ii) for managed care community networks meets the
requirements established by the Illinois Department in
rules that incorporate those standards set forth in the
Health Maintenance Organization Act.
(11) Maintain, retain, and make available to the
Illinois Department records, data, and information, in a
uniform manner determined by the Illinois Department,
sufficient for the Illinois Department to monitor
utilization, accessibility, and quality of care.
(12) Except for providers who are prepaid, pay all
approved claims for covered services that are completed
and submitted to the managed health care entity within 30
days after receipt of the claim or receipt of the
appropriate capitation payment or payments by the managed
health care entity from the State for the month in which
the services included on the claim were rendered,
whichever is later. If payment is not made or mailed to
the provider by the managed health care entity by the due
date under this subsection, an interest penalty of 1% of
any amount unpaid shall be added for each month or
fraction of a month after the due date, until final
payment is made. Nothing in this Section shall prohibit
managed health care entities and providers from mutually
agreeing to terms that require more timely payment.
(13) Provide integration with community-based
programs provided by certified local health departments
such as Women, Infants, and Children Supplemental Food
Program (WIC), childhood immunization programs, health
education programs, case management programs, and health
screening programs.
(14) Provide that the pharmacy formulary used by a
managed health care entity and its contract providers be
no more restrictive than the Illinois Department's
pharmaceutical program on the effective date of this
amendatory Act of 1994 and as amended after that date.
(15) Provide integration with community-based
organizations, including, but not limited to, any
organization that has operated within a Medicaid
Partnership as defined by this Code or by rule of the
Illinois Department, that may continue to operate under a
contract with the Illinois Department or a managed health
care entity under this Section to provide case management
services to Medicaid clients in designated high-need
areas.
The Illinois Department may, by rule, determine
methodologies to limit financial liability for managed health
care entities resulting from payment for services to
enrollees provided under the Illinois Department's integrated
health care program. Any methodology so determined may be
considered or implemented by the Illinois Department through
a contract with a managed health care entity under this
integrated health care program.
The Illinois Department shall contract with an entity or
entities to provide external peer-based quality assurance
review for the integrated health care program. The entity
shall be representative of Illinois physicians licensed to
practice medicine in all its branches and have statewide
geographic representation in all specialties of medical care
that are provided within the integrated health care program.
The entity may not be a third party payer and shall maintain
offices in locations around the State in order to provide
service and continuing medical education to physician
participants within the integrated health care program. The
review process shall be developed and conducted by Illinois
physicians licensed to practice medicine in all its branches.
In consultation with the entity, the Illinois Department may
contract with other entities for professional peer-based
quality assurance review of individual categories of services
other than services provided, supervised, or coordinated by
physicians licensed to practice medicine in all its branches.
The Illinois Department shall establish, by rule, criteria to
avoid conflicts of interest in the conduct of quality
assurance activities consistent with professional peer-review
standards. All quality assurance activities shall be
coordinated by the Illinois Department.
(e) All persons enrolled in the program shall be
provided with a full written explanation of all
fee-for-service and managed health care plan options and a
reasonable opportunity to choose among the options as
provided by rule. The Illinois Department shall provide to
enrollees, upon enrollment in the integrated health care
program and at least annually thereafter, notice of the
process for requesting an appeal under the Illinois
Department's administrative appeal procedures.
Notwithstanding any other Section of this Code, the Illinois
Department may provide by rule for the Illinois Department to
assign a person enrolled in the program to a specific
provider of medical services or to a specific health care
delivery system if an enrollee has failed to exercise choice
in a timely manner. An enrollee assigned by the Illinois
Department shall be afforded the opportunity to disenroll and
to select a specific provider of medical services or a
specific health care delivery system within the first 30 days
after the assignment. An enrollee who has failed to exercise
choice in a timely manner may be assigned only if there are 3
or more managed health care entities contracting with the
Illinois Department within the contracting area, except that,
outside the City of Chicago, this requirement may be waived
for an area by rules adopted by the Illinois Department after
consultation with all hospitals within the contracting area.
The Illinois Department shall establish by rule the procedure
for random assignment of enrollees who fail to exercise
choice in a timely manner to a specific managed health care
entity in proportion to the available capacity of that
managed health care entity. Assignment to a specific provider
of medical services or to a specific managed health care
entity may not exceed that provider's or entity's capacity as
determined by the Illinois Department. Any person who has
chosen a specific provider of medical services or a specific
managed health care entity, or any person who has been
assigned under this subsection, shall be given the
opportunity to change that choice or assignment at least once
every 12 months, as determined by the Illinois Department by
rule. The Illinois Department shall maintain a toll-free
telephone number for program enrollees' use in reporting
problems with managed health care entities.
(f) If a person becomes eligible for participation in
the integrated health care program while he or she is
hospitalized, the Illinois Department may not enroll that
person in the program until after he or she has been
discharged from the hospital. This subsection does not apply
to newborn infants whose mothers are enrolled in the
integrated health care program.
(g) The Illinois Department shall, by rule, establish
for managed health care entities rates that (i) are certified
to be actuarially sound, as determined by an actuary who is
an associate or a fellow of the Society of Actuaries or a
member of the American Academy of Actuaries and who has
expertise and experience in medical insurance and benefit
programs, in accordance with the Illinois Department's
current fee-for-service payment system, and (ii) take into
account any difference of cost to provide health care to
different populations based on gender, age, location, and
eligibility category. The rates for managed health care
entities shall be determined on a capitated basis.
The Illinois Department by rule shall establish a method
to adjust its payments to managed health care entities in a
manner intended to avoid providing any financial incentive to
a managed health care entity to refer patients to a county
provider, in an Illinois county having a population greater
than 3,000,000, that is paid directly by the Illinois
Department. The Illinois Department shall by April 1, 1997,
and annually thereafter, review the method to adjust
payments. Payments by the Illinois Department to the county
provider, for persons not enrolled in a managed care
community network owned or operated by a county provider,
shall be paid on a fee-for-service basis under Article XV of
this Code.
The Illinois Department by rule shall establish a method
to reduce its payments to managed health care entities to
take into consideration (i) any adjustment payments paid to
hospitals under subsection (h) of this Section to the extent
those payments, or any part of those payments, have been
taken into account in establishing capitated rates under this
subsection (g) and (ii) the implementation of methodologies
to limit financial liability for managed health care entities
under subsection (d) of this Section.
(h) For hospital services provided by a hospital that
contracts with a managed health care entity, adjustment
payments shall be paid directly to the hospital by the
Illinois Department. Adjustment payments may include but
need not be limited to adjustment payments to:
disproportionate share hospitals under Section 5-5.02 of this
Code; primary care access health care education payments (89
Ill. Adm. Code 149.140); payments for capital, direct medical
education, indirect medical education, certified registered
nurse anesthetist, and kidney acquisition costs (89 Ill. Adm.
Code 149.150(c)); uncompensated care payments (89 Ill. Adm.
Code 148.150(h)); trauma center payments (89 Ill. Adm. Code
148.290(c)); rehabilitation hospital payments (89 Ill. Adm.
Code 148.290(d)); perinatal center payments (89 Ill. Adm.
Code 148.290(e)); obstetrical care payments (89 Ill. Adm.
Code 148.290(f)); targeted access payments (89 Ill. Adm. Code
148.290(g)); Medicaid high volume payments (89 Ill. Adm. Code
148.290(h)); and outpatient indigent volume adjustments (89
Ill. Adm. Code 148.140(b)(5)).
(i) For any hospital eligible for the adjustment
payments described in subsection (h), the Illinois Department
shall maintain, through the period ending June 30, 1995,
reimbursement levels in accordance with statutes and rules in
effect on April 1, 1994.
(j) Nothing contained in this Code in any way limits or
otherwise impairs the authority or power of the Illinois
Department to enter into a negotiated contract pursuant to
this Section with a managed health care entity, including,
but not limited to, a health maintenance organization, that
provides for termination or nonrenewal of the contract
without cause upon notice as provided in the contract and
without a hearing.
(k) Section 5-5.15 does not apply to the program
developed and implemented pursuant to this Section.
(l) The Illinois Department shall, by rule, define those
chronic or acute medical conditions of childhood that require
longer-term treatment and follow-up care. The Illinois
Department shall ensure that services required to treat these
conditions are available through a separate delivery system.
A managed health care entity that contracts with the
Illinois Department may refer a child with medical conditions
described in the rules adopted under this subsection directly
to a children's hospital or to a hospital, other than a
children's hospital, that is qualified to provide inpatient
and outpatient services to treat those conditions. The
Illinois Department shall provide fee-for-service
reimbursement directly to a children's hospital for those
services pursuant to Title 89 of the Illinois Administrative
Code, Section 148.280(a), at a rate at least equal to the
rate in effect on March 31, 1994. For hospitals, other than
children's hospitals, that are qualified to provide inpatient
and outpatient services to treat those conditions, the
Illinois Department shall provide reimbursement for those
services on a fee-for-service basis, at a rate at least equal
to the rate in effect for those other hospitals on March 31,
1994.
A children's hospital shall be directly reimbursed for
all services provided at the children's hospital on a
fee-for-service basis pursuant to Title 89 of the Illinois
Administrative Code, Section 148.280(a), at a rate at least
equal to the rate in effect on March 31, 1994, until the
later of (i) implementation of the integrated health care
program under this Section and development of actuarially
sound capitation rates for services other than those chronic
or acute medical conditions of childhood that require
longer-term treatment and follow-up care as defined by the
Illinois Department in the rules adopted under this
subsection or (ii) March 31, 1996.
Notwithstanding anything in this subsection to the
contrary, a managed health care entity shall not consider
sources or methods of payment in determining the referral of
a child. The Illinois Department shall adopt rules to
establish criteria for those referrals. The Illinois
Department by rule shall establish a method to adjust its
payments to managed health care entities in a manner intended
to avoid providing any financial incentive to a managed
health care entity to refer patients to a provider who is
paid directly by the Illinois Department.
(m) Behavioral health services provided or funded by the
Department of Mental Health and Developmental Disabilities,
the Department of Alcoholism and Substance Abuse, the
Department of Children and Family Services, and the Illinois
Department shall be excluded from a benefit package.
Conditions of an organic or physical origin or nature,
including medical detoxification, however, may not be
excluded. In this subsection, "behavioral health services"
means mental health services and subacute alcohol and
substance abuse treatment services, as defined in the
Illinois Alcoholism and Other Drug Dependency Act. In this
subsection, "mental health services" includes, at a minimum,
the following services funded by the Illinois Department, the
Department of Mental Health and Developmental Disabilities,
or the Department of Children and Family Services: (i)
inpatient hospital services, including related physician
services, related psychiatric interventions, and
pharmaceutical services provided to an eligible recipient
hospitalized with a primary diagnosis of psychiatric
disorder; (ii) outpatient mental health services as defined
and specified in Title 59 of the Illinois Administrative
Code, Part 132; (iii) any other outpatient mental health
services funded by the Illinois Department pursuant to the
State of Illinois Medicaid Plan; (iv) partial
hospitalization; and (v) follow-up stabilization related to
any of those services. Additional behavioral health services
may be excluded under this subsection as mutually agreed in
writing by the Illinois Department and the affected State
agency or agencies. The exclusion of any service does not
prohibit the Illinois Department from developing and
implementing demonstration projects for categories of persons
or services. The Department of Mental Health and
Developmental Disabilities, the Department of Children and
Family Services, and the Department of Alcoholism and
Substance Abuse shall each adopt rules governing the
integration of managed care in the provision of behavioral
health services. The State shall integrate managed care
community networks and affiliated providers, to the extent
practicable, in any separate delivery system for mental
health services.
(n) The Illinois Department shall adopt rules to
establish reserve requirements for managed care community
networks, as required by subsection (a), and health
maintenance organizations to protect against liabilities in
the event that a managed health care entity is declared
insolvent or bankrupt. If a managed health care entity other
than a county provider is declared insolvent or bankrupt,
after liquidation and application of any available assets,
resources, and reserves, the Illinois Department shall pay a
portion of the amounts owed by the managed health care entity
to providers for services rendered to enrollees under the
integrated health care program under this Section based on
the following schedule: (i) from April 1, 1995 through June
30, 1998, 90% of the amounts owed; (ii) from July 1, 1998
through June 30, 2001, 80% of the amounts owed; and (iii)
from July 1, 2001 through June 30, 2005, 75% of the amounts
owed. The amounts paid under this subsection shall be
calculated based on the total amount owed by the managed
health care entity to providers before application of any
available assets, resources, and reserves. After June 30,
2005, the Illinois Department may not pay any amounts owed to
providers as a result of an insolvency or bankruptcy of a
managed health care entity occurring after that date. The
Illinois Department is not obligated, however, to pay amounts
owed to a provider that has an ownership or other governing
interest in the managed health care entity. This subsection
applies only to managed health care entities and the services
they provide under the integrated health care program under
this Section.
(o) Notwithstanding any other provision of law or
contractual agreement to the contrary, providers shall not be
required to accept from any other third party payer the rates
determined or paid under this Code by the Illinois
Department, managed health care entity, or other health care
delivery system for services provided to recipients.
(p) The Illinois Department may seek and obtain any
necessary authorization provided under federal law to
implement the program, including the waiver of any federal
statutes or regulations. The Illinois Department may seek a
waiver of the federal requirement that the combined
membership of Medicare and Medicaid enrollees in a managed
care community network may not exceed 75% of the managed care
community network's total enrollment. The Illinois
Department shall not seek a waiver of this requirement for
any other category of managed health care entity. The
Illinois Department shall not seek a waiver of the inpatient
hospital reimbursement methodology in Section 1902(a)(13)(A)
of Title XIX of the Social Security Act even if the federal
agency responsible for administering Title XIX determines
that Section 1902(a)(13)(A) applies to managed health care
systems.
Notwithstanding any other provisions of this Code to the
contrary, the Illinois Department shall seek a waiver of
applicable federal law in order to impose a co-payment system
consistent with this subsection on recipients of medical
services under Title XIX of the Social Security Act who are
not enrolled in a managed health care entity. The waiver
request submitted by the Illinois Department shall provide
for co-payments of up to $0.50 for prescribed drugs and up to
$0.50 for x-ray services and shall provide for co-payments of
up to $10 for non-emergency services provided in a hospital
emergency room and up to $10 for non-emergency ambulance
services. The purpose of the co-payments shall be to deter
those recipients from seeking unnecessary medical care.
Co-payments may not be used to deter recipients from seeking
necessary medical care. No recipient shall be required to
pay more than a total of $150 per year in co-payments under
the waiver request required by this subsection. A recipient
may not be required to pay more than $15 of any amount due
under this subsection in any one month.
Co-payments authorized under this subsection may not be
imposed when the care was necessitated by a true medical
emergency. Co-payments may not be imposed for any of the
following classifications of services:
(1) Services furnished to person under 18 years of
age.
(2) Services furnished to pregnant women.
(3) Services furnished to any individual who is an
inpatient in a hospital, nursing facility, intermediate
care facility, or other medical institution, if that
person is required to spend for costs of medical care all
but a minimal amount of his or her income required for
personal needs.
(4) Services furnished to a person who is receiving
hospice care.
Co-payments authorized under this subsection shall not be
deducted from or reduce in any way payments for medical
services from the Illinois Department to providers. No
provider may deny those services to an individual eligible
for services based on the individual's inability to pay the
co-payment.
Recipients who are subject to co-payments shall be
provided notice, in plain and clear language, of the amount
of the co-payments, the circumstances under which co-payments
are exempted, the circumstances under which co-payments may
be assessed, and their manner of collection.
The Illinois Department shall establish a Medicaid
Co-Payment Council to assist in the development of co-payment
policies for the medical assistance program. The Medicaid
Co-Payment Council shall also have jurisdiction to develop a
program to provide financial or non-financial incentives to
Medicaid recipients in order to encourage recipients to seek
necessary health care. The Council shall be chaired by the
Director of the Illinois Department, and shall have 6
additional members. Two of the 6 additional members shall be
appointed by the Governor, and one each shall be appointed by
the President of the Senate, the Minority Leader of the
Senate, the Speaker of the House of Representatives, and the
Minority Leader of the House of Representatives. The Council
may be convened and make recommendations upon the appointment
of a majority of its members. The Council shall be appointed
and convened no later than September 1, 1994 and shall report
its recommendations to the Director of the Illinois
Department and the General Assembly no later than October 1,
1994. The chairperson of the Council shall be allowed to
vote only in the case of a tie vote among the appointed
members of the Council.
The Council shall be guided by the following principles
as it considers recommendations to be developed to implement
any approved waivers that the Illinois Department must seek
pursuant to this subsection:
(1) Co-payments should not be used to deter access
to adequate medical care.
(2) Co-payments should be used to reduce fraud.
(3) Co-payment policies should be examined in
consideration of other states' experience, and the
ability of successful co-payment plans to control
unnecessary or inappropriate utilization of services
should be promoted.
(4) All participants, both recipients and
providers, in the medical assistance program have
responsibilities to both the State and the program.
(5) Co-payments are primarily a tool to educate the
participants in the responsible use of health care
resources.
(6) Co-payments should not be used to penalize
providers.
(7) A successful medical program requires the
elimination of improper utilization of medical resources.
The integrated health care program, or any part of that
program, established under this Section may not be
implemented if matching federal funds under Title XIX of the
Social Security Act are not available for administering the
program.
The Illinois Department shall submit for publication in
the Illinois Register the name, address, and telephone number
of the individual to whom a request may be directed for a
copy of the request for a waiver of provisions of Title XIX
of the Social Security Act that the Illinois Department
intends to submit to the Health Care Financing Administration
in order to implement this Section. The Illinois Department
shall mail a copy of that request for waiver to all
requestors at least 16 days before filing that request for
waiver with the Health Care Financing Administration.
(q) After the effective date of this Section, the
Illinois Department may take all planning and preparatory
action necessary to implement this Section, including, but
not limited to, seeking requests for proposals relating to
the integrated health care program created under this
Section.
(r) In order to (i) accelerate and facilitate the
development of integrated health care in contracting areas
outside counties with populations in excess of 3,000,000 and
counties adjacent to those counties and (ii) maintain and
sustain the high quality of education and residency programs
coordinated and associated with local area hospitals, the
Illinois Department may develop and implement a demonstration
program for managed care community networks owned, operated,
or governed by State-funded medical schools. The Illinois
Department shall prescribe by rule the criteria, standards,
and procedures for effecting this demonstration program.
(s) (Blank).
(t) On April 1, 1995 and every 6 months thereafter, the
Illinois Department shall report to the Governor and General
Assembly on the progress of the integrated health care
program in enrolling clients into managed health care
entities. The report shall indicate the capacities of the
managed health care entities with which the State contracts,
the number of clients enrolled by each contractor, the areas
of the State in which managed care options do not exist, and
the progress toward meeting the enrollment goals of the
integrated health care program.
(u) The Illinois Department may implement this Section
through the use of emergency rules in accordance with Section
5-45 of the Illinois Administrative Procedure Act. For
purposes of that Act, the adoption of rules to implement this
Section is deemed an emergency and necessary for the public
interest, safety, and welfare.
(Source: P.A. 88-554, eff. 7-26-94; 89-21, eff. 7-1-95;
89-673, eff. 8-14-96; revised 8-26-96.)
(Text of Section after amendment by P.A. 89-507)
Sec. 5-16.3. System for integrated health care services.
(a) It shall be the public policy of the State to adopt,
to the extent practicable, a health care program that
encourages the integration of health care services and
manages the health care of program enrollees while preserving
reasonable choice within a competitive and cost-efficient
environment. In furtherance of this public policy, the
Illinois Department shall develop and implement an integrated
health care program consistent with the provisions of this
Section. The provisions of this Section apply only to the
integrated health care program created under this Section.
Persons enrolled in the integrated health care program, as
determined by the Illinois Department by rule, shall be
afforded a choice among health care delivery systems, which
shall include, but are not limited to, (i) fee for service
care managed by a primary care physician licensed to practice
medicine in all its branches, (ii) managed health care
entities, and (iii) federally qualified health centers
(reimbursed according to a prospective cost-reimbursement
methodology) and rural health clinics (reimbursed according
to the Medicare methodology), where available. Persons
enrolled in the integrated health care program also may be
offered indemnity insurance plans, subject to availability.
For purposes of this Section, a "managed health care
entity" means a health maintenance organization or a managed
care community network as defined in this Section. A "health
maintenance organization" means a health maintenance
organization as defined in the Health Maintenance
Organization Act. A "managed care community network" means
an entity, other than a health maintenance organization, that
is owned, operated, or governed by providers of health care
services within this State and that provides or arranges
primary, secondary, and tertiary managed health care services
under contract with the Illinois Department exclusively to
enrollees of the integrated health care program. A managed
care community network may contract with the Illinois
Department to provide only pediatric health care services. A
county provider as defined in Section 15-1 of this Code may
contract with the Illinois Department to provide services to
enrollees of the integrated health care program as a managed
care community network without the need to establish a
separate entity that provides services exclusively to
enrollees of the integrated health care program and shall be
deemed a managed care community network for purposes of this
Code only to the extent of the provision of services to those
enrollees in conjunction with the integrated health care
program. A county provider shall be entitled to contract
with the Illinois Department with respect to any contracting
region located in whole or in part within the county. A
county provider shall not be required to accept enrollees who
do not reside within the county.
Each managed care community network must demonstrate its
ability to bear the financial risk of serving enrollees under
this program. The Illinois Department shall by rule adopt
criteria for assessing the financial soundness of each
managed care community network. These rules shall consider
the extent to which a managed care community network is
comprised of providers who directly render health care and
are located within the community in which they seek to
contract rather than solely arrange or finance the delivery
of health care. These rules shall further consider a variety
of risk-bearing and management techniques, including the
sufficiency of quality assurance and utilization management
programs and whether a managed care community network has
sufficiently demonstrated its financial solvency and net
worth. The Illinois Department's criteria must be based on
sound actuarial, financial, and accounting principles. In
adopting these rules, the Illinois Department shall consult
with the Illinois Department of Insurance. The Illinois
Department is responsible for monitoring compliance with
these rules.
This Section may not be implemented before the effective
date of these rules, the approval of any necessary federal
waivers, and the completion of the review of an application
submitted, at least 60 days before the effective date of
rules adopted under this Section, to the Illinois Department
by a managed care community network.
All health care delivery systems that contract with the
Illinois Department under the integrated health care program
shall clearly recognize a health care provider's right of
conscience under the Right of Conscience Act. In addition to
the provisions of that Act, no health care delivery system
that contracts with the Illinois Department under the
integrated health care program shall be required to provide,
arrange for, or pay for any health care or medical service,
procedure, or product if that health care delivery system is
owned, controlled, or sponsored by or affiliated with a
religious institution or religious organization that finds
that health care or medical service, procedure, or product to
violate its religious and moral teachings and beliefs.
(b) The Illinois Department may, by rule, provide for
different benefit packages for different categories of
persons enrolled in the program. Mental health services,
alcohol and substance abuse services, services related to
children with chronic or acute conditions requiring
longer-term treatment and follow-up, and rehabilitation care
provided by a free-standing rehabilitation hospital or a
hospital rehabilitation unit may be excluded from a benefit
package if the State ensures that those services are made
available through a separate delivery system. An exclusion
does not prohibit the Illinois Department from developing and
implementing demonstration projects for categories of persons
or services. Benefit packages for persons eligible for
medical assistance under Articles V, VI, and XII shall be
based on the requirements of those Articles and shall be
consistent with the Title XIX of the Social Security Act.
Nothing in this Act shall be construed to apply to services
purchased by the Department of Children and Family Services
and the Department of Human Services (as successor to the
Department of Mental Health and Developmental Disabilities)
under the provisions of Title 59 of the Illinois
Administrative Code, Part 132 ("Medicaid Community Mental
Health Services Program").
(c) The program established by this Section may be
implemented by the Illinois Department in various contracting
areas at various times. The health care delivery systems and
providers available under the program may vary throughout the
State. For purposes of contracting with managed health care
entities and providers, the Illinois Department shall
establish contracting areas similar to the geographic areas
designated by the Illinois Department for contracting
purposes under the Illinois Competitive Access and
Reimbursement Equity Program (ICARE) under the authority of
Section 3-4 of the Illinois Health Finance Reform Act or
similarly-sized or smaller geographic areas established by
the Illinois Department by rule. A managed health care entity
shall be permitted to contract in any geographic areas for
which it has a sufficient provider network and otherwise
meets the contracting terms of the State. The Illinois
Department is not prohibited from entering into a contract
with a managed health care entity at any time.
(c-5) A managed health care entity may not engage in
door-to-door marketing activities or marketing activities at
an office of the Illinois Department or a county department
in order to enroll in the entity's health care delivery
system persons who are enrolled in the integrated health care
program established under this Section. The Illinois
Department shall adopt rules defining "marketing activities"
prohibited by this subsection (c-5).
Before a managed health care entity may market its health
care delivery system to persons enrolled in the integrated
health care program established under this Section, the
Illinois Department must approve a marketing plan submitted
by the entity to the Illinois Department. The Illinois
Department shall adopt guidelines for approving marketing
plans submitted by managed health care entities under this
subsection. Besides prohibiting door-to-door marketing
activities and marketing activities at public aid offices,
the guidelines shall include at least the following:
(1) A managed health care entity may not offer or
provide any gift, favor, or other inducement in marketing
its health care delivery system to integrated health care
program enrollees. A managed health care entity may
provide health care related items that are of nominal
value and pre-approved by the Illinois Department to
prospective enrollees. A managed health care entity may
also provide to enrollees health care related items that
have been pre-approved by the Illinois Department as an
incentive to manage their health care appropriately.
(2) All persons employed or otherwise engaged by a
managed health care entity to market the entity's health
care delivery system to integrated health care program
enrollees or to supervise that marketing shall register
with the Illinois Department.
The Inspector General appointed under Section 12-13.1 may
conduct investigations to determine whether the marketing
practices of managed health care entities participating in
the integrated health care program comply with the
guidelines.
(d) A managed health care entity that contracts with the
Illinois Department for the provision of services under the
program shall do all of the following, solely for purposes of
the integrated health care program:
(1) Provide that any individual physician licensed
under the Medical Practice Act of 1987 to practice
medicine in all its branches, any pharmacy, any federally
qualified health center, and any podiatrist, that
consistently meets the reasonable terms and conditions
established by the managed health care entity, including
but not limited to credentialing standards, quality
assurance program requirements, utilization management
requirements, financial responsibility standards,
contracting process requirements, and provider network
size and accessibility requirements, must be accepted by
the managed health care entity for purposes of the
Illinois integrated health care program. Notwithstanding
the preceding sentence, only a physician licensed to
practice medicine in all its branches shall act as a
primary care physician within a managed health care
entity for purposes of the Illinois integrated health
care program. Any individual who is either terminated
from or denied inclusion in the panel of physicians of
the managed health care entity shall be given, within 10
business days after that determination, a written
explanation of the reasons for his or her exclusion or
termination from the panel. This paragraph (1) does not
apply to the following:
(A) A managed health care entity that
certifies to the Illinois Department that:
(i) it employs on a full-time basis 125
or more Illinois physicians licensed to
practice medicine in all of its branches; and
(ii) it will provide medical services
through its employees to more than 80% of the
recipients enrolled with the entity in the
integrated health care program; or
(B) A domestic stock insurance company
licensed under clause (b) of class 1 of Section 4 of
the Illinois Insurance Code if (i) at least 66% of
the stock of the insurance company is owned by a
professional corporation organized under the
Professional Service Corporation Act that has 125 or
more shareholders who are Illinois physicians
licensed to practice medicine in all of its branches
and (ii) the insurance company certifies to the
Illinois Department that at least 80% of those
physician shareholders will provide services to
recipients enrolled with the company in the
integrated health care program.
(2) Provide for reimbursement for providers for
emergency care, as defined by the Illinois Department by
rule, that must be provided to its enrollees, including
an emergency room screening fee, and urgent care that it
authorizes for its enrollees, regardless of the
provider's affiliation with the managed health care
entity. Providers shall be reimbursed for emergency care
at an amount equal to the Illinois Department's
fee-for-service rates for those medical services rendered
by providers not under contract with the managed health
care entity to enrollees of the entity.
(3) Provide that any provider affiliated with a
managed health care entity may also provide services on a
fee-for-service basis to Illinois Department clients not
enrolled in a managed health care entity.
(4) Provide client education services as determined
and approved by the Illinois Department, including but
not limited to (i) education regarding appropriate
utilization of health care services in a managed care
system, (ii) written disclosure of treatment policies and
any restrictions or limitations on health services,
including, but not limited to, physical services,
clinical laboratory tests, hospital and surgical
procedures, prescription drugs and biologics, and
radiological examinations, and (iii) written notice that
the enrollee may receive from another provider those
services covered under this program that are not provided
by the managed health care entity.
(5) Provide that enrollees within its system may
choose the site for provision of services and the panel
of health care providers.
(6) Not discriminate in its enrollment or
disenrollment practices among recipients of medical
services or program enrollees based on health status.
(7) Provide a quality assurance and utilization
review program that (i) for health maintenance
organizations meets the requirements of the Health
Maintenance Organization Act and (ii) for managed care
community networks meets the requirements established by
the Illinois Department in rules that incorporate those
standards set forth in the Health Maintenance
Organization Act.
(8) Issue a managed health care entity
identification card to each enrollee upon enrollment.
The card must contain all of the following:
(A) The enrollee's signature.
(B) The enrollee's health plan.
(C) The name and telephone number of the
enrollee's primary care physician.
(D) A telephone number to be used for
emergency service 24 hours per day, 7 days per week.
The telephone number required to be maintained
pursuant to this subparagraph by each managed health
care entity shall, at minimum, be staffed by
medically trained personnel and be provided
directly, or under arrangement, at an office or
offices in locations maintained solely within the
State of Illinois. For purposes of this
subparagraph, "medically trained personnel" means
licensed practical nurses or registered nurses
located in the State of Illinois who are licensed
pursuant to the Illinois Nursing Act of 1987.
(9) Ensure that every primary care physician and
pharmacy in the managed health care entity meets the
standards established by the Illinois Department for
accessibility and quality of care. The Illinois
Department shall arrange for and oversee an evaluation of
the standards established under this paragraph (9) and
may recommend any necessary changes to these standards.
The Illinois Department shall submit an annual report to
the Governor and the General Assembly by April 1 of each
year regarding the effect of the standards on ensuring
access and quality of care to enrollees.
(10) Provide a procedure for handling complaints
that (i) for health maintenance organizations meets the
requirements of the Health Maintenance Organization Act
and (ii) for managed care community networks meets the
requirements established by the Illinois Department in
rules that incorporate those standards set forth in the
Health Maintenance Organization Act.
(11) Maintain, retain, and make available to the
Illinois Department records, data, and information, in a
uniform manner determined by the Illinois Department,
sufficient for the Illinois Department to monitor
utilization, accessibility, and quality of care.
(12) Except for providers who are prepaid, pay all
approved claims for covered services that are completed
and submitted to the managed health care entity within 30
days after receipt of the claim or receipt of the
appropriate capitation payment or payments by the managed
health care entity from the State for the month in which
the services included on the claim were rendered,
whichever is later. If payment is not made or mailed to
the provider by the managed health care entity by the due
date under this subsection, an interest penalty of 1% of
any amount unpaid shall be added for each month or
fraction of a month after the due date, until final
payment is made. Nothing in this Section shall prohibit
managed health care entities and providers from mutually
agreeing to terms that require more timely payment.
(13) Provide integration with community-based
programs provided by certified local health departments
such as Women, Infants, and Children Supplemental Food
Program (WIC), childhood immunization programs, health
education programs, case management programs, and health
screening programs.
(14) Provide that the pharmacy formulary used by a
managed health care entity and its contract providers be
no more restrictive than the Illinois Department's
pharmaceutical program on the effective date of this
amendatory Act of 1994 and as amended after that date.
(15) Provide integration with community-based
organizations, including, but not limited to, any
organization that has operated within a Medicaid
Partnership as defined by this Code or by rule of the
Illinois Department, that may continue to operate under a
contract with the Illinois Department or a managed health
care entity under this Section to provide case management
services to Medicaid clients in designated high-need
areas.
The Illinois Department may, by rule, determine
methodologies to limit financial liability for managed health
care entities resulting from payment for services to
enrollees provided under the Illinois Department's integrated
health care program. Any methodology so determined may be
considered or implemented by the Illinois Department through
a contract with a managed health care entity under this
integrated health care program.
The Illinois Department shall contract with an entity or
entities to provide external peer-based quality assurance
review for the integrated health care program. The entity
shall be representative of Illinois physicians licensed to
practice medicine in all its branches and have statewide
geographic representation in all specialties of medical care
that are provided within the integrated health care program.
The entity may not be a third party payer and shall maintain
offices in locations around the State in order to provide
service and continuing medical education to physician
participants within the integrated health care program. The
review process shall be developed and conducted by Illinois
physicians licensed to practice medicine in all its branches.
In consultation with the entity, the Illinois Department may
contract with other entities for professional peer-based
quality assurance review of individual categories of services
other than services provided, supervised, or coordinated by
physicians licensed to practice medicine in all its branches.
The Illinois Department shall establish, by rule, criteria to
avoid conflicts of interest in the conduct of quality
assurance activities consistent with professional peer-review
standards. All quality assurance activities shall be
coordinated by the Illinois Department.
(e) All persons enrolled in the program shall be
provided with a full written explanation of all
fee-for-service and managed health care plan options and a
reasonable opportunity to choose among the options as
provided by rule. The Illinois Department shall provide to
enrollees, upon enrollment in the integrated health care
program and at least annually thereafter, notice of the
process for requesting an appeal under the Illinois
Department's administrative appeal procedures.
Notwithstanding any other Section of this Code, the Illinois
Department may provide by rule for the Illinois Department to
assign a person enrolled in the program to a specific
provider of medical services or to a specific health care
delivery system if an enrollee has failed to exercise choice
in a timely manner. An enrollee assigned by the Illinois
Department shall be afforded the opportunity to disenroll and
to select a specific provider of medical services or a
specific health care delivery system within the first 30 days
after the assignment. An enrollee who has failed to exercise
choice in a timely manner may be assigned only if there are 3
or more managed health care entities contracting with the
Illinois Department within the contracting area, except that,
outside the City of Chicago, this requirement may be waived
for an area by rules adopted by the Illinois Department after
consultation with all hospitals within the contracting area.
The Illinois Department shall establish by rule the procedure
for random assignment of enrollees who fail to exercise
choice in a timely manner to a specific managed health care
entity in proportion to the available capacity of that
managed health care entity. Assignment to a specific provider
of medical services or to a specific managed health care
entity may not exceed that provider's or entity's capacity as
determined by the Illinois Department. Any person who has
chosen a specific provider of medical services or a specific
managed health care entity, or any person who has been
assigned under this subsection, shall be given the
opportunity to change that choice or assignment at least once
every 12 months, as determined by the Illinois Department by
rule. The Illinois Department shall maintain a toll-free
telephone number for program enrollees' use in reporting
problems with managed health care entities.
(f) If a person becomes eligible for participation in
the integrated health care program while he or she is
hospitalized, the Illinois Department may not enroll that
person in the program until after he or she has been
discharged from the hospital. This subsection does not apply
to newborn infants whose mothers are enrolled in the
integrated health care program.
(g) The Illinois Department shall, by rule, establish
for managed health care entities rates that (i) are certified
to be actuarially sound, as determined by an actuary who is
an associate or a fellow of the Society of Actuaries or a
member of the American Academy of Actuaries and who has
expertise and experience in medical insurance and benefit
programs, in accordance with the Illinois Department's
current fee-for-service payment system, and (ii) take into
account any difference of cost to provide health care to
different populations based on gender, age, location, and
eligibility category. The rates for managed health care
entities shall be determined on a capitated basis.
The Illinois Department by rule shall establish a method
to adjust its payments to managed health care entities in a
manner intended to avoid providing any financial incentive to
a managed health care entity to refer patients to a county
provider, in an Illinois county having a population greater
than 3,000,000, that is paid directly by the Illinois
Department. The Illinois Department shall by April 1, 1997,
and annually thereafter, review the method to adjust
payments. Payments by the Illinois Department to the county
provider, for persons not enrolled in a managed care
community network owned or operated by a county provider,
shall be paid on a fee-for-service basis under Article XV of
this Code.
The Illinois Department by rule shall establish a method
to reduce its payments to managed health care entities to
take into consideration (i) any adjustment payments paid to
hospitals under subsection (h) of this Section to the extent
those payments, or any part of those payments, have been
taken into account in establishing capitated rates under this
subsection (g) and (ii) the implementation of methodologies
to limit financial liability for managed health care entities
under subsection (d) of this Section.
(h) For hospital services provided by a hospital that
contracts with a managed health care entity, adjustment
payments shall be paid directly to the hospital by the
Illinois Department. Adjustment payments may include but
need not be limited to adjustment payments to:
disproportionate share hospitals under Section 5-5.02 of this
Code; primary care access health care education payments (89
Ill. Adm. Code 149.140); payments for capital, direct medical
education, indirect medical education, certified registered
nurse anesthetist, and kidney acquisition costs (89 Ill. Adm.
Code 149.150(c)); uncompensated care payments (89 Ill. Adm.
Code 148.150(h)); trauma center payments (89 Ill. Adm. Code
148.290(c)); rehabilitation hospital payments (89 Ill. Adm.
Code 148.290(d)); perinatal center payments (89 Ill. Adm.
Code 148.290(e)); obstetrical care payments (89 Ill. Adm.
Code 148.290(f)); targeted access payments (89 Ill. Adm. Code
148.290(g)); Medicaid high volume payments (89 Ill. Adm. Code
148.290(h)); and outpatient indigent volume adjustments (89
Ill. Adm. Code 148.140(b)(5)).
(i) For any hospital eligible for the adjustment
payments described in subsection (h), the Illinois Department
shall maintain, through the period ending June 30, 1995,
reimbursement levels in accordance with statutes and rules in
effect on April 1, 1994.
(j) Nothing contained in this Code in any way limits or
otherwise impairs the authority or power of the Illinois
Department to enter into a negotiated contract pursuant to
this Section with a managed health care entity, including,
but not limited to, a health maintenance organization, that
provides for termination or nonrenewal of the contract
without cause upon notice as provided in the contract and
without a hearing.
(k) Section 5-5.15 does not apply to the program
developed and implemented pursuant to this Section.
(l) The Illinois Department shall, by rule, define those
chronic or acute medical conditions of childhood that require
longer-term treatment and follow-up care. The Illinois
Department shall ensure that services required to treat these
conditions are available through a separate delivery system.
A managed health care entity that contracts with the
Illinois Department may refer a child with medical conditions
described in the rules adopted under this subsection directly
to a children's hospital or to a hospital, other than a
children's hospital, that is qualified to provide inpatient
and outpatient services to treat those conditions. The
Illinois Department shall provide fee-for-service
reimbursement directly to a children's hospital for those
services pursuant to Title 89 of the Illinois Administrative
Code, Section 148.280(a), at a rate at least equal to the
rate in effect on March 31, 1994. For hospitals, other than
children's hospitals, that are qualified to provide inpatient
and outpatient services to treat those conditions, the
Illinois Department shall provide reimbursement for those
services on a fee-for-service basis, at a rate at least equal
to the rate in effect for those other hospitals on March 31,
1994.
A children's hospital shall be directly reimbursed for
all services provided at the children's hospital on a
fee-for-service basis pursuant to Title 89 of the Illinois
Administrative Code, Section 148.280(a), at a rate at least
equal to the rate in effect on March 31, 1994, until the
later of (i) implementation of the integrated health care
program under this Section and development of actuarially
sound capitation rates for services other than those chronic
or acute medical conditions of childhood that require
longer-term treatment and follow-up care as defined by the
Illinois Department in the rules adopted under this
subsection or (ii) March 31, 1996.
Notwithstanding anything in this subsection to the
contrary, a managed health care entity shall not consider
sources or methods of payment in determining the referral of
a child. The Illinois Department shall adopt rules to
establish criteria for those referrals. The Illinois
Department by rule shall establish a method to adjust its
payments to managed health care entities in a manner intended
to avoid providing any financial incentive to a managed
health care entity to refer patients to a provider who is
paid directly by the Illinois Department.
(m) Behavioral health services provided or funded by the
Department of Human Services, the Department of Children and
Family Services, and the Illinois Department shall be
excluded from a benefit package. Conditions of an organic or
physical origin or nature, including medical detoxification,
however, may not be excluded. In this subsection,
"behavioral health services" means mental health services and
subacute alcohol and substance abuse treatment services, as
defined in the Illinois Alcoholism and Other Drug Dependency
Act. In this subsection, "mental health services" includes,
at a minimum, the following services funded by the Illinois
Department, the Department of Human Services (as successor to
the Department of Mental Health and Developmental
Disabilities), or the Department of Children and Family
Services: (i) inpatient hospital services, including related
physician services, related psychiatric interventions, and
pharmaceutical services provided to an eligible recipient
hospitalized with a primary diagnosis of psychiatric
disorder; (ii) outpatient mental health services as defined
and specified in Title 59 of the Illinois Administrative
Code, Part 132; (iii) any other outpatient mental health
services funded by the Illinois Department pursuant to the
State of Illinois Medicaid Plan; (iv) partial
hospitalization; and (v) follow-up stabilization related to
any of those services. Additional behavioral health services
may be excluded under this subsection as mutually agreed in
writing by the Illinois Department and the affected State
agency or agencies. The exclusion of any service does not
prohibit the Illinois Department from developing and
implementing demonstration projects for categories of persons
or services. The Department of Children and Family Services
and the Department of Human Services shall each adopt rules
governing the integration of managed care in the provision of
behavioral health services. The State shall integrate managed
care community networks and affiliated providers, to the
extent practicable, in any separate delivery system for
mental health services.
(n) The Illinois Department shall adopt rules to
establish reserve requirements for managed care community
networks, as required by subsection (a), and health
maintenance organizations to protect against liabilities in
the event that a managed health care entity is declared
insolvent or bankrupt. If a managed health care entity other
than a county provider is declared insolvent or bankrupt,
after liquidation and application of any available assets,
resources, and reserves, the Illinois Department shall pay a
portion of the amounts owed by the managed health care entity
to providers for services rendered to enrollees under the
integrated health care program under this Section based on
the following schedule: (i) from April 1, 1995 through June
30, 1998, 90% of the amounts owed; (ii) from July 1, 1998
through June 30, 2001, 80% of the amounts owed; and (iii)
from July 1, 2001 through June 30, 2005, 75% of the amounts
owed. The amounts paid under this subsection shall be
calculated based on the total amount owed by the managed
health care entity to providers before application of any
available assets, resources, and reserves. After June 30,
2005, the Illinois Department may not pay any amounts owed to
providers as a result of an insolvency or bankruptcy of a
managed health care entity occurring after that date. The
Illinois Department is not obligated, however, to pay amounts
owed to a provider that has an ownership or other governing
interest in the managed health care entity. This subsection
applies only to managed health care entities and the services
they provide under the integrated health care program under
this Section.
(o) Notwithstanding any other provision of law or
contractual agreement to the contrary, providers shall not be
required to accept from any other third party payer the rates
determined or paid under this Code by the Illinois
Department, managed health care entity, or other health care
delivery system for services provided to recipients.
(p) The Illinois Department may seek and obtain any
necessary authorization provided under federal law to
implement the program, including the waiver of any federal
statutes or regulations. The Illinois Department may seek a
waiver of the federal requirement that the combined
membership of Medicare and Medicaid enrollees in a managed
care community network may not exceed 75% of the managed care
community network's total enrollment. The Illinois
Department shall not seek a waiver of this requirement for
any other category of managed health care entity. The
Illinois Department shall not seek a waiver of the inpatient
hospital reimbursement methodology in Section 1902(a)(13)(A)
of Title XIX of the Social Security Act even if the federal
agency responsible for administering Title XIX determines
that Section 1902(a)(13)(A) applies to managed health care
systems.
Notwithstanding any other provisions of this Code to the
contrary, the Illinois Department shall seek a waiver of
applicable federal law in order to impose a co-payment system
consistent with this subsection on recipients of medical
services under Title XIX of the Social Security Act who are
not enrolled in a managed health care entity. The waiver
request submitted by the Illinois Department shall provide
for co-payments of up to $0.50 for prescribed drugs and up to
$0.50 for x-ray services and shall provide for co-payments of
up to $10 for non-emergency services provided in a hospital
emergency room and up to $10 for non-emergency ambulance
services. The purpose of the co-payments shall be to deter
those recipients from seeking unnecessary medical care.
Co-payments may not be used to deter recipients from seeking
necessary medical care. No recipient shall be required to
pay more than a total of $150 per year in co-payments under
the waiver request required by this subsection. A recipient
may not be required to pay more than $15 of any amount due
under this subsection in any one month.
Co-payments authorized under this subsection may not be
imposed when the care was necessitated by a true medical
emergency. Co-payments may not be imposed for any of the
following classifications of services:
(1) Services furnished to person under 18 years of
age.
(2) Services furnished to pregnant women.
(3) Services furnished to any individual who is an
inpatient in a hospital, nursing facility, intermediate
care facility, or other medical institution, if that
person is required to spend for costs of medical care all
but a minimal amount of his or her income required for
personal needs.
(4) Services furnished to a person who is receiving
hospice care.
Co-payments authorized under this subsection shall not be
deducted from or reduce in any way payments for medical
services from the Illinois Department to providers. No
provider may deny those services to an individual eligible
for services based on the individual's inability to pay the
co-payment.
Recipients who are subject to co-payments shall be
provided notice, in plain and clear language, of the amount
of the co-payments, the circumstances under which co-payments
are exempted, the circumstances under which co-payments may
be assessed, and their manner of collection.
The Illinois Department shall establish a Medicaid
Co-Payment Council to assist in the development of co-payment
policies for the medical assistance program. The Medicaid
Co-Payment Council shall also have jurisdiction to develop a
program to provide financial or non-financial incentives to
Medicaid recipients in order to encourage recipients to seek
necessary health care. The Council shall be chaired by the
Director of the Illinois Department, and shall have 6
additional members. Two of the 6 additional members shall be
appointed by the Governor, and one each shall be appointed by
the President of the Senate, the Minority Leader of the
Senate, the Speaker of the House of Representatives, and the
Minority Leader of the House of Representatives. The Council
may be convened and make recommendations upon the appointment
of a majority of its members. The Council shall be appointed
and convened no later than September 1, 1994 and shall report
its recommendations to the Director of the Illinois
Department and the General Assembly no later than October 1,
1994. The chairperson of the Council shall be allowed to
vote only in the case of a tie vote among the appointed
members of the Council.
The Council shall be guided by the following principles
as it considers recommendations to be developed to implement
any approved waivers that the Illinois Department must seek
pursuant to this subsection:
(1) Co-payments should not be used to deter access
to adequate medical care.
(2) Co-payments should be used to reduce fraud.
(3) Co-payment policies should be examined in
consideration of other states' experience, and the
ability of successful co-payment plans to control
unnecessary or inappropriate utilization of services
should be promoted.
(4) All participants, both recipients and
providers, in the medical assistance program have
responsibilities to both the State and the program.
(5) Co-payments are primarily a tool to educate the
participants in the responsible use of health care
resources.
(6) Co-payments should not be used to penalize
providers.
(7) A successful medical program requires the
elimination of improper utilization of medical resources.
The integrated health care program, or any part of that
program, established under this Section may not be
implemented if matching federal funds under Title XIX of the
Social Security Act are not available for administering the
program.
The Illinois Department shall submit for publication in
the Illinois Register the name, address, and telephone number
of the individual to whom a request may be directed for a
copy of the request for a waiver of provisions of Title XIX
of the Social Security Act that the Illinois Department
intends to submit to the Health Care Financing Administration
in order to implement this Section. The Illinois Department
shall mail a copy of that request for waiver to all
requestors at least 16 days before filing that request for
waiver with the Health Care Financing Administration.
(q) After the effective date of this Section, the
Illinois Department may take all planning and preparatory
action necessary to implement this Section, including, but
not limited to, seeking requests for proposals relating to
the integrated health care program created under this
Section.
(r) In order to (i) accelerate and facilitate the
development of integrated health care in contracting areas
outside counties with populations in excess of 3,000,000 and
counties adjacent to those counties and (ii) maintain and
sustain the high quality of education and residency programs
coordinated and associated with local area hospitals, the
Illinois Department may develop and implement a demonstration
program for managed care community networks owned, operated,
or governed by State-funded medical schools. The Illinois
Department shall prescribe by rule the criteria, standards,
and procedures for effecting this demonstration program.
(s) (Blank).
(t) On April 1, 1995 and every 6 months thereafter, the
Illinois Department shall report to the Governor and General
Assembly on the progress of the integrated health care
program in enrolling clients into managed health care
entities. The report shall indicate the capacities of the
managed health care entities with which the State contracts,
the number of clients enrolled by each contractor, the areas
of the State in which managed care options do not exist, and
the progress toward meeting the enrollment goals of the
integrated health care program.
(u) The Illinois Department may implement this Section
through the use of emergency rules in accordance with Section
5-45 of the Illinois Administrative Procedure Act. For
purposes of that Act, the adoption of rules to implement this
Section is deemed an emergency and necessary for the public
interest, safety, and welfare.
(Source: P.A. 88-554, eff. 7-26-94; 89-21, eff. 7-1-95;
89-507, eff. 7-1-97; 89-673, eff. 8-14-96; revised 8-26-96.)
(305 ILCS 5/5-16.10 new)
Sec. 5-16.10. Managed care entities; marketing. A
managed health care entity providing services under this
Article V may not engage in door-to-door marketing activities
or marketing activities at an office of the Illinois
Department or a county department in order to enroll
recipients in the entity's health care delivery system. The
Department shall adopt rules defining "marketing activities"
prohibited by this Section.
Before a managed health care entity providing services
under this Article V may market its health care delivery
system to recipients, the Illinois Department must approve a
marketing plan submitted by the entity to the Illinois
Department. The Illinois Department shall adopt guidelines
for approving marketing plans submitted by managed health
care entities under this Section. Besides prohibiting
door-to-door marketing activities and marketing activities at
public aid offices, the guidelines shall include at least the
following:
(1) A managed health care entity may not offer or
provide any gift, favor, or other inducement in marketing
its health care delivery system to integrated health care
program enrollees. A managed health care entity may
provide health care related items that are of nominal
value and pre-approved by the Department to prospective
enrollees. A managed health care entity may also
provide to enrollees health care related items that have
been pre-approved by the Department as an incentive to
manage their health care appropriately.
(2) All persons employed or otherwise engaged by a
managed health care entity to market the entity's health
care delivery system to recipients or to supervise that
marketing shall register with the Illinois Department.
The Inspector General appointed under Section 12-13.1 may
conduct investigations to determine whether the marketing
practices of managed health care entities providing services
under this Article V comply with the guidelines.
(305 ILCS 5/5-16.11 new)
Sec. 5-16.11. Uniform standards applied to managed care
entities. Any managed care entity providing services under
this Code shall comply with the criteria, standards, and
procedures imposed on managed care entities under paragraph
(14) of subsection (d) of Section 5-16.3 of this Code.
(305 ILCS 5/8A-6) (from Ch. 23, par. 8A-6)
Sec. 8A-6. Classification of violations.
(a) Any person, firm, corporation, association, agency,
institution or other legal entity that has been found by a
court to have engaged in an act, practice or course of
conduct declared unlawful under Sections 8A-2 through 8A-5 or
Section 8A-13 or 8A-14 where:
(1) the total amount of money involved in the violation,
including the monetary value of federal food stamps and the
value of commodities, is less than $150, shall be guilty of a
Class A misdemeanor;
(2) the total amount of money involved in the violation,
including the monetary value of federal food stamps and the
value of commodities, is $150 or more but less than $1,000,
shall be guilty of a Class 4 felony;
(3) the total amount of money involved in the violation,
including the monetary value of federal food stamps and the
value of commodities, is $1,000 or more but less than $5,000,
shall be guilty of a Class 3 felony;
(4) the total amount of money involved in the violation,
including the monetary value of federal food stamps and the
value of commodities, is $5,000 or more but less than
$10,000, shall be guilty of a Class 2 felony; or
(5) the total amount of money involved in the violation,
including the monetary value of federal food stamps and the
value of commodities, is $10,000 or more, shall be guilty of
a Class 1 felony and, notwithstanding the provisions of
Section 8A-8 except for Subsection (c) of Section 8A-8, shall
be ineligible for financial aid under this Article for a
period of two years following conviction or until the total
amount of money, including the value of federal food stamps,
is repaid, whichever first occurs.
(b) Any person, firm, corporation, association, agency,
institution or other legal entity that commits a subsequent
violation of any of the provisions of Sections 8A-2 through
8A-5 and:
(1) the total amount of money involved in the subsequent
violation, including the monetary value of federal food
stamps and the value of commodities, is less than $150, shall
be guilty of a Class 4 felony;
(2) the total amount of money involved in the subsequent
violation, including the monetary value of federal food
stamps and the value of commodities, is $150 or more but less
than $1,000, shall be guilty of a Class 3 felony;
(3) the total amount of money involved in the subsequent
violation, including the monetary value of federal food
stamps and the value of commodities, is $1,000 or more but
less than $5,000, shall be guilty of a Class 2 felony;
(4) the total amount of money involved in the subsequent
violation, including the monetary value of federal food
stamps and the value of commodities, is $5,000 or more but
less than $10,000, shall be guilty of a Class 1 felony.
(c) For purposes of determining the classification of
offense under this Section, all of the money received as a
result of the unlawful act, practice or course of conduct can
be accumulated.
(Source: P.A. 85-1209.)
(305 ILCS 5/8A-13 new)
Sec. 8A-13. Managed health care fraud.
(a) As used in this Section, "health plan" means any of
the following:
(1) Any health care reimbursement plan sponsored
wholly or partially by the State.
(2) Any private insurance carrier, health care
cooperative or alliance, health maintenance organization,
insurer, organization, entity, association, affiliation,
or person that contracts to provide or provides goods or
services that are reimbursed by or are a required benefit
of a health benefits program funded wholly or partially
by the State.
(3) Anyone who provides or contracts to provide
goods and services to an entity described in paragraph
(1) or (2) of this subsection.
For purposes of item (2) in subsection (b),
"representation" and "statement" include, but are not limited
to, reports, claims, certifications, acknowledgments and
ratifications of financial information, enrollment claims,
demographic statistics, encounter data, health services
available or rendered, and the qualifications of person
rendering health care and ancillary services.
(b) Any person, firm, corporation, association, agency,
institution, or other legal entity that, with the intent to
obtain benefits or payments under this Code to which the
person or entity is not entitled or in a greater amount than
that to which the person or entity is entitled, knowingly
executes or conspires to execute a scheme or artifice
(1) to defraud any State or federally funded or
mandated health plan in connection with the delivery of
or payment for health care benefits, items, or services,
or
(2) to obtain by means of false or fraudulent
pretense, representation, statement, or promise money or
anything of value in connection with the delivery of or
payment for health care benefits, items, or services that
are in whole or in part paid for, reimbursed, or
subsidized by, or are a required benefit of, a State or
federally funded or mandated health plan
is guilty of a violation of this Article and shall be
punished as provided in Section 8A-6.
(305 ILCS 5/8A-14 new)
Sec. 8A-14. Bribery and graft in connection with health
care.
(a) As used in this Section:
"Health care official" means any of the following:
(1) An administrator, officer, trustee, fiduciary,
custodian, counsel, agent, or employee of any health
plan.
(2) An officer, counsel, agent, or employee of an
organization that provides, proposes to provide, or
contracts to provide services to any health plan.
(3) An official, employee, or agent of a State or
federal agency having regulatory or administrative
authority over any health plan.
"Health plan" has the meaning attributed to that term in
Section 8A-13.
(b) Any person, firm, corporation, association, agency,
institution, or other legal entity that
(1) directly or indirectly gives, offers, or
promises anything of value to a health care official, or
offers or promises to a health care official to give
anything of value to another person, with the intent
(A) to influence or reward any act or decision
of any health care official exercising any authority
in any State or federally funded or mandated health
plan other than as specifically allowed by law, or
(B) to influence the official to commit, aid
in the commission of, or conspire to allow any fraud
in a State or federally funded or mandated health
plan, or
(C) to induce the official to engage in any
conduct in violation of the official's lawful duty,
or
(2) being a health care official, directly or
indirectly demands, solicits, receives, accepts, or
agrees to accept anything of value personally or for any
other person or entity, the giving of which would violate
paragraph (1) of this subsection,
is guilty of a violation of this Article and shall be
punished as provided in Section 8A-6.
(305 ILCS 5/8A-15 new)
Sec. 8A-15. False statements relating to health care
delivery. Any person, firm, corporation, association,
agency, institution, or other legal entity that, in any
matter related to a State or federally funded or mandated
health plan, knowingly and wilfully falsifies, conceals, or
omits by any trick, scheme, artifice, or device a material
fact, or makes any false, fictitious, or fraudulent statement
or representation, or makes or uses any false writing or
document, knowing the same to contain any false, fictitious,
or fraudulent statement or entry in connection with the
provision of health care or related services, is guilty of a
Class A misdemeanor.
(305 ILCS 5/8A-16 new)
Sec. 8A-16. Unfair or deceptive marketing practices.
(a) As used in this Section, "health plan" has the
meaning attributed to that term in Section 8A-13.
(b) It is unlawful to knowingly and willfully engage in
any unfair or deceptive marketing practice in connection with
proposing, offering, selling, soliciting, or providing any
health care service or any health plan. Unfair or deceptive
marketing practices include the following:
(1) Making a false and misleading oral or written
statement, visual description, advertisement, or other
representation of any kind that has the capacity,
tendency, or effect of deceiving or misleading health
care consumers with respect to any health care service,
health plan, or health care provider.
(2) Making a representation that a health care plan
or a health care provider offers any service, benefit,
access to care, or choice that it does not in fact offer.
(3) Making a representation that a health plan or
health care provider has any status, certification,
qualification, sponsorship, affiliation, or licensure
that it does not have.
(4) A failure to state a material fact if the
failure deceives or tends to deceive.
(5) Offering any kickback, bribe, reward, or
benefit to any person as an inducement to select or to
refrain from selecting any health care service, health
plan, or health care provider, unless the benefit offered
is medically necessary health care or is permitted by the
Illinois Department.
(6) The use of health care consumer or other
information that is confidential or privileged or that
cannot be disclosed to or obtained by the user without
violating a State or federal confidentiality law,
including:
(A) medical records information; and
(B) information that identifies the health
care consumer or any member of his or her group as a
recipient of any government sponsored or mandated
welfare program.
(7) The use of any device or artifice in
advertising a health plan or soliciting a health care
consumer that misrepresents the solicitor's profession,
status, affiliation, or mission.
(c) Any person who commits a first violation of this
Section is guilty of a Class A misdemeanor and is subject to
a fine of not more than $5,000. Any person who commits a
second or subsequent violation of this Section is guilty of a
Class 4 felony and is subject to a fine of not more than
$25,000.
(305 ILCS 5/8A-17 new)
Sec. 8A-17. Penalties enhanced for persons other than
individuals. If a person who violates Section 8A-13, 8A-14,
8A-15, or 8A-16 is any person other than an individual, then
that person is subject to a fine of not more than $50,000 if
the violation is a misdemeanor and a fine of not more than
$250,000 if the violation is a felony.
Section 10. The Mental Health and Developmental
Disabilities Code is amended by changing Sections 2-102,
2-107, 2-107.1, 2-107.2, 2-110, and 3-800 and by adding
Sections 1-121.5, 2-110.1, and 3-601.2 as follows:
(405 ILCS 5/1-121.5 new)
Sec. 1-121.5. Authorized involuntary treatment.
"Authorized involuntary treatment" means psychotropic
medication or electro-convulsive therapy, including those
tests and related procedures that are essential for the safe
and effective administration of the treatment.
(405 ILCS 5/2-102) (from Ch. 91 1/2, par. 2-102)
Sec. 2-102. (a) A recipient of services shall be
provided with adequate and humane care and services in the
least restrictive environment, pursuant to an individual
services plan, which shall be formulated and periodically
reviewed with the participation of the recipient to the
extent feasible and, where appropriate, such recipient's
nearest of kin or guardian.
(a-5) If the services include the administration of
authorized involuntary treatment psychotropic medication, the
physician shall advise the recipient, in writing, of the side
effects and risks of the treatment and alternatives to the
proposed treatment, and the risks and benefits thereof,
medication to the extent such advice is consistent with the
nature and frequency of the side effects and the recipient's
ability to understand the information communicated. The
physician shall determine in writing whether the recipient
has the capacity to make a reasoned decision about the
treatment. If the recipient lacks the capacity to make a
reasoned decision about the treatment, the treatment may be
administered only (i) pursuant to the provisions of Section
2-107 or 2-107.1 or (ii) pursuant to a power of attorney for
health care under the Powers of Attorney for Health Care Law
or a declaration for mental health treatment under the Mental
Health Treatment Preference Declaration Act. A surrogate
decision maker, other than a court appointed guardian, under
the Health Care Surrogate Act may not consent to the
administration of authorized involuntary treatment. A
surrogate may, however, petition for administration of
authorized involuntary treatment pursuant to this Act. If
the recipient is under guardianship and the guardian is
authorized to consent to the administration of authorized
involuntary treatment pursuant to subsection (c) of Section
2-107.1 of this Code, the physician shall advise the guardian
in writing of the side effects and risks of the treatment,
alternatives to the proposed treatment, and the risks and
benefits of the treatment. Any recipient who is a resident of
a mental health or developmental disabilities facility shall
be advised in writing of his right to refuse such services
pursuant to Section 2-107 of this Code. A qualified
professional shall be responsible for overseeing the
implementation of such plan. Such care and treatment shall
include the regular use of sign language for any hearing
impaired individual for whom sign language is a primary mode
of communication.
(b) A recipient of services who is an adherent or a
member of any well-recognized religious denomination, the
principles and tenets of which teach reliance upon services
by spiritual means through prayer alone for healing by a duly
accredited practitioner thereof, shall have the right to
choose such services. The parent or guardian of a recipient
of services who is a minor, or a guardian of a recipient of
services who is not a minor, shall have the right to choose
services by spiritual means through prayer for the recipient
of services.
(Source: P.A. 86-1402.)
(405 ILCS 5/2-107) (from Ch. 91 1/2, par. 2-107)
Sec. 2-107. Refusal of services; informing of risks.
(a) An adult recipient of services, or, if the recipient
is under guardianship, the recipient's guardian, shall be
given the opportunity to refuse generally accepted mental
health or developmental disability services, including but
not limited to medication. If such services are refused,
they shall not be given unless such services are necessary to
prevent the recipient from causing serious and imminent
physical harm to himself or others. The facility director
shall inform a recipient or guardian who refuses such
services of alternate services available and the risks of
such alternate services, as well as the possible consequences
to the recipient of refusal of such services.
(b) Authorized involuntary treatment Psychotropic
medication may be given under this Section for up to 24 hours
only if the circumstances leading up to the need for
emergency treatment medication are set forth in writing in
the recipient's record.
(c) Authorized involuntary treatment Psychotropic
medication may not be continued unless the need for such
treatment medication is redetermined at least every 24 hours
based upon a personal examination of the recipient by a
physician or a nurse under the supervision of a physician and
the circumstances demonstrating that need are set forth in
writing in the recipient's record.
(d) Authorized involuntary treatment Psychotropic
medications may not be administered under this Section for a
period in excess of 3 consecutive days, excluding Saturdays,
Sundays, and holidays, unless the facility files a petition
under Section 2-107.1 and the treatment medication continues
to be necessary in order to prevent the recipient from
causing serious and imminent physical harm to himself or
herself or others.
(e) The Department shall issue rules designed to insure
that in State-operated mental health facilities authorized
involuntary treatment psychotropic medication is administered
in accordance with this Section and only when appropriately
authorized and monitored by a physician or a nurse under the
supervision of a physician in accordance with accepted
medical practice. The facility director of each mental
health facility not operated by the State shall issue rules
designed to insure that in that facility authorized
involuntary treatment psychotropic medication is administered
in accordance with this Section and only when appropriately
authorized and monitored by a physician or a nurse under the
supervision of a physician in accordance with accepted
medical practice. Such rules shall be available for public
inspection and copying during normal business hours.
(f) The provisions of this Section with respect to the
emergency administration of authorized involuntary treatment
psychotropic medication do not apply to facilities licensed
under the Nursing Home Care Act.
(Source: P.A. 89-427, eff. 6-1-96; 89-439, eff. 6-1-96.)
(405 ILCS 5/2-107.1) (from Ch. 91 1/2, par. 2-107.1)
Sec. 2-107.1. Administration of authorized involuntary
treatment psychotropic medication upon application to a
court.
(a) Notwithstanding the provisions of Section 2-107 of
this Code Act, authorized involuntary treatment psychotropic
medication may be administered to an adult recipient of
services without the informed consent of the recipient
against his will under the following standards:
(1) Any person 18 years of age or older, including
any guardian, may petition the circuit court for an order
authorizing the administration of authorized involuntary
treatment psychotropic medication to a recipient of
services. The petition shall state that the petitioner
has made a good faith attempt to determine whether the
recipient has executed a power of attorney for health
care under the Powers of Attorney for Health Care Law or
a declaration for mental health treatment under the
Mental Health Treatment Preference Declaration Act and to
obtain copies of these instruments if they exist. If
either of the above-named instruments is available to the
petitioner, the instrument shall be attached to the
petition as an exhibit. The petitioner shall deliver a
copy of the petition, and notice of the time and place of
the hearing, to the respondent, his or her attorney, any
known agent or attorney-in-fact, if any, and the
guardian, if any, no later than 10 days prior to the date
of the hearing. The petition may include a request that
the court authorize such testing and procedures as may be
essential for the safe and effective administration of
the authorized involuntary treatment psychotropic
medication sought to be administered, but only where the
petition sets forth the specific testing and procedures
sought to be administered.
(2) The court shall hold a hearing within 14 days
of the filing of the petition. Continuances totaling not
more than 14 days may be granted to the recipient upon a
showing that the continuances are needed in order to
prepare adequately for a hearing under this Section. The
court may, in its discretion, grant additional
continuances if agreed to by all parties. The hearing
shall be separate from a judicial proceeding held to
determine whether a person is subject to involuntary
admission.
(3) Unless otherwise provided herein, the
procedures set forth in Article VIII of Chapter 3 of this
Act, including the provisions regarding appointment of
counsel, shall govern hearings held under this subsection
(a).
(4) Authorized involuntary treatment Psychotropic
medication shall not be administered to the recipient
unless it has been determined by clear and convincing
evidence that all of the following factors are present:
(A) That the recipient has a serious mental
illness or developmental disability.
(B) That because of said mental illness or
developmental disability, the recipient exhibits any
one of the following: (i) deterioration of his
ability to function, (ii) suffering, (iii) or
threatening behavior, or (iv) disruptive behavior.
(C) That the illness or disability has existed
for a period marked by the continuing presence of
the symptoms set forth in item (B) of this
subdivision (4) or the repeated episodic occurrence
of these symptoms.
(D) That the benefits of the treatment
psychotropic medication will outweigh the harm.
(E) That the recipient lacks the capacity to
make a reasoned decision about the treatment
medication.
(F) That other less restrictive services have
been explored and found inappropriate.
(G) If the petition seeks authorization for
testing and other procedures, that such testing and
procedures are essential for the safe and effective
administration of the treatment psychotropic
medication.
(5) In no event shall an order issued under this
Section be effective for more than 90 days. However,
authorized involuntary treatment psychotropic medication
may be administered for additional 90-day periods without
limitation under hearings that comply with the above
standards and procedures of this subsection (a). If a new
petition to authorize the administration of authorized
involuntary treatment psychotropic medication is filed at
least 15 days prior to the expiration of the prior order,
and if any continuance of the hearing is agreed to by the
recipient, the administration of the treatment medication
may continue in accordance with the prior order pending
the completion of a hearing under this Section.
(6) An order issued under this subsection (a) shall
designate the persons authorized to administer the
authorized involuntary treatment psychotropic medication
under the standards and procedures of this subsection
(a). Those persons shall have complete discretion not to
administer any treatment medication authorized under this
Section. The order shall also specify the medications and
the anticipated range of dosages that have been
authorized.
(b) A guardian may be authorized to consent to the
administration of authorized involuntary treatment
psychotropic medication to an objecting recipient only under
the standards and procedures of subsection (a).
(c) Notwithstanding any other provision of this Section,
a guardian may consent to the administration of authorized
involuntary treatment psychotropic medication to a
non-objecting recipient under Article XIa of the Probate Act
of 1975.
(d) Nothing in this Section shall prevent the
administration of authorized involuntary treatment
psychotropic medication to recipients in an emergency under
Section 2-107 of this Act.
(e) Notwithstanding any of the provisions of this
Section, authorized involuntary treatment may be administered
pursuant to a power of attorney for health care under the
Powers of Attorney for Health Care Law or a declaration for
mental health treatment under the Mental Health Treatment
Preference Declaration Act.
(Source: P.A. 89-11, eff. 3-31-95; 89-439, eff. 6-1-96.)
(405 ILCS 5/2-107.2) (from Ch. 91 1/2, par. 2-107.2)
Sec. 2-107.2. Review; notice.
(a) Whenever any recipient, who is receiving treatment
in a residential mental health facility, has been receiving
authorized involuntary treatment psychotropic medication in
that facility continuously or on a regular basis for a period
of 3 months, and, if the treatment medication is continued
while the recipient is a resident in that facility, every 6
months thereafter, for so long as the treatment medication
shall continue, the facility director shall convene a
treatment review panel to review the medication treatment.
(b) At least 7 days prior to the date of the meeting,
the recipient, his or her guardian, if any, and the person
designated under subsection (b) of Section 2-200 shall be
given written notification of the time and place of the
treatment review meeting. The notice shall also advise the
recipient of his or her right to designate some person to
attend the meeting and assist the recipient.
(c) If, during the course of the review, the recipient
or guardian, if any, advises the committee that he no longer
agrees to continue receiving the treatment medication, the
treatment medication must be discontinued except that the
treatment medication may be administered under either Section
2-107 or 2-107.1. If the recipient and guardian, if any,
continues to agree to the treatment medication, the treatment
medication shall be continued if the committee determines
that the recipient is receiving appropriate treatment
medication and that the benefit to the recipient outweighs
any risk of harm to the recipient.
(d) The Department shall issue rules to implement the
requirements of this Section.
(Source: P.A. 89-439, eff. 6-1-96.)
(405 ILCS 5/2-110) (from Ch. 91 1/2, par. 2-110)
Sec. 2-110. No recipient of services shall be subjected
to electro-convulsive therapy, or to any unusual, hazardous,
or experimental services or psychosurgery, without his
written and informed consent.
If the recipient is a minor or is under guardianship,
such recipient's parent or guardian is authorized, only with
the approval of the court, to provide informed consent for
participation of the ward in any such services which the
guardian deems to be in the best interests of the ward.
(Source: P.A. 80-1414.)
(405 ILCS 5/2-110.1 new)
Sec. 2-110.1. Reports.
(a) A mental hospital or facility at which
electro-convulsive therapy is administered shall submit to
the Department quarterly reports relating to the
administration of the therapy for the purposes of reducing
morbidity or mortality and improving patient care.
(b) A report shall state the following for each quarter:
(1) The number of persons who received the therapy,
including:
(A) the number of persons who gave informed
consent to the therapy;
(B) the number of persons confined as subject
to involuntary admission who gave informed consent
to the therapy;
(C) the number of persons who received the
therapy without informed consent pursuant to Section
2-107.1; and
(D) the number of persons who received the
therapy on an emergency basis pursuant to
subsection (d) of Section 2-107.1.
(2) The age, sex, and race of the recipients of the
therapy.
(3) The source of the treatment payment.
(4) The average number of electro-convulsive
treatments administered for each complete series of
treatments, but not including maintenance treatments.
(5) The average number of maintenance
electro-convulsive treatments administered per month.
(6) Any significant adverse reactions to the
treatment as defined by rule.
(7) Autopsy findings if death followed within 14
days after the date of the administration of the therapy.
(8) Any other information required by the
Department by rule.
(c) The Department shall prepare and publish an annual
written report summarizing the information received under
this Section. The report shall not contain any information
that identifies or tends to identify any facility,
physician, health care provider, or patient.
(405 ILCS 5/3-601.2 new)
Sec. 3-601.2. Consent to admission by healthcare
surrogate. A surrogate decision maker under the Health Care
Surrogate Act may not consent to the admission to a mental
health facility of a person who lacks decision making
capacity. A surrogate may, however, petition for involuntary
admission pursuant to this Code. This Section does not
affect the authority of a court appointed guardian.
(405 ILCS 5/3-800) (from Ch. 91 1/2, par. 3-800)
Sec. 3-800. (a) Unless otherwise indicated, court
hearings under this Chapter shall be held pursuant to this
Article. Hearings shall be held in such quarters as the
court directs. To the extent practical, hearings shall be
held in the mental health facility where the respondent is
hospitalized. Any party may request a change of venue or
transfer to any other county because of the convenience of
parties or witnesses or the condition of the respondent. The
respondent may request to have the proceedings transferred to
the county of his residence.
(b) If the court grants a continuance on its own motion
or upon the motion of one of the parties, the respondent may
continue to be detained pending further order of the court.
Such continuance shall not extend beyond 15 days except to
the extent that continuances are requested by the respondent.
(c) Court hearings under this Chapter, including
hearings under Section 2-107.1, shall be open to the press
and public unless the respondent or some other party requests
that they be closed. The court may also indicate its
intention to close a hearing, including when it determines
that the respondent may be unable to make a reasoned decision
to request that the hearing be closed. A request that a
hearing be closed shall be granted unless there is an
objection to closing the hearing by a party or any other
person. If an objection is made, the court shall not close
the hearing unless, following a hearing, it determines that
the patient's interest in having the hearing closed is
compelling. The court shall support its determination with
written findings of fact and conclusions of law. The court
shall not close the hearing if the respondent objects to its
closure. Whenever a court determines that a hearing shall be
closed, access to the records of the hearing, including but
not limited to transcripts and pleadings, shall be limited
to the parties involved in the hearing, court personnel, and
any person or agency providing mental health services that
are the subject of the hearing. Access may also be granted,
however, pursuant to the provisions of the Mental Health and
Developmental Disabilities Confidentiality Act.
(Source: P.A. 85-971.)
Section 15. The Mental Health and Developmental
Disabilities Confidentiality Act is amended by changing
Sections 2 and 11 as follows:
(740 ILCS 110/2) (from Ch. 91 1/2, par. 802)
Sec. 2. The terms used in this Act, unless the context
requires otherwise, have the meanings ascribed to them in
this Section.
"Agent" means a person who has been legally appointed as
an individual's agent under a power of attorney for health
care or for property.
"Confidential communication" or "communication" means any
communication made by a recipient or other person to a
therapist or to or in the presence of other persons during or
in connection with providing mental health or developmental
disability services to a recipient. Communication includes
information which indicates that a person is a recipient.
"Guardian" means a legally appointed guardian or
conservator of the person.
"Mental health or developmental disabilities services" or
"services" includes but is not limited to examination,
diagnosis, evaluation, treatment, training, pharmaceuticals,
aftercare, habilitation or rehabilitation.
"Personal notes" means:
(i) information disclosed to the therapist in
confidence by other persons on condition that such
information would never be disclosed to the recipient or
other persons;
(ii) information disclosed to the therapist by the
recipient which would be injurious to the recipient's
relationships to other persons, and
(iii) the therapist's speculations, impressions,
hunches, and reminders.
"Parent" means a parent or, in the absence of a parent or
guardian, a person in loco parentis.
"Recipient" means a person who is receiving or has
received mental health or developmental disabilities
services.
"Record" means any record kept by a therapist or by an
agency in the course of providing mental health or
developmental disabilities service to a recipient concerning
the recipient and the services provided. "Records" includes
all records maintained by a court that have been created in
connection with, in preparation for, or as a result of the
filing of any petition or certificate under Chapter II,
Article VI or VII of Chapter III, or under Article IV or V of
Chapter IV of the Mental Health and Developmental
Disabilities Code and includes the petitions, certificates,
dispositional reports, treatment plans, and reports of
diagnostic evaluations and of hearings to determine if a
person is subject to involuntary admission under Article VIII
of Chapter III or subject to judicial admission under Article
V of Chapter IV of that Code. Record does not include the
therapist's personal notes, if such notes are kept in the
therapist's sole possession for his own personal use and are
not disclosed to any other person, except the therapist's
supervisor, consulting therapist or attorney. If at any time
such notes are disclosed, they shall be considered part of
the recipient's record for purposes of this Act.
"Record custodian" means a person responsible for
maintaining a recipient's record.
"Therapist" means a psychiatrist, physician,
psychologist, social worker, or nurse providing mental health
or developmental disabilities services or any other person
not prohibited by law from providing such services or from
holding himself out as a therapist if the recipient
reasonably believes that such person is permitted to do so.
Therapist includes any successor of the therapist.
(Source: P.A. 88-484; 89-58, eff. 1-1-96.)
(740 ILCS 110/11) (from Ch. 91 1/2, par. 811)
(Text of Section before amendment by P.A. 89-507)
Sec. 11. Disclosure of records and communications.
Records and communications may be disclosed, (i) in
accordance with the provisions of the Abused and Neglected
Child Reporting Act; (ii) when, and to the extent, a
therapist, in his or her sole discretion, determines that
disclosure is necessary to initiate or continue civil
commitment proceedings under the laws of this State or to
otherwise protect the recipient or other person against a
clear, imminent risk of serious physical or mental injury or
disease or death being inflicted upon the recipient or by the
recipient on himself or another; (iii) when, and to the
extent disclosure is, in the sole discretion of the
therapist, necessary to the provision of emergency medical
care to a recipient who is unable to assert or waive his or
her rights hereunder; (iv) when disclosure is necessary to
collect sums or receive third party payment representing
charges for mental health or developmental disabilities
services provided by a therapist or agency to a recipient
under Chapter V of the Mental Health and Developmental
Disabilities Code or to transfer debts under the Uncollected
States Claims Act; however, disclosure shall be limited to
information needed to pursue collection, and the information
so disclosed shall not be used for any other purposes nor
shall it be redisclosed except in connection with collection
activities; (v) when requested by a family member, the
Department of Mental Health and Developmental Disabilities
may assist in the location of the interment site of a
deceased recipient who is interred in a cemetery established
under Section 100-26 of the Department of Mental Health and
Developmental Disabilities Act; (vi) in judicial commitment
proceedings and involuntary medication hearings under Article
VIII of Chapter III and Article V of Chapter IV of the Mental
Health and Developmental Disabilities Code and proceedings
and investigations preliminary thereto, to the State's
Attorney for the county or residence of a person who is the
subject of such proceedings for whom involuntary or judicial
admission or involuntary medication is sought, or in which
the person is found, or in which the facility is located, and
to the attorney representing the recipient in the judicial
commitment proceedings or medication hearing, to any person
or agency providing mental health services that are the
subject of the proceedings and to that person's or agency's
attorney, to any court personnel, including but not limited
to judges and circuit court clerks, and to a guardian ad
litem if one has been appointed by the court, provided that
the information so disclosed shall not be utilized for any
other purpose nor be redisclosed except in connection with
the proceedings or investigations; (vii) when, and to the
extent disclosure is necessary to comply with the
requirements of the Census Bureau in taking the federal
Decennial Census; and (viii) when, and to the extent, in the
therapist's sole discretion, disclosure is necessary to warn
or protect a specific individual against whom a recipient has
made a specific threat of violence where there exists a
therapist-recipient relationship or a special
recipient-individual relationship. Any person, institution,
or agency, under this Act, participating in good faith in the
making of a report under the Abused and Neglected Child
Reporting Act or in the disclosure of records and
communications under this Section, shall have immunity from
any liability, civil, criminal or otherwise, that might
result by reason of such action. For the purpose of any
proceeding, civil or criminal, arising out of a report or
disclosure under this Section, the good faith of any person,
institution, or agency so reporting or disclosing shall be
presumed.
(Source: P.A. 88-484; 89-439, eff. 6-1-96.)
(Text of Section after amendment by P.A. 89-507)
Sec. 11. Disclosure of records and communications.
Records and communications may be disclosed, (i) in
accordance with the provisions of the Abused and Neglected
Child Reporting Act; (ii) when, and to the extent, a
therapist, in his or her sole discretion, determines that
disclosure is necessary to initiate or continue civil
commitment proceedings under the laws of this State or to
otherwise protect the recipient or other person against a
clear, imminent risk of serious physical or mental injury or
disease or death being inflicted upon the recipient or by the
recipient on himself or another; (iii) when, and to the
extent disclosure is, in the sole discretion of the
therapist, necessary to the provision of emergency medical
care to a recipient who is unable to assert or waive his or
her rights hereunder; (iv) when disclosure is necessary to
collect sums or receive third party payment representing
charges for mental health or developmental disabilities
services provided by a therapist or agency to a recipient
under Chapter V of the Mental Health and Developmental
Disabilities Code or to transfer debts under the Uncollected
State Claims Act; however, disclosure shall be limited to
information needed to pursue collection, and the information
so disclosed shall not be used for any other purposes nor
shall it be redisclosed except in connection with collection
activities; (v) when requested by a family member, the
Department of Human Services may assist in the location of
the interment site of a deceased recipient who is interred in
a cemetery established under Section 100-26 of the Mental
Health and Developmental Disabilities Administrative Act;
(vi) in judicial commitment proceedings and involuntary
medication hearings under Article VIII of Chapter III and
Article V of Chapter IV of the Mental Health and
Developmental Disabilities Code and proceedings and
investigations preliminary thereto, to the State's Attorney
for the county or residence of a person who is the subject of
such proceedings for whom involuntary or judicial admission
or involuntary medication is sought, or in which the person
is found, or in which the facility is located, and to the
attorney representing the recipient in the judicial
commitment proceedings or medication hearing, to any person
or agency providing mental health services that are the
subject of the proceedings and to that person's or agency's
attorney, to any court personnel, including but not limited
to judges and circuit court clerks, and to a guardian ad
litem if one has been appointed by the court, provided that
the information so disclosed shall not be utilized for any
other purpose nor be redisclosed except in connection with
the proceedings or investigations; (vii) when, and to the
extent disclosure is necessary to comply with the
requirements of the Census Bureau in taking the federal
Decennial Census; and (viii) when, and to the extent, in the
therapist's sole discretion, disclosure is necessary to warn
or protect a specific individual against whom a recipient has
made a specific threat of violence where there exists a
therapist-recipient relationship or a special
recipient-individual relationship. Any person, institution,
or agency, under this Act, participating in good faith in the
making of a report under the Abused and Neglected Child
Reporting Act or in the disclosure of records and
communications under this Section, shall have immunity from
any liability, civil, criminal or otherwise, that might
result by reason of such action. For the purpose of any
proceeding, civil or criminal, arising out of a report or
disclosure under this Section, the good faith of any person,
institution, or agency so reporting or disclosing shall be
presumed.
(Source: P.A. 88-484; 89-439, eff. 6-1-96; 89-507, eff.
7-1-97.)
Section 20. The Sexual Exploitation in Psychotherapy Act
is amended by changing the title of the Act and Sections
0.01, 1, 2, and 3 as follows:
(740 ILCS 140/Act title)
An Act concerning sexual exploitation by
psychotherapists, unlicensed health professionals, or
unlicensed mental health professionals.
(Source: P.A. 85-1254.)
(740 ILCS 140/0.01) (from Ch. 70, par. 800)
Sec. 0.01. Short title. This Act may be cited as the
Sexual Exploitation in Psychotherapy, Professional Health
Services, and Professional Mental Health Services Act.
(Source: P.A. 86-1324.)
(740 ILCS 140/1) (from Ch. 70, par. 801)
Sec. 1. Definitions. In this Act:
(a) "Emotionally dependent" means that the nature of the
patient's or former patient's emotional condition and the
nature of the treatment provided by the psychotherapist,
unlicensed health professional, or unlicensed mental health
professional are such that the psychotherapist, unlicensed
health professional, or unlicensed mental health professional
knows or has reason to believe that the patient or former
patient is unable to withhold consent to sexual contact by
the psychotherapist, unlicensed health professional, or
unlicensed mental health professional.
(b) "Former patient" means a person who was given
psychotherapy within 1 year prior to sexual contact with the
psychotherapist or who obtained a professional consultation
or diagnostic or therapeutic service from an unlicensed
health professional or unlicensed mental health professional
within one year prior to sexual contact with the unlicensed
health professional or unlicensed mental health professional.
(c) "Patient" means a person who seeks or obtains
psychotherapy or who obtains a professional consultation or
diagnostic or therapeutic service from an unlicensed health
professional or unlicensed mental health professional.
(d) "Psychotherapist" means a physician, psychologist,
nurse, chemical dependency counselor, social worker, or other
person, whether or not licensed by the State, who performs or
purports to perform psychotherapy.
(e) "Psychotherapy" means the professional treatment,
assessment, or counseling of a mental or emotional illness,
symptom, or condition. "Psychotherapy" does not include
counseling of a spiritual or religious nature, social work,
or casual advice given by a friend or family member.
(f) "Sexual contact" means any of the following, whether
or not occurring with the consent of a patient or former
patient:
(1) sexual intercourse, cunnilingus, fellatio, anal
intercourse or any intrusion, however slight, into the
genital or anal openings of the patient's or former patient's
body by any part of the psychotherapist's, unlicensed health
professional's, or unlicensed mental health professional's
body or by any object used by the psychotherapist, unlicensed
health professional, or unlicensed mental health professional
for that purpose, or any intrusion, however slight, into the
genital or anal openings of the psychotherapist's, unlicensed
health professional's, or unlicensed mental health
professional's body by any part of the patient's or former
patient's body or by any object used by the patient or former
patient for that purpose, if agreed to by the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional;
(2) kissing or intentional touching by the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional of the patient's or
former patient's genital area, groin, inner thigh, buttocks,
or breast or the clothing covering any of these body parts;
(3) kissing or intentional touching by the patient or
former patient of the psychotherapist's, unlicensed health
professional's, or unlicensed mental health professional's
genital area, groin, inner thigh, buttocks, or breast or the
clothing covering any of these body parts if the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional agrees to the kissing
or intentional touching.
"Sexual contact" includes a request by the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional for conduct described
in paragraphs (1) through (3).
"Sexual contact" does not include conduct described in
paragraph (1) or (2) that is a part of standard medical
treatment of a patient, casual social contact not intended to
be sexual in character, or inadvertent touching.
(g) "Therapeutic deception" means a representation by a
psychotherapist, unlicensed health professional, or
unlicensed mental health professional that sexual contact
with the psychotherapist, unlicensed health professional, or
unlicensed mental health professional is consistent with or
part of the patient's or former patient's treatment.
(h) "Unlicensed health professional" means a person who
is not licensed or registered to provide health services by
the Department of Professional Regulation or a board of
registration duly authorized to grant licenses or
registration to persons engaged in the practice of providing
health services or whose license or registration to provide
health services has been returned or revoked by the
Department or that board.
(i) "Unlicensed mental health professional" means a
person who is not licensed or registered to provide mental
health services by the Department of Professional Regulation
or a board of registration duly authorized to grant licenses
or registration to persons engaged in the practice of
providing mental health services or whose license or
registration to provide mental health services has been
returned or revoked by the Department or that board.
(Source: P.A. 85-1254.)
(740 ILCS 140/2) (from Ch. 70, par. 802)
Sec. 2. Cause of action for sexual exploitation. (a) A
cause of action against a psychotherapist, unlicensed health
professional, or unlicensed mental health professional for
sexual exploitation exists for a patient or former patient
for injury caused by sexual contact with the psychotherapist,
unlicensed health professional, or unlicensed mental health
professional, if the sexual contact occurred:
(1) during the period the patient was receiving
psychotherapy from the psychotherapist, or health services
from the unlicensed health professional, or mental health
services from the unlicensed mental health professional; or
(2) after the period the patient received psychotherapy
from the psychotherapist, or health services from the
unlicensed health professional, or mental health services
from the unlicensed mental health professional if (i) the
former patient was emotionally dependent on the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional or (ii) the sexual
contact occurred by means of therapeutic deception.
(b) The patient or former patient may recover damages
from a psychotherapist, unlicensed health professional, or
unlicensed mental health professional who is found liable for
sexual exploitation. It is not a defense to the action that
sexual contact with a patient occurred outside a therapy or
treatment session or that it occurred off the premises
regularly used by the psychotherapist, unlicensed health
professional, or unlicensed mental health professional for
therapy or treatment sessions.
(c) Whenever the Attorney General has probable cause to
believe (i) that a psychotherapist, unlicensed health
professional, or unlicensed mental health professional is
having or has had sexual contact with one or more patients or
clients or former patients or former clients while the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional was licensed or
unlicensed and (ii) that the psychotherapist, unlicensed
health professional, or unlicensed mental health professional
poses a threat to the health, safety, or welfare of members
of the public who are or may be patients or clients of the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional, the Attorney General
may bring an action in the name of the State against the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional to restrain by
temporary restraining order or preliminary or permanent
injunction the psychotherapist, unlicensed health
professional, or unlicensed mental health professional from
providing, offering to provide, or representing himself or
herself as being able to provide psychotherapy, health
services, or mental health services.
At least 5 days prior to the commencement of any action
brought under this Section, except when a temporary
restraining order is sought, the Attorney General shall
notify the psychotherapist, unlicensed health professional,
or unlicensed mental health professional of the Attorney
General's intended action and shall give the psychotherapist,
unlicensed health professional, or unlicensed mental health
professional an opportunity to confer with the Attorney
General or his or her representative in person or by counsel
or other representative as to the proposed action.
The notice shall be given by first-class mail, postage
prepaid, to the psychotherapist's, unlicensed health
professional's, or unlicensed mental health professional's
usual place of business or, if that person has no usual place
of business, to that person's last known address.
(d) The action may be brought either in the circuit
court of the county in which the conduct complained of
occurred or in the circuit court of the county in which the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional resides or has his or
her principal place of business.
The court may issue temporary restraining orders or
preliminary or permanent injunctions and make other orders or
judgments it deems appropriate.
(e) No injunction shall be issued under this Section
unless the court finds that the defendant has had an
opportunity for an evidentiary hearing as to all contested
material issues of fact. Issues decided in a prior
evidentiary hearing in a court or in an administrative
proceeding may be applied to a proceeding under this Section
in compliance with the Code of Civil Procedure.
If the court issues an injunction against a
psychotherapist, unlicensed health professional, or
unlicensed mental health professional under this Section, the
court shall retain jurisdiction of the matter and the cause
shall be continued. Any psychotherapist, unlicensed health
professional, or unlicensed mental health professional who is
ordered to refrain from certain conduct or activities in an
action brought under this Section may petition the court for
a modification or termination of the injunction upon 10 days
notice to the Attorney General.
(f) Any State's Attorney or other law enforcement office
receiving notice of any alleged violation of this Section or
violation of an injunction or order issued in an action
brought under this Section shall immediately forward written
notice of the alleged violation together with any information
that the State's Attorney or other law enforcement office may
have to the office of the Attorney General.
(g) In an action brought under this Section, whenever
the court issues a temporary restraining order or a
preliminary or permanent injunction ordering a defendant to
refrain from certain conduct or activities, the order shall
contain the following statement:
VIOLATION OF THIS ORDER IS A CRIMINAL OFFENSE.
The clerk shall transmit 2 certified copies of each such
order issued under this Section to each appropriate law
enforcement agency having jurisdiction over locations where
the defendant is alleged to have committed the act giving
rise to the action, and the law enforcement agency shall
serve one copy of the order on the defendant. Unless
otherwise ordered by the court, service shall be by
delivering a copy in hand to the defendant.
After any such order has been served on the defendant,
any violation of the order by the defendant is a Class 4
felony punishable by a fine of not more than $25,000.
Law enforcement agencies shall establish procedures
adequate to ensure that all officers responsible for the
enforcement of an order entered under this Section are
informed of the existence and terms of the order. Whenever
any law enforcement officer has probable cause to believe
that a defendant has violated the provisions of this Section,
the officer has the authority to arrest the defendant.
Whenever the court vacates a temporary restraining order
or a preliminary or permanent injunction issued under this
Section, the clerk shall promptly notify in writing each
appropriate law enforcement agency that has been notified of
the issuance of the order and shall direct each such agency
to destroy all records of the vacated order. The law
enforcement agency shall comply with that directive.
(h) Nothing contained in this Section shall prohibit the
Attorney General in his or her discretion from bringing an
action for civil contempt against the defendant rather than
bringing criminal charges for an alleged violation of an
order issued under this Section as provided in subsection
(g). If the court finds that a psychotherapist, unlicensed
health professional, or unlicensed mental health professional
is in civil contempt by reason of an alleged violation of an
injunction or the order entered under this Section, the court
shall assess a civil penalty of not more than $10,000 for
each such violation found.
(Source: P.A. 85-1254.)
(740 ILCS 140/3) (from Ch. 70, par. 803)
Sec. 3. Liability of employer. An employer of a
psychotherapist, unlicensed health professional, or
unlicensed mental health professional may be liable under
Section 2 if the employer fails or refuses to take reasonable
action when the employer knows or has reason to know that the
psychotherapist, unlicensed health professional, or
unlicensed mental health professional engaged in sexual
contact with the plaintiff or any other patient or former
patient of the psychotherapist, unlicensed health
professional, or unlicensed mental health professional.
(Source: P.A. 85-1254.)
Section 25. The Health Care Surrogate Act is amended by
changing Section 10 as follows:
(755 ILCS 40/10) (from Ch. 110 1/2, par. 851-10)
Sec. 10. Definitions.
"Adult" means a person who is (i) 18 years of age or
older or (ii) an emancipated minor under the Emancipation of
Mature Minors Act.
"Artificial nutrition and hydration" means supplying food
and water through a conduit, such as a tube or intravenous
line, where the recipient is not required to chew or swallow
voluntarily, including, but not limited to, nasogastric
tubes, gastrostomies, jejunostomies, and intravenous
infusions. Artificial nutrition and hydration does not
include assisted feeding, such as spoon or bottle feeding.
"Available" means that a person is not "unavailable". A
person is unavailable if (i) the person's existence is not
known, (ii) the person has not been able to be contacted by
telephone or mail, or (iii) the person lacks decisional
capacity, refuses to accept the office of surrogate, or is
unwilling to respond in a manner that indicates a choice
among the life-sustaining treatment matters at issue.
"Attending physician" means the physician selected by or
assigned to the patient who has primary responsibility for
treatment and care of the patient and who is a licensed
physician in Illinois. If more than one physician shares
that responsibility, any of those physicians may act as the
attending physician under this Act.
"Close friend" means any person 18 years of age or older
who has exhibited special care and concern for the patient
and who presents an affidavit to the attending physician
stating that he or she (i) is a close friend of the patient,
(ii) is willing and able to become involved in the patient's
health care, and (iii) has maintained such regular contact
with the patient as to be familiar with the patient's
activities, health, and religious and moral beliefs. The
affidavit must also state facts and circumstances that
demonstrate that familiarity.
"Death" means when, according to accepted medical
standards, there is (i) an irreversible cessation of
circulatory and respiratory functions or (ii) an irreversible
cessation of all functions of the entire brain, including the
brain stem.
"Decisional capacity" means the ability to understand and
appreciate the nature and consequences of a decision
regarding forgoing life-sustaining treatment and the ability
to reach and communicate an informed decision in the matter
as determined by the attending physician.
"Forgo life-sustaining treatment" means to withhold,
withdraw, or terminate all or any portion of life-sustaining
treatment with knowledge that the patient's death is likely
to result.
"Guardian" means a court appointed guardian of the person
who serves as a representative of a minor or as a
representative of a person under legal disability.
"Health care facility" means a type of health care
provider commonly known by a wide variety of titles,
including but not limited to, hospitals, medical centers,
nursing homes, rehabilitation centers, long term or tertiary
care facilities, and other facilities established to
administer health care and provide overnight stays in their
ordinary course of business or practice.
"Health care provider" means a person that is licensed,
certified, or otherwise authorized or permitted by the law of
this State to administer health care in the ordinary course
of business or practice of a profession, including, but not
limited to, physicians, nurses, health care facilities, and
any employee, officer, director, agent, or person under
contract with such a person.
"Imminent" (as in "death is imminent") means a
determination made by the attending physician according to
accepted medical standards that death will occur in a
relatively short period of time, even if life-sustaining
treatment is initiated or continued.
"Life-sustaining treatment" means any medical treatment,
procedure, or intervention that, in the judgment of the
attending physician, when applied to a patient with a
qualifying condition, would not be effective to remove the
qualifying condition or would serve only to prolong the dying
process. Those procedures can include, but are not limited
to, assisted ventilation, renal dialysis, surgical
procedures, blood transfusions, and the administration of
drugs, antibiotics, and artificial nutrition and hydration.
"Minor" means an individual who is not an adult as
defined in this Act.
"Parent" means a person who is the natural or adoptive
mother or father of the child and whose parental rights have
not been terminated by a court of law.
"Patient" means an adult or minor individual, unless
otherwise specified, under the care or treatment of a
licensed physician or other health care provider.
"Person" means an individual, a corporation, a business
trust, a trust, a partnership, an association, a government,
a governmental subdivision or agency, or any other legal
entity.
"Qualifying condition" means the existence of one or more
of the following conditions in a patient certified in writing
in the patient's medical record by the attending physician
and by at least one other qualified physician:
(1) "Terminal condition" means an illness or injury
for which there is no reasonable prospect of cure or
recovery, death is imminent, and the application of
life-sustaining treatment would only prolong the dying
process.
(2) "Permanent unconsciousness" means a condition
that, to a high degree of medical certainty, (i) will
last permanently, without improvement, (ii) in which
thought, sensation, purposeful action, social
interaction, and awareness of self and environment are
absent, and (iii) for which initiating or continuing
life-sustaining treatment, in light of the patient's
medical condition, provides only minimal medical benefit.
(3) "Incurable or irreversible condition" means an
illness or injury (i) for which there is no reasonable
prospect of cure or recovery, (ii) that ultimately will
cause the patient's death even if life-sustaining
treatment is initiated or continued, (iii) that imposes
severe pain or otherwise imposes an inhumane burden on
the patient, and (iv) for which initiating or continuing
life-sustaining treatment, in light of the patient's
medical condition, provides only minimal medical benefit.
The determination that a patient has a qualifying
condition creates no presumption regarding the application or
non-application of life-sustaining treatment. It is only
after a determination by the attending physician that the
patient has a qualifying condition that the surrogate
decision maker may consider whether or not to forgo
life-sustaining treatment. In making this decision, the
surrogate shall weigh the burdens on the patient of
initiating or continuing life-sustaining treatment against
the benefits of that treatment.
"Qualified physician" means a physician licensed to
practice medicine in all of its branches in Illinois who has
personally examined the patient.
"Surrogate decision maker" means an adult individual or
individuals who (i) have decisional capacity, (ii) are
available upon reasonable inquiry, (iii) are willing to make
decisions regarding the forgoing of life-sustaining treatment
on behalf of a patient who lacks decisional capacity and is
diagnosed as suffering from a qualifying condition, and (iv)
are identified by the attending physician in accordance with
the provisions of this Act as the person or persons who are
to make those decisions in accordance with the provisions of
this Act.
(Source: P.A. 87-749; 88-670, eff. 12-2-94.)
Section 95. No acceleration or delay. Where this Act
makes changes in a statute that is represented in this Act by
text that is not yet or no longer in effect (for example, a
Section represented by multiple versions), the use of that
text does not accelerate or delay the taking effect of (i)
the changes made by this Act or (ii) provisions derived from
any other Public Act.
Section 99. Effective date. This Act takes effect upon
becoming law.