Public Act 102-0646
 
SB2265 EnrolledLRB102 13807 CPF 19157 b


  
    AN ACT concerning regulation.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  



 
 
    Section 5. The Nursing Home Care Act is amended  by 
changing Section 2-106.1 as follows:
 
    (210 ILCS 45/2-106.1)


    Sec. 2-106.1. Drug treatment.

    (a) A resident shall not be given unnecessary drugs.  An

unnecessary drug is any drug used in an excessive dose, 
including in
duplicative therapy; for excessive duration; 
without adequate
monitoring; without adequate indications for 
its use; or in the
presence of adverse consequences that 
indicate the drugs should be reduced or
discontinued.  The 
Department shall adopt, by rule, the standards
for unnecessary

drugs
contained in interpretive guidelines issued by the 
United States Department of
Health and Human Services for the 
purposes of administering Titles XVIII and XIX of
the Social 
Security Act.


    (b) Except in the case of an emergency, psychotropic 
medication shall not be administered without the informed

consent of the resident or the resident's surrogate decision 
maker.  "Psychotropic medication"
means medication that
is used 
for or listed as used for psychotropic, antidepressant, 
antimanic, or
antianxiety behavior modification or behavior 
management purposes in the latest
editions of the AMA Drug 
Evaluations or the Physician's Desk Reference. "Emergency" has 
the same meaning as in Section 1-112 of the Nursing Home Care 
Act.  A facility shall (i) document the alleged emergency in 
detail, including the facts surrounding the medication's need, 
and (ii) present this documentation to the resident and the 
resident's representative. The No later than January 1, 2021, 
the Department shall adopt, by rule, a protocol specifying how 
informed consent for psychotropic medication may be obtained 
or refused.  The protocol shall require, at a minimum, a 
discussion between (i) the resident or the resident's 
surrogate decision maker and (ii) the resident's physician, a 
registered pharmacist (who is not a dispensing pharmacist for 
the facility where the resident lives), or a licensed nurse 
about the possible risks and benefits of a recommended 
medication and the use of standardized consent forms 
designated by the Department. The protocol shall include 
informing the resident, surrogate decision maker, or both of 
the existence of a copy of: the resident's care plan; the 
facility policies and procedures adopted in compliance with 
subsection (b-15)  of this Section; and a notification that the 
most recent of the resident's care plans and the facility's 
policies are available to the resident or surrogate decision 
maker upon request. Each form designated or developed by the 
Department (i) shall be written in plain language, (ii) shall 
be able to be downloaded from the Department's official 
website or another website designated by the Department, (iii) 
shall include information specific to the psychotropic 
medication for which consent is being sought, and (iv) shall 
be used for every resident for whom psychotropic drugs are 
prescribed. The Department shall utilize the rules, protocols, 
and forms developed and implemented under the Specialized 
Mental Health Rehabilitation Act of 2013 in effect on the 
effective date of this amendatory Act of the 101st General 
Assembly, except to the extent that this Act requires a 
different procedure, and except that the maximum possible 
period for informed consent shall be until: (1) a change in the 
prescription occurs, either as to type of psychotropic 
medication or an increase or decrease in dosage, dosage range, 
or titration schedule of the prescribed medication that was 
not included in the original informed consent; or (2) a 
resident's care plan changes. The Department may further amend 
the rules after January 1, 2021 pursuant to existing 
rulemaking authority.  In addition to creating those forms, the 
Department shall approve the use of any other informed consent 
forms that meet criteria developed by the Department. At the 
discretion of the Department, informed consent forms may 
include side effects that the Department reasonably believes 
are more common, with a direction that more complete 
information can be found via a link on the Department's 
website to third-party websites with more complete 
information, such as the United States Food and Drug 
Administration's website. The Department or a facility shall 
incur no liability for information provided on a consent form 
so long as the consent form is substantially accurate based 
upon generally accepted medical principles and if the form 
includes the website links.
    Informed consent shall be sought from the resident.  For 
the purposes of this Section, "surrogate decision maker" means 
an individual representing the resident's interests as 
permitted by this Section. Informed consent shall be sought by 
the resident's guardian of the person if one has been named by 
a court of competent jurisdiction. In the absence of a 
court-ordered guardian, informed consent shall be sought from 
a health care agent under the Illinois Power of Attorney Act 
who has authority to give consent. If neither a court-ordered 
guardian of the person nor a health care agent under the 
Illinois Power of Attorney Act is available and the attending 
physician determines that the resident lacks capacity to make 
decisions, informed consent shall be sought from the 
resident's attorney-in-fact designated under the Mental Health 
Treatment Preference Declaration Act, if applicable, or the 
resident's representative.
    In addition to any other penalty prescribed by law, a 
facility that  is found to have violated this subsection, or 
the federal certification requirement that informed consent be 
obtained before administering a psychotropic medication, shall 
thereafter be required to obtain the signatures of 2 licensed 
health care professionals on every form purporting to give 
informed consent for the administration of a psychotropic 
medication, certifying the personal knowledge of each health 
care professional that the consent was obtained in compliance 
with the requirements of this subsection. 

    (b-5) A facility must obtain voluntary informed consent, 
in writing, from a resident or the resident's surrogate 
decision maker before administering or dispensing a 
psychotropic medication to that resident. When informed 
consent is not required for a change in dosage, the facility 
shall note in the resident's file that the resident was 
informed of the dosage change prior to the administration of 
the medication or that verbal, written, or electronic notice 
has been communicated to the resident's surrogate decision 
maker that a change in dosage has occurred. 
    (b-10)  No facility shall deny continued residency to a 
person on the basis of the person's or resident's, or the 
person's or resident's surrogate decision maker's, refusal of 
the administration of psychotropic medication, unless the 
facility can demonstrate that the resident's refusal would 
place the health and safety of the resident, the facility 
staff, other residents, or visitors at risk.
    A facility that alleges that the resident's refusal to 
consent to the administration of psychotropic medication will 
place the health and safety of the resident, the facility 
staff, other residents, or visitors at risk must: (1) document 
the alleged risk in detail; (2) present this documentation to 
the resident or the resident's surrogate decision maker, to 
the Department, and to the Office of the State Long Term Care 
Ombudsman; and (3) inform the resident or his or her surrogate 
decision maker of his or her right to appeal to the Department. 
The documentation of the alleged risk shall include a 
description of all nonpharmacological or alternative care 
options attempted and why they were unsuccessful.
    (b-15) Within 100 days after the effective date of any 
rules adopted by the Department under subsection (b) of this 
Section, all facilities shall implement written policies and 
procedures for compliance with this Section. When the 
Department conducts its annual survey of a facility, the 
surveyor may review these written policies and procedures and 
either:
        (1) give written notice to the facility that the 
    policies or procedures are sufficient to demonstrate the 
    facility's intent to comply with this Section; or
        (2) provide written notice to the facility that the 
    proposed policies and procedures are deficient, identify 
    the areas that are deficient, and provide 30 days for the 
    facility to submit amended policies and procedures that 
    demonstrate its intent to  comply with this Section.
    A facility's failure to submit the documentation required 
under this subsection is sufficient to demonstrate its intent 
to not comply with this Section and shall be grounds for review 
by the Department.
    All facilities must provide training and education on the 
requirements of this Section to all personnel involved in 
providing care to residents and train and educate such 
personnel on the methods and procedures to effectively 
implement the facility's policies.  Training and education 
provided under this Section must be documented in each 
personnel file.
    (b-20)   Upon the receipt of a report of any violation of 
this Section, the Department shall investigate and, upon 
finding sufficient evidence of a violation of this Section, 
may proceed with disciplinary action against the licensee of 
the facility. In any administrative disciplinary action under 
this subsection, the Department shall have the discretion to 
determine the gravity of the violation and, taking into 
account mitigating and aggravating circumstances and facts, 
may adjust the disciplinary action accordingly.
    (b-25) A violation of informed consent that, for an 
individual resident, lasts for 7 days or more under this 
Section is, at a minimum, a Type "B" violation. A second 
violation of informed consent within a year from a previous 
violation in the same facility regardless of the duration of 
the second violation is, at a minimum, a Type "B" violation.
    (b-30) Any violation of this Section by a facility may be 
enforced by an action brought by the Department in the name of 
the People of Illinois for injunctive relief, civil penalties, 
or both injunctive relief and civil penalties. The Department 
may initiate the action upon its own complaint or the 
complaint of any other interested party.
    (b-35) Any resident who has been administered a 
psychotropic medication in violation of this Section may bring 
an action for injunctive relief, civil damages, and costs and 
attorney's fees against any facility responsible for the 
violation.
    (b-40) An action under this Section must be filed within 2 
years of either the date of discovery of the violation that 
gave rise to the claim or the last date of an instance of a 
noncompliant administration of psychotropic medication to the 
resident, whichever is later.
    (b-45) A facility subject to action under this Section 
shall be liable for damages of up to $500 for each day after 
discovery of a violation that the facility violates the 
requirements of this Section.
    (b-55) The rights provided for in this Section are 
cumulative to existing resident rights. No part of this 
Section shall be interpreted as abridging, abrogating, or 
otherwise diminishing existing resident rights or causes of 
action at law or equity.
    (c) The requirements of
this Section are intended to 
control in a conflict
with the requirements of Sections 2-102 
and 2-107.2
of the Mental Health and Developmental 
Disabilities Code with respect to the
administration of 
psychotropic medication.


    (d) In this Section only, "licensed nurse" means an 
advanced practice registered nurse, a registered nurse, or a 
licensed practical nurse. 
(Source: P.A. 101-10, eff. 6-5-19.)

 
 
    Section 99. Effective date. This Act takes effect upon 
becoming law.