HB4886ham001 100TH GENERAL ASSEMBLY

Rep. Laura Fine

Filed: 4/23/2018

10000HB4886ham001 LRB100 18083 HEP 38722 a

AMENDMENT TO HOUSE BILL 4886

AMENDMENT NO. ______. Amend House Bill 4886 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Access to Basic Mental Health Information Act.

Section 5. Definitions. As used in this Act:

"Mental health facility" has the meaning ascribed to that term in Section 1-114 of the Mental Health and Developmental Disabilities Code.

"Physician" has the meaning ascribed to that term in Section 1-120 of the Mental Health and Developmental Disabilities Code.

"Recipient" has the meaning ascribed to the term "recipient of services" in Section 1-123 of the Mental Health and Developmental Disabilities Code, but for purposes of this Act is limited to persons 18 years of age or older and subject to involuntary admission in an inpatient facility under Articles VII and VII-A of Chapter III of the Mental Health and Developmental Disabilities Code.

Section 10. Access to information.

(a) An individual may obtain the information identified in subsection (e) regarding a recipient in a mental health facility if the requirements of subsection (b) are met and the individual provides the mental health facility with a signed written statement that: declares that the individual is directly involved in the recipient's care or in paying for the recipient's care; sets forth a description of the individual's involvement in the recipient's care or payment for such care; and declares that the individual is:

(1) the parent of a recipient;

(2) the adult sibling of a recipient;

(3) the adult child of a recipient;

(4) the spouse of a recipient; or

(5) the adult grandchild of the recipient.

(b) An individual listed in subsection (a) is not entitled to receive the information identified in subsection (e) from the mental health facility unless:

(1) the recipient expressly agrees to the communication as provided in Section 5 of the Mental Health and Developmental Disabilities Confidentiality Act;

(2) the recipient has the means and capacity to communicate; is expressly asked within 24 hours before the disclosure of information to the individual whether the recipient objects to the disclosure of the information to the individual; and the recipient affirmatively indicates that he or she has no objection to disclosure of the information to the individual; or

(3) the recipient is unconscious or lacks capacity due to intoxicants or temporary psychosis, and the physician at the mental health facility determines, in his or her professional judgment, that sharing the information would be in the recipient's best interest.

(c) If any individual or individuals are provided information by a mental health facility pursuant to paragraph (3) of subsection (b) of this Section, within a reasonable time after the recipient regains consciousness or capacity, the mental health facility, through its employees or agents, shall notify the recipient of all communications made to any individual or individuals pursuant to paragraph (3) of subsection (b) and shall identify every individual who received information pursuant to paragraph (3) of subsection (b). No further communication of information by the mental health facility to any individual after the recipient regains consciousness or capacity shall occur unless there is compliance with one of the other provisions of subsection (b).

(d) An individual requesting information must submit to the mental health facility proof of identification and list his or her name, address, phone number, and relationship to the recipient.

(e) The mental health facility shall provide the following information to an individual entitled to information under subsection (a) only if:

(1) the mental health facility has taken reasonable steps to ascertain that release of the information to the individual will not be damaging to the recipient or contrary to the recipient's best interests, including, but not limited to, asking the recipient and the family member whether there are any adverse legal actions between them or any other reasons that the family member should not receive the information; and

(2) the information disclosed is directly relevant to the individual's ongoing involvement with the recipient's care or payment for the recipient's care, as identified in the written statement provided pursuant to subsection (a), and is limited to the minimum information of the following that is necessary to accomplish the intended purpose of the disclosure:

(A) whether the recipient is located at the mental health facility;

(B) current physical and mental condition;

(C) diagnosis;

(D) treatment needs;

(E) services provided;

(F) services needed, including medication, if any;

(G) discharge planning or continuity of care, if applicable; and

(H) if clinically appropriate, a physician's report as provided under the adult guardianship proceeding under Section 11a-9 of the Probate Act of 1975 or an Inpatient Certificate or Outpatient Certificate under Article VI, VII, or VII-A of Chapter III of the Mental Health and Developmental Disabilities Code.

(f) Regardless of any individual's ability to receive information from the mental health facility pursuant to this Act, a mental health facility may receive tendered, relevant information, either orally or in writing, regarding a recipient from the recipient's family and friends, including, but not limited to, information about the recipient's past hospitalizations, medication, behaviors, and other information relevant to the recipient's mental health treatment.

(g) Whenever access to information is requested, the request, the grounds for its acceptance or denial, and any action taken thereon shall be noted in the recipient's record. The mental health facility shall also notify the recipient of any request to access information, the request, the date of the request, the grounds for its acceptance or denial, the name and contact information of the individual or individuals who made the request, and any action taken within a reasonable time of the initial request.

(h) An individual entitled to information under this Act shall not use the information provided by the mental health facility regarding the recipient in any legal proceedings or in any other transaction to the individual's advantage or the recipient's disadvantage. The information shall be excluded from evidence in any legal proceedings unless it is being used to assert or prove that a person is subject to an involuntary admission under Articles VII and VII-A of Chapter III of the Mental Health and Developmental Disabilities Code or to prove that a person is a person with a disability in need of an adult guardianship in a proceeding under Article XIa of the Probate Act of 1975. An individual provided information by a mental health facility pursuant to the terms of this Act shall not disclose such information to any other person or entity unless the disclosure is directly related to the individual's ongoing involvement with the recipient's care or payment for the recipient's care.

(i) Any recipient aggrieved by the use or disclosure of information received from a mental health facility by an individual entitled to information under this Act that operates to the individual's advantage or to the recipient's disadvantage or detriment may recover for each intentional or reckless violation of subsection (h) of this Section:

(1) liquidated damages of $2,000 or actual damages, whichever is greater;

(2) reasonable attorney's fees; and

(3) such other relief, including an injunction, as the court may deem appropriate.

(j) A mental health facility and its employees or agents are not liable for any action under this Act, including, but not limited to, the release of information to a third party in compliance with this Act, unless the release was an intentional or reckless violation of this Act.

(k) Nothing in this Act constitutes an infringement on an individual's right to obtain mental health records of the recipient if the individual has another right to the mental health records by law, regulation, or consent of the recipient.

(j) This Act supersedes Sections 2-101.1 and 2-113 of the Mental Health and Developmental Disabilities Code and any other law that would be viewed to limit the access of an individual listed in subsection (a) to the information set forth in subsection (e) only to the extent inconsistent with this Act.".