Illinois passed and enacted Public Act 98-63, effective July 9, 2013, which amended several laws, including the Mental Health and Developmental Disabilities Code (“Mental Health Code”), the Mental Health and Developmental Disabilities Confidentiality Act (“Confidentiality Act”), and the Firearm Owners Identification Card Act (“FOID Act”). Under the Act, physicians, clinical psychologists and qualified examiners are mandated to report to the Illinois Department of Human Services (“DHS”) any person whom the physician, clinical psychologist or qualified examiner determines to pose a “clear and present danger” to himself, herself or others, or determines to be “developmentally disabled.” Additionally, mental health facilities are mandated to report the admission of individuals who are prohibited from obtaining a FOID card.

The Act was enacted for the purpose of restricting such individuals from possessing firearms. Even as we approach the two-year anniversary since enactment, there remains confusion among clinicians, hospitals and mental health practitioners as to how to comply with the reporting requirements. Attorneys representing physicians, hospitals, therapists and other medical and mental health practitioners must be aware of the requirements under the Act to properly advise their clients as to how to satisfy their duty to report.

Reporting by Clinicians

The Act requires any physician, clinical psychologist or qualified examiner1 to report to DHS any person whom the physician, clinical psychologist, or qualified examiner determines to pose a “clear and present danger” to himself, herself or others, or determines to be “developmentally disabled.”

The report must be made within 24 hours of making the determination and must be made through the DHS FOID Reporting Systems Web site.2 Information regarding the individual must remain otherwise confidential and privileged.

“Clear and present danger” is defined in the FOID Act as a person who:

• Communicates a serious threat of physical violence against a reasonably identifiable victim; or

• Poses a clear and imminent risk of serious physical injury to himself, herself or another person as determined by a physician, clinical psychologist or qualified examiner; or

• Demonstrates threatening physical or verbal behavior, such as violent, suicidal or assaultive threats, actions or other behavior, as determined by a physician, clinical psychologist, qualified examiner, school administrator or law enforcement official.

“Developmentally disabled” means a disability which is attributable to any other condition which results in impairment similar to that caused by an intellectual disability and which requires services similar to those required by intellectually disabled persons. The disability must originate before the age of 18 years, be expected to continue indefinitely and constitute a substantial handicap.

“Intellectually disabled” means significantly sub-average general intellectual functioning which exists concurrently with impairment in adaptive behavior and which originates before the age of 18 years.

One source of confusion for practitioners is the conflict between statutes as to how a professional can fulfill his or her duty to report. The FOID Act and the Mental Health Code require the physician, clinical psychologist or qualified examiner to report directly to DHS. However, the Confidentiality Act allows them to report patients who pose a “clear and present danger” or are determined to be developmentally disabled to the professional’s employer, who then must report to DHS, within 24 hours of the determination. From a risk management perspective for practitioners, it is best practice for physicians, clinical psychologists and qualified examiners to report directly to DHS themselves, rather than relying on their employer.

Practitioners are further confused by the requirement that any physician, clinical psychologist or qualified examiner report any individual who is determined to be developmentally disabled. There was confusion as to whether this required a retroactive determination such that, for example, a facility was required to evaluate all developmentally disabled persons in their program and report the individuals to DHS. There is no language in the Act to clarify this issue.

Reporting by Mental Health Facilities

Mental health facilities must report to DHS within seven days after admission as an inpatient all persons who are prohibited from obtaining a FOID card, which includes the following:

• a person who has been a patient of a mental health facility within the past five years

• a person who had been a patient in a mental health facility more than five years ago who has not received the certification required under Section 8(u) of the FOID Act

• a person who is a clear and present danger to himself or herself, any other person or persons or the community

• a person who is intellectually disabled

• a person who has been adjudicated as a mentally disabled person

• a person who has been found to be developmentally disabled

• a person involuntarily admitted into a mental health facility

The definition of a mental health facility is much broader under the FOID Act than the Mental Health Code. For the purpose of reporting to DHS under the FOID Act, a mental health facility includes any licensed private hospital or hospital affiliate, institution, facility or part thereof, which provides treatment of persons with mental illness. The definition specifically includes the following, or any parts of the following if they provide treatment of persons with mental illness:

• hospitals

• institutions

• clinics

• evaluation facilities

• mental health centers

• colleges

• universities

• long-term care facilities

• nursing homes

To qualify as a mental health facility, the primary purpose of the facility does not have to be treatment of persons with mental illness. If the facility provides any treatment of persons with mental illness, it is considered a mental health facility.

Among mental health facilities, confusion arose as to whether a facility must report both the admission of an individual and an instance when the patient is determined to pose a clear and present danger. DHS regulations require multiple reporting. When a person is determined to pose a clear and present danger, the determination must be reported within 24 hours. If a person is determined to be a clear and present danger during his or her admission to a mental health facility, both a report of an admission and a report of a clear and present danger must be made.

The identity of the reporter will not be disclosed to the subject of the report, i.e., the patient. Additionally, the physician, clinical psychologist or qualified examiner making determinations about the patient, and his or her employer, may not be held criminally, civilly or professionally liable for making or not making the notifications required under the Confidentiality Act, Mental Health Code or FOID Act, except for “willful or wanton misconduct.” ■

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Joseph T. Monahan, MSW, JD, ACSW is the founding partner of Monahan Law Group, LLC, in Chicago, which focuses its practice in mental health, confidentiality, guardianship, probate, and health care law. His clients include hospitals, outpatient mental health clinics, and mental health professionals. He may be contacted at jmonahan@monahanlawllc.com.

1. Qualified examiner as defined in the Mental Health Code. 405 ILCS 5/1-122.

2. <https://foid.dhs.illinois.gov/foidpublic/foid/>.