Editor’s Note: In the last issue of Mental Health Matters, we highlighted several important new laws affecting persons with mental illnesses, mental health providers and lawyers and judges who work with persons with mental illnesses. Following are some additional noteworthy pieces of legislation.

 

With the start of a new year comes a variety of new laws and amendments to existing laws taking effect in Illinois.

Changes to the Confidentiality Act

Public Act 99-28, effective 1/1/2016, amends the Illinois Mental Health and Developmental Disabilities Confidentiality Act in two significant ways.

First, the Act includes in the statute reference to a “therapeutic relationship” which, up until now, was found only in case law. The Illinois Supreme Court in Johnston v. Weil, following the progeny of appellate court cases, limited confidentiality of records and communications to only those created within a therapeutic relationship. For example, case law held that records and communications between a patient and pharmacist were not protected by the Confidentiality Act because there was no therapeutic relationship between the patient and the pharmacist.

With P.A. 99-28, the Confidentiality Act now protects records and communications made or created in the course of providing mental health or developmental disabilities services regardless of whether the records and communications are made or created in the course of a therapeutic relationship.

The Act defines “therapeutic relationship” to mean the receipt by a recipient of mental health or developmental disabilities services from a therapist.  Within that definition are the requirements that the individual be a “recipient” that is receiving “mental health or developmental disabilities services” from a “therapist,” all as those terms are defined in the Confidentiality Act. In simple terms, if you are a psychiatrist, physician, psychologist, social worker, or nurse providing mental health or developmental disabilities services to an individual, you have a therapeutic relationship. The definition does not include independent evaluations conducted for purposes other than to provide services, such as court-ordered evaluations.

Secondly, the Act excludes from the definition of a “record” any reference to the receipt of mental health or developmental disabilities services noted during a patient history and physical or other summary of care. For example, if a patient presents to the emergency department for a broken leg and references that she sees a therapist, the emergency department record would not be a “record” protected by the Confidentiality Act.

Time will tell how these provisions are interpreted by the courts.

Mental Health and Confidentiality

HB 0217 Prohibits gay conversion therapy with minors and referring to homosexuality as a mental disease, disorder, or illness when advertising conversion therapy service.

HB 3599 Requires colleges and universities to provide new students the opportunity to designate a person to receive mental health information if the student is determined to pose a clear and present danger; psychiatrist, clinical psychologist, or qualified examiner must notify within 24 hours.

HB 4112 Requires CIT (crisis intervention team) training standards and training for police officers.

SB 1938 Requires prompt sharing of records between courts and DHS for unfit defendants.

Probate, Guardianship, and Estate Planning

HB 2505 Clarifies that temporary guardians are granted the limited powers and duties specifically stated in the order appointing (no practical change in the law).

HB 3797 Eliminates the fee for registering a vehicle if the vehicle belonged to a deceased spouse.

SB 0090 Provides that there is a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled; provides that a guardian or ward may petition court for authority to execute a will or codicil.

SB 1308 Requires courts to compel appearance of anyone who may be liable to the estate of a ward pursuant to any civil cause of action.

SB 0159 Amends the Illinois Power of Attorney Act with regards to who is limited in witnessing the signing of an agency, adding a new authority option for the agent to receive medical and mental health information and to request a physician opinion as to principal’s capacity, allowing an agent to act for principal after deal regarding government benefits, and other changes.

Child Welfare and Adoption

HB 2543 Requires DCFS to provide notice to adult relatives before placing a child with an unrelated foster parent.

HB 3684 Creates a foster children’s bill of rights.

HB 3967 Gives biological/birth grandparents access to the Adoption Registry, giving them more access to needed medical and other important information.

SB 0013 Clarifies the role of the Children and Family Services Advisory Council in advising DCFS.

SB 1775 Requires the operator of a residential facility where a DCFS ward is placed to report to local law enforcement a child missing if 1) there is no contact between the child and a facility employee for 12 hours and 2) the child is absent from the facility without prior approval; must also notify DCFS caseworker, county sheriff, and National Center for Missing and Exploited Children.

Disability Law

HB 0235 Requires health insurance coverage to include anesthetics and charges in dental care for people under age 19 who have been diagnosed with an autism spectrum disorder.

HB 3704 Allows for individuals to be excused from jury duty due to a total and permanent disability with proof being an IEP or a court order adjudicating disability and appointing a plenary guardian.

HB 4115 Requires the Department of Agriculture to post listings online of all gas stations that assist people with disabilities.

SB 0226 Requires DHS and ISBE to develop a training program for case workers in every public school to register students who are developmentally disabled and qualify for services (under the PUNS list).

SB 0207 Authorizes a harsher sentence for a person convicted of a sexual crime when the crime was committed against a victim with an intellectual disability, and the defendant holds a position of trust, authority, or supervision with the victim.

SB 1389 Comfort dogs; In taking testimony from a minor or person with a developmental disability in a sex offense case, the court may allow the use of a service dog.

SB 1383 State ABLE legislation to implement ABLE program (federal law allowing accounts for individuals with disabilities to supplement care).

SB 1847 Expands SNAP (food stamp) benefits to anyone who is elderly, blind or disabled and makes 200% or less of the federal poverty level, and to anyone who makes less than 165% of the federal poverty level.

Elder Law

SB 1847 Expands SNAP (food stamp) benefits to anyone who is elderly, blind or disabled and makes 200% or less of the federal poverty level, and to anyone who makes less than 165% of the federal poverty level.

HB 2462 Allows residents of nursing homes to use electronic monitoring or surveillance systems in their rooms at their own expense.

HB 1588 Broadens the civil cause of action that exists against a person who commits financial exploitation of an elderly or disabled person.

HB 4097 Prohibits law enforcement agencies from refusing to accept missing person reports based on the person’s mental state or medical condition.

SB 1846 Creates a Silver Alert system for missing adults with Alzheimer’s disease, dementia or other dementia-like cognitive impairment.

SB 1309 Allows disclosure of adult protective services (APS) records to representatives of the public guardian investigating for purposes of guardianship.

Hospitals and Providers

SB 1298 Mandates hospitals provide patients with an opportunity to designate a caregiver before leaving the hospital.

HB 3848 Requires every hospital and health care professional to establish a billing protocol to ensure that no sexual assault survivor is billed for emergency or forensic services.

SB 1595 Creates the Music Therapy Advisory Board Act that must report recommendations for the certification, training, curriculum and best practices of music therapists.

HB 1359 Automatically and indefinitely suspends the license of any health care worker who is convicted of a criminal health care or criminal insurance fraud offense, such as Medicare or Medicaid fraud. 

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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.