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Mental Health Matters
The newsletter of the ISBA’s Mental Health Law Section

March 2015, vol. 1, no. 1

Mental health legislation adopted by the Illinois Legislature in 2014

During its 2014 session, the Illinois legislature enacted a number of provisions affecting persons with mental illnesses. This article summarizes the most important of these enactments:

Changes to commitment procedures

Public Act 98-0853 (effective January 1, 2015). When the Mental Health and Developmental Disabilities (MHDD) Code was enacted in 1978, it gave an important right to persons facing involuntary commitment: the right to an independent examination by an expert. 405 ILCS 5/3-804. Unfortunately, the wording of this section is confusing and does not clearly specify who should pay for this examination. As a result, trial courts have sometimes refused to order these examinations. Although reviewing courts have consistently upheld the right to an independent examination, confusion about the implementation of this right has continued. Adding to that confusion is whether the right also applies beyond commitment hearing to include involuntary treatment hearings (medication and electro-convulsive therapy) under Section 2-107.1 and release hearings under Section 3-901. Public Act 98-0853 provides that the county of residence must pay for the examination and that the right applies to treatment and release hearings.

Public Act 98-0975 (effective August 15, 2014). The MHDD Code has long provided for a peace officer to transport someone to a mental hospital if the officer believes that the person meets the criteria for hospitalization. However, that belief has to have been the “result of personal observation.” Several years ago, the requirement of personal observation was removed from Section 3-606 of the MHDD Code governing the transportation of adults. This change was based upon the fact that peace officers can arrest and transport to jail someone for whom there is probable cause of criminal behavior without “personal observation.” Often peace officers will have discretion about whether to treat particular behavior as criminal or as the basis for hospitalization. The MHDD Code should not make the latter more difficult than the former. Public Act 98-0975 makes a similar change to Section 3-504 governing the transportation of a minor by a peace officer.

Public Act 98-0865 (effective August 8, 2014). A person may be detained pending an involuntary commitment hearing based upon the timely completion and filing of a petition and two certificates. The MHDD Code has clearly required that the petition and the first certificate be promptly served on the respondent. The law has been less clear about serving the second certificate on the respondent, and some hospitals have failed to do so. This amendment clarifies that both certificates must be served on the respondent.

Psychologist prescribing privileges

Public Act 98-0668 (effective June 25, 2014). After many years of conflict between physicians and psychologists over such legislation, 2014 saw the enactment of a law permitting psychologists, with special additional training, to be licensed to prescribe medications. This law may help relieve the shortage of psychiatrists, which may be exacerbated by the number of people newly enrolled in health insurance or eligible for expanded Medicaid under the Affordable Care Act. Illinois joins a small number of states which have taken this step.

Sale of state psychiatric hospitals

Public 98-0815 (effective August 1, 2014). Like every other state, Illinois has been reducing the number and size of its state-operated psychiatric hospitals. Most recently, it closed Tinley Park Mental Health Center in the south suburbs of Chicago and Singer Mental Health Center in Rockford. Public Act 98-0815 amends existing statutes (20 ILCS 1705/18.4 and 405 ILCS 30/4.6) to strengthen the requirement that the funds from the sale of the land under closed hospitals be spent on mental health services and to provide that some of those funds be set aside for the geographic area served by the closed hospitals.

Access to psychotropic medications

Public Act 98-0651 (effective June 16, 2014). Several years ago, as part of the effort to reduce Medicaid spending, the legislature passed a law requiring prior authorization whenever a Medicaid recipient exceeded four prescription medication in a month. Because the prior authorization process for Medicaid is quite burdensome and people with serious mental illnesses often need many medications, many persons were cut off of their psychotropic medications. Public Act 98-0651 has now exempted anti-psychotic medications from the four-drug restriction.

Public Act 988-1035 (effective August 25, 2014). Requires health insurance companies to provide additional information to consumers about the coverage being provided and streamlines the process for obtaining access to medications that are not on the provider’s preferred drug list.

Changes to procedures for “forensic patients”

Public Act 98-1025 (effective August 28, 2014). As the Department of Human Services (DHS) has reduced the number of state-operated psychiatric beds, the percentage of those beds devoted to so-called “forensic patients”–insanity acquittees and unfit criminal defendants–has grown dramatically. Currently, the majority of state beds are devoted to this population. The number of forensic patients has exceeded capacity for a number of years, leading to forensic patients being kept in county jails for extended periods while waiting for a bed in a state facility. Public Act 98-1025 contains two provisions which were designed to speed up the processing of forensic patients and to give DHS greater flexibility about where to place forensic patients. The special statutes governing the confinement of unfit criminal defendants (USTs) and insanity acquittees (NGRIs) have for some time required that these patients be confined in “a secure setting” within DHS unless placement in some other setting was approved by specific court order. This provision has proven confusing since “secure setting” is not defined, and all DHS settings are quite secure. Public Act 98-1025 eliminates the requirement for court approval for placement in any DHS facility. The law governing the confinement of USTs limits the confinement of unfit felons to a period relating to their maximum sentence but is silent about misdemeanants. Public Act 98-1025 places a similar limit on the confinement of misdemeanants. The law also clarifies that Section 2-107.1 of the Mental Health and Developmental Disabilities Code, 405 ILCS 5/2-107.1, applies to unfit defendants. This provision authorizes hearings to determine whether someone who cannot consent to psychotropic medication may be ordered to take such medications.

Reducing custody relinquishment as a condition for obtaining services for children with disabilities

Public Act 98-0808 (effective January 1, 2015). See companion article by Patti Werner.

Videotaping of fitness examinations

Public Act 98-1025 (effective January 1, 2015). An amendment to 720 ILCS 5/104-15 requires that a person conducting an examination concerning the fitness to stand trial of a criminal defendant may be required to turn over her/his notes to another examining expert. An examination done by someone retained by the state or the defense must also be videotaped unless that would be “impractical.” ■

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Mark J. Heyrman is a Clinical Professor at the University of Chicago Law School.