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

March 2016, vol. 2, no. 2

Review of Illinois mental health legislation—2015

Although the Illinois Legislature did not enact any mental health legislation which was “earth-shattering,” a number of bills were passed and signed into law which will affect persons with mental illnesses, mental health providers and lawyers and judges who work with persons with mental illnesses. Here are the highlights:

Improvement in Illinois Mental Health Parity Law. Public Act 99-0480

(Principal sponsors: Rep. Lou Lang and Sen. Dan Kotowski)

This legislation began as an effort to combat opiod-related deaths and contains number provisions designed to do so. However, as finally enacted, it also greatly strengthens Illinois law requiring health insurance companies to cover mental health and substance abuse treatment in the same manner that they cover treatments for physical illnesses. Among the changes are: (1) requiring counties and cities that self-insure their employees’ health care comply with the Illinois parity law; (2) adding substance abuse treatment to the parity law; (3) authorizing the Illinois Department of Insurance to enforce the Federal parity law; (4) extending the parity law to health insurance policies sold on the health insurance exchanges created under the Affordable Care Act.

Prohibition of “conversion therapy.” Public Act 99-0411

(Principal sponsors: Rep. Kelly Cassidy and Sen. Dan Biss)

Based on written legislative findings that there is no scientific support for such treatment, this Act prohibits mental health service providers from engaging in any effort to change the sexual orientation of someone under the age of 18.

Permit court-ordered involuntary psychotropic medication for persons facing felony charges. Public Act 99-0179

(Principal sponsors: Rep. Michael Tryon and Sen. Karen McConnaughay)

The Mental Health and Developmental Disabilities Code, 405 ILCS 5/5-100, et seq., has for many years provided a process through which a court could order the administration of psychotropic medication to persons with serious mental illnesses, following a hearing. However, the Code expressly denied courts the power to do so for someone facing felony charges, including persons in pre-trial detention facilities. This meant that detainees who, due to their mental illness, were unable or unwilling to give informed consent to medication, could not get medication to treat their mental illness. This Act removes this exception from the Code.

Facilitate Medicaid enrollment for persons leaving prisons. Public Act 99-0414

(Principal sponsors: Rep. Camille Lilly and Sen. Don Harmon)

Illinois’ decision to expand Medicaid coverage under the Affordable Care Act to person with incomes up to 138% of the poverty level means that a huge percentage of people leaving state prisons at the end of their sentences will now be eligible for Medicaid. Approximately 15% of the prison population has a serious mental illness. For many of these individuals it is vital that they receive mental health services promptly upon discharge and, if they are on medication for their illness, that this medication not be discontinued. This Act requires the Illinois Department of Corrections to assist inmates in applying for Medicaid prior to discharge in order to ensure continuity of care.

Disclosures of student mental health conditions to parents. Public Act 99-0278

(Principal sponsors: Rep. David Leitch and Sen. David Koehler)

This Act requires colleges and university to offer students, at the time of enrollment, the opportunity to authorize in writing the disclosure of mental health information to a relative or other person should the student, at some later date, pose an imminent risk of serious harm to her/himself or others.

Transfers the Individual Care Grant (ICG) program for minors with serious mental illnesses from the Department of Human Services (DHS) to the Department of Healthcare and Family Services (DHFS). Public Act 99-0479

(Principal sponsors: Rep. Sara Feigenholtz and Sen. Heather Steans)

The Individual Care Grant program has, for many decades, funded services for children and adolescents with very serious mental illnesses, particularly for those in need of residential care. For the last several years, the number persons approved for this program has declined substantially. This Act is designed to resuscitate the ICG program by transferring it from DHS to DHFS and requiring the promulgation of new rules.

Requires the Illinois Law Enforcement Training and Standards Board to develop a standard curriculum for training law enforcement officers to respond appropriately to persons in mental health crisis and to provide such training to officers. Public Act 99-0261

Principal sponsors: Rep. Jehan A. Gordon-Booth and Sen. William Haine)

Law enforcement officers are frequently the first responders to mental health emergencies and also are called upon to arrest persons with mental illnesses for suspected criminal behavior. Some decades ago, a model program call Crisis Intervention Team (CIT) was developed. While many officers in Illinois have been getting some training in how to respond to mental health crisis, the training has not always been done in fidelity to the evidence-based CIT model. This Act is designed to correct that.

Provides that the Mental Health and Developmental Disabilities Confidentiality Act protects mental health records and communications even if they are not made as part of a “therapeutic relationship.” Public Act 99-0028

(Principal sponsors: Sen. Chris Nybo and Rep. Will Guzzardi)

Several Illinois court opinions have held that the Confidentiality Act does not protect mental health records and communications unless they are made in the course of a “therapeutic relationship.” Johnson v. Weil, 241 Ill. 2d 169, 349 Ill. Dec. 135 (2011); Quigg v. Walgreen, 388 Ill. App 3d 696, 328 Ill. Dec. 759 (2009). Unfortunately, these decisions appear to leave unprotected many important communications, including those made in the course of obtaining a preliminary evaluation, a referral for treatment or services provided to persons with serious mental illnesses by ancillary personnel, such as pharmacists. This Act is intended to ensure that these important communications are protected.

Amends venue provisions governing commitment hearings. Public Act 99-0220

(Principal sponsors: Sen. William Haine and Rep. Laura Fine)

Most of Illinois’ 102 counties do not have an inpatient psychiatric facility. If the residents of these counties need inpatient care, they must travel to another county which has such a facility. When the person is unable or unwilling to become a voluntary patient, involuntary commitment proceedings may sometimes be necessary. However, the existing venue provisions in Section 3-800(a) the Mental Health and Developmental Disabilities Code, 405 ICLS 5/3-800(a), give the respondent the right to have these proceedings transferred back to her or his home county for any reason. This often results in substantial delay, a substantial burden on the treating physician who must testify at the hearing, or even the dismissal of the petition if the home county chooses not to proceed. This Act permits a change of venue only if “necessary to ensure the attendance of any material witness.”

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