Bill Text: IL HB5152 | 2009-2010 | 96th General Assembly | Enrolled

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Bill Title: Creates the Developmental Disability Institutional Safety Act ("Brian's Law"). Requires the Illinois Department of Human Services and the Illinois Department of Public Health to develop teams of monitors to ensure the safety and well-being of individuals residing at State-operated developmental disability institutions. Authorizes these teams to conduct site visits at these institutions and to report on their observations. Requires the Departments to develop and implement action plans to respond to these reports. Requires the Departments to develop a team of experts to investigate and report on the deaths of individuals who are under the care of these institutions. Requires the Departments to develop plans of prevention within 90 days after the completion of an investigation into the death of an individual at one of these institutions. Requires the Department of Human Service to provide certain information to individuals with developmental disabilities and their families. Amends the Abused and Neglected Long Term Care Facility Residents Reporting Act. Provides that neglect includes the failure to follow medical and personal care protocols, such as dietary restrictions, regardless of whether that failure causes injury, and that abuse includes inadequate medical care that, regardless of the final cause of death, compromises an individual's health or leads to serious medical consequences followed by the individuals' death.

Spectrum: Bipartisan Bill

Status: (Passed) 2010-07-23 - Public Act . . . . . . . . . 96-1235 [HB5152 Detail]

Download: Illinois-2009-HB5152-Enrolled.html

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AN ACT concerning State government.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Developmental Disability and Mental Health Safety Act or
Brian's Law.
Section 5. Legislative Findings. The General Assembly
finds all of the following:
(a) As a result of decades of significant under-funding of
Illinois' developmental disabilities and mental health service
delivery system, the quality of life of individuals with
disabilities has been negatively impacted and, in an
unacceptable number of instances, has resulted in serious
health consequences and even death.
(b) In response to growing concern over the safety of the
State-operated developmental disability facilities, following
a series of resident deaths, the agency designated by the
Governor pursuant to the Protection and Advocacy for
Developmentally Disabled Persons Act opened a systemic
investigation to examine all such deaths for a period of time,
including the death of a young man in his twenties, Brian Kent,
on October 30, 2002, and released a public report, "Life and
Death in State-Operated Developmental Disability

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Institutions," which included findings and recommendations
aimed at preventing such tragedies in the future.
(c) The documentation of substandard medical care and
treatment of individual residents living in the State-operated
facilities cited in that report necessitate that the State of
Illinois take immediate action to prevent further injuries and
deaths.
(d) The agency designated by the Governor pursuant to the
Protection and Advocacy for Developmentally Disabled Persons
Act has also reviewed conditions and deaths of individuals with
disabilities living in or transferred to community-based
facilities and found similar problems in some of those
settings.
(e) The circumstances associated with deaths in both
State-operated facilities and community-based facilities, and
review of the State's investigations and findings regarding
these incidents, demonstrate that the current federal and State
oversight and investigatory systems are seriously
under-funded.
(f) An effective mortality review process enables state
service systems to focus on individual deaths and consider the
broader issues, policies, and practices that may contribute to
these tragedies. This critical information, when shared with
public and private facilities, can help to reduce circumstances
that place individuals at high risk of serious harm and even
death.

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(g) The purpose of this Act is to establish within the
Department of Human Services a low-cost, volunteer-based
mortality review process conducted by an independent team of
experts that will enhance the health and safety of the
individuals served by Illinois' developmental disability and
mental health service delivery systems.
(h) This independent team of experts will be comparable to
2 existing types of oversight teams: the Abuse Prevention
Review Team created under the jurisdiction of the Department of
Public Health, which examines deaths of individuals living in
long-term care facilities, and Child Death Review Teams created
under the jurisdiction of the Department of Children and Family
Services, which reviews the deaths of children.
Section 10. Definitions. As used in this Act:
"Community agency" means (i) a community agency licensed,
funded, or certified by the Department of Human Services, but
not licensed or certified by any other human services agency of
the State, to provide developmental disabilities service or
mental health service or (ii) a program licensed, funded, or
certified by the Department of Human Services, but not licensed
or certified by any other human services agency of the State,
to provide developmental disabilities service or mental health
service.
"Facility" means a developmental disabilities facility or
mental health facility operated by the Department of Human

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Services.
Section 15. Mortality Review Process.
(a) The Department of Human Services shall develop an
independent team of experts from the academic, private, and
public sectors to examine all deaths at facilities and
community agencies.
(b) The Secretary of Human Services, in consultation with
the Director of Public Health, shall appoint members to the
independent team of experts, which shall consist of at least
one member from each of the following categories:
1. Physicians experienced in providing medical care to
individuals with developmental disabilities.
2. Physicians experienced in providing medical care to
individuals with mental illness.
3. Registered nurses experienced in providing medical
care to individuals with developmental disabilities.
4. Registered nurses experienced in providing medical
care to individuals with mental illness.
5. Psychiatrists.
6. Psychologists.
7. Representatives of the Department of Human Services
who are not employed at the facility at which the death
occurred.
8. Representatives of the Department of Public Health.
9. Representatives of the agency designated by the

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Governor pursuant to the Protection and Advocacy for
Developmentally Disabled Persons Act.
10. State's Attorneys or State's Attorneys'
representatives.
11. Coroners or forensic pathologists.
12. Representatives of local hospitals, trauma
centers, or providers of emergency medical services.
13. Other categories of persons, as the Secretary of
Human Services may see fit.
The independent team of experts may make recommendations to
the Secretary of Human Services concerning additional
appointments. Each team member must have demonstrated
experience and an interest in investigating, treating, or
preventing the deaths of individuals with disabilities. The
Secretary of Human Services shall appoint additional teams if
the Secretary or the existing team determines that more teams
are necessary to accomplish the purposes of this Act. The
members of a team shall be appointed for 2-year staggered terms
and shall be eligible for reappointment upon the expiration of
their terms. Each independent team shall select a Chairperson
from among its members.
(c) The independent team of experts shall examine the
deaths of all individuals who have died while under the care of
a facility or community agency.
(d) The purpose of the independent team of experts'
examination of such deaths is to do the following:

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1. Review the cause and manner of the individual's
death.
2. Review all actions taken by the facility, State
agencies, or other entities to address the cause or causes
of death and the adequacy of medical care and treatment.
3. Evaluate the means, if any, by which the death might
have been prevented.
4. Report its observations and conclusions to the
Secretary of Human Services and make recommendations that
may help to reduce the number of unnecessary deaths.
5. Promote continuing education for professionals
involved in investigating and preventing the unnecessary
deaths of individuals under the care of a facility or
community agency.
6. Make specific recommendations to the Secretary of
Human Services concerning the prevention of unnecessary
deaths of individuals under the care of facilities and
community agencies, including changes in policies and
practices that will prevent harm to individuals with
disabilities, and the establishment of protocols for
investigating the deaths of these individuals.
(e) The independent team of experts must examine the cases
submitted to it on a quarterly basis. The team shall meet at
least once in each calendar quarter if there are cases to be
examined. The Department of Human Services shall forward cases
within 90 days after completion of a review or an investigation

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into the death of an individual residing at a facility or
community agency.
(f) Within 90 days after receiving recommendations made by
the independent team of experts under subsection (d) of this
Section, the Secretary of Human Services must review those
recommendations, as feasible and appropriate, and shall
respond to the team in writing to explain the implementation of
those recommendations.
(g) The Secretary of Human Services shall establish
protocols governing the operation of the independent team.
Those protocols shall include the creation of sub-teams to
review the case records or portions of the case records and
report to the full team. The members of a sub-team shall be
composed of team members specially qualified to examine those
records. In any instance in which the independent team does not
operate in accordance with established protocol, the Secretary
of Human Services shall take any necessary actions to bring the
team into compliance with the protocol.
Section 20. Independent team of experts' access to
information.
(a) The Secretary of Human Services shall provide to the
independent team of experts, on the request of the team
Chairperson, all records and information in the Department's
possession that are relevant to the team's examination of a
death of the sort described in subsection (c) of Section 10,

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including records and information concerning previous reports
or investigations of any matter, as determined by the team.
(b) The independent team shall have access to all records
and information that are relevant to its review of a death and
in the possession of a State or local governmental agency or
other entity. These records and information shall include,
without limitation, death certificates, all relevant medical
and mental health records, records of law enforcement agency
investigations, records of coroner or medical examiner
investigations, records of the Department of Corrections
concerning a person's parole, records of a probation and court
services department, and records of a social services agency
that provided services to the person who died.
Section 25. Public access to and confidentiality of
information.
(a) Meetings of the independent team of experts shall be
closed to the public.
(b) Records and information provided to the independent
team of experts are confidential. Nothing contained in this
subsection (b) prevents the sharing or disclosure of records,
other than those produced by the independent team, relating or
pertaining to the death of an individual.
(c) Members of the independent team of experts are not
subject to examination, in any civil or criminal proceeding,
concerning information presented to members of the team or

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opinions formed by members of the team based on that
information. A person may, however, be examined concerning
information provided to the team that is otherwise available to
the public.
(d) Records and information produced by the team are not
subject to discovery or subpoena and are not admissible as
evidence in any civil or criminal proceeding. Those records and
information are, however, subject to discovery or a subpoena,
and are admissible as evidence to the extent they are otherwise
available to the public.
Section 30. Indemnification. The State shall indemnify and
hold harmless members of the independent team for all their
acts, omissions, decisions, or other conduct arising out of the
scope of their service on the team, except those involving
willful or wanton misconduct. The method of providing
indemnification shall be as provided in the State Employee
Indemnification Act.
Section 35. Department's annual report. The Department of
Human Services shall include in its annual report to the
General Assembly a report of the activities of the independent
team of experts, the results of the team's observations and
conclusions, categories of members of the team as prescribed in
Section 10 of this Act which are currently vacant,
recommendations made by the team to the Governor, State

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agencies, or other entities, and, as applicable, either (i) the
implementation of the recommendations or (ii) the reasons the
recommendations were not implemented.
Section 40. Rights information. The Department of Human
Services shall ensure that individuals with disabilities and
their guardians and families receive sufficient information
regarding their rights, including the right to be safe, the
right to be free from abuse and neglect, the right to receive
quality services, and the right to an adequate discharge plan
and timely transition to the least restrictive setting to meet
their individual needs and desires. The Department shall
provide this information, which shall be developed in
collaboration with the agency designated by the Governor
pursuant to the Protection and Advocacy for Developmentally
Disabled Persons Act, in order to allow individuals with
disabilities and their guardians and families to make informed
decisions regarding the provision of services that can meet the
individual's needs and desires. The Department shall provide
this information to all facilities and community agencies to be
made available upon admission and at least annually thereafter
for as long as the individual remains in the facility.
Section 90. The Open Meetings Act is amended by changing
Section 2 as follows:

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(5 ILCS 120/2) (from Ch. 102, par. 42)
Sec. 2. Open meetings.
(a) Openness required. All meetings of public bodies shall
be open to the public unless excepted in subsection (c) and
closed in accordance with Section 2a.
(b) Construction of exceptions. The exceptions contained
in subsection (c) are in derogation of the requirement that
public bodies meet in the open, and therefore, the exceptions
are to be strictly construed, extending only to subjects
clearly within their scope. The exceptions authorize but do not
require the holding of a closed meeting to discuss a subject
included within an enumerated exception.
(c) Exceptions. A public body may hold closed meetings to
consider the following subjects:
(1) The appointment, employment, compensation,
discipline, performance, or dismissal of specific
employees of the public body or legal counsel for the
public body, including hearing testimony on a complaint
lodged against an employee of the public body or against
legal counsel for the public body to determine its
validity.
(2) Collective negotiating matters between the public
body and its employees or their representatives, or
deliberations concerning salary schedules for one or more
classes of employees.
(3) The selection of a person to fill a public office,

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as defined in this Act, including a vacancy in a public
office, when the public body is given power to appoint
under law or ordinance, or the discipline, performance or
removal of the occupant of a public office, when the public
body is given power to remove the occupant under law or
ordinance.
(4) Evidence or testimony presented in open hearing, or
in closed hearing where specifically authorized by law, to
a quasi-adjudicative body, as defined in this Act, provided
that the body prepares and makes available for public
inspection a written decision setting forth its
determinative reasoning.
(5) The purchase or lease of real property for the use
of the public body, including meetings held for the purpose
of discussing whether a particular parcel should be
acquired.
(6) The setting of a price for sale or lease of
property owned by the public body.
(7) The sale or purchase of securities, investments, or
investment contracts.
(8) Security procedures and the use of personnel and
equipment to respond to an actual, a threatened, or a
reasonably potential danger to the safety of employees,
students, staff, the public, or public property.
(9) Student disciplinary cases.
(10) The placement of individual students in special

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education programs and other matters relating to
individual students.
(11) Litigation, when an action against, affecting or
on behalf of the particular public body has been filed and
is pending before a court or administrative tribunal, or
when the public body finds that an action is probable or
imminent, in which case the basis for the finding shall be
recorded and entered into the minutes of the closed
meeting.
(12) The establishment of reserves or settlement of
claims as provided in the Local Governmental and
Governmental Employees Tort Immunity Act, if otherwise the
disposition of a claim or potential claim might be
prejudiced, or the review or discussion of claims, loss or
risk management information, records, data, advice or
communications from or with respect to any insurer of the
public body or any intergovernmental risk management
association or self insurance pool of which the public body
is a member.
(13) Conciliation of complaints of discrimination in
the sale or rental of housing, when closed meetings are
authorized by the law or ordinance prescribing fair housing
practices and creating a commission or administrative
agency for their enforcement.
(14) Informant sources, the hiring or assignment of
undercover personnel or equipment, or ongoing, prior or

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future criminal investigations, when discussed by a public
body with criminal investigatory responsibilities.
(15) Professional ethics or performance when
considered by an advisory body appointed to advise a
licensing or regulatory agency on matters germane to the
advisory body's field of competence.
(16) Self evaluation, practices and procedures or
professional ethics, when meeting with a representative of
a statewide association of which the public body is a
member.
(17) The recruitment, credentialing, discipline or
formal peer review of physicians or other health care
professionals for a hospital, or other institution
providing medical care, that is operated by the public
body.
(18) Deliberations for decisions of the Prisoner
Review Board.
(19) Review or discussion of applications received
under the Experimental Organ Transplantation Procedures
Act.
(20) The classification and discussion of matters
classified as confidential or continued confidential by
the State Government Suggestion Award Board.
(21) Discussion of minutes of meetings lawfully closed
under this Act, whether for purposes of approval by the
body of the minutes or semi-annual review of the minutes as

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mandated by Section 2.06.
(22) Deliberations for decisions of the State
Emergency Medical Services Disciplinary Review Board.
(23) The operation by a municipality of a municipal
utility or the operation of a municipal power agency or
municipal natural gas agency when the discussion involves
(i) contracts relating to the purchase, sale, or delivery
of electricity or natural gas or (ii) the results or
conclusions of load forecast studies.
(24) Meetings of a residential health care facility
resident sexual assault and death review team or the
Executive Council under the Abuse Prevention Review Team
Act.
(25) Meetings of an independent team of experts under
Brian's Law.
(d) Definitions. For purposes of this Section:
"Employee" means a person employed by a public body whose
relationship with the public body constitutes an
employer-employee relationship under the usual common law
rules, and who is not an independent contractor.
"Public office" means a position created by or under the
Constitution or laws of this State, the occupant of which is
charged with the exercise of some portion of the sovereign
power of this State. The term "public office" shall include
members of the public body, but it shall not include
organizational positions filled by members thereof, whether

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established by law or by a public body itself, that exist to
assist the body in the conduct of its business.
"Quasi-adjudicative body" means an administrative body
charged by law or ordinance with the responsibility to conduct
hearings, receive evidence or testimony and make
determinations based thereon, but does not include local
electoral boards when such bodies are considering petition
challenges.
(e) Final action. No final action may be taken at a closed
meeting. Final action shall be preceded by a public recital of
the nature of the matter being considered and other information
that will inform the public of the business being conducted.
(Source: P.A. 94-931, eff. 6-26-06; 95-185, eff. 1-1-08.)
Section 95. The Freedom of Information Act is amended by
changing Section 7.5 as follows:
(5 ILCS 140/7.5)
Sec. 7.5. Statutory Exemptions. To the extent provided for
by the statutes referenced below, the following shall be exempt
from inspection and copying:
(a) All information determined to be confidential under
Section 4002 of the Technology Advancement and Development Act.
(b) Library circulation and order records identifying
library users with specific materials under the Library Records
Confidentiality Act.

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(c) Applications, related documents, and medical records
received by the Experimental Organ Transplantation Procedures
Board and any and all documents or other records prepared by
the Experimental Organ Transplantation Procedures Board or its
staff relating to applications it has received.
(d) Information and records held by the Department of
Public Health and its authorized representatives relating to
known or suspected cases of sexually transmissible disease or
any information the disclosure of which is restricted under the
Illinois Sexually Transmissible Disease Control Act.
(e) Information the disclosure of which is exempted under
Section 30 of the Radon Industry Licensing Act.
(f) Firm performance evaluations under Section 55 of the
Architectural, Engineering, and Land Surveying Qualifications
Based Selection Act.
(g) Information the disclosure of which is restricted and
exempted under Section 50 of the Illinois Prepaid Tuition Act.
(h) Information the disclosure of which is exempted under
the State Officials and Employees Ethics Act, and records of
any lawfully created State or local inspector general's office
that would be exempt if created or obtained by an Executive
Inspector General's office under that Act.
(i) Information contained in a local emergency energy plan
submitted to a municipality in accordance with a local
emergency energy plan ordinance that is adopted under Section
11-21.5-5 of the Illinois Municipal Code.

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(j) Information and data concerning the distribution of
surcharge moneys collected and remitted by wireless carriers
under the Wireless Emergency Telephone Safety Act.
(k) Law enforcement officer identification information or
driver identification information compiled by a law
enforcement agency or the Department of Transportation under
Section 11-212 of the Illinois Vehicle Code.
(l) Records and information provided to a residential
health care facility resident sexual assault and death review
team or the Executive Council under the Abuse Prevention Review
Team Act.
(m) Information provided to the predatory lending database
created pursuant to Article 3 of the Residential Real Property
Disclosure Act, except to the extent authorized under that
Article.
(n) Defense budgets and petitions for certification of
compensation and expenses for court appointed trial counsel as
provided under Sections 10 and 15 of the Capital Crimes
Litigation Act. This subsection (n) shall apply until the
conclusion of the trial of the case, even if the prosecution
chooses not to pursue the death penalty prior to trial or
sentencing.
(o) Information that is prohibited from being disclosed
under Section 4 of the Illinois Health and Hazardous Substances
Registry Act.
(p) Security portions of system safety program plans,

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investigation reports, surveys, schedules, lists, data, or
information compiled, collected, or prepared by or for the
Regional Transportation Authority under Section 2.11 of the
Regional Transportation Authority Act or the St. Clair County
Transit District under the Bi-State Transit Safety Act.
(q) Information prohibited from being disclosed by the
Personnel Records Review Act.
(r) Information prohibited from being disclosed by the
Illinois School Student Records Act.
(s) Information the disclosure of which is restricted under
Section 5-108 of the Public Utilities Act.
(t) Records and information provided to an independent team
of experts under Brian's Law.
(Source: P.A. 96-542, eff. 1-1-10.)
Section 100. The State Employee Indemnification Act is
amended by changing Section 1 as follows:
(5 ILCS 350/1) (from Ch. 127, par. 1301)
Sec. 1. Definitions. For the purpose of this Act:
(a) The term "State" means the State of Illinois, the
General Assembly, the court, or any State office, department,
division, bureau, board, commission, or committee, the
governing boards of the public institutions of higher education
created by the State, the Illinois National Guard, the
Comprehensive Health Insurance Board, any poison control

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center designated under the Poison Control System Act that
receives State funding, or any other agency or instrumentality
of the State. It does not mean any local public entity as that
term is defined in Section 1-206 of the Local Governmental and
Governmental Employees Tort Immunity Act or a pension fund.
(b) The term "employee" means any present or former elected
or appointed officer, trustee or employee of the State, or of a
pension fund, any present or former commissioner or employee of
the Executive Ethics Commission or of the Legislative Ethics
Commission, any present or former Executive, Legislative, or
Auditor General's Inspector General, any present or former
employee of an Office of an Executive, Legislative, or Auditor
General's Inspector General, any present or former member of
the Illinois National Guard while on active duty, individuals
or organizations who contract with the Department of
Corrections, the Comprehensive Health Insurance Board, or the
Department of Veterans' Affairs to provide services,
individuals or organizations who contract with the Department
of Human Services (as successor to the Department of Mental
Health and Developmental Disabilities) to provide services
including but not limited to treatment and other services for
sexually violent persons, individuals or organizations who
contract with the Department of Military Affairs for youth
programs, individuals or organizations who contract to perform
carnival and amusement ride safety inspections for the
Department of Labor, individual representatives of or

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designated organizations authorized to represent the Office of
State Long-Term Ombudsman for the Department on Aging,
individual representatives of or organizations designated by
the Department on Aging in the performance of their duties as
elder abuse provider agencies or regional administrative
agencies under the Elder Abuse and Neglect Act, individuals or
organizations who perform volunteer services for the State
where such volunteer relationship is reduced to writing,
individuals who serve on any public entity (whether created by
law or administrative action) described in paragraph (a) of
this Section, individuals or not for profit organizations who,
either as volunteers, where such volunteer relationship is
reduced to writing, or pursuant to contract, furnish
professional advice or consultation to any agency or
instrumentality of the State, individuals who serve as foster
parents for the Department of Children and Family Services when
caring for a Department ward, individuals who serve as members
of an independent team of experts under Brian's Law, and
individuals who serve as arbitrators pursuant to Part 10A of
Article II of the Code of Civil Procedure and the rules of the
Supreme Court implementing Part 10A, each as now or hereafter
amended, but does not mean an independent contractor except as
provided in this Section. The term includes an individual
appointed as an inspector by the Director of State Police when
performing duties within the scope of the activities of a
Metropolitan Enforcement Group or a law enforcement

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organization established under the Intergovernmental
Cooperation Act. An individual who renders professional advice
and consultation to the State through an organization which
qualifies as an "employee" under the Act is also an employee.
The term includes the estate or personal representative of an
employee.
(c) The term "pension fund" means a retirement system or
pension fund created under the Illinois Pension Code.
(Source: P.A. 93-617, eff. 12-9-03.)
(405 ILCS 5/5-100A rep.)
Section 105. The Mental Health and Developmental
Disabilities Code is amended by repealing Section 5-100A.
Section 110. The Mental Health and Developmental
Disabilities Confidentiality Act is amended by changing
Section 7 as follows:
(740 ILCS 110/7) (from Ch. 91 1/2, par. 807)
Sec. 7. Review of therapist or agency; use of recipient's
record.
(a) When a therapist or agency which provides services is
being reviewed for purposes of licensure, statistical
compilation, research, evaluation, or other similar purpose, a
recipient's record may be used by the person conducting the
review to the extent that this is necessary to accomplish the

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purpose of the review, provided that personally identifiable
data is removed from the record before use. Personally
identifiable data may be disclosed only with the consent
obtained under Section 5 of this Act. Licensure and the like
may not be withheld or withdrawn for failure to disclose
personally identifiable data if consent is not obtained.
(b) When an agency which provides services is being
reviewed for purposes of funding, accreditation, reimbursement
or audit by a State or federal agency or accrediting body, a
recipient's record may be used by the person conducting the
review and personally identifiable information may be
disclosed without consent, provided that the personally
identifiable information is necessary to accomplish the
purpose of the review.
For the purpose of this subsection, an inspection
investigation or site visit by the United States Department of
Justice regarding compliance with a pending consent decree is
considered an audit by a federal agency.
(c) An independent team of experts under Brian's Law The
Mental Health and Developmental Disabilities Medical Review
Board shall be entitled to inspect and copy the records of any
recipient whose death is being examined by such a team pursuant
to the mortality review process authorized by Brian's Law.
Information disclosed under this subsection may not be
redisclosed without the written consent of one of the persons
identified in Section 4 of this Act.

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(Source: P.A. 88-484.)