April 2003 - RECENT LEGISLATIVE AND REGULATORY ACTIONS | ||
| ILLINOIS LEGISLATION 1. Amendment to Illinois Controlled Substances Act (P.A. 92-0698) There is a new amendment to the Illinois Controlled Substances Act that make it a Class 1 felony to illegally manufacture, deliver, or possess with intent to manufacture or deliver one gram or more, but less than 15 grams, of a substance containing heroin. The sentence carries a maximum fine of $250,000. (Prior to the Amendment, the penalty applied to manufacture, delivery or possession of 10 or more grams but less than 15 grams). (720 ILCS 570/401). 2. Residential and Transition Treatment Program for Women (P.A. 92-086) Public Act 92-086 amends the Unified Code of Corrections (730 ILCS 5/5 et seq.) to establish residential drug treatment programs for non-violent female offenders with children. There are three requirements a woman must meet to become eligible for the program: 1) Her convictions cannot be for a violent crime; 2) She must undergo an initial assessment evaluation to determine the treatment and program plan; and 3) She must be recommended and accepted by the Department of Corrections and consent in writing to participate in the program. These programs may be established under the direction of the sheriff in counties with populations over 3,000,000 if funding has been provided by federal, local or private entities. The programs may include several components: substance, mental health, trauma, and medical treatment; parenting skills and family relationship counseling, preparation for GED or vocational certificate; life skills program; job readiness and job skill training; and a community development plan. 3. An Act Concerning the State Budget (P.A. 93-0001) The State Budget Law of the Civil Administrative Code was amended to require the Governor to submit a State budget as soon as possible and not later than the second Wednesday in April 2003 and the third Wednesday in February of each year beginning in 2004. (15 ILCS 20/50-5). ADOPTED RULES 1. Adopted Amendments to DCFS Reports of Child Abuse and Neglect (89 Ill.Adm.Code 300) These amendments relate to reports of abuse and neglect of a child involving a juvenile perpetrator. All reports involving a juvenile perpetrator, regardless of age, will be investigated by DCFS. Because DCFS believes that children under the age of 10 who are named as alleged perpetrators should not be stigmatized, the name of a perpetrator less than 10 years of age in an indicated report will not be retained in the central register. The victims of abuse by children under the age of 10 will be protected and both the victim and perpetrator will be evaluated for treatment and services. If it is determined that abuse took place, the adult responsible for a perpetrator under the age of 18 will be investigated to determine whether there is reasonable cause to suspect that the maltreatment is the result of blatant disregard on the part of the responsible adult. [27 Ill.Reg. 1114, January 24, 2003]. 2. Adopted Amendments to DCFS Confidentiality of Personal Information of Persons Served by DCFS (89 Ill.Adm.Code 431) DCFS has amended its rules regarding the retention schedule for child abuse and neglect reports. The retention schedule for indicated, unfounded, undetermined and pending records will be based on the severity of the allegations contained in the report (as listed in DCFS Rule 300, Appendix B). The amendments also add a special retention schedule for child neglect and abuse incidents perpetrated by a juvenile. [27 Ill.Reg. 1131, January 24, 2003]. PROPOSED RULES 1. Proposed Amendments to DHS/OASA Alcoholism and Substance Abuse Treatment and Intervention Licenses (77 Ill.Adm.Code 2060) DHS has proposed amendments to its Rule 2060 provisions relating to the confidentiality of patient records to ensure compliance with the HIPAA privacy and security standards. The amendments include new definitions for “HIPAA” and “Protected Health Information.” The amendments also require that: • Required documentation of disclosures of PHI pursuant to HIPAA be kept for six years; • Organizations have policies and procedures to comply with HIPAA; • Patients be given written notice of the uses and disclosures of PHI which may be made by the organization and a copy of their rights under HIPAA; • The organization maintain documentation of any disclosure of PHI made to any individual or entity other than the subject of the PHI and that this accounting of disclosures be kept for six years; • Organizations implement procedures for patient access to his/her record; amendment requests; requests for accounting of disclosures; and procedures to file a complaint. [27 Ill.Register 3197, February 28, 2003]. Popovits & Robinson has submitted comments to these proposed rules. 2. Proposed Amendments to DCFS Confidentiality of Personal Information of Persons Served by DCFS (89 Ill.Adm.Code 431) DCFS has proposed an amendment clarifying several provisions of its confidentiality rule. The amendment would allow disclosures of appropriate information to an extended family member regarding the findings and actions taken by DCFS to ensure the safety of the child(ren) subject(s) of an abuse and neglect investigation. The proposed amendment adds a definition of “case record” which applies to records maintained by DCFS or a purchase of service agency responsible for case management regardless of whether the services were provided directly by DCFS staff or purchased from a private provider. The amendment clarifies that DCFS may provide records to a court, other than a juvenile court only after DCFS regional counsel has reviewed the subpoena, request or order from the court and confidential information has been redacted. Mental health, drug treatment and HIV records will only be produced after the court conducts an in-camera inspection and DCFS requests that a protective order be entered in the event the court orders release of the confidential information. It would also permit mental health information to be shared within DCFS, with POS providers and with parents and relative foster parents when the information is relevant to the discharge of DCFS duties. Mental health information may also be shared with a juvenile court judge, guardian ad litem or State’s Attorney in an abuse and neglect hearing when the information is relevant to the proceeding. The amendment also adds that DCFS and POS staff have access to child abuse and neglect and other case record information to further their responsibilities and that the sharing of information between DCFS and POS providers or between POS providers is a transfer and not a disclosure of information. It also permits the State’s Attorney to have access to child abuse and neglect and/or case record information when necessary for the discharge of their official duties during a child abuse and neglect investigation or prosecution. Another proposed revision would permit DCFS to have access to LEADS information as well as underlying criminal history record information when necessary to perform its duties. The LEADS information in the child protection investigation file may be forwarded to the child welfare worker as part of the investigative file. The child welfare worker may share underlying public documents on a “need to know” basis to other persons providing services when it is relevant to child protection or service decisions to be made on behalf of the child or family. [27 Ill.Reg. 1062, January 24, 2003]. NOTICES The Department of Health and Human Services has published the addresses to which complaints for non-compliance with the Privacy Rule may be filed with the Secretary of HHS. Complaints involving covered entities in Illinois should be sent to: Region V, Office for Civil Rights U.S. Department of Health and Human Services 233 N. Michigan Avenue Suite 240 Chicago, Illinois 60601 Phone: (312) 886-2359 Fax: (312) 886-1807 A covered entity’s notice of Privacy Practices must include the address to which individuals may file a complaint with the Secretary. [68 Fed.Reg. 13711, March 20, 2003].
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