Barbara A. Weiner

LAW OFFICES OF

BARBARA A. WEINER

600 Central Avenue

Suite 325

Highland Park, IL 60035

847-266-2040

GUNS, POT, & HIPAA

LEGAL UPDATE*

I. Preventing Gun Violence

Approximately 19,000 people a year commit suicide with a gun. Most gun owners reported keeping a firearm in their home for “protection”, yet 80% of gun-related deaths in these homes are the result of a suicide, often by someone besides the gun owner. Guns are used more often in suicides than in homicides. Additionally, of the approximately 500 annual killings in the workplace, 80% are with guns.

Gun violence is a major public health issue, particularly when you realize that suicide is the third leading cause of deaths for young people under the age of 24. The goal of the Firearm Owners Identification Card Act, (“FOID”), 430 ILCS 65, is to “provide a system of identifying persons who are not qualified to acquire or possess firearms, firearm ammunition, stun guns, and tasers within the State of Illinois”. People applying for a Firearm Owners ID Card (FOID) are disqualified if they are felons and convicted of violent crimes, or are a person addicted to narcotics, or someone who was hospitalized for a mental illness in the past 5 years, or are developmentally disabled.

A. Conceal Carry Act Basics.

Illinois has now enacted a Conceal Carry Law-Public Act 98-0063 which allows persons who have FOID card to obtain a card to carry a concealed gun. Their permit would allow the person to carry a loaded or unloaded concealed handgun on their person or within a vehicle. The permit is good for 5 years. Under the Act:

1. Guns are prohibited in many places including hospitals, mental health facilities, and nursing homes. Guns are also not permitted in schools, parks, athletic facilities, stadiums, governmental buildings, or on public transportation.

2. A mental health facility is defined very broadly to include all hospitals, institutions, clinics, evaluation facilities, mental health centers, colleges, universities, long term care facilities, nursing homes or parts thereof, which provide treatment of persons with mental illness, whether or not the primary purpose is to provide treatment to persons with mental illness.

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3. To carry a concealed weapon requires the person must have a FOID card and pass a background check and have 16 hours of training from an approved provider. The Illinois State Police accepts applications via its website. It is anticipated that it will take between 90 and 120 days for an application to be approved.

4. The owner of private real property of any type may prohibit the carrying of concealed firearms on their property by posting a sign that clearly states that firearms are prohibited. The form for the sign which is to be 4” x 6” is on Illinois State Police website at: www.isp.state.il.us/firearms/ccw/CCWProhibitedAreaSign.pdf.

5. Carrying a concealed firearm into a prohibited area constitutes a Class B misdemeanor for the first offense, a Class A misdemeanor for the second offense and subjects the person to permanent revocation of their conceal carry license for the third offense.

B. Ineligibility for FOID Card and Conceal Carry License. Various categories of people are disqualified from having a license including those under 21 years of age. This includes: persons convicted of:

1. Being convicted of a felony.

2 Being convicted of a misdemeanor involving the use or threat of physical force or violence within past 5 years;

3. Two or more violations related to DUI within past 5 years.

4. Someone adjudicated mentally ill or developmentally disabled or someone who has been in residential or court-ordered treatment for alcoholism or drug treatment in past 5 years.

The application for the Conceal Carry license provides a “wavier of the applicant’s privacy and confidentiality rights and privileges under all federal and state laws, including those limiting access to..psychological or psychiatric records or records relating to any institutionalization of the applicant.”

C. Reporting by Physicians and Mental Health Professionals

The Mental Health and Developmental Disabilities Code has been amended to require physicians, clinical psychologists, and qualified examiners notify DHS within 24 hours of determining a person is either developmentally disabled or presents a clear and present danger to himself or others. A qualified examiner includes an LCSW, LCPC, a Marriage & Family Therapist, or RN with a masters in psychiatric nursing who has three years of clinical training with mental illness. This is reported to the Department of Human Services under the FOID provisions. For a physician/clinician to actually register and make a report, he/she should go to: https://foid.dhs.illinois.gov/foidpublic/foid/. When a report is made the Administrator, Craig Berberet (217-558-0943), reviews it and then refers it to the Office of State Police.

Clear and present danger means someone who:

a. Communicates a serious threat of physical violence against a reasonably identifiable victim or poses a clear and imminent risk of serious physical injury to himself, herself, or another person as determined by a physician, clinical psychologist, or qualified examiner; or

b. Demonstrates threatening physical or verbal behavior, such as violent, suicidal, or assaultive threats, actions , or other behavior as determined by a physician, clinical psychologist, qualified examiner, school administrator, or law enforcement official.

Developmentally disabled means a disability which is attributable to any other condition which results in impairment similar to that caused by an intellectual disability which requires services similar to those required by intellectually disabled persons. The disability must originate before the age of 18 years, be expected to continue indefinitely, and constitute a substantial handicap.

1. Inpatient reporting. Inpatient facilities will be primarily responsible for making reports. Inpatient reporting go to https://foid/dhs.illinois.gov/foidpubic/foid/ and click on FOID Inpatient Provider Registration Form link. Fill out document and fax to 217-557-7975. An inpatient facility will be a SOF, psychiatric hospital, hospital with psychiatric unit or residential facilities serving persons with mental illness. This will be about 100 facilities.

Inpatient facilities have been reporting admissions for decades under FOID Act. now they must report someone with a development disability.

2. Outpatient Facilities. Includes community agencies, and general hospitals that do not have psychiatric units or a general hospital emergency department. The only time an outpatient facility or a clinician in private practice will need to make a report is when someone poses a clear and present danger or is developmentally disabled. The clear and present danger report is to be made within 24 hours. If the person poses a clear and present danger they are likely to need hospitalization. If hospitalized, it is the hospital, not the outpatient facility or clinician, who should make the report.

3. Outpatient Substance Abuse Programs. Because of the confidentiality laws, no reports should be made for persons only receiving substance abuse treatment unless they pose a clear and present danger.

4. When A Report Does Not Need to Be Made By A Hospital.

a. Person with mental illness who comes to ED and is treated and released.

b. Person with mental illness who comes to ED and is admitted for non-psychiatric issues.

c. Person with mental illness who comes to ED is moved to observation area for 48 hours and is treated and released.

d. Person with mental illness who comes to ED for the mental illness, is given a prescription for medication and a referral and is released.

DHS does not currently have functionality for outpatient facilities to report at this time. Individual clinicians can report on line.

It is important when making a report to indicate how the person meets the clear and present danger criteria.

For questions on reporting to DHS go to .

D. Impact of Report. If reported from a hospital for a voluntary admission for mental health treatment, there is a 5 year ban on obtaining a FOID card. An involuntary admission into a mental health facility will result in a lifetime ban. If a person is reported under the “clear and present danger”, there is not a specified timeframe the individual is prohibited. The FOID Act does provide for an appeals process.

Once DHS notifies the State Police the State Police investigates and if warranted will revoke the FOID card and request return of the card. The person is added to the list of people who cannot legally purchase or possess guns. This does nothing to get the guns out of a house and only prevents someone from buying a gun legally in the future. However, Jessica Trame, Bureau Chief of the Firearms Bureau of the State Police, (217-782-5015) has assured me that if the report indicates there is a “clear and present danger” either the State Police or local law enforcement will seek to secure the gun(s) as soon as possible.

A license can also be denied if any law enforcement agency objects based on a reasonable suspicion that the Applicant is a danger to himself or others, or a threat to the public safety.

E. Immunity for Reporting. The Act provides that a physician, clinical psychologist, or qualified examiner and their employer may not be held criminally, civilly, or professionally liable for making or not making the notification to DHS, except for willful and wanton misconduct.

F. Impact On Your Facility/What to Do. Because there is much confusion about the law, there will be many people who think that if they have a gun they can carry it anywhere, or if they have a license to carry a concealed weapon they can carry it anywhere. My recommendations are:

1. Signs. Although health care providers do not need to put up a sign because a ban on weapons applies to them, I recommend having a large sign based on the model from the State Police. It must include their picture of the gun. You can add wording, such as “No guns permitted in this building”. I recommend you make it the same size as your “No Smoking” sign and hang it by that sign.

2. Parking Lot. Have large signs in your parking lot using the basic form from the State Police. Add: No guns are allowed in our hospital or Agency”. This way visitors will know they must leave their gun in their car.

3. Policy if Someone Comes In With A Gun. When someone enters the facility with a gun, they need to be told they can’t enter with a gun, or they must leave with the gun and arrange for it to be put elsewhere. I would include that they will be searched when they return to be sure they have not brought it back into the facility.

If patient comes into Emergency Department with a gun, it should be removed and given to security. If the person does not have a FOID card or Conceal Carry License, then Security should give the gun to local law enforcement. Security should document taking of the gun and what they do with it.

4. Employee Handbook. Make sure your handbook includes language similar to:

Weapons Ban. Objects that could be used to do bodily harm to another person, (including but not limited to guns, ammunition, explosive substances, knives, clubs, electric shockers, metal knuckles, etc.) are not permitted on the Hospital/Agency’s property, including in our vehicles. Employees are not permitted to carry weapons of any sort when in the presence of patient/clients, including in your purse, backpack, or briefcase. The Employer reserves the right to check you, your personal items, or your workspace to be sure you are not carrying such weapons.

5. Employee Training. As part of your annual employee update, make sure employees understand your weapons ban and that there will be no tolerance of guns in the workplace or in any community setting when the employee is working with patient/clients.

6. What You Should Do.

a. Educate all health professionals about the obligation to report and your policies on no weapons.

b. Designate one or two staff members who coordinate reports and know how the system works.

II. The Medical Cannabis Pilot Program Act PA 98-122

A. Overview: This law creates a 4 year pilot project which will allow an individual suffering from a debilitating condition to register with the State in order to obtain cannabis for medical use. IDPH had defined more than 40 chronic disease and conditions. Debilitating medical condition includes:

Cancer, glaucoma, positive HIV, AIDS, hepatitis C, ALS, Crohn’s disease, agitation of Alzheimer’s disease, cachexia/wasting syndrome, muscular dystrophy, severe fibromyalgia, spinal cord disease, Tarlov Cysts, hydromyelia, syringomyelia, Rheumatoid arthritis, fibrous dysplasia, spinal cord injury. traumatic brain injury. Also included is post-concussion syndrome, MS, ArnoldChiari malformation, and Syringomelia, Spinocerebellar ataxia (SCA), Partkinson’s disease, Tourette’s syndrome, Myoclonus, Dystonia, Reflex Sympathetic Dystrophy. RSD, Causalgia, CRPS, Neurofibromatosis, Chronic Inflammatory Demyelinating Polyneuropy, Sjogren’s Syndrome, Lupus, Interstitial Cystitis, Myasthenia Gravis, Hydrocephalus, nail-patela syndrome, residual limb pain or the treatment of all of the above conditions, or any other debilitating condition that is added by the Department.

It is anticipated that this will not be in place until the end of the year, with the IDPR planning to accept applications from patients with last names A-L in September and October and M-Z in November and December.

To qualify for a state registration card, a physician, must sign a written certification that the patient has a qualifying condition that in the physician’s professional opinion, could be helped by cannabis. The patient must be under the physician’s care and the physician must have completed an assessment of the qualifying patient’s medical history, done a physical, and reviewed relevant records related to their debilitating condition. The physical must be conducted in person and not by telemedicine. There must be a bona fide doctor/patient relationship.

When the patient applies for a State registration card a background check may be done. There will be a an annual fee of $150 for the patient and $125 for the caregiver. If the card is granted the patient or care-giver shows the registration card and can purchase up to 2.5 ounces of cannabis from a registered dispensing organization every 14 days, unless the patient receives a waiver for a larger amount. Annually, the patient must file a renewal application.