FOID Card Act Changes and Mandated Hospital Reporting

FOID Card Act Changes and

Mandated Hospital Reporting

November 1, 2018

Firearm Owner Identification Card

(FOID) 2018

Patrick W. Knepler

James T. Dimas, Secretary

Illinois Department of Human Services

Introduction of FOID – 1960’s

• Illinois enacted the Firearm Owners

Identification Card Act in 1967, effective July 1,

1968 to provide a system of identifying persons

who are not qualified to acquire or possess

firearms and firearm ammunition within the

State of Illinois.

• Illinois State Police given responsibility of

administering the Act.

• Prohibited persons who had been in a mental

institution in the past 5 years

• Prohibited person whose mental condition is of

such a nature that it poses a clear and present

danger to the applicant, any other person or

persons or the community;

“Mental condition" means a state of mind

manifested by violent, suicidal, threatening or

assaultive behavior.

• State Police and Department of Mental Health

and Developmental Disabilities ran computer

matches of FOID applicants and cardholders

against list of persons admitted to State

Hospitals

• State Police checked with private hospitals

individually on individual cases.

• In 1988 – Laurie Dann went to a school in

Winnetka, killed a student, wounded five other

students prior to committing suicide.

• She was able to purchase a firearm despite a

history of treatment in private facilities.

FOID – 1989

• In 1989 – Public Act 86-922 amended the

Mental Health and Developmental Disabilities

Confidentiality Act to require private hospitals to

report to the Department persons who were

admitted to “mental health” certified beds.

• The Department would then be required to

report “matches” to the Department of State

Police.

Concealed Carry and FOID

 In 2013—Public Act 98-63 was passed creating concealed carry of

firearms and extensively revised the Firearm Owners Identification

Card Act.

 Added and refined definitions in the FOID Act for clarity.

 Made changes in reporting time by hospitals of admissions and

discharges from 30 days to 7 days

 Made changes in reporting time by clinicians to 24 hours

 Made changes to the Mental Health and Developmental Disabilities

Code and the Mental Health and Developmental Disabilities

Confidentiality Act to conform to changes in the FOID Act.

 Maintained reporting to the State Police by school administrators, local

police and the courts of various information.

Facility reporting

 Who has to report?

 What has to be reported?

 Liability

 Reporting

Who?

 “Mental health facility” means any licensed private

hospital or hospital affiliate, institution, or facility, or

part thereof, and any facility, or part thereof, operated

by the State or a political subdivision thereof which

provide treatment of persons with mental illness and

includes all hospitals, institutions, clinics, evaluation

facilities, mental health centers, colleges, universities,

long-term care facilities, and nursing homes, or parts

thereof, which provide treatment of persons with

mental illness whether or not the primary purpose is to

provide treatment of person with mental illness. (FOID

Act, Sec 1.1)

What?

• Mental Health Facilities are required to report to

DHS within 7 days of admission of persons

prohibited under (e), (f), (g), (r), (s) or (t) of the

FOID Act. [MHDD Confidentiality Act, 740 ILCS

110/12 (b)]

• From FOID Act, Sec 8

(e) A person who had been a patient of a mental health facility within the

past 5 years or has been a patient in a mental health facility more than 5

years ago who has not received the certification required under subsection

(u) of this section.

(f) A person whose mental condition is of such a nature that it poses a clear

and present danger to the applicant, any other person or persons or the

community;

(g) A person who is intellectually disabled;

(r) A person who has been adjudicated as mentally disabled person;

(s) A person who has been found to be developmentally disabled;

(t) A person involuntarily admitted into a mental health facility;

Other than (e) which is a 5 year ban, the others are indeterminate.

• (r) A person who has been adjudicated as a mentally disabled

person.

Adjudicated a mentally disabled person (previously “has been

adjudicated as a mental defective”). The person is the subject of a

determination by a court, board, commission or other lawful

authority that the person, as a result of marked subnormal

intelligence, or mental illness, mental impairment, incompetency,

condition, or disease:

(1) presents a clear and present danger to himself, herself, or

to others;

(2) lacks the mental capacity to manage his or her own

affairs or is adjudicated a disabled person as defined in

Section 11a-2 of the Probate Act of 1975;

(3) is not guilty in a criminal case by reason of insanity, mental

disease or defect;

(3.5) is guilty but mentally ill, as provided in Section 5-2-6 of the

Unified Code of Corrections;

(4) Is incompetent to stand trial in a criminal case;

(5) Is not guilty by reason of lack of mental responsibility under/

pursuant to Articles 50a and 72b of the Uniform Code of Military

Justice, 10 U.S.C. 850a, 876b;

(6) Is a sexually violent person under subsection (f) of Section 5

of the Sexually Violent Persons Commitment Act;

(7) Has been found to be a sexually dangerous person under the

Sexually Dangerous Persons Act;

(8) Is unfit to stand trial under the Juvenile Court Act of 1987;

• (9) is not guilty by reason of insanity under the Juvenile Court Act of

1987;

• (10) is subject to involuntary admission as an inpatient as defined in

Section 1-119 of the Mental Health and Developmental Disabilities

Code;

• (11) is subject to involuntary admission as an outpatient as defined in

Section 1-119.1 of the Mental Health and Developmental Disabilities

Code;

• (12) is subject to judicial admission as set forth in Section 4-500 of the

Mental Health and Developmental Disabilities Code; or

• (13) is subject to the previsions of the Interstate Agreements on

Sexually Dangerous Persons Act.

This adjudication information is provided for inclusion in the National

Instant Criminal Background Check System administered by the FBI. This is

a national prohibitor.

National Instant Criminal Background Check

System

• NICS is a point of sale system for determining

eligibility to purchase a firearm in the United

States of America. Federally licensed firearms

dealers are required by law to use the NICS to

determine if it is legal to sell a firearm to a

prospective purchaser.

• For Illinois, the State Police are the Point Of

Contact.

• (e) A person who has been a patient of a mental health facility within the past

5 years or a person who has been a patient in a mental health facility more

than 5 years ago who has not received the certification required under

subsection (u) of this section.

“Patient” means:

(1) a person who voluntarily receives mental health treatment as

an in-patient or resident of any public or private mental health

facility, unless the treatment was solely for an alcohol abuse disorder

and no other secondary substance abuse disorder or mental illness; or

(2) a person who voluntarily receives mental health treatment as

an out-patient or is provided services by a public or private mental

health facility, and who poses a clear and present danger to himself,

herself, or to others. (FOID Act, Sec 1.1)

 As of August 17, 2018 Public Act 100-906 changed the definition of patient.

 "Patient" means:

 (1) a person who is admitted as an inpatient or resident of a public or private mental

health facility for mental health treatment under Chapter III of the Mental Health and

Developmental Disabilities Code as an informal admission, a voluntary admission, a

minor admission, an emergency admission, or an involuntary admission, voluntarily

receives mental health treatment as an in-patient or resident of any public or private

mental health facility, unless the treatment was solely for an alcohol abuse disorder and

no other secondary substance abuse disorder or mental illness; or

 (2) a person who voluntarily or involuntarily receives mental health treatment as an

out-patient or is otherwise provided services by a public or private mental health facility,

and who poses a clear and present danger to himself, herself, or to others.

 Effective 1/1/19

Liability

• Any person, institution, or agency, under this Act, participating in good faith in

the reporting or disclosure of records and communications otherwise in

accordance with this provision or with rules, regulations or guidelines issued

by the Department shall have immunity from any liability, civil, criminal or

otherwise, that might result by reason of action. For the purpose of any

proceeding, civil, or criminal, arising out of a report or disclosure in

accordance with this provision, the good faith of any person, institution, or

agency so reporting or disclosing shall be presumed. The full extent of the

immunity provided in this subsection (b) shall apply to any person, institution

or agency that fails to make a report or disclosure in the good faith believe

that the report or disclosure would violate federal regulation governing the

confidentiality of alcohol and drug abuse patient records implementing 42

USC 290dd-3 and 290ee-3. [MHDD Confidentiality Act, Sec 12 (b)]

Reporting

 Web Based

 Hospital can submit individually or in a batch process

 Generally done by hospital Health Information Department or

MIS

 www.dhs.state.il.us & type FOID in search box

Clinician Reporting

• Who has to report?

• What has to be reported?

• When does it have to be reported?

• Liability

• Reporting

Who?

• Physician – licensed under the Medical Practice

Act of 1987

• Clinical Psychologist – licensed under the Clinical

Psychologist Licensing Act

• Qualified Examiner – as defined in the Mental

Health and Developmental Disabilities Code

• (405 ILCS 5/1-122) (from Ch. 91 ½, par.1-122)

Sec. 1-122. Qualified examiner. “Qualified examiner” means

a person who is:

(a) a clinical social worker as defined in this Act,

(405) ILCS 5/1-122.1) (from Ch. 91 ½, par. 1-122.1)

Sec. 1-122.1. “Clinical social worker” means a person who (1) has a master’s or doctoral degree in

social work from an accredited graduate school of social work and (2) has at least 3 years of

supervised post-master’s clinical social work practice which shall include the provision of mental

health services for the evaluation, treatment and prevention of mental and emotional disorders.

• A social worker who is a qualified examiner shall be a licensed clinical

social worker under the Clinical Social Work and Social Work Practice

Act.

 (b) a registered nurse with a master’s degree in

psychiatric nursing who has 3 years of clinical

training and experience in the evaluation and

treatment of mental illness which has been

acquired subsequent to any training and

experience which constituted a part of the

degree program,

 (c) a licensed clinical professional counselor with a

master’s or doctoral degree in counseling or

psychology or a similar master’s or doctorate

program from a regionally accredited institution

who has at least 3 years of supervised post-master’s

clinical professional counseling experience that

includes the provision of mental health services for

the evaluation, treatment, and prevention of mental

and emotional disorders, or

 (d) a licensed marriage and family therapist with a

master’s degree in marriage and family therapy from a

regionally accredited educational institution or a similar

master’s program or from a program accredited by either

the Commission on Accreditation from Marriage and

Family Therapy or the Commission on Accreditation for

Counseling Related Educational Programs, who has at

least 3 years of supervised post-master’s experience as a

marriage and family therapist that includes the provision

of mental health services for the evaluation, treatment,

and prevention of mental and emotional disorders.

What?

• Determination of Developmental Disabilities

• Clear and Present Danger

• Both terms as defined in the Firearm Owners

Identification Card Act

Developmental Disabilities

Person with a developmental disability" means a person with a disability which

is attributable to any other condition which results in impairment similar to that

caused by an intellectual disability and which requires services similar to those

required by persons with intellectual disabilities. The disability must originate

before the age of 18 years, be expected to continue indefinitely, and constitute

a substantial disability. This disability results, in the professional opinion of a

physician, clinical psychologist, or qualified examiner, in significant functional

limitations in 3 or more of the following areas of major life activity:

 (i) self-care;

 (ii) receptive and expressive language;

 (iii) learning;

 (iv) mobility; or

 (v) self-direction.

• If a person […] is determined to be developmentally disabled by a

physician, clinical psychologist, or qualified examiner, whether

employed by the State or privately, then the physician, clinical

psychologist, or qualified examiner shall, within 24 hours of

making the determination, notify the Department of Human

Services that the person poses a clear and present danger. [FOID

Act, Sec 8.1 (d)]

FOID Act, Sec 8.1 (d)

• If a person […] is determined to be

developmentally disabled by a

physician, clinical psychologist, or

qualified examiner, whether employed

by the State or privately, then the

physician, clinical psychologist, or

qualified examiner shall, within 24

hours of making the determination,

notify the Department of Human

Services that the person poses a clear

and present danger.

Mental Health Code Sec. 6-103.2

• Sec. 6-103.2. Developmental disability;

notice. If a person 14 years old or older is

determined to be a person with a

developmental disability by a physician,

clinical psychologist, or qualified

examiner, the physician, clinical

psychologist, or qualified examiner shall

notify the Department of Human Services

within 7 days of making the

determination that the person has a

developmental disability.

Clear and Present Danger

• “Clear and present danger” means a person who:

–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

–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. (FOID Act, 430 ILCS 65/1.1)

When?

• If a person is determined to pose a clear and

present danger to himself, herself, or to others by a

physician, clinical psychologist, or qualified

examiner, […] whether employed by the State or

privately, then the physician, clinical psychologist, or

qualified examiner shall, within 24 hours of making

the determination, notify the Department of Human

Services that the person poses a clear and present

danger. [FOID Act, Sec 8.1 (d)]

• If a person is determined to pose a

clear and present danger to himself,

herself, or to others by a physician,

clinical psychologist, or qualified

examiner, […] whether employed by

the State or privately, then the

physician, clinical psychologist, or

qualified examiner shall, within 24

hours of making the determination,

notify the Department of Human

Services that the person poses a clear

and present danger. [FOID Act, Sec 8.1

(d)]

• Sec. 6-103.3. Clear and present danger;

notice. If a person is determined to pose

a clear and present danger to himself,

herself, or to others by a physician,

clinical psychologist, or qualified

examiner, whether employed by the

State, by any public or private mental

health facility or part thereof, or by a law

enforcement official or a school

administrator, then the physician, clinical

psychologist, qualified examiner shall

notify the Department of Human Services

and a law enforcement official or school

administrator shall notify the Department

of State Police, within 24 hours of making

the determination that the person poses

a clear and present danger. (MHDD Code,

Sec. 6-103.3)

Clear and Present-comparisons

• Mental condition

–manifested by violent, suicidal, threatening, or

assaultive behavior or reported behavior

• Reasonable belief

• poses a clear and present or imminent danger

to the patient, any other person or the

community

Duty to Warn

• Duty to Warn (Tarasoff Warning)

–Patient communication to clinician

–Reasonably identified person

–Threat of serious harm

 MHDD Code Section 6-103

 (b) There shall be no liability on the part of, and no cause of action

shall arise against, any person who is a physician, clinical psychologist,

or qualified examiner based upon that person's failure to warn of and

protect from a recipient's threatened or actual violent behavior except

where the recipient has communicated to the person a serious threat

of physical violence against a reasonably identifiable victim or victims.

Nothing in this Section shall relieve any employee or director of any

residential mental health or developmental disabilities facility from any

duty he may have to protect the residents of such a facility from any

other resident.

 (c) Any duty which any person may owe to anyone other than a

resident of a mental health and developmental disabilities facility shall

be discharged by that person making a reasonable effort to

communicate the threat to the victim and to a law enforcement

agency, or by a reasonable effort to obtain the hospitalization of the

recipient.

 MHDD Confidentiality Act

 Sec. 11. Disclosure of records and communications.

Records and communications may be disclosed:

 (viii) when, and to the extent, in the therapist's

 sole discretion, disclosure is necessary to warn or

protect a specific individual against whom a recipient

has made a specific threat of violence where there

exists a therapist-recipient relationship or a special

recipient-individual relationship;

Civil Commitment

• Civil Commitment – MHDD Code Sec. 1-119

• Person with mental illness and due to illness is

 (1) A person with mental illness who because of his or her illness

is reasonably expected, unless treated on an inpatient basis, to

engage in conduct placing such person or another in physical

harm or in reasonable expectation of being physically harmed;

 (2) A person with mental illness who because of his or her illness

is unable to provide for his or her basic physical needs so as to

guard himself or herself from serious harm without the

assistance of family or others, unless treated on an inpatient

basis; or

 (3) A person with mental illness who:

 (i) refuses treatment or is not adhering adequately to

prescribed treatment;

 (ii) because of the nature of his or her illness, is unable to

understand his or her need for treatment; and

 (iii) if not treated on an inpatient basis, is reasonably

expected, based on his or her behavioral history, to suffer mental

or emotional deterioration and is reasonably expected, after such

deterioration, to meet the criteria of either paragraph (1) or

paragraph (2) of this Section.

 In determining whether a person meets

the criteria specified in paragraph (1), (2),

or (3), the court may consider evidence of

the person's repeated past pattern of

specific behavior and actions related to the

person's illness.

Clear and

Present Danger

Duty to Warn

Civil

Commitment

Reporting

 Web Based

 Clinician can register and report

 www.dhs.state.il.us & type FOID in search box

Liability

• The physician, clinical psychologist, qualified

examiner, law enforcement official, or school

administrator making the determination and his

or her employer shall not be held criminally,

civilly, or professionally liable for making or not

making the notification required under this

subsection, except for willful or wanton

misconduct. [FOID Act, Sec. 8.1(d); MHDD Act,

Secs. 6-103.2, 6-103.3]

Questions

 If you have any questions or concerns, you

may contact us at DHS.FOID@Illinois.gov

ILLINOIS STATE POLICE

• 2.3 million FOID card holders

• 314,929 Concealed Carry License holders

• Prior to 2018, approximately 180,000 FOID applications processed annually. 2018

Begins the 10-year card renewal. Applications will increase to approximately

340,000.

• FOID Stats:

 In 2017 - 2,336 Denials related to Mental Health Prohibitors

 In 2017 - 2,274 Revocations related to Mental Health Prohibitors

Calendar Yr. Revocations

Denials

2017 10,020 10,317

2018

8,308 8,467

October 2018

As of 9/30/2018

ILLINOIS STATE POLICE

October 2018

General Counsel Matthew Rentschler

Mattew_Rentschler@isp.state.il.us

217-782-7658

Lieutenant Colonel Michael Gillock, Division of Administration

Mike_Gillock@isp.state.il.us

217-558-6500

Lieutenant John C. Thompson, Governmental Affairs

John_C_Thompson@isp.state.il.us

217-782-0132

Chief Jessica Trame, Firearms Services Bureau

Jessica_Trame@isp.state.il.us

217-782-5015

Questions?

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