HB0128ham001 95TH GENERAL ASSEMBLY

Rep. Angelo Saviano

Adopted in House on May 02, 2007

09500HB0128ham001 LRB095 03936 RAS 34729 a

AMENDMENT TO HOUSE BILL 128

AMENDMENT NO. ______. Amend House Bill 128 on page 2, immediately below line 6, by inserting the following:

"Section 5. The Home Medical Equipment and Services Provider License Act is amended by changing Sections 10, 20, 25, 65, 75, 80, 85, 90, 95, 110, 115, 120, 125, 130, 135, and 145 as follows:

(225 ILCS 51/10)

(Section scheduled to be repealed on January 1, 2008)

Sec. 10. Definitions. As used in this Act:

(1) "Department" means the Department of Financial and Professional Regulation.

(2) "Secretary" "Director" means the Secretary Director of Financial and Professional Regulation.

(3) "Board" means the Home Medical Equipment and Services Board.

(4) "Home medical equipment and services provider" or "provider" means a legal entity, as defined by State law, engaged in the business of providing home medical equipment and services, whether directly or through a contractual arrangement, to an unrelated sick or disabled individual where that individual resides.

(5) "Home medical equipment and services" means the delivery, installation, maintenance, replacement, or instruction in the use of medical equipment used by a sick or disabled individual to allow the individual to be maintained in his or her residence.

(6) "Home medical equipment" means technologically sophisticated medical devices, apparatuses, machines, or other similar articles bearing a label that states "Caution: federal law requires dispensing by or on the order of a physician.", which are usable in a home care setting, including but not limited to:

(A) oxygen and oxygen delivery systems;

(B) ventilators;

(C) respiratory disease management devices, excluding compressor driven nebulizers;

(D) wheelchair seating systems;

(E) apnea monitors;

(F) transcutaneous electrical nerve stimulator (TENS) units;

(G) low air-loss cutaneous pressure management devices;

(H) sequential compression devices;

(I) neonatal home phototherapy devices;

(J) enteral feeding pumps; and

(K) other similar equipment as defined by the Board.

"Home medical equipment" also includes hospital beds and electronic and computer-driven wheelchairs, excluding scooters.

(7) Address of record" means the designated address recorded by the Department in the applicant's or licensee's application file or license file maintained by the Department's licensure maintenance unit. It is the duty of the applicant or licensee to inform the Department of any change of address and such changes must be made either through the Department's website or by contacting the Department's licensure maintenance unit.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/20)

(Section scheduled to be repealed on January 1, 2008)

Sec. 20. Powers and duties of the Department.

(a) The Department shall exercise the powers and duties prescribed by the Civil Administrative Code of Illinois for the administration of licensure Acts and shall exercise other powers and duties necessary for effectuating the purposes of this Act.

(b) The Department may adopt rules to administer and enforce this Act, including but not limited to fees for original licensure and renewal and restoration of licenses, and may prescribe forms to be issued to implement this Act. At a minimum, the rules adopted by the Department shall include standards and criteria for licensure and for professional conduct and discipline. The Department shall consult with the Board in adopting rules. Notice of proposed rulemaking shall be transmitted to the Board, and the Department shall review the Board's response and any recommendations made in the response. The Department shall notify the Board in writing with proper explanation of deviations from the Board's recommendations and response.

(c) The Department may at any time seek the advice and expert knowledge of the Board on any matter relating to the administration of this Act.

(d) (Blank). The Department shall issue a quarterly report to the Board of the status of all complaints related to the profession and filed with the Department.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/25)

(Section scheduled to be repealed on January 1, 2008)

Sec. 25. Home Medical Equipment and Services Board. The Secretary Director shall appoint a Home Medical Equipment and Services Board, in consultation with a state association representing the home medical equipment and services industry, to serve in an advisory capacity to the Secretary Director. The Board shall consist of 7 members. Four members shall be home medical equipment and services provider representatives, 2 of whom represent businesses grossing less than $500,000 per year in revenues, 2 of whom represent businesses grossing $500,000 or more per year in revenues, and at least one of whom shall also be a pharmacy-based provider. The 3 remaining members shall include one home care clinical specialist, one respiratory care practitioner, and one public member consumer of home medical equipment and services.

Members shall serve 4 year terms and until their successors are appointed and qualified, except that of the initial appointments, the consumer member shall be appointed to serve for one year, 2 members shall be appointed to serve for 2 years, 3 members shall be appointed to serve for 3 years, and one member who is a home medical equipment and services provider representative shall be appointed to serve for 4 years, and until their successors are appointed and qualified. No member shall be reappointed to the Board for a term that would cause continuous service on the Board to exceed 8 years. Appointments to fill vacancies shall be made in the same manner as original appointments, for the unexpired portion of the vacated term.

The home medical equipment and services provider representatives appointed to the Board shall have engaged in the provision of home medical equipment and services or related home care services for at least 3 years prior to their appointment, shall be currently engaged in providing home medical equipment and services in the State of Illinois, and must have no record of convictions related to fraud or abuse under either State or federal law.

The membership of the Board should reasonably reflect representation from the geographic areas in this State.

The Board shall annually elect one of its members as chairperson and vice chairperson.

Members of the Board shall receive as compensation a reasonable sum as determined by the Secretary Director for each day actually engaged in the duties of the office, and shall be reimbursed for authorized expenses incurred in performing the duties of the office.

The Secretary Director may terminate the appointment of any member for cause which in the opinion of the Secretary Director reasonably justifies the termination.

Through consultation with members of a state association for the home medical equipment and services industry, the Board may recommend to the Department rules that specify the medical equipment to be included under this Act, that set standards for the licensure, professional conduct, and discipline of entities that provide home medical equipment and services, and that govern the safety and quality of home medical equipment and services. The Director shall consider the recommendations of the Board.

Members of the Board shall be immune from suit in an action based upon any disciplinary proceedings or other activities performed in good faith as members of the Board.

A majority of Board members currently appointed shall constitute a quorum. A vacancy in the membership of the Board shall not impair the rights of a quorum to exercise the rights and perform all of the duties of the Board.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/65)

(Section scheduled to be repealed on January 1, 2008)

Sec. 65. Fees; returned checks. An entity who delivers a check or other payment to the Department that is returned to the Department unpaid by the financial institution upon which it is drawn shall pay to the Department, in addition to the amount already owed to the Department, a fine of $50. The fines imposed by this Section are in addition to any other discipline provided under this Act for unlicensed practice or practice on a nonrenewed license. The Department shall notify the entity that fees and fines shall be paid to the Department by certified check or money order within 30 calendar days of the notification. If, after the expiration of 30 days from the date of the notification, the entity has failed to submit the necessary remittance, the Department shall automatically terminate the license or deny the application without a hearing. If the entity seeks a license after termination or denial, the entity shall apply to the Department for restoration or issuance of the license and pay all fees and fines owed to the Department. The Department may establish a fee for the processing of an application for restoration of a license to pay all expenses of processing that application. The Secretary Director may waive the fines due under this Section in individual cases where the Secretary Director finds that the fines would be unreasonable or unnecessarily burdensome.

(Source: P.A. 92-146, eff. 1-1-02.)

(225 ILCS 51/75)

(Section scheduled to be repealed on January 1, 2008)

Sec. 75. Refused issuance, suspension, or revocation of license. The Department may refuse to issue, renew, or restore a license, or may revoke, suspend, place on probation, reprimand, impose a fine not to exceed $10,000 $1,000 for each violation, or take other disciplinary or non-disciplinary action as the Department may deem proper with regard to a licensee for any one or combination of the following reasons:

(1) Making a material misstatement in furnishing information to the Department.

(2) Violation Negligent or intentional disregard of this Act or its rules.

(3) Conviction of or entry of a plea of guilty or nolo contendere to any a crime that is a felony under the laws of the United States or any state or territory thereof that is a felony or a misdemeanor, an essential element of which is dishonesty, or conviction of a crime that is directly related to the practice of the profession provision of home medical equipment and services.

(4) Making a misrepresentation to obtain licensure or to violate a provision of this Act.

(5) Gross negligence in practice under this Act.

(6) Engaging in a pattern of practice or other behavior that demonstrates incapacity or incompetence to practice under this Act.

(7) Aiding, assisting, or willingly permitting another person in violating any provision of this Act or its rules.

(8) Failing, within 30 60 days, to provide information in response to a written request made by the Department.

(9) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.

(10) Discipline by another state, District of Columbia, territory, or foreign nation, if at least one of the grounds for the discipline is the same or substantially equivalent to one set forth in this Act.

(11) Directly or indirectly giving to or receiving from any person, firm, corporation, partnership, or association any fee, commission, rebate, or other form of compensation for any services not actually or personally rendered.

(12) A finding that the licensee, after having its license placed on probationary status, has violated the terms of probation.

(13) Willfully making or filing false records or reports in the course of providing home medical equipment and services, including but not limited to false records or reports filed with State agencies or departments.

(14) Solicitation of business services, other than according to permitted advertising.

(15) The use of any words, abbreviations, figures, or letters with the intention of indicating practice as a home medical equipment and services provider without a license issued under this Act.

(16) Failure to file a return, or to pay the tax, penalty, or interest shown in a filed return, or to pay any final assessment of tax, penalty, or interest, as required by any tax Act administered by the Department of Revenue, until such time as the requirements of any such tax Act are satisfied.

(17) Failure to comply with federal or State laws and regulations concerning home medical equipment and services providers.

(18) Solicitation of professional services using false or misleading advertising.

(19) Failure to display a license in accordance with Section 45.

(20) Habitual or excessive use or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug that results in the inability to practice with reasonable judgment, skill, or safety.

(21) Physical illness, mental illness, or disability, including without limitation deterioration through the aging process and loss of motor skill, that results in the inability to practice the profession with reasonable judgment, skill, or safety.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/80)

(Section scheduled to be repealed on January 1, 2008)

Sec. 80. Cease and desist order.

(a) If any entity violates a provision of this Act, the Secretary Director may, in the name of the People of the State of Illinois, through the Attorney General of the State of Illinois, petition for an order enjoining the violation or for an order enforcing compliance with this Act. Upon the filing of a verified petition in court, the court may issue a temporary restraining order, without notice or bond, and may preliminarily and permanently enjoin the violation, and if it is established that the entity has violated or is violating the injunction, the court may punish the offender for contempt of court. Proceedings under this Section shall be in addition to, and not in lieu of, all other remedies and penalties provided by this Act.

(b) If an entity holds itself out as a provider of home medical equipment and services without a license issued under this Act, an interested party or any person injured thereby, in addition to the Secretary Director, may petition for relief as provided in subsection (a) of this Section.

(c) Whenever in the opinion of the Department an entity violates a provision of this Act, the Department may issue a rule to show cause why an order to cease and desist should not be entered against the entity. The rule shall clearly set forth the grounds relied upon by the Department and shall provide a period of 7 days from the date of the rule to file an answer to the satisfaction of the Department. Failure to answer to the satisfaction of the Department shall cause an order to cease and desist to be issued immediately.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/85)

(Section scheduled to be repealed on January 1, 2008)

Sec. 85. Unlicensed practice; civil penalty.

(a) An entity who practices, offers to practice, attempts to practice, or holds itself out to practice as a home medical equipment and services provider without being licensed under this Act shall, in addition to any other penalty provided by law, pay a civil penalty to the Department in an amount not to exceed $10,000 $5,000 for each offense as determined by the Department. The civil penalty shall be assessed by the Department after a hearing is held in accordance with the provisions set forth in this Act regarding the provision of a hearing for the discipline of a licensee. The civil penalty shall be paid within 60 days after the effective date of the order imposing the civil penalty. The order shall constitute a judgment and may be filed and executed in the same manner as any judgment from any court of record.

(b) The Department may investigate any unlicensed activity.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/90)

(Section scheduled to be repealed on January 1, 2008)

Sec. 90. Inspections Mandatory inspections. The Department may shall inspect a licensee for compliance with the requirements of this Act and within 3 years after the date of initial licensure and at least once every 3 years thereafter, unless the licensee can demonstrate proof of renewal of accreditation with a recognized national accrediting body. The Department shall conduct random inspections upon renewal of a license, for cause or as necessary to assure the integrity and effectiveness of the licensing process. Upon failure to pass inspection, a provider's license shall be suspended or denied as applicable, pending review by the Board. The Department may authorize qualified individuals to conduct inspections. The Department shall set by rule, and pay to an inspector, a fee for each inspection. An entity that fails to pass an inspection is subject to penalties under Section 80. Upon notice of failure to pass an inspection, a provider shall have 30 days to appeal the inspection results. On appeal, a provider shall have the right to an inspection review or to a new inspection in accordance with procedures adopted by the Department. A home medical equipment and services provider licensed within 2 years after the effective date of this Act is exempt from the inspection requirements of this Section during that 2-year period.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/95)

(Section scheduled to be repealed on January 1, 2008)

Sec. 95. Investigations; notice and hearing.

(a) The Department may investigate the actions of an applicant or of an entity holding or claiming to hold a license.

(b) The Department shall, before refusing to issue or renew a license or disciplining a licensee, at least 30 days prior to the date set for the hearing, notify in writing the applicant or licensee of the nature of the charges and that a hearing will be held on the date designated. The Department shall direct the applicant or licensee to file a written answer to the Board under oath within 20 days after the service of the notice and inform the applicant or licensee that failure to file an answer will result in default being taken against the applicant or licensee and that the license may be suspended, revoked, placed on probationary status, or other disciplinary action may be taken, including limiting the scope, nature, or extent of business, as the Secretary Director may deem proper. Written notice may be served by personal delivery or certified or registered mail to the applicant or licensee respondent at his or her the address of record the entity's last notification to the Department. If the entity fails to file an answer after receiving notice, the entity's license may, in the discretion of the Department, be suspended, revoked, or placed on probationary status, or the Department may take whatever disciplinary action it deems proper, including limiting the scope, nature, or extent of the entity's business, or imposing a fine, without a hearing, if the act or acts charged constitute sufficient grounds for such action under this Act. At the time and place fixed in the notice, the Board shall proceed to hear the charges, and the parties or their counsel shall be accorded ample opportunity to present such statements, testimony, evidence, and argument as may be pertinent to the charges or to their defense. The Board may continue a hearing from time to time.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/110)

(Section scheduled to be repealed on January 1, 2008)

Sec. 110. Findings and recommendations. At the conclusion of the hearing the Board shall present to the Secretary Director a written report of its findings and recommendations. The report shall contain a finding of whether or not the accused entity violated this Act or failed to comply with the conditions required in this Act. The Board shall specify the nature of the violation or failure to comply, and shall make its recommendations to the Secretary Director.

The report of findings and recommendations of the Board may shall be the basis for the Department's order of refusal or for the granting of licensure unless the Secretary Director shall determine that the Board's report is contrary to the manifest weight of the evidence, in which case the Secretary Director may issue an order in contravention of the Board's report. The finding is not admissible in evidence against the entity in a criminal prosecution brought for the violation of this Act, but the hearing and finding are not a bar to a criminal prosecution brought for the violation of this Act.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/115)

(Section scheduled to be repealed on January 1, 2008)

Sec. 115. Rehearing on motion. In a case involving the refusal to issue or renew a license or the discipline of a licensee, a copy of the Board's report shall be served upon the respondent by the Department, either personally or as provided in this Act for the service of the notice of hearing. Within 20 days after such service, the respondent may present to the Department a motion in writing for a rehearing, which shall specify the particular grounds for the rehearing. If no motion for rehearing is filed, then upon the expiration of the time specified for filing the motion, or if a motion for rehearing is denied, then upon such denial the Secretary Director may enter an order in accordance with recommendations of the Board except as provided in Section 120 of this Act. If the respondent shall order from the reporting service and pay for a transcript of the record with the time for filing a motion for rehearing, the 20 day period within which such a motion may be filed shall commence upon the delivery of the transcript to the respondent.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/120)

(Section scheduled to be repealed on January 1, 2008)

Sec. 120. Rehearing on order of Secretary Director. Whenever the Secretary Director is satisfied that substantial justice has not been done in the revocation or suspension of a license or refusal to issue or renew a license, the Secretary Director may order a rehearing by the same or another Board.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/125)

(Section scheduled to be repealed on January 1, 2008)

Sec. 125. Hearing officer. The Secretary Director has the authority to appoint an attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer in an action for refusal to issue or renew a license, or for the discipline of a licensee. The Secretary Director shall notify the Board of an appointment. The hearing officer shall have full authority to conduct the hearing. The hearing officer shall report his or her findings and recommendations to the Board and the Secretary Director. The Board shall have 60 days from receipt of the report to review the report of the hearing officer and present its findings of fact, conclusions of law and recommendation to the Secretary Director. If the Board fails to present its report within the 60 day period, the Secretary may Director shall issue an order based on the report of the hearing officer. If the Secretary Director determines that the Board's report is contrary to the manifest weight of the evidence, he or she may issue an order in contravention of the Board's report.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/130)

(Section scheduled to be repealed on January 1, 2008)

Sec. 130. Order or certified copy. An order or a certified copy of an order, over the seal of the Department and purporting to be signed by the Secretary Director, shall be prima facie proof that:

(1) the signature is the genuine signature of the Secretary Director;

(2) the Secretary Director is duly appointed and qualified; and

(3) the Board and its members are qualified to act. This proof may be rebutted.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/135)

(Section scheduled to be repealed on January 1, 2008)

Sec. 135. Restoration of license. At any time after the suspension or revocation of a license, the Department may restore the license to the accused entity upon the written recommendation of the Board unless, after an investigation and a hearing, the Board determines that restoration is not in the public interest. Restoration under this Section requires the filing of all applications and payment of all fees required by the Department.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/145)

(Section scheduled to be repealed on January 1, 2008)

Sec. 145. Temporary suspension of a license. The Secretary Director may temporarily suspend the license of a home medical equipment and services provider without a hearing, simultaneously with the institution of proceedings for a hearing provided for in Section 95 of this Act, if the Secretary Director finds that evidence in his or her possession indicates that the home medical equipment and services provider's continuation in business would constitute an imminent danger to the public. If the Secretary Director temporarily suspends the license of a home medical equipment and services provider without a hearing, a hearing by the Board must be held within 30 days of the suspension.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/40 rep.)

(225 ILCS 51/175 rep.)

Section 10. The Home Medical Equipment and Services Provider License Act is amended by repealing Sections 40 and 175.".