HB5218ham001 96TH GENERAL ASSEMBLY

Judiciary II - Criminal Law Committee

Filed: 3/11/2010

09600HB5218ham001 LRB096 18178 KTG 38680 a

AMENDMENT TO HOUSE BILL 5218

AMENDMENT NO. ______. Amend House Bill 5218 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Senior Safety Rapid Response Act.

Section 5. Legislative findings. The General Assembly finds that it is in the best interest of the State and its frail elderly residents who are dependent upon State regulated residential and non-residential services to mitigate the likelihood that an identified offender residing in a senior facility will harm another resident or employee of the facility.

Section 10. Definitions.

"Covered facility" or "facility" means: a facility required to be licensed or certified under the Nursing Home Care Act; an establishment required to be licensed under the Assisted Living and Shared Housing Act; or a supportive living facility as described in Article V of the Illinois Public Aid Code.

"Criminal history" means conviction of a felony listed in Section 25 of the Health Care Worker Background Check Act, registration as a sex offender, or a current term of parole, mandatory supervised release, or probation for a felony offense occurring in Illinois or in another jurisdiction.

"Identified offender" means a person who has been convicted of any felony offense listed in Section 25 of the Health Care Worker Background Check Act, is a registered sex offender, or is serving a term of parole, mandatory supervised release, or probation for a felony offense.

Section 15. Criminal background check.

(a) Each individual screened under the prescreening programs paid for by the Department on Aging or the Department of Human Services shall have a criminal background check initiated by the pre-screener consistent with standards set forth in subsection (d) of this Section. Failure to comply shall result in sanctions levied by the pre-screener's regulatory agency.

(b) Non-Medicaid qualifying individuals shall be charged the actual cost of performing the criminal background check. Medicaid qualifying individuals shall pay $1 for each criminal background check performed. Payment shall be made directly to the Department of State Police.

(c) Upon acceptance of an individual to a covered facility, the facility shall determine whether a criminal background check has been initiated and completed. If a criminal background check has not been initiated the facility shall make the request consistent with standards set forth in subsection (d) of this Section within 24 hours of acceptance. Failure to comply shall result in sanctions levied by the facility's regulatory agency.

(d) Criminal background checks shall be requested electronically pursuant to the Illinois Uniform Conviction Information Act for all persons age 18 or older seeking acceptance into a covered facility and shall be conducted in a manner that is respectful of the individual's dignity and that minimizes any emotional or physical hardship to the individual. Criminal background checks conducted pursuant to this Section shall be based on the individual's name, date of birth, and other identifiers as required by the Department of State Police. If the results of the criminal background check are inconclusive, the requesting entity shall initiate a fingerprint based check. The Department of State Police shall submit the results of all criminal background checks to the requesting entity. If the criminal background check reveals that the individual is an identified offender, then the Department of State Police shall also submit the results to the Department of Public Health, which shall maintain them in a manner to permit the covered facility to access the information.

(e) A covered facility, except an intermediate or skilled care facility licensed under the Nursing Home Care Act, shall within 60 days of the effective date of this Act request a criminal background check on existing facility residents consistent with the standards set forth in subsection (d) of this Section, with all results submitted to the Department of Public Health. Each resident identified as an identified offender shall have a risk analysis and security plan developed for him or her by the Department of State Police's Medicaid Fraud Control Unit consistent with Section 30.

Section 20. Disclosure of criminal history. Every person requesting acceptance to a covered facility shall be required to disclose all criminal history prior to acceptance. Failure to disclose all criminal history shall constitute a rebuttable presumption that the individual poses an immediate threat to the safety of other facility residents or facility employees and shall result in an immediate termination or discharge from the facility and the loss of all notice and appeal rights accorded facility residents by law.

Section 25. Conditional acceptance. An individual seeking acceptance to a covered facility prior to completion of a criminal background check and, if applicable, a risk analysis or security plan shall be accepted on a conditional basis pending completion of the criminal background check and, if applicable, a risk analysis or security plan. During the period of conditional acceptance, the applicant must be segregated from other facility residents. In agreeing to a conditional acceptance, the facility retains the right to deny full acceptance if the applicant, having indicated that he or she did not have a felony conviction, is found to have a criminal record. The facility also has the right to decline full acceptance if it determines, upon reviewing the security plan, that it cannot provide sufficient security to ensure the safety of the other residents and staff. An applicant accepted on a conditional basis shall have all rights and protections afforded facility residents except, with regard to an involuntary termination or discharge from the facility, the right to notice and appeal.

Section 30. Risk analysis and security plan.

(a) Every identified offender shall have a risk analysis performed and, if warranted, a security plan developed by the Medicaid Fraud Control Unit as soon as practicable, but not later than 14 days after a criminal background check confirms the person is an identified offender.

(b) The risk analysis shall include a comprehensive criminal history analysis which shall include, but need not be limited to, all of the following:

(1) Consultation with the identified offender's assigned parole agent or probation officer, if applicable.

(2) Consultation with the convicting prosecutor's office.

(3) A review of the statement of facts, police reports, and victim impact statements, if available.

(4) An interview with the identified offender.

(5) Information requested from other jurisdictions with information the Medicaid Fraud Control Unit deems to be of value to its assessment.

(6) Consultation with the facility administrator or facility medical director, if applicable, or both, regarding the physical condition of the identified offender.

(7) Consideration of the entire criminal history of the offender, including the date of the last conviction relative to the date of acceptance into the covered facility.

(8) If the identified offender is a convicted or registered sex offender, a review of all sex offender evaluations conducted on the offender. If there is no sex offender evaluation available, the Medicaid Fraud Control Unit shall provide for a sex offender evaluation to be conducted on the identified offender. If the convicted or registered sex offender is under the supervision of the Illinois Department of Corrections or a county probation department, the sex offender evaluation shall be arranged by and at the expense of the supervising agency. All evaluations conducted on convicted or registered sex offenders under this Act shall be conducted by sex offender evaluators approved by the Attorney General's Sex Offender Management Board.

(c) The Medicaid Fraud Control Unit shall prepare a risk analysis report based on the analysis conducted pursuant to subsection (b) of this Section. The report shall include a summary of the risk analysis and shall detail whether and to what extent the identified offender's criminal history necessitates the implementation of security measures within the covered facility. If the identified offender is a convicted or registered sex offender or if the Medicaid Fraud Control Unit's criminal history research reveals that the identified offender poses a significant risk of harm to others within the facility, the offender shall be diverted to a segregated facility designed to serve high risk persons.

(d) The risk analysis report shall promptly be provided to the following:

(1) The facility to which the identified offender seeks admission.

(2) The Chief of Police of the municipality in which the facility is located.

(3) The Department on Aging's Long Term Care Ombudsman, if applicable.

(e) The covered facility shall incorporate the risk analysis report into the identified offender's care plan.

(f) Except for willful and wanton misconduct, any person authorized to participate in the development of a risk analysis report is immune from criminal or civil liability for any acts or omissions as the result of his or her good faith effort to comply with this Section.

(g) Risk assessments and security plans shall be reviewed annually by the Medicaid Fraud Control Unit or at the request of the facility, whichever is sooner.

(h) The Medicaid Fraud Control Unit shall conduct annual site visits to all covered facilities housing identified offenders and shall be provided access upon request to any covered facility in order to search for persons with outstanding warrants or who, out of compliance, are registered as a sex offender.

Section 35. Compliance with security plan. A facility resident or prospective resident for whom a security plan was developed shall sign and date the security plan indicating his or her agreement to live within the guidelines provided as a condition of residency. Failure to comply with the security plan shall result in an immediate involuntary termination or discharge from the facility and the loss of notice and appeals rights granted facility residents by law.

Section 40. Illinois State Police Sex Offender Registry. It is the responsibility of each resident of a covered facility who is required by law or court order to register with the Illinois State Police's Sex Offender Registry to monitor the accuracy of the information submitted and to submit updates to the registry as required by law or court order. Failure to register or to maintain the accuracy of the information shall constitute a rebuttable presumption that the individual poses an immediate threat to the safety of other facility residents and shall result in an immediate involuntary termination or discharge and the waiver of all notice and appeal rights accorded facility residents by law.

Section 45. Involuntary termination or discharge.

(a) When a covered facility must involuntary terminate or discharge an identified offender, the covered facility's regulatory agency shall assist in the transfer of the identified offender to an appropriate setting.

(b) When a resident's overt behavior or threat of overt behavior places other facility residents or facility employees at risk of harm and necessitates an identified offender's immediate removal, the covered facility's regulatory agency shall assume responsibility for the immediate removal of the identified offender within 48 hours after notification.

Section 50. Notification of residents and others. If an identified offender is a resident of a covered facility, the facility shall notify every facility resident or the resident's guardian or representative in writing that such an offender is a resident of the facility. The covered facility shall also provide notice to its employees, visitors, and prospective facility residents that an identified offender is a resident of the facility.

Section 55. Segregated programming; segregated nursing home initiative. No later than January 1, 2012, the Department of Public Health shall designate one or more nursing homes licensed by the Department of Public Health under the Nursing Home Care Act, or a distinct segregated area within a licensed nursing home that provides intermediate or skilled care services, for identified offenders who have been determined to need more intense supervision than a standard nursing home can provide. The Department of Public Health shall form a work group to develop criteria for admission to a high risk facility or unit and security standards. Members of the work group shall include the directors of all agencies having expertise in high risk individuals, such as the Directors from the Departments of Corrections and State Police, representatives of associations representing long term care facilities, and individuals representing the interests of nursing home residents. The Department of Public Health shall issue an evaluation of the implementation of this initiative no later than January 1, 2015.

Section 60. Civil immunity. Except for willful and wanton misconduct, a covered facility that follows the terms of a security plan is immune from sanctions or civil liability for any acts committed by a facility resident who is an identified offender.

Section 90. The Nursing Home Care Act is amended by adding Section 3-613 as follows:

(210 ILCS 45/3-613 new)

Sec. 3-613. Order of protection. An administrator may seek an order of protection in the name of a resident to protect that resident from abuse, neglect, or financial exploitation pursuant to the Illinois Domestic Violence Act of 1986. A facility shall take appropriate steps to secure the enforcement of every order of protection entered on behalf of a resident or staff member of which the facility has reasonable knowledge. Such steps include, but are not limited to, reporting violations to an appropriate law enforcement agency. A facility taking steps to secure the enforcement of a valid order of protection shall be held harmless from sanctions under this Act. A facility reporting a violation of an order of protection shall be held harmless from any sanctions under this Act if the facility shows a good faith effort to secure the enforcement of the order of protection.

(210 ILCS 45/2-201.5 rep.)

(210 ILCS 45/2-201.6 rep.)

(210 ILCS 45/2-216 rep.)

(210 ILCS 45/3-202.4 rep.)

Section 95. The Nursing Home Care Act is amended by repealing Sections 2-201.5, 2-201.6, 2-216, and 3-202.4.

Section 100. The Unified Code of Corrections is amended by changing Section 3-14-1 as follows:

(730 ILCS 5/3-14-1) (from Ch. 38, par. 1003-14-1)

Sec. 3-14-1. Release from the Institution.

(a) Upon release of a person on parole, mandatory release, final discharge or pardon the Department shall return all property held for him, provide him with suitable clothing and procure necessary transportation for him to his designated place of residence and employment. It may provide such person with a grant of money for travel and expenses which may be paid in installments. The amount of the money grant shall be determined by the Department.

The Department of Corrections may establish and maintain, in any institution it administers, revolving funds to be known as "Travel and Allowances Revolving Funds". These revolving funds shall be used for advancing travel and expense allowances to committed, paroled, and discharged prisoners. The moneys paid into such revolving funds shall be from appropriations to the Department for Committed, Paroled, and Discharged Prisoners.

(b) (Blank).

(c) Except as otherwise provided in this Code, the Department shall establish procedures to provide written notification of any release of any person who has been convicted of a felony to the State's Attorney and sheriff of the county from which the offender was committed, and the State's Attorney and sheriff of the county into which the offender is to be paroled or released. Except as otherwise provided in this Code, the Department shall establish procedures to provide written notification to the proper law enforcement agency for any municipality of any release of any person who has been convicted of a felony if the arrest of the offender or the commission of the offense took place in the municipality, if the offender is to be paroled or released into the municipality, or if the offender resided in the municipality at the time of the commission of the offense. If a person convicted of a felony who is in the custody of the Department of Corrections or on parole or mandatory supervised release informs the Department that he or she has resided, resides, or will reside at an address that is a housing facility owned, managed, operated, or leased by a public housing agency, the Department must send written notification of that information to the public housing agency that owns, manages, operates, or leases the housing facility. The written notification shall, when possible, be given at least 14 days before release of the person from custody, or as soon thereafter as possible.

(c-1) (Blank).

(c-5) If a person on parole or mandatory supervised release becomes a resident of a facility or participant in a program licensed or regulated by the Department of Public Health, the Illinois Department of Healthcare and Family Services of Public Aid, or the Illinois Department of Human Services, or the Department on Aging, the Department of Corrections shall provide copies of the following information to the appropriate licensing or regulating Department and the licensed or regulated facility where the person becomes a resident:

(1) The mittimus and any pre-sentence investigation reports.

(2) The social evaluation prepared pursuant to Section 3-8-2.

(3) Any pre-release evaluation conducted pursuant to subsection (j) of Section 3-6-2.

(4) Reports of disciplinary infractions and dispositions.

(5) Any parole plan, including orders issued by the Prisoner Review Board, and any violation reports and dispositions.

(6) The name and contact information for the assigned parole agent and parole supervisor.

This information shall be provided within 3 days of the person becoming a resident of the facility.

(c-10) If a person on parole or mandatory supervised release becomes a resident of a facility licensed or regulated by the Department of Public Health, the Illinois Department of Public Aid, or the Illinois Department of Human Services, the Department of Corrections shall provide written notification of such residence to the following:

(1) The Prisoner Review Board.

(2) The chief of police and sheriff in the municipality and county in which the licensed facility is located.

The notification shall be provided within 3 days of the person becoming a resident of the facility.

(d) Upon the release of a committed person on parole, mandatory supervised release, final discharge or pardon, the Department shall provide such person with information concerning programs and services of the Illinois Department of Public Health to ascertain whether such person has been exposed to the human immunodeficiency virus (HIV) or any identified causative agent of Acquired Immunodeficiency Syndrome (AIDS).

(e) Upon the release of a committed person on parole, mandatory supervised release, final discharge, or pardon, the Department shall provide the person who has met the criteria established by the Department with an identification card identifying the person as being on parole, mandatory supervised release, final discharge, or pardon, as the case may be. The Department, in consultation with the Office of the Secretary of State, shall prescribe the form of the identification card, which may be similar to the form of the standard Illinois Identification Card. The Department shall inform the committed person that he or she may present the identification card to the Office of the Secretary of State upon application for a standard Illinois Identification Card in accordance with the Illinois Identification Card Act. The Department shall require the committed person to pay a $1 fee for the identification card.

For purposes of a committed person receiving an identification card issued by the Department under this subsection, the Department shall establish criteria that the committed person must meet before the card is issued. It is the sole responsibility of the committed person requesting the identification card issued by the Department to meet the established criteria. The person's failure to meet the criteria is sufficient reason to deny the committed person the identification card. An identification card issued by the Department under this subsection shall be valid for a period of time not to exceed 30 calendar days from the date the card is issued. The Department shall not be held civilly or criminally liable to anyone because of any act of any person utilizing a card issued by the Department under this subsection.

The Department shall adopt rules governing the issuance of identification cards to committed persons being released on parole, mandatory supervised release, final discharge, or pardon.

(Source: P.A. 94-163, eff. 7-11-05.)

Section 999. Effective date. This Act takes effect upon becoming law.".