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Public Act 095-0823


 

Public Act 0823 95TH GENERAL ASSEMBLY



 


 
Public Act 095-0823
 
HB3508 Enrolled LRB095 08515 DRJ 31907 b

    AN ACT concerning State government.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Illinois Act on the Aging is amended by
changing Sections 4.03 and 4.04 as follows:
 
    (20 ILCS 105/4.03)  (from Ch. 23, par. 6104.03)
    Sec. 4.03. The Department on Aging, in cooperation with the
Department of Human Services and any other appropriate State,
local or federal agency, shall, without regard to income
guidelines, establish a nursing home prescreening program to
determine whether Alzheimer's Disease and related disorders
victims, and persons who are deemed as blind or disabled as
defined by the Social Security Act and who are in need of long
term care, may be satisfactorily cared for in their homes
through the use of home and community based services. Case
coordination units under contract with the Department may
charge a fee for the prescreening provided under this Section
and the fee shall be no greater than the cost of such services
to the case coordination unit. At the time of each
prescreening, case coordination units shall provide
information regarding the Office of State Long Term Care
Ombudsman's Residents Right to Know database as authorized in
subsection (c-5) of Section 4.04.
(Source: P.A. 89-21, eff. 7-1-95; 89-507, eff. 7-1-97.)
 
    (20 ILCS 105/4.04)  (from Ch. 23, par. 6104.04)
    Sec. 4.04. Long Term Care Ombudsman Program.
    (a) Long Term Care Ombudsman Program. The Department shall
establish a Long Term Care Ombudsman Program, through the
Office of State Long Term Care Ombudsman ("the Office"), in
accordance with the provisions of the Older Americans Act of
1965, as now or hereafter amended.
    (b) Definitions. As used in this Section, unless the
context requires otherwise:
        (1) "Access" has the same meaning as in Section 1-104
    of the Nursing Home Care Act, as now or hereafter amended;
    that is, it means the right to:
            (i) Enter any long term care facility or assisted
        living or shared housing establishment or supportive
        living facility;
            (ii) Communicate privately and without restriction
        with any resident who consents to the communication;
            (iii) Seek consent to communicate privately and
        without restriction with any resident;
            (iv) Inspect the clinical and other records of a
        resident with the express written consent of the
        resident;
            (v) Observe all areas of the long term care
        facility or supportive living facilities, assisted
        living or shared housing establishment except the
        living area of any resident who protests the
        observation.
        (2) "Long Term Care Facility" means (i) any facility as
    defined by Section 1-113 of the Nursing Home Care Act, as
    now or hereafter amended; and (ii) any skilled nursing
    facility or a nursing facility which meets the requirements
    of Section 1819(a), (b), (c), and (d) or Section 1919(a),
    (b), (c), and (d) of the Social Security Act, as now or
    hereafter amended (42 U.S.C. 1395i-3(a), (b), (c), and (d)
    and 42 U.S.C. 1396r(a), (b), (c), and (d)).
        (2.5) "Assisted living establishment" and "shared
    housing establishment" have the meanings given those terms
    in Section 10 of the Assisted Living and Shared Housing
    Act.
        (2.7) "Supportive living facility" means a facility
    established under Section 5-5.01a of the Illinois Public
    Aid Code.
        (3) "State Long Term Care Ombudsman" means any person
    employed by the Department to fulfill the requirements of
    the Office of State Long Term Care Ombudsman as required
    under the Older Americans Act of 1965, as now or hereafter
    amended, and Departmental policy.
        (3.1) "Ombudsman" means any designated representative
    of a regional long term care ombudsman program; provided
    that the representative, whether he is paid for or
    volunteers his ombudsman services, shall be qualified and
    designated by the Office to perform the duties of an
    ombudsman as specified by the Department in rules and in
    accordance with the provisions of the Older Americans Act
    of 1965, as now or hereafter amended.
    (c) Ombudsman; rules. The Office of State Long Term Care
Ombudsman shall be composed of at least one full-time ombudsman
and shall include a system of designated regional long term
care ombudsman programs. Each regional program shall be
designated by the State Long Term Care Ombudsman as a
subdivision of the Office and any representative of a regional
program shall be treated as a representative of the Office.
    The Department, in consultation with the Office, shall
promulgate administrative rules in accordance with the
provisions of the Older Americans Act of 1965, as now or
hereafter amended, to establish the responsibilities of the
Department and the Office of State Long Term Care Ombudsman and
the designated regional Ombudsman programs. The administrative
rules shall include the responsibility of the Office and
designated regional programs to investigate and resolve
complaints made by or on behalf of residents of long term care
facilities, supportive living facilities, and assisted living
and shared housing establishments relating to actions,
inaction, or decisions of providers, or their representatives,
of long term care facilities, of supported living facilities,
of assisted living and shared housing establishments, of public
agencies, or of social services agencies, which may adversely
affect the health, safety, welfare, or rights of such
residents. When necessary and appropriate, representatives of
the Office shall refer complaints to the appropriate regulatory
State agency. The Department, in consultation with the Office,
shall cooperate with the Department of Human Services in
providing information and training to designated regional long
term care ombudsman programs about the appropriate assessment
and treatment (including information about appropriate
supportive services, treatment options, and assessment of
rehabilitation potential) of persons with mental illness
(other than Alzheimer's disease and related disorders).
    The State Long Term Care Ombudsman and all other ombudsmen,
as defined in paragraph (3.1) of subsection (b) must submit to
background checks under the Health Care Worker Background Check
Act and receive training, as prescribed by the Illinois
Department on Aging, before visiting facilities. The training
must include information specific to assisted living
establishments, supportive living facilities, and shared
housing establishments and to the rights of residents
guaranteed under the corresponding Acts and administrative
rules.
    (c-5) Consumer Choice Information Reports. The Office
shall:
        (1) In collaboration with the Attorney General, create
    a Consumer Choice Information Report form to be completed
    by all licensed long term care facilities to aid
    Illinoisans and their families in making informed choices
    about long term care. The Office shall create a Consumer
    Choice Information Report for each type of licensed long
    term care facility.
        (2) Develop a database of Consumer Choice Information
    Reports completed by licensed long term care facilities
    that includes information in the following consumer
    categories:
            (A) Medical Care, Services, and Treatment.
            (B) Special Services and Amenities.
            (C) Staffing.
            (D) Facility Statistics and Resident Demographics.
            (E) Ownership and Administration.
            (F) Safety and Security.
            (G) Meals and Nutrition.
            (H) Rooms, Furnishings, and Equipment.
            (I) Family, Volunteer, and Visitation Provisions.
        (3) Make this information accessible to the public,
    including on the Internet by means of a hyperlink labeled
    "Resident's Right to Know" on the Office's World Wide Web
    home page.
        (4) Have the authority, with the Attorney General, to
    verify that information provided by a facility is accurate.
        (5) Request a new report from any licensed facility
    whenever it deems necessary.
    (d) Access and visitation rights.
        (1) In accordance with subparagraphs (A) and (E) of
    paragraph (3) of subsection (c) of Section 1819 and
    subparagraphs (A) and (E) of paragraph (3) of subsection
    (c) of Section 1919 of the Social Security Act, as now or
    hereafter amended (42 U.S.C. 1395i-3 (c)(3)(A) and (E) and
    42 U.S.C. 1396r (c)(3)(A) and (E)), and Section 712 of the
    Older Americans Act of 1965, as now or hereafter amended
    (42 U.S.C. 3058f), a long term care facility, supportive
    living facility, assisted living establishment, and shared
    housing establishment must:
            (i) permit immediate access to any resident by a
        designated ombudsman; and
            (ii) permit representatives of the Office, with
        the permission of the resident's legal representative
        or legal guardian, to examine a resident's clinical and
        other records, and if a resident is unable to consent
        to such review, and has no legal guardian, permit
        representatives of the Office appropriate access, as
        defined by the Department, in consultation with the
        Office, in administrative rules, to the resident's
        records.
        (2) Each long term care facility, supportive living
    facility, assisted living establishment, and shared
    housing establishment shall display, in multiple,
    conspicuous public places within the facility accessible
    to both visitors and residents and in an easily readable
    format, the address and phone number of the Office of the
    Long Term Care Ombudsman, in a manner prescribed by the
    Office.
    (e) Immunity. An ombudsman or any representative of the
Office participating in the good faith performance of his or
her official duties shall have immunity from any liability
(civil, criminal or otherwise) in any proceedings (civil,
criminal or otherwise) brought as a consequence of the
performance of his official duties.
    (f) Business offenses.
        (1) No person shall:
            (i) Intentionally prevent, interfere with, or
        attempt to impede in any way any representative of the
        Office in the performance of his official duties under
        this Act and the Older Americans Act of 1965; or
            (ii) Intentionally retaliate, discriminate
        against, or effect reprisals against any long term care
        facility resident or employee for contacting or
        providing information to any representative of the
        Office.
        (2) A violation of this Section is a business offense,
    punishable by a fine not to exceed $501.
        (3) The Director of Aging, in consultation with the
    Office, shall notify the State's Attorney of the county in
    which the long term care facility, supportive living
    facility, or assisted living or shared housing
    establishment is located, or the Attorney General, of any
    violations of this Section.
    (g) Confidentiality of records and identities. The
Department shall establish procedures for the disclosure by the
State Ombudsman or the regional ombudsmen entities of files
maintained by the program. The procedures shall provide that
the files and records may be disclosed only at the discretion
of the State Long Term Care Ombudsman or the person designated
by the State Ombudsman to disclose the files and records, and
the procedures shall prohibit the disclosure of the identity of
any complainant, resident, witness, or employee of a long term
care provider unless:
        (1) the complainant, resident, witness, or employee of
    a long term care provider or his or her legal
    representative consents to the disclosure and the consent
    is in writing;
        (2) the complainant, resident, witness, or employee of
    a long term care provider gives consent orally; and the
    consent is documented contemporaneously in writing in
    accordance with such requirements as the Department shall
    establish; or
        (3) the disclosure is required by court order.
    (h) Legal representation. The Attorney General shall
provide legal representation to any representative of the
Office against whom suit or other legal action is brought in
connection with the performance of the representative's
official duties, in accordance with the State Employee
Indemnification Act.
    (i) Treatment by prayer and spiritual means. Nothing in
this Act shall be construed to authorize or require the medical
supervision, regulation or control of remedial care or
treatment of any resident in a long term care facility operated
exclusively by and for members or adherents of any church or
religious denomination the tenets and practices of which
include reliance solely upon spiritual means through prayer for
healing.
(Source: P.A. 93-241, eff. 7-22-03; 93-878, eff. 1-1-05.)
 
    Section 10. The Nursing Home Care Act is amended by
changing Sections 3-210 and 3-212 and by adding Section 2-214
as follows:
 
    (210 ILCS 45/2-214 new)
    Sec. 2-214. Consumer Choice Information Reports.
    (a) Every facility shall complete a Consumer Choice
Information Report and shall file it with the Office of State
Long Term Care Ombudsman electronically as prescribed by the
Office. The Report shall be filed annually and upon request of
the Office of State Long Term Care Ombudsman. The Consumer
Choice Information Report must be completed by the facility in
full.
    (b) A violation of any of the provisions of this Section
constitutes an unlawful practice under the Consumer Fraud and
Deceptive Business Practices Act. All remedies, penalties, and
authority granted to the Attorney General by the Consumer Fraud
and Deceptive Business Practices Act shall be available to him
or her for the enforcement of this Section.
    (c) The Department of Public Health shall include
verification of the submission of a facility's current Consumer
Choice Information Report when conducting an inspection
pursuant to Section 3-212.
 
    (210 ILCS 45/3-210)  (from Ch. 111 1/2, par. 4153-210)
    Sec. 3-210. A facility shall retain the following for
public inspection:
    (1) A complete copy of every inspection report of the
facility received from the Department during the past 5 years;
    (2) A copy of every order pertaining to the facility issued
by the Department or a court during the past 5 years;
    (3) A description of the services provided by the facility
and the rates charged for those services and items for which a
resident may be separately charged;
    (4) A copy of the statement of ownership required by
Section 3-207;
    (5) A record of personnel employed or retained by the
facility who are licensed, certified or registered by the
Department of Professional Regulation; and
    (6) A complete copy of the most recent inspection report of
the facility received from the Department.
    (7) A copy of the current Consumer Choice Information
Report required by Section 2-214.
(Source: P.A. 85-1209)
 
    (210 ILCS 45/3-212)  (from Ch. 111 1/2, par. 4153-212)
    Sec. 3-212. Inspection.
    (a) The Department, whenever it deems necessary in
accordance with subsection (b), shall inspect, survey and
evaluate every facility to determine compliance with
applicable licensure requirements and standards. Submission of
a facility's current Consumer Choice Information Report
required by Section 2-214 shall be verified at time of
inspection. An inspection should occur within 120 days prior to
license renewal. The Department may periodically visit a
facility for the purpose of consultation. An inspection,
survey, or evaluation, other than an inspection of financial
records, shall be conducted without prior notice to the
facility. A visit for the sole purpose of consultation may be
announced. The Department shall provide training to surveyors
about the appropriate assessment, care planning, and care of
persons with mental illness (other than Alzheimer's disease or
related disorders) to enable its surveyors to determine whether
a facility is complying with State and federal requirements
about the assessment, care planning, and care of those persons.
    (a-1) An employee of a State or unit of local government
agency charged with inspecting, surveying, and evaluating
facilities who directly or indirectly gives prior notice of an
inspection, survey, or evaluation, other than an inspection of
financial records, to a facility or to an employee of a
facility is guilty of a Class A misdemeanor.
    An inspector or an employee of the Department who
intentionally prenotifies a facility, orally or in writing, of
a pending complaint investigation or inspection shall be guilty
of a Class A misdemeanor. Superiors of persons who have
prenotified a facility shall be subject to the same penalties,
if they have knowingly allowed the prenotification. A person
found guilty of prenotifying a facility shall be subject to
disciplinary action by his or her employer.
    If the Department has a good faith belief, based upon
information that comes to its attention, that a violation of
this subsection has occurred, it must file a complaint with the
Attorney General or the State's Attorney in the county where
the violation took place within 30 days after discovery of the
information.
    (a-2) An employee of a State or unit of local government
agency charged with inspecting, surveying, or evaluating
facilities who willfully profits from violating the
confidentiality of the inspection, survey, or evaluation
process shall be guilty of a Class 4 felony and that conduct
shall be deemed unprofessional conduct that may subject a
person to loss of his or her professional license. An action to
prosecute a person for violating this subsection (a-2) may be
brought by either the Attorney General or the State's Attorney
in the county where the violation took place.
    (b) In determining whether to make more than the required
number of unannounced inspections, surveys and evaluations of a
facility the Department shall consider one or more of the
following: previous inspection reports; the facility's history
of compliance with standards, rules and regulations
promulgated under this Act and correction of violations,
penalties or other enforcement actions; the number and severity
of complaints received about the facility; any allegations of
resident abuse or neglect; weather conditions; health
emergencies; other reasonable belief that deficiencies exist.
    (b-1) The Department shall not be required to determine
whether a facility certified to participate in the Medicare
program under Title XVIII of the Social Security Act, or the
Medicaid program under Title XIX of the Social Security Act,
and which the Department determines by inspection under this
Section or under Section 3-702 of this Act to be in compliance
with the certification requirements of Title XVIII or XIX, is
in compliance with any requirement of this Act that is less
stringent than or duplicates a federal certification
requirement. In accordance with subsection (a) of this Section
or subsection (d) of Section 3-702, the Department shall
determine whether a certified facility is in compliance with
requirements of this Act that exceed federal certification
requirements. If a certified facility is found to be out of
compliance with federal certification requirements, the
results of an inspection conducted pursuant to Title XVIII or
XIX of the Social Security Act may be used as the basis for
enforcement remedies authorized and commenced under this Act.
Enforcement of this Act against a certified facility shall be
commenced pursuant to the requirements of this Act, unless
enforcement remedies sought pursuant to Title XVIII or XIX of
the Social Security Act exceed those authorized by this Act. As
used in this subsection, "enforcement remedy" means a sanction
for violating a federal certification requirement or this Act.
    (c) Upon completion of each inspection, survey and
evaluation, the appropriate Department personnel who conducted
the inspection, survey or evaluation shall submit a copy of
their report to the licensee upon exiting the facility, and
shall submit the actual report to the appropriate regional
office of the Department. Such report and any recommendations
for action by the Department under this Act shall be
transmitted to the appropriate offices of the associate
director of the Department, together with related comments or
documentation provided by the licensee which may refute
findings in the report, which explain extenuating
circumstances that the facility could not reasonably have
prevented, or which indicate methods and timetables for
correction of deficiencies described in the report. Without
affecting the application of subsection (a) of Section 3-303,
any documentation or comments of the licensee shall be provided
within 10 days of receipt of the copy of the report. Such
report shall recommend to the Director appropriate action under
this Act with respect to findings against a facility. The
Director shall then determine whether the report's findings
constitute a violation or violations of which the facility must
be given notice. Such determination shall be based upon the
severity of the finding, the danger posed to resident health
and safety, the comments and documentation provided by the
facility, the diligence and efforts to correct deficiencies,
correction of the reported deficiencies, the frequency and
duration of similar findings in previous reports and the
facility's general inspection history. Violations shall be
determined under this subsection no later than 60 days after
completion of each inspection, survey and evaluation.
    (d) The Department shall maintain all inspection, survey
and evaluation reports for at least 5 years in a manner
accessible to and understandable by the public.
(Source: P.A. 91-799, eff. 6-13-00; 92-209, eff. 1-1-02.)
 
    Section 15. The Consumer Fraud and Deceptive Business
Practices Act is amended by adding Section 2ZZ as follows:
 
    (815 ILCS 505/2ZZ new)
    Sec. 2ZZ. Long term care facility; Consumer Choice
Information Report. A long term care facility that fails to
comply with Section 2-214 of the Nursing Home Care Act commits
an unlawful practice within the meaning of this Act.

Effective Date: 1/1/2009