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Public Act 91-0799
HB0182 Enrolled LRB9100213WHmg
AN ACT to amend certain Acts in relation to mental
health.
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 Section 4.04 as follows:
(20 ILCS 105/4.04) (from Ch. 23, par. 6104.04)
(Text of Section before amendment by P.A. 91-656)
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;
(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 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)).
(3) "Ombudsman" means any person employed by the
Department to fulfill the requirements of the Office, or
any representative of a sub-State long term care
ombudsman program; provided that the representative,
whether he is paid for or volunteers his ombudsman
services, shall be qualified and authorized by the
Department to perform the duties of an ombudsman as
specified by the Department in rules.
(c) Ombudsman; rules. The Office of State Long Term Care
Ombudsman shall be composed of at least one full-time
ombudsman within the Department and shall include a system of
designated sub-State long term care ombudsman programs. Each
sub-State program shall be designated by the Department as a
subdivision of the Office and any representative of a
sub-State program shall be treated as a representative of the
Office.
The Department shall promulgate administrative rules to
establish the responsibilities of the Department and the
Office of State Long Term Care Ombudsman. The administrative
rules shall include the responsibility of the Office to
investigate and resolve complaints made by or on behalf of
residents of long term care facilities relating to actions,
inaction, or decisions of providers, or their
representatives, of long term care facilities, 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.
(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
must:
(i) permit immediate access to any resident by
an 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 administrative rules, to the
resident's records.
(2) Each long term care facility shall display, in
multiple, conspicuous public places within the facility
accessible to both visitors and patients and in an easily
readable format, the address and phone number of the
Office, in a manner prescribed by the Office.
(e) Immunity. An ombudsman or any other 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 shall notify the State's
Attorney of the county in which the long term care
facility is located, or the Attorney General, of any
violations of this Section.
(g) Confidentiality of records and identities. No files
or records maintained by the Office of State Long Term Care
Ombudsman shall be disclosed unless the State Ombudsman or
the ombudsman having the authority over the disposition of
such files authorizes the disclosure in writing. The
ombudsman shall not disclose the identity of any complainant,
resident, witness or employee of a long term care provider
involved in a complaint or report unless such person or such
person's guardian or legal representative consents in writing
to the disclosure, or 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 "An Act to provide for
representation and indemnification in certain civil law
suits", approved December 3, 1977, as now or hereafter
amended.
(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. 90-639, eff. 1-1-99; 91-174, eff. 7-16-99.)
(Text of Section after amendment by P.A. 91-656)
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;
(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 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.
(3) "Ombudsman" means any person employed by the
Department to fulfill the requirements of the Office, or
any representative of a sub-State long term care
ombudsman program; provided that the representative,
whether he is paid for or volunteers his ombudsman
services, shall be qualified and authorized by the
Department to perform the duties of an ombudsman as
specified by the Department in rules.
(c) Ombudsman; rules. The Office of State Long Term Care
Ombudsman shall be composed of at least one full-time
ombudsman within the Department and shall include a system of
designated sub-State long term care ombudsman programs. Each
sub-State program shall be designated by the Department as a
subdivision of the Office and any representative of a
sub-State program shall be treated as a representative of the
Office.
The Department shall promulgate administrative rules to
establish the responsibilities of the Department and the
Office of State Long Term Care Ombudsman. The administrative
rules shall include the responsibility of the Office to
investigate and resolve complaints made by or on behalf of
residents of long term care 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 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 shall cooperate with the Department of
Human Services in providing information and training to
designated sub-State 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).
(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,
assisted living establishment, and shared housing
establishment must:
(i) permit immediate access to any resident by
an 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 administrative rules, to the
resident's records.
(2) Each long term care facility, assisted living
establishment, and shared housing establishment shall
display, in multiple, conspicuous public places within
the facility accessible to both visitors and patients and
in an easily readable format, the address and phone
number of the Office, in a manner prescribed by the
Office.
(e) Immunity. An ombudsman or any other 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 shall notify the State's
Attorney of the county in which the long term care
facility is located, or the Attorney General, of any
violations of this Section.
(g) Confidentiality of records and identities. No files
or records maintained by the Office of State Long Term Care
Ombudsman shall be disclosed unless the State Ombudsman or
the ombudsman having the authority over the disposition of
such files authorizes the disclosure in writing. The
ombudsman shall not disclose the identity of any complainant,
resident, witness or employee of a long term care provider
involved in a complaint or report unless such person or such
person's guardian or legal representative consents in writing
to the disclosure, or 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. 90-639, eff. 1-1-99; 91-174, eff. 7-16-99;
91-656, eff. 1-1-01; revised 1-5-00.)
Section 10. The Nursing Home Care Act is amended by
changing Section 3-212 and adding Section 3-202.2 as follows:
(210 ILCS 45/3-202.2 new)
Sec. 3-202.2. Rules; residents with mental illness. No
later than January 1, 2001, the Department of Public Health
shall file with the Joint Committee on Administrative Rules,
pursuant to the Illinois Administrative Procedure Act, a
proposed rule, or a proposed amendment to an existing rule,
regarding the provision of services, including assessment,
care planning, discharge planning, and treatment, by nursing
facilities to residents who have a serious mental illness.
(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. 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.
(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. 88-278; 89-21, eff. 1-1-96; 89-171, eff.
1-1-96; 89-197, eff. 7-21-95; 89-626, eff. 8-9-96.)
Section 15. The Illinois Public Aid Code is amended by
changing Section 5-5.5 as follows:
(305 ILCS 5/5-5.5) (from Ch. 23, par. 5-5.5)
Sec. 5-5.5. Elements of Payment Rate.
(a) The Department of Public Aid shall develop a
prospective method for determining payment rates for skilled
nursing and intermediate care services in nursing facilities
composed of the following cost elements:
(1) Standard Services, with the cost of this
component being determined by taking into account the
actual costs to the facilities of these services subject
to cost ceilings to be defined in the Department's rules.
(2) Resident Services, with the cost of this
component being determined by taking into account the
actual costs, needs and utilization of these services, as
derived from an assessment of the resident needs in the
nursing facilities. The Department shall adopt rules
governing reimbursement for resident services as listed
in Section 5-1.1. Surveys or assessments of resident
needs under this Section shall include a review by the
facility of the results of such assessments and a
discussion of issues in dispute with authorized survey
staff, unless the facility elects not to participate in
such a review process. Surveys or assessments of
resident needs under this Section may be conducted
semi-annually and payment rates relating to resident
services may be changed on a semi-annual basis. The
Illinois Department shall initiate a project, either on a
pilot basis or Statewide, to reimburse the cost of
resident services based on a methodology which utilizes
an assessment of resident needs to determine the level of
reimbursement. This methodology shall be different from
the payment criteria for resident services utilized by
the Illinois Department on July 1, 1981. On March 1,
1982, and each year thereafter, until such time when the
Illinois Department adopts the methodology used in such
project for use statewide or the Illinois Department
reports to the Citizens Assembly/Council on Public Aid
that the methodology did not meet the Department's goals
and objectives and therefore is ceasing such project, the
Illinois Department shall report to the General Assembly
on the implementation and progress of such project. The
report shall include:
(A) A statement of the Illinois Department's
goals and objectives for such project;
(B) A description of such project, including
the number and type of nursing facilities involved
in the project;
(C) A description of the methodology used in
such project;
(D) A description of the Illinois Department's
application of the methodology;
(E) A statement on the methodology's effect on
the quality of care given to residents in the sample
nursing facilities; and
(F) A statement on the cost of the methodology
used in such project and a comparison of this cost
with the cost of the current payment criteria.
(3) Ancillary Services, with the payment rate being
developed for each individual type of service. Payment
shall be made only when authorized under procedures
developed by the Department of Public Aid.
(4) Nurse's Aide Training, with the cost of this
component being determined by taking into account the
actual cost to the facilities of such training.
(5) Real Estate Taxes, with the cost of this
component being determined by taking into account the
figures contained in the most currently available cost
reports (with no imposition of maximums) updated to the
midpoint of the current rate year for long term care
services rendered between July 1, 1984 and June 30, 1985,
and with the cost of this component being determined by
taking into account the actual 1983 taxes for which the
nursing homes were assessed (with no imposition of
maximums) updated to the midpoint of the current rate
year for long term care services rendered between July 1,
1985 and June 30, 1986.
(b) In developing a prospective method for determining
payment rates for skilled nursing and intermediate care
services in nursing facilities, the Department of Public Aid
shall consider the following cost elements:
(1) Reasonable capital cost determined by utilizing
incurred interest rate and the current value of the
investment, including land, utilizing composite rates, or
by utilizing such other reasonable cost related methods
determined by the Department. However, beginning with the
rate reimbursement period effective July 1, 1987, the
Department shall be prohibited from establishing,
including, and implementing any depreciation factor in
calculating the capital cost element.
(2) Profit, with the actual amount being produced
and accruing to the providers in the form of a return on
their total investment, on the basis of their ability to
economically and efficiently deliver a type of service.
The method of payment may assure the opportunity for a
profit, but shall not guarantee or establish a specific
amount as a cost.
(c) The Illinois Department may implement the amendatory
changes to this Section made by this amendatory Act of 1991
through the use of emergency rules in accordance with the
provisions of Section 5.02 of the Illinois Administrative
Procedure Act. For purposes of the Illinois Administrative
Procedure Act, the adoption of rules to implement the
amendatory changes to this Section made by this amendatory
Act of 1991 shall be deemed an emergency and necessary for
the public interest, safety and welfare.
(d) No later than January 1, 2001, the Department of
Public Aid shall file with the Joint Committee on
Administrative Rules, pursuant to the Illinois Administrative
Procedure Act, a proposed rule, or a proposed amendment to an
existing rule, regarding payment for appropriate services,
including assessment, care planning, discharge planning, and
treatment provided by nursing facilities to residents who
have a serious mental illness.
(Source: P.A. 86-651; 86-705; 86-1028; 87-14; 87-435.)
Section 99. Effective date. This Act takes effect upon
becoming law.
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