Sen. Jil Tracy

Filed: 5/11/2023

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 2858

2    AMENDMENT NO. ______. Amend House Bill 2858 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Act on the Aging is amended by
5changing Section 4.04 as follows:
 
6    (20 ILCS 105/4.04)  (from Ch. 23, par. 6104.04)
7    Sec. 4.04. Long Term Care Ombudsman Program. The purpose
8of the Long Term Care Ombudsman Program is to ensure that older
9persons and persons with disabilities receive quality
10services. This is accomplished by providing advocacy services
11for residents of long term care facilities and participants
12receiving home care and community-based care. Managed care is
13increasingly becoming the vehicle for delivering health and
14long-term services and supports to seniors and persons with
15disabilities, including dual eligible participants. The
16additional ombudsman authority will allow advocacy services to

 

 

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1be provided to Illinois participants for the first time and
2will produce a cost savings for the State of Illinois by
3supporting the rebalancing efforts of the Patient Protection
4and Affordable Care Act.
5    (a) Long Term Care Ombudsman Program. The Department shall
6establish a Long Term Care Ombudsman Program, through the
7Office of State Long Term Care Ombudsman ("the Office"), in
8accordance with the provisions of the Older Americans Act of
91965, as now or hereafter amended. The Long Term Care
10Ombudsman Program is authorized, subject to sufficient
11appropriations, to advocate on behalf of older persons and
12persons with disabilities residing in their own homes or
13community-based settings, relating to matters which may
14adversely affect the health, safety, welfare, or rights of
15such individuals.
16    (b) Definitions. As used in this Section, unless the
17context requires otherwise:
18        (1) "Access" means the right to:
19            (i) Enter any long term care facility or assisted
20        living or shared housing establishment or supportive
21        living facility;
22            (ii) Communicate privately and without restriction
23        with any resident, regardless of age, who consents to
24        the communication;
25            (iii) Seek consent to communicate privately and
26        without restriction with any participant or resident,

 

 

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1        regardless of age;
2            (iv) Inspect and copy the clinical and other
3        records of a participant or resident, regardless of
4        age, with the express written consent of the
5        participant or resident;
6            (v) Observe all areas of the long term care
7        facility or supportive living facilities, assisted
8        living or shared housing establishment except the
9        living area of any resident who protests the
10        observation; and
11            (vi) Subject to permission of the participant or
12        resident requesting services or his or her
13        representative, enter a home or community-based
14        setting.
15        (2) "Long Term Care Facility" means (i) any facility
16    as defined by Section 1-113 of the Nursing Home Care Act,
17    as now or hereafter amended; (ii) any skilled nursing
18    facility or a nursing facility which meets the
19    requirements of Section 1819(a), (b), (c), and (d) or
20    Section 1919(a), (b), (c), and (d) of the Social Security
21    Act, as now or hereafter amended (42 U.S.C. 1395i-3(a),
22    (b), (c), and (d) and 42 U.S.C. 1396r(a), (b), (c), and
23    (d)); (iii) any facility as defined by Section 1-113 of
24    the ID/DD Community Care Act, as now or hereafter amended;
25    (iv) any facility as defined by Section 1-113 of MC/DD
26    Act, as now or hereafter amended; and (v) any facility

 

 

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1    licensed under Section 4-105 or 4-201 of the Specialized
2    Mental Health Rehabilitation Act of 2013, as now or
3    hereafter amended.
4        (2.5) "Assisted living establishment" and "shared
5    housing establishment" have the meanings given those terms
6    in Section 10 of the Assisted Living and Shared Housing
7    Act.
8        (2.7) "Supportive living facility" means a facility
9    established under Section 5-5.01a of the Illinois Public
10    Aid Code.
11        (2.8) "Community-based setting" means any place of
12    abode other than an individual's private home.
13        (3) "State Long Term Care Ombudsman" means any person
14    employed by the Department to fulfill the requirements of
15    the Office of State Long Term Care Ombudsman as required
16    under the Older Americans Act of 1965, as now or hereafter
17    amended, and Departmental policy.
18        (3.1) "Ombudsman" means any designated representative
19    of the State Long Term Care Ombudsman Program; provided
20    that the representative, whether he is paid for or
21    volunteers his ombudsman services, shall be qualified and
22    designated by the Office to perform the duties of an
23    ombudsman as specified by the Department in rules and in
24    accordance with the provisions of the Older Americans Act
25    of 1965, as now or hereafter amended.
26        (4) "Participant" means an older person aged 60 or

 

 

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1    over or an adult with a disability aged 18 through 59 who
2    is eligible for services under any of the following:
3            (i) A medical assistance waiver administered by
4        the State.
5            (ii) A managed care organization providing care
6        coordination and other services to seniors and persons
7        with disabilities.
8        (5) "Resident" means an older person aged 60 or over
9    or an adult with a disability aged 18 through 59 who
10    resides in a long-term care facility.
11    (c) Ombudsman; rules. The Office of State Long Term Care
12Ombudsman shall be composed of at least one full-time
13ombudsman and shall include a system of designated regional
14long term care ombudsman programs. Each regional program shall
15be designated by the State Long Term Care Ombudsman as a
16subdivision of the Office and any representative of a regional
17program shall be treated as a representative of the Office.
18    The Department, in consultation with the Office, shall
19promulgate administrative rules in accordance with the
20provisions of the Older Americans Act of 1965, as now or
21hereafter amended, to establish the responsibilities of the
22Department and the Office of State Long Term Care Ombudsman
23and the designated regional Ombudsman programs. The
24administrative rules shall include the responsibility of the
25Office and designated regional programs to investigate and
26resolve complaints made by or on behalf of residents of long

 

 

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1term care facilities, supportive living facilities, and
2assisted living and shared housing establishments, and
3participants residing in their own homes or community-based
4settings, including the option to serve residents and
5participants under the age of 60, relating to actions,
6inaction, or decisions of providers, or their representatives,
7of such facilities and establishments, of public agencies, or
8of social services agencies, which may adversely affect the
9health, safety, welfare, or rights of such residents and
10participants. The Office and designated regional programs may
11represent all residents and participants, but are not required
12by this Act to represent persons under 60 years of age, except
13to the extent required by federal law. When necessary and
14appropriate, representatives of the Office shall refer
15complaints to the appropriate regulatory State agency. The
16Department, in consultation with the Office, shall cooperate
17with the Department of Human Services and other State agencies
18in providing information and training to designated regional
19long term care ombudsman programs about the appropriate
20assessment and treatment (including information about
21appropriate supportive services, treatment options, and
22assessment of rehabilitation potential) of the participants
23they serve.
24    The State Long Term Care Ombudsman and all other
25ombudsmen, as defined in paragraph (3.1) of subsection (b)
26must submit to background checks under the Health Care Worker

 

 

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1Background Check Act and receive training, as prescribed by
2the Illinois Department on Aging, before visiting facilities,
3private homes, or community-based settings. The training must
4include information specific to assisted living
5establishments, supportive living facilities, shared housing
6establishments, private homes, and community-based settings
7and to the rights of residents and participants guaranteed
8under the corresponding Acts and administrative rules.
9    (c-5) Consumer Choice Information Reports. The Office
10shall:
11        (1) In collaboration with the Attorney General, create
12    a Consumer Choice Information Report form to be completed
13    by all licensed long term care facilities to aid
14    Illinoisans and their families in making informed choices
15    about long term care. The Office shall create a Consumer
16    Choice Information Report for each type of licensed long
17    term care facility. The Office shall collaborate with the
18    Attorney General and the Department of Human Services to
19    create a Consumer Choice Information Report form for
20    facilities licensed under the ID/DD Community Care Act or
21    the MC/DD Act.
22        (2) Develop a database of Consumer Choice Information
23    Reports completed by licensed long term care facilities
24    that includes information in the following consumer
25    categories:
26            (A) Medical Care, Services, and Treatment.

 

 

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1            (B) Special Services and Amenities.
2            (C) Staffing.
3            (D) Facility Statistics and Resident Demographics.
4            (E) Ownership and Administration.
5            (F) Safety and Security.
6            (G) Meals and Nutrition.
7            (H) Rooms, Furnishings, and Equipment.
8            (I) Family, Volunteer, and Visitation Provisions.
9        (3) Make this information accessible to the public,
10    including on the Internet by means of a hyperlink on the
11    Office's World Wide Web home page. Information about
12    facilities licensed under the ID/DD Community Care Act or
13    the MC/DD Act shall be made accessible to the public by the
14    Department of Human Services, including on the Internet by
15    means of a hyperlink on the Department of Human Services'
16    "For Customers" website.
17        (4) Have the authority, with the Attorney General, to
18    verify that information provided by a facility is
19    accurate.
20        (5) Request a new report from any licensed facility
21    whenever it deems necessary.
22        (6) Include in the Office's Consumer Choice
23    Information Report for each type of licensed long term
24    care facility additional information on each licensed long
25    term care facility in the State of Illinois, including
26    information regarding each facility's compliance with the

 

 

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1    relevant State and federal statutes, rules, and standards;
2    customer satisfaction surveys; and information generated
3    from quality measures developed by the Centers for
4    Medicare and Medicaid Services.
5    (d) Access and visitation rights.
6        (1) In accordance with subparagraphs (A) and (E) of
7    paragraph (3) of subsection (c) of Section 1819 and
8    subparagraphs (A) and (E) of paragraph (3) of subsection
9    (c) of Section 1919 of the Social Security Act, as now or
10    hereafter amended (42 U.S.C. 1395i-3 (c)(3)(A) and (E) and
11    42 U.S.C. 1396r (c)(3)(A) and (E)), and Section 712 of the
12    Older Americans Act of 1965, as now or hereafter amended
13    (42 U.S.C. 3058f), a long term care facility, supportive
14    living facility, assisted living establishment, and shared
15    housing establishment must:
16            (i) permit immediate access to any resident,
17        regardless of age, by a designated ombudsman;
18            (ii) permit representatives of the Office, with
19        the permission of the resident, the resident's legal
20        representative, or the resident's legal guardian, to
21        examine and copy a resident's clinical and other
22        records, regardless of the age of the resident, and if
23        a resident is unable to consent to such review, and has
24        no legal guardian, permit representatives of the
25        Office appropriate access, as defined by the
26        Department, in consultation with the Office, in

 

 

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1        administrative rules, to the resident's records; and
2            (iii) permit a representative of the Program to
3        communicate privately and without restriction with any
4        participant who consents to the communication
5        regardless of the consent of, or withholding of
6        consent by, a legal guardian or an agent named in a
7        power of attorney executed by the participant.
8        (2) Each long term care facility, supportive living
9    facility, assisted living establishment, and shared
10    housing establishment shall display, in multiple,
11    conspicuous public places within the facility accessible
12    to both visitors and residents and in an easily readable
13    format, the address and phone number of the Office of the
14    Long Term Care Ombudsman, in a manner prescribed by the
15    Office.
16    (e) Immunity. An ombudsman or any representative of the
17Office participating in the good faith performance of his or
18her official duties shall have immunity from any liability
19(civil, criminal or otherwise) in any proceedings (civil,
20criminal or otherwise) brought as a consequence of the
21performance of his official duties.
22    (f) Business offenses.
23        (1) No person shall:
24            (i) Intentionally prevent, interfere with, or
25        attempt to impede in any way any representative of the
26        Office in the performance of his official duties under

 

 

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1        this Act and the Older Americans Act of 1965; or
2            (ii) Intentionally retaliate, discriminate
3        against, or effect reprisals against any long term
4        care facility resident or employee for contacting or
5        providing information to any representative of the
6        Office.
7        (2) A violation of this Section is a business offense,
8    punishable by a fine not to exceed $501.
9        (3) The State Long Term Care Ombudsman shall notify
10    the State's Attorney of the county in which the long term
11    care facility, supportive living facility, or assisted
12    living or shared housing establishment is located, or the
13    Attorney General, of any violations of this Section.
14    (g) Confidentiality of records and identities. The
15Department shall establish procedures for the disclosure by
16the State Ombudsman or the regional ombudsmen entities of
17files maintained by the program. The procedures shall provide
18that the files and records may be disclosed only at the
19discretion of the State Long Term Care Ombudsman or the person
20designated by the State Ombudsman to disclose the files and
21records, and the procedures shall prohibit the disclosure of
22the identity of any complainant, resident, participant,
23witness, or employee of a long term care provider unless:
24        (1) the complainant, resident, participant, witness,
25    or employee of a long term care provider or his or her
26    legal representative consents to the disclosure and the

 

 

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1    consent is in writing;
2        (2) the complainant, resident, participant, witness,
3    or employee of a long term care provider gives consent
4    orally; and the consent is documented contemporaneously in
5    writing in accordance with such requirements as the
6    Department shall establish; or
7        (3) the disclosure is required by court order.
8    (h) Legal representation. The Attorney General shall
9provide legal representation to any representative of the
10Office against whom suit or other legal action is brought in
11connection with the performance of the representative's
12official duties, in accordance with the State Employee
13Indemnification Act.
14    (i) Treatment by prayer and spiritual means. Nothing in
15this Act shall be construed to authorize or require the
16medical supervision, regulation or control of remedial care or
17treatment of any resident in a long term care facility
18operated exclusively by and for members or adherents of any
19church or religious denomination the tenets and practices of
20which include reliance solely upon spiritual means through
21prayer for healing.
22    (j) The Long Term Care Ombudsman Fund is created as a
23special fund in the State treasury to receive moneys for the
24express purposes of this Section. All interest earned on
25moneys in the fund shall be credited to the fund. Moneys
26contained in the fund shall be used to support the purposes of

 

 

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1this Section.
2    (k) Each Regional Ombudsman may, in accordance with rules
3promulgated by the Office, establish a multi-disciplinary team
4to act in an advisory role for the purpose of providing
5professional knowledge and expertise in handling complex
6abuse, neglect, and advocacy issues involving participants.
7Each multi-disciplinary team may consist of one or more
8volunteer representatives from any combination of at least 7
9members from the following professions: banking or finance;
10disability care; health care; pharmacology; law; law
11enforcement; emergency responder; mental health care; clergy;
12coroner or medical examiner; substance abuse; domestic
13violence; sexual assault; or other related fields. To support
14multi-disciplinary teams in this role, law enforcement
15agencies and coroners or medical examiners shall supply
16records as may be requested in particular cases. The Regional
17Ombudsman, or his or her designee, of the area in which the
18multi-disciplinary team is created shall be the facilitator of
19the multi-disciplinary team.
20(Source: P.A. 102-1033, eff. 1-1-23.)
 
21    Section 10. The Adult Protective Services Act is amended
22by changing Section 2 as follows:
 
23    (320 ILCS 20/2)  (from Ch. 23, par. 6602)
24    Sec. 2. Definitions. As used in this Act, unless the

 

 

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1context requires otherwise:
2    (a) "Abandonment" means the desertion or willful forsaking
3of an eligible adult by an individual responsible for the care
4and custody of that eligible adult under circumstances in
5which a reasonable person would continue to provide care and
6custody. Nothing in this Act shall be construed to mean that an
7eligible adult is a victim of abandonment because of health
8care services provided or not provided by licensed health care
9professionals.
10    (a-1) "Abuse" means causing any physical, mental or sexual
11injury to an eligible adult, including exploitation of such
12adult's financial resources, and abandonment.
13    Nothing in this Act shall be construed to mean that an
14eligible adult is a victim of abuse, abandonment, neglect, or
15self-neglect for the sole reason that he or she is being
16furnished with or relies upon treatment by spiritual means
17through prayer alone, in accordance with the tenets and
18practices of a recognized church or religious denomination.
19    Nothing in this Act shall be construed to mean that an
20eligible adult is a victim of abuse because of health care
21services provided or not provided by licensed health care
22professionals.
23    (a-5) "Abuser" means a person who abuses, abandons,
24neglects, or financially exploits an eligible adult.
25    (a-6) "Adult with disabilities" means a person aged 18
26through 59 who resides in a domestic living situation and

 

 

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1whose disability as defined in subsection (c-5) impairs his or
2her ability to seek or obtain protection from abuse,
3abandonment, neglect, or exploitation.
4    (a-7) "Caregiver" means a person who either as a result of
5a family relationship, voluntarily, or in exchange for
6compensation has assumed responsibility for all or a portion
7of the care of an eligible adult who needs assistance with
8activities of daily living or instrumental activities of daily
9living.
10    (b) "Department" means the Department on Aging of the
11State of Illinois.
12    (c) "Director" means the Director of the Department.
13    (c-5) "Disability" means a physical or mental disability,
14including, but not limited to, a developmental disability, an
15intellectual disability, a mental illness as defined under the
16Mental Health and Developmental Disabilities Code, or dementia
17as defined under the Alzheimer's Disease Assistance Act.
18    (d) "Domestic living situation" means a residence where
19the eligible adult at the time of the report lives alone or
20with his or her family or a caregiver, or others, or other
21community-based unlicensed facility, but is not:
22        (1) A licensed facility as defined in Section 1-113 of
23    the Nursing Home Care Act;
24        (1.5) A facility licensed under the ID/DD Community
25    Care Act;
26        (1.6) A facility licensed under the MC/DD Act;

 

 

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1        (1.7) A facility licensed under the Specialized Mental
2    Health Rehabilitation Act of 2013;
3        (2) A "life care facility" as defined in the Life Care
4    Facilities Act;
5        (3) A home, institution, or other place operated by
6    the federal government or agency thereof or by the State
7    of Illinois;
8        (4) A hospital, sanitarium, or other institution, the
9    principal activity or business of which is the diagnosis,
10    care, and treatment of human illness through the
11    maintenance and operation of organized facilities
12    therefor, which is required to be licensed under the
13    Hospital Licensing Act;
14        (5) A "community living facility" as defined in the
15    Community Living Facilities Licensing Act;
16        (6) (Blank);
17        (7) A "community-integrated living arrangement" as
18    defined in the Community-Integrated Living Arrangements
19    Licensure and Certification Act or a "community
20    residential alternative" as licensed under that Act;
21        (8) An assisted living or shared housing establishment
22    as defined in the Assisted Living and Shared Housing Act;
23    or
24        (9) A supportive living facility as described in
25    Section 5-5.01a of the Illinois Public Aid Code.
26    (e) "Eligible adult" means either an adult with

 

 

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1disabilities aged 18 through 59 or a person aged 60 or older
2who resides in a domestic living situation and is, or is
3alleged to be, abused, abandoned, neglected, or financially
4exploited by another individual or who neglects himself or
5herself. "Eligible adult" also includes an adult who resides
6in any of the facilities that are excluded from the definition
7of "domestic living situation" under paragraphs (1) through
8(9) of subsection (d), if either: (i) the alleged abuse,
9abandonment, or neglect occurs outside of the facility and not
10under facility supervision and the alleged abuser is a family
11member, caregiver, or another person who has a continuing
12relationship with the adult; or (ii) the alleged financial
13exploitation is perpetrated by a family member, caregiver, or
14another person who has a continuing relationship with the
15adult, but who is not an employee of the facility where the
16adult resides.
17    (f) "Emergency" means a situation in which an eligible
18adult is living in conditions presenting a risk of death or
19physical, mental or sexual injury and the provider agency has
20reason to believe the eligible adult is unable to consent to
21services which would alleviate that risk.
22    (f-1) "Financial exploitation" means the use of an
23eligible adult's resources by another to the disadvantage of
24that adult or the profit or advantage of a person other than
25that adult.
26    (f-5) "Mandated reporter" means any of the following

 

 

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1persons while engaged in carrying out their professional
2duties:
3        (1) a professional or professional's delegate while
4    engaged in: (i) social services, (ii) law enforcement,
5    (iii) education, (iv) the care of an eligible adult or
6    eligible adults, or (v) any of the occupations required to
7    be licensed under the Behavior Analyst Licensing Act, the
8    Clinical Psychologist Licensing Act, the Clinical Social
9    Work and Social Work Practice Act, the Illinois Dental
10    Practice Act, the Dietitian Nutritionist Practice Act, the
11    Marriage and Family Therapy Licensing Act, the Medical
12    Practice Act of 1987, the Naprapathic Practice Act, the
13    Nurse Practice Act, the Nursing Home Administrators
14    Licensing and Disciplinary Act, the Illinois Occupational
15    Therapy Practice Act, the Illinois Optometric Practice Act
16    of 1987, the Pharmacy Practice Act, the Illinois Physical
17    Therapy Act, the Physician Assistant Practice Act of 1987,
18    the Podiatric Medical Practice Act of 1987, the
19    Respiratory Care Practice Act, the Professional Counselor
20    and Clinical Professional Counselor Licensing and Practice
21    Act, the Illinois Speech-Language Pathology and Audiology
22    Practice Act, the Veterinary Medicine and Surgery Practice
23    Act of 2004, and the Illinois Public Accounting Act;
24        (1.5) an employee of an entity providing developmental
25    disabilities services or service coordination funded by
26    the Department of Human Services;

 

 

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1        (2) an employee of a vocational rehabilitation
2    facility prescribed or supervised by the Department of
3    Human Services;
4        (3) an administrator, employee, or person providing
5    services in or through an unlicensed community based
6    facility;
7        (4) any religious practitioner who provides treatment
8    by prayer or spiritual means alone in accordance with the
9    tenets and practices of a recognized church or religious
10    denomination, except as to information received in any
11    confession or sacred communication enjoined by the
12    discipline of the religious denomination to be held
13    confidential;
14        (5) field personnel of the Department of Healthcare
15    and Family Services, Department of Public Health, and
16    Department of Human Services, and any county or municipal
17    health department;
18        (6) personnel of the Department of Human Services, the
19    Guardianship and Advocacy Commission, the State Fire
20    Marshal, local fire departments, the Department on Aging
21    and its subsidiary Area Agencies on Aging and provider
22    agencies, except the State Long Term Care Ombudsman and
23    any of his or her representatives or volunteers where
24    prohibited from making such a report pursuant to 45 CFR
25    1324.11(e)(3)(iv); and the Office of State Long Term Care
26    Ombudsman;

 

 

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1        (7) any employee of the State of Illinois not
2    otherwise specified herein who is involved in providing
3    services to eligible adults, including professionals
4    providing medical or rehabilitation services and all other
5    persons having direct contact with eligible adults;
6        (8) a person who performs the duties of a coroner or
7    medical examiner; or
8        (9) a person who performs the duties of a paramedic or
9    an emergency medical technician.
10    (g) "Neglect" means another individual's failure to
11provide an eligible adult with or willful withholding from an
12eligible adult the necessities of life including, but not
13limited to, food, clothing, shelter or health care. This
14subsection does not create any new affirmative duty to provide
15support to eligible adults. Nothing in this Act shall be
16construed to mean that an eligible adult is a victim of neglect
17because of health care services provided or not provided by
18licensed health care professionals.
19    (h) "Provider agency" means any public or nonprofit agency
20in a planning and service area that is selected by the
21Department or appointed by the regional administrative agency
22with prior approval by the Department on Aging to receive and
23assess reports of alleged or suspected abuse, abandonment,
24neglect, or financial exploitation. A provider agency is also
25referenced as a "designated agency" in this Act.
26    (i) "Regional administrative agency" means any public or

 

 

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1nonprofit agency in a planning and service area that provides
2regional oversight and performs functions as set forth in
3subsection (b) of Section 3 of this Act. The Department shall
4designate an Area Agency on Aging as the regional
5administrative agency or, in the event the Area Agency on
6Aging in that planning and service area is deemed by the
7Department to be unwilling or unable to provide those
8functions, the Department may serve as the regional
9administrative agency or designate another qualified entity to
10serve as the regional administrative agency; any such
11designation shall be subject to terms set forth by the
12Department.
13    (i-5) "Self-neglect" means a condition that is the result
14of an eligible adult's inability, due to physical or mental
15impairments, or both, or a diminished capacity, to perform
16essential self-care tasks that substantially threaten his or
17her own health, including: providing essential food, clothing,
18shelter, and health care; and obtaining goods and services
19necessary to maintain physical health, mental health,
20emotional well-being, and general safety. The term includes
21compulsive hoarding, which is characterized by the acquisition
22and retention of large quantities of items and materials that
23produce an extensively cluttered living space, which
24significantly impairs the performance of essential self-care
25tasks or otherwise substantially threatens life or safety.
26    (j) "Substantiated case" means a reported case of alleged

 

 

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1or suspected abuse, abandonment, neglect, financial
2exploitation, or self-neglect in which a provider agency,
3after assessment, determines that there is reason to believe
4abuse, abandonment, neglect, or financial exploitation has
5occurred.
6    (k) "Verified" means a determination that there is "clear
7and convincing evidence" that the specific injury or harm
8alleged was the result of abuse, abandonment, neglect, or
9financial exploitation.
10(Source: P.A. 102-244, eff. 1-1-22; 102-953, eff. 5-27-22.)".