103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB2035

 

Introduced 2/9/2023, by Sen. Javier L. Cervantes

 

SYNOPSIS AS INTRODUCED:
 
New Act

    Creates the Ensuring Essential Services Act. Provides that the purpose of the Act is to ensure the State meets its obligation to provide certain essential services for individuals with developmental disabilities at consistent quality levels in accordance with its waiver agreement with the Centers for Medicare and Medicaid Services, all while allocating scarce taxpayer resources. Provides that any contract entered into between the Department of Human Services and an agency shall include a provision assuring the State of the uninterrupted delivery of the contracted-for services. Provides that such assurance shall provide that the agency has entered into a binding labor peace agreement with any labor organization that is the exclusive representative of the agency's frontline and direct support staff or, where no exclusive representation has been established, that the agency has or will enter into an agreement with any labor organization that seeks to become the agency's frontline and direct support staff's exclusive representative. Provides that the assurance shall become a condition of any contract entered into, renewed, or amended on or after the effective date of the Act. Requires the Department of Healthcare and Family Services to, no later than 90 days after the effective date of the Act, apply to the Centers for Medicare and Medicaid Services for a waiver or State Plan amendment to allow implementation of the contracting requirements. Requires the Department of Human Services, no later than 60 days after the effective date of the Act, to adopt rules implementing the requirements of the Act. Contains provisions on contract requirements for Department of Human Services' contracts; enforcement of contractual assurances; remedial actions for noncompliance; and other matters. Effective June 1, 2023.


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A BILL FOR

 

SB2035LRB103 27491 KTG 53865 b

1    AN ACT concerning essential services for persons with
2developmental disabilities.
 
3    Be it enacted by the People of the State of Illinois,
4represented in the General Assembly:
 
5    Section 1. Short title. This Act may be cited as the
6Ensuring Essential Services Act.
 
7    Section 5. Findings and purposes.
8    (a) The General Assembly finds that the State of Illinois
9administers a program for the provision of home and
10community-based support services for individuals with
11developmental disabilities (IDD) in accordance with a waiver
12program agreement entered into between the State and the
13Centers for Medicare and Medicaid Services. Pursuant to a
14consent decree entered in Ligas v. Hamos, Case No.
151:05-cv-04331 (N.D. Ill.), the State is required to implement
16sufficient measures to ensure the availability of IDD
17services, supports, and other resources of sufficient quality,
18scope, and variety to meet the State's obligations under the
19consent decree and the implementation plan consistent with
20such choices. The number of individuals served each year by
21the program is based on available State appropriation levels.
22    The General Assembly finds that the Department of Human
23Services is designated as the State agency having primary

 

 

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1responsibility for overseeing the delivery of habilitation
2services to individuals with developmental disabilities under
3the program, and in that capacity procures services for
4approximately 27,000 Illinoisans who, together with their
5families and guardians, depend on the daily and uninterrupted
6provision of these services so that they can attend to the
7necessities of life. An interruption in the delivery of
8services under the program would have disastrous consequences
9for participants, their families, and their communities.
10    The General Assembly finds that effects of the ongoing
11COVID-19 pandemic, which has claimed hundreds of thousands of
12American lives and disrupted the distribution of essential
13services to the most needy inhabitants of the State has
14affected the provision of services in unforeseen ways,
15exacerbating already existing labor shortage high turnover,
16and causing labor unrest and stoppages.
17    The General Assembly finds that there currently exists an
18acute shortage of frontline and direct support staff
19indicating that the agencies with which the State has
20contracted to provide IDD services under the program have
21inadequately ensured the training, retention, and recruitment
22of the workforce necessary to meet the State's obligations
23under the program, and such shortage and existing labor
24conditions escalate the probability of disruptions in the
25delivery of essential services owing to labor disputes and
26employee dissatisfaction.

 

 

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1    The General Assembly finds that as a procurer of services
2comprising the program the State administers, either in the
3form of purchase of service contracts, grants, or otherwise,
4that the State has a proprietary interest in assuring the
5delivery of quality, reliable, and uninterrupted provision of
6services to individuals receiving benefits under the program.
7    The General Assembly finds that a strike, labor dispute,
8or other inability to deliver essential service under the
9program would be costly to the State as it struggles to fill
10the gap to provide these essential services, due to the
11excessive cost of locating alternative treatment options on an
12emergent basis, including, but not limited to, the need to pay
13substantial overtime to employees at public hospitals which
14would be forced to admit increasing numbers of patients as a
15matter of last resort. Such disruptions would have
16consequential and dire effects on program recipients, their
17families, and guardians.
18     The General Assembly finds that agreements between
19employers and labor organizations to refrain from resolving
20labor disputes through economic action promote the efficient
21and uninterrupted delivery of services. Such agreements are
22common and have been adopted within the behavioral health and
23disability support industries. A program of labor management
24cooperation has proven effective in addressing issues related
25to establishing appropriate wages and compensation, improving
26quality of care, increasing worker retention, reducing

 

 

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1workforce turnover, and mitigating the likelihood of service
2disruption.
3    (b) The purpose of this Act is to ensure the State meets
4its obligation to provide these essential services at
5consistent quality levels in accordance with its waiver
6agreement with the Centers for Medicare and Medicaid Services,
7all while allocating scarce taxpayer resources. The State, as
8procurer of home and community-based support services, has
9determined to take steps to ensure the uninterrupted delivery
10of services to individuals receiving IDD services under the
11program.
 
12    Section 10. Definitions. As used in this Act:
13    "Agency" means a private entity, including a non-profit
14corporation, other than a corporation established in
15accordance with the Religious Corporation Act, that has
16contracted with the Department of Human Services to provide
17direct care services under the Home and Community-Based
18Services Waiver Program for Persons with Developmental
19Disabilities.
20    "Comptroller" means the Comptroller of the State of
21Illinois and its agents or designees.
22    "Contract" means the written agreement entered into
23between an agency and the Department of Human Services (or any
24other State entity) establishing the terms and conditions for
25the provision of, and payment for services under the program,

 

 

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1and shall include, but is not limited to, fee-for-service,
2service purchase contracts, or grants.
3    "Frontline and direct support staff" means an employee of
4an agency who performs the direct care, support, educational,
5training and case management, and other services integral to
6the delivery of the services required of the agency under its
7contract with the Department of Human Services and funded by
8the program. This includes, but is not limited to, direct
9support personnel, qualified intellectual disability
10personnel, employment specialists, and early intervention
11specialists.
12    "Labor peace agreement" means a written agreement between
13an agency and a labor organization that contains, at a
14minimum, provisions under which the parties agree to refrain
15from actions intended to or having the effect of disrupting or
16interrupting services and also provides for an expedient
17mechanism for the binding resolution of disputes between them.
18    "Labor organization" means an organization defined under
1929 U.S.C. 152(5) that has as its members frontline and direct
20support staff.
21    "Program" means the Home and Community-Based Services
22Waiver Program for Adults with Developmental Disabilities that
23is funded through a waiver authorized under Section 1915(c) of
24the federal Social Security Act and that is administered by
25the Department of Human Services' Division of Developmental
26Disabilities. Services under the program include, but are not

 

 

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1limited to, community integrated living arrangements,
2community living facilities of 16 or fewer individuals,
3home-based support services, day programs, and therapies.
4"Program" also includes newly developed programs and settings
5that are funded through the Home and Community-Based Services
6Waiver Program for Persons with Developmental Disabilities.
7    "Secretary" means the Secretary of Human Services.
 
8    Section 15. Assurance of uninterrupted delivery of
9services.
10    (a) Any contract entered into between the Department of
11Human Services and an agency shall include a provision
12assuring the State of the uninterrupted delivery of the
13contracted-for services.
14    (b) The assurance required under subsection (a) shall
15provide that the agency has entered into a binding labor peace
16agreement with any labor organization that is the exclusive
17representative of the agency's frontline and direct support
18staff or, where no exclusive representation has been
19established, that the agency has or will enter into an
20agreement with any labor organization that seeks to become the
21agency's frontline and direct support staff's exclusive
22representative.
23    (c) The assurance required under subsection (a) shall
24become a condition of any contract entered into, renewed, or
25amended on or after the effective date of this Act.
 

 

 

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1    Section 20. Implementation.
2    (a) To the extent necessary to effectuate the requirements
3of this Act, the Department of Healthcare and Family Services
4shall submit the necessary application to the federal Centers
5for Medicare and Medicaid Services for a waiver or State Plan
6amendment to allow implementation of the contracting
7requirements established in this Act. The application shall be
8submitted no later than 90 days after the effective date of
9this Act. The provisions of this Act shall apply during the
10pendency of any such application.
11    (b) No later than 60 days after the effective date of this
12Act, the Department of Human Services shall adopt rules
13implementing the requirements of this Act. Specifically, the
14Department of Human Services shall adopt contract addenda
15terms and attestations sufficient to satisfy the requirements
16of this Section and a means of informing agencies of the
17requirements of the Act and any other rules necessary to
18implement Section 25.
19    (c) The Department of Human Services shall include in each
20contract and in each solicitation for a contract:
21        (1) a requirement that the agency comply with all
22    applicable requirements under this Act and any rules
23    adopted in accordance with this Act, and that such
24    requirements constitute a material term of the contract;
25    and

 

 

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1        (2) a provision providing that:
2            (A) failure to comply with the requirements of
3        this Section may constitute a material breach by the
4        agency of the terms of the contract;
5            (B) such failure shall be determined by the
6        Comptroller; and
7            (C) if the agency receives written notice of a
8        breach and fails to cure such breach, the State shall
9        have the right to pursue any rights or remedies
10        available under the terms of the contract or under
11        applicable law, including termination of the contract
12        attendant to transition of services to qualified
13        agencies.
14    (d) The Department of Human Services shall amend 59 Ill.
15Adm. Code Part 120 to clarify that compliance with this Act
16shall be a requirement for both initial certification and
17recertification with respect to services provided by frontline
18and direct support staff under the program.
 
19    Section 25. Enforcement.
20    (a) The contractual assurance required under Section 15
21shall be a qualification to participate in the program and a
22continuing obligation of each agency during the term of its
23contract.
24    (b) Each agency shall report to the Department of Human
25Services, on a form to be adopted by the Department of Human

 

 

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1Services, its compliance with the contractual assurance
2required under this Act at each of the following times:
3        (1) if the assurance gives rise to an obligation on
4    the part of an agency to enter into a labor peace agreement
5    and such agency has not entered into such an agreement;
6        (2) if an agency's existing agreement meeting the
7    requirements of a labor peace agreement lapses or expires;
8    and
9        (3) on the anniversary date of the contract's
10    effective date.
11    The report shall include a copy of any agreement that
12satisfies the assurance or shall state in writing or shall be
13signed under penalty of perjury that the agency is unaware of
14any circumstances giving rise to an obligation to enter into
15any labor peace agreement.
16    (c) If an agency fails to submit to the Department of Human
17Services the reports required under this Section, or if the
18Department of Human Services otherwise learns of a failure on
19the part of an agency to meet its contractual obligations, the
20Department of Human Services shall take the following remedial
21actions:
22        (1) Inform the agency and the Comptroller of its lack
23    of compliance and provide a 30-day notice to correct the
24    deficiency.
25        (2) Investigate and assist the agency by providing a
26    plan of correction.

 

 

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1        (3) If, after 30 days from the date of the Department
2    of Human Services' notice, it is determined the agency is
3    out of compliance, the Department of Human Services shall
4    issue a notice of nonrenewal to the agency, which shall
5    provide the basis for the disqualification, upon which the
6    Department of Human Services shall ensure continuity of
7    care, transition of services, and placement referrals to
8    qualified agencies upon the expiration of the term of the
9    contract. The Department of Human Services shall notify
10    the Comptroller of the notice of nonrenewal within 14
11    days.
12        (4) The Department of Human Services shall require
13    that an agency that receives a notice of nonrenewal shall
14    be ineligible for recertification or relicensure, provided
15    the agency is afforded notice and an opportunity to appeal
16    in accordance with the processes under Subpart C of Part
17    104 of Title 89 of the Illinois Administrative Code, the
18    sole issue at hearing, in which any interested party may
19    participate, shall be whether the agency is in compliance
20    with the requirements of this Act.
21        (5) After receiving a notice of nonrenewal for an
22    Agency, the Comptroller shall cease distribution of all
23    State funds to the Agency. The Comptroller shall continue
24    to withhold payments unless and until the Agency
25    successfully appeals the notice of nonrenewal as described
26    in paragraph (4).
 

 

 

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1    Section 30. Severability. If any provision of this Act or
2its application to any person or circumstance is held invalid,
3the invalidity of that provision or application does not
4affect other provisions or applications of this Act that can
5be given effect without the invalid provision or application.
 
6    Section 35. Construction of Act. Nothing in this Act shall
7be construed to require any agency to enter into an agreement
8that contains terms or under circumstances that violate the
9National Labor Relations Act, 29 U.S.C. 151 et seq., as
10amended.
 
11    Section 99. Effective date. This Act takes effect June 1,
122023.