093_HB3198eng

 
HB3198 Engrossed                     LRB093 06995 AMC 07145 b

 1        AN ACT concerning health facilities.

 2        Be it enacted by the People of  the  State  of  Illinois,
 3    represented in the General Assembly:

 4        Section  5.   The  Abused  and  Neglected  Long Term Care
 5    Facility Residents  Reporting  Act  is  amended  by  changing
 6    Section 6.2 as follows:

 7        (210 ILCS 30/6.2) (from Ch. 111 1/2, par. 4166.2)
 8        (Section scheduled to be repealed on January 1, 2004)
 9        Sec. 6.2.  Inspector General.
10        (a)  The  Governor  shall  appoint,  and the Senate shall
11    confirm, an Inspector General who shall function  within  the
12    Department  of  Human Services and report to the Secretary of
13    Human Services and the Governor.  The Inspector General shall
14    investigate reports of suspected abuse or neglect  (as  those
15    terms  are  defined  in Section 3 of this Act) of patients or
16    residents in any mental health or developmental  disabilities
17    facility  operated  by  the  Department of Human Services and
18    shall have authority to investigate and take immediate action
19    on  reports  of  abuse  or  neglect  of  recipients,  whether
20    patients or residents, in any mental health or  developmental
21    disabilities   facility   or  program  that  is  licensed  or
22    certified by the Department of Human Services  (as  successor
23    to   the   Department  of  Mental  Health  and  Developmental
24    Disabilities) or that is funded by the  Department  of  Human
25    Services (as successor to the Department of Mental Health and
26    Developmental  Disabilities) and is not licensed or certified
27    by any agency of the State.  At the specific, written request
28    of an agency of the State other than the Department of  Human
29    Services (as successor to the Department of Mental Health and
30    Developmental   Disabilities),   the  Inspector  General  may
31    cooperate in investigating reports of abuse  and  neglect  of
 
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 1    persons  with  mental  illness  or persons with developmental
 2    disabilities.   The   Inspector   General   shall   have   no
 3    supervision  over  or  involvement  in routine, programmatic,
 4    licensure, or certification operations of the  Department  of
 5    Human Services or any of its funded agencies.
 6        The Inspector General shall promulgate rules establishing
 7    minimum  requirements  for reporting allegations of abuse and
 8    neglect   and   initiating,   conducting,   and    completing
 9    investigations.   The  promulgated  rules  shall  clearly set
10    forth that in instances where 2 or more State agencies  could
11    investigate  an allegation of abuse or neglect, the Inspector
12    General shall not conduct an investigation that is  redundant
13    to  an  investigation  conducted by another State agency. The
14    rules shall establish criteria for  determining,  based  upon
15    the  nature  of  the  allegation,  the  appropriate method of
16    investigation, which may include, but need not be limited to,
17    site visits, telephone  contacts,  or  requests  for  written
18    responses from agencies. The rules shall also clarify how the
19    Office  of  the  Inspector  General  shall  interact with the
20    licensing  unit  of  the  Department  of  Human  Services  in
21    investigations of  allegations  of  abuse  or  neglect.   Any
22    allegations  or  investigations  of  reports made pursuant to
23    this Act shall remain confidential until a  final  report  is
24    completed.  The  resident or patient who allegedly was abused
25    or neglected and his or her legal guardian shall be  informed
26    by  the  facility or agency of the report of alleged abuse or
27    neglect. Final reports regarding unsubstantiated or unfounded
28    allegations shall  remain  confidential,  except  that  final
29    reports may be disclosed pursuant to Section 6 of this Act.
30        The  Inspector General shall be appointed for a term of 4
31    years.
32        When  the   Office   of   the   Inspector   General   has
33    substantiated  a  case  of  abuse  or  neglect, the Inspector
34    General shall include in the final report any  mitigating  or
 
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 1    aggravating  circumstances  that  were  identified during the
 2    investigation.  Upon determination that a report  of  neglect
 3    is  substantiated, the Inspector General shall then determine
 4    whether such neglect rises to the level of egregious neglect.
 5        (b)  The Inspector General shall within  24  hours  after
 6    receiving  a  report  of suspected abuse or neglect determine
 7    whether the evidence indicates that any possible criminal act
 8    has been committed. If he determines that a possible criminal
 9    act has been committed, or that special expertise is required
10    in  the  investigation,  he  shall  immediately  notify   the
11    Department  of  State Police.  The Department of State Police
12    shall investigate any report indicating  a  possible  murder,
13    rape,  or  other  felony. All investigations conducted by the
14    Inspector General shall be conducted in a manner designed  to
15    ensure  the  preservation  of  evidence for possible use in a
16    criminal prosecution.
17        (b-5)  The Inspector General shall make  a  determination
18    to accept or reject a preliminary report of the investigation
19    of   alleged   abuse   or   neglect   based   on  established
20    investigative procedures. Notice of the  Inspector  General's
21    determination  must  be  given to the person who claims to be
22    the victim of the abuse or neglect, to the person or  persons
23    alleged to have been responsible for abuse or neglect, and to
24    the  facility or agency. The facility or agency or the person
25    or persons alleged to have been responsible for the abuse  or
26    neglect  and  the  person  who claims to be the victim of the
27    abuse or neglect may request clarification or reconsideration
28    based  on  additional  information.   For  cases  where   the
29    allegation   of   abuse  or  neglect  is  substantiated,  the
30    Inspector General shall require the  facility  or  agency  to
31    submit  a  written  response.   The  written  response from a
32    facility or agency shall address in a  concise  and  reasoned
33    manner  the  actions that the agency or facility will take or
34    has taken to protect the resident or patient  from  abuse  or
 
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 1    neglect,   prevent   reoccurrences,  and  eliminate  problems
 2    identified and shall include  implementation  and  completion
 3    dates for all such action.
 4        (c)  The Inspector General shall, within 10 calendar days
 5    after the transmittal date of a completed investigation where
 6    abuse or neglect is substantiated or administrative action is
 7    recommended,  provide  a  complete  report on the case to the
 8    Secretary of Human Services and to the agency  in  which  the
 9    abuse  or  neglect  is alleged to have happened. The complete
10    report shall include a written response from  the  agency  or
11    facility  operated by the State to the Inspector General that
12    addresses in a concise and reasoned manner the  actions  that
13    the  agency or facility will take or has taken to protect the
14    resident  or  patient  from   abuse   or   neglect,   prevent
15    reoccurrences,  and  eliminate  problems identified and shall
16    include implementation and  completion  dates  for  all  such
17    action.   The  Secretary  of  Human  Services shall accept or
18    reject the response and establish  how  the  Department  will
19    determine  whether  the  facility  or  program  followed  the
20    approved  response.   The  Secretary  may  require Department
21    personnel to visit  the  facility  or  agency  for  training,
22    technical    assistance,    programmatic,    licensure,    or
23    certification  purposes.   Administrative  action,  including
24    sanctions,  may  be  applied  should the Secretary reject the
25    response or should the facility or agency fail to follow  the
26    approved  response.   The facility or agency shall inform the
27    resident or  patient  and  the  legal  guardian  whether  the
28    reported  allegation  was  substantiated, unsubstantiated, or
29    unfounded. There shall be an appeals process for  any  person
30    or  agency  against  whom there is a substantiated finding of
31    abuse or neglect or for any person or agency that is  subject
32    to  any  action based on a recommendation or recommendations.
33    Any person who is a member of a  collective  bargaining  unit
34    pursuant  to  the  Illinois Public Labor Relations Act or any
 
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 1    federal labor statute may  elect  to  use  the  grievance  or
 2    arbitration process under subsection (g-5) of this Section as
 3    an  alternative  to  the  appeal  process  described  in this
 4    subsection (c). The hearings  under  this  Section  shall  be
 5    conducted   in   accordance  with  the  Department  of  Human
 6    Services' rules on the conduct of hearing and appeals  in  89
 7    Ill.  Adm.  Code  508.  At such hearing the Inspector General
 8    shall be required to establish  by  a  preponderance  of  the
 9    evidence  that  the  reported incident did occur and that the
10    actions of the person or agency met the general standard  for
11    a  finding  of  abuse  or  neglect.   If, as a result of such
12    hearing, the Inspector  General's  substantiated  finding  of
13    abuse  or  neglect  is overturned, the Department shall in no
14    case report such finding to the Department of Public Health's
15    nurse aide registry.  If a  finding  that  has  already  been
16    reported  to  the  Department  of  Public Health's nurse aide
17    registry is later overturned as a result of such hearing, the
18    report must be removed from the registry.
19        (d)  The  Inspector  General   may   recommend   to   the
20    Departments  of Public Health and Human Services sanctions to
21    be  imposed   against   mental   health   and   developmental
22    disabilities   facilities   under  the  jurisdiction  of  the
23    Department of Human Services for the protection of residents,
24    including  appointment  of  on-site  monitors  or  receivers,
25    transfer or relocation of residents, and  closure  of  units.
26    The Inspector General may seek the assistance of the Attorney
27    General  or  any of the several State's attorneys in imposing
28    such sanctions.
29        (e)  The Inspector General shall  establish  and  conduct
30    periodic   training   programs   for   Department   employees
31    concerning the prevention and reporting of neglect and abuse.
32        (f)  The  Inspector General shall at all times be granted
33    access to any mental  health  or  developmental  disabilities
34    facility  operated  by  the  Department,  shall establish and
 
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 1    conduct unannounced site visits to those facilities at  least
 2    once  annually,  and shall be granted access, for the purpose
 3    of investigating  a  report  of  abuse  or  neglect,  to  any
 4    facility  or program funded by the Department that is subject
 5    under the provisions of this Section to investigation by  the
 6    Inspector General for a report of abuse or neglect.
 7        (g)  Nothing  in  this Section shall limit investigations
 8    by the Department of Human Services  that  may  otherwise  be
 9    required by law or that may be necessary in that Department's
10    capacity  as the central administrative authority responsible
11    for the operation of State mental  health  and  developmental
12    disability facilities.
13        (g-5)  After notice and an opportunity for a hearing that
14    is  separate  and  distinct  from the Office of the Inspector
15    General's appeals process as implemented under subsection (c)
16    of this Section, the Inspector General shall  report  to  the
17    Department  of  Public  Health's  nurse  aide  registry under
18    Section 3-206.01 of the Nursing Home Care Act the identity of
19    individuals against  whom  there  has  been  a  substantiated
20    finding of physical or sexual abuse or egregious neglect of a
21    service recipient.
22        Nothing  in  this subsection shall diminish or impair the
23    rights of a person who is a member of a collective bargaining
24    unit pursuant to the Illinois Public Labor Relations  Act  or
25    pursuant to any federal labor statute. An individual who is a
26    member  of  a  collective  bargaining unit as described above
27    shall not be reported to the Department  of  Public  Health's
28    nurse aide registry until the exhaustion of that individual's
29    grievance and arbitration rights, or until 3 months after the
30    initiation  of the grievance process, whichever occurs first,
31    provided that the Department of Human Services' hearing under
32    this subsection (c), that is separate and distinct  from  the
33    Office   of   the  Inspector  General's  appeals  process  as
34    implemented  under  subsection  (c)  of  this  Section,   has
 
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 1    concluded. Notwithstanding anything hereinafter or previously
 2    provided,  if  an  action  taken  by  an  employer against an
 3    individual as a result of the circumstances  that  led  to  a
 4    finding  of  physical or sexual abuse or egregious neglect is
 5    later overturned under a grievance or  arbitration  procedure
 6    provided  for  in  Section  8  of  the  Illinois Public Labor
 7    Relations Act or under a collective bargaining agreement, the
 8    report must be removed from the registry.
 9        The Department of  Human  Services  shall  promulgate  or
10    amend   rules   as  necessary  or  appropriate  to  establish
11    procedures for  reporting  to  the  registry,  including  the
12    definition of egregious neglect, procedures for notice to the
13    individual  and  victim,  appeal  and hearing procedures, and
14    petition for removal of the report  from  the  registry.  The
15    portion  of  the  rules  pertaining to hearings shall provide
16    that, at the hearing, both parties may  present  written  and
17    oral  evidence. The Department shall be required to establish
18    by a preponderance of the evidence that  the  Office  of  the
19    Inspector  General's  finding  of physical or sexual abuse or
20    egregious neglect warrants reporting  to  the  Department  of
21    Public Health's nurse aide registry under Section 3-206.01 of
22    the Nursing Home Care Act.
23        Notice  to  the  individual  shall  include  a  clear and
24    concise statement of the grounds on which the report  to  the
25    registry is based and notice of the opportunity for a hearing
26    to contest the report. The Department of Human Services shall
27    provide  the  notice  by  certified  mail  to  the last known
28    address  of  the  individual.  The  notice  shall  give   the
29    individual  an opportunity to contest the report in a hearing
30    before the Department  of  Human  Services  or  to  submit  a
31    written  response  to  the  findings  instead of requesting a
32    hearing. If the individual does not request a hearing  or  if
33    after  notice  and a hearing the Department of Human Services
34    finds that the report is valid, the finding shall be included
 
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 1    as part of the registry, as well as a  brief  statement  from
 2    the  reported  individual  if  he  or  she  chooses to make a
 3    statement.  The  Department  of  Public  Health  shall   make
 4    available to the public information reported to the registry.
 5    In a case of inquiries concerning an individual listed in the
 6    registry,  any  information disclosed concerning a finding of
 7    abuse  or  neglect  shall  also  include  disclosure  of  the
 8    individual's brief statement in the registry relating to  the
 9    reported  finding  or include a clear and accurate summary of
10    the statement.
11        At  any  time  after  the  report  of  the  registry,  an
12    individual may petition the Department of Human Services  for
13    removal  from the registry of the finding against him or her.
14    Upon receipt of such a  petition,  the  Department  of  Human
15    Services  shall  conduct  an investigation and hearing on the
16    petition.  Upon completion of the investigation and  hearing,
17    the  Department of Human Services shall report the removal of
18    the finding to the registry unless the  Department  of  Human
19    Services  determines  that  removal  is  not  in  the  public
20    interest.
21        (h)  This Section is repealed on January 1, 2004.
22    (Source: P.A.  91-169,  eff.  7-16-99;  92-358, eff. 8-15-01;
23    92-473, eff. 1-1-02; 92-651, eff. 7-11-02.)

24        Section 99.  Effective date.  This Act takes effect  upon
25    becoming law.