State of Illinois
2005 and 2006


Introduced 12/17/2004, by Rep. Sidney H. Mathias


New Act

    Creates the Home Care Consumer and Worker Protection Act. If an agency places a home care worker with a consumer to provide home care services, requires the agency to give the worker and the consumer a notice setting forth the rights and responsibilities of each of them as well as appropriate phone numbers and addresses of the Office of the Attorney General. Authorizes the Attorney General to investigate complaints of violations of the Act, issue cease-and-desist orders, and seek injunctive relief. Provides for a civil penalty of $1,000 per day for each day that a violation continues. Effective January 1, 2006.

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HB0044 LRB094 03755 DRJ 33764 b

1     AN ACT concerning business.
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4     Section 1. Short title. This Act may be cited as the Home
5 Care Consumer and Worker Protection Act.
6     Section 5. Purpose. The purpose of this Act is to protect
7 consumers of home care services and individuals providing
8 private, individual home care services, by ensuring that both
9 the consumers and the workers are given the ability to make
10 informed, knowing decisions regarding their status as
11 employees, independent contractors, and employers.
12     Section 10. Definitions. In this Act:
13     "Consumer" means an individual who receives home care
14 services in his or her temporary or permanent residence
15 provided by a privately employed individual.
16     "Home care services" means non-skilled care provided to an
17 individual in his or her residence for the purpose of enabling
18 that individual to remain safely and comfortably in his or her
19 own residence.
20     "Home care worker" means a worker who provides home care
21 services to a consumer in the consumer's temporary or permanent
22 residence.
23     "Person" means an individual, firm, association,
24 partnership, company, or corporation.
25     "Placement agency" means any person engaged for gain or
26 profit in the business of securing or attempting to secure (i)
27 work for hire for persons seeking work or (ii) workers for
28 employers. The term includes a private employment agency and
29 any other entity that places a worker for private hire by a
30 consumer in that consumer's residence for purposes of providing
31 home care services. The term does not include a person that



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1 provides or procures temporary employment in health care
2 facilities, as defined in Section 10 of the Health Care
3 Surrogate Act, for medical personnel including, but not limited
4 to, nurses and certified nurse aides.
5     "Worker" means any person who performs work or services of
6 any kind or character for hire.
7     Section 15. Application of Act. This Act applies to every
8 placement agency as defined in this Act, except as follows:
9         (1) This Act does not apply to a health care facility
10     or agency that is regulated under another Act, including,
11     without limitation, a facility licensed under the Nursing
12     Home Care Act, the Home Health Agency Licensing Act, or the
13     Hospital Licensing Act, a supportive living facility
14     described in Section 5-5.01a of the Illinois Public Aid
15     Code, or an assisted living establishment licensed under
16     the Assisted Living and Shared Housing Act.
17         (2) This Act does not apply to a program that provides
18     services pursuant to a contract with the State or federal
19     government, including, without limitation, a program
20     providing services (i) funded by the Department on Aging
21     through the community care program or (ii) funded by the
22     Department of Human Services' Office of Rehabilitation
23     Services through the personal assistant program.
24         (3) This Act does not apply to an adult day care
25     agency.
26         (4) This Act does not apply to an organization that
27     confines its services to housecleaning services.
28     Section 20. Placement agency responsibilities.
29     (a) A placement agency must comply with the Health Care
30 Worker Background Check Act.
31     (b) A placement agency must ensure that every home care
32 worker placed by the agency for hire by a consumer has the
33 appropriate credentials and is appropriately licensed or
34 certified as required by law.



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1     Section 25. Notice to consumer; consumer's liability to
2 home care worker.
3     (a) Each time home care services are initiated in a
4 consumer's home, the placement agency must give to the consumer
5 a notice that complies with Section 35. The placement agency
6 must give the notice to the consumer if the consumer is 12
7 years of age or older. The placement agency must also give the
8 consumer such a notice at least once each year thereafter as
9 long as the consumer continues to receive home care services
10 from a home care worker placed by the agency. The placement
11 agency need not give the consumer such a notice, however, when
12 another home care worker temporarily substitutes for the
13 consumer's regular home care worker.
14     (b) If the consumer has a guardian or substitute decision
15 maker, the placement agency must also give the notice to the
16 guardian or substitute decision maker. If the consumer is a
17 minor, the placement agency must also give the notice to the
18 consumer's parent or guardian.
19     (c) The consumer, or the consumer's parent, guardian, or
20 substitute decision maker, if any, must sign the notice, and
21 the placement agency must keep the signed notice on file at its
22 principal office for 7 years.
23     (d) A placement agency's failure to give a consumer the
24 notice required under this Section does not relieve the
25 consumer of any of his or her duties or obligations as an
26 employer. If a placement agency fails to give a consumer the
27 notice required under this Section and the Attorney General
28 determines that the consumer is liable to the home care worker
29 or on the home care worker's behalf for the payment of wages,
30 taxes, workers' compensation, or unemployment insurance, the
31 consumer has a right of action against the placement agency for
32 relief including, but not be limited to, recovery of the actual
33 amounts paid by the consumer to or on behalf of the home care
34 worker, recovery of any monetary penalties incurred by the
35 consumer, and recovery of the consumer's attorney's fees and



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1 costs incurred in pursuing that relief.
2     Section 30. Notice to home care worker.
3     (a) Each time a placement agency initially places a home
4 care worker in a consumer's home, the placement agency must
5 give to the home care worker a notice that complies with
6 Section 35. The placement agency need not give the home care
7 worker such a notice, however, if the home care worker is
8 temporarily substituting for the consumer's regular home care
9 worker for a period of 2 days or less.
10     (b) The consumer must sign the notice, and the placement
11 agency must keep the signed notice on file at its principal
12 office for 7 years.
13     (c) If a placement agency fails to give a home care worker
14 the notice required under this Section, the placement agency is
15 subject to penalties as provided in Section 45.
16     Section 35. Form and contents of notice. The notice given
17 to consumers under Section 25 and to home care workers under
18 Section 30 must be in the form prescribed by the Attorney
19 General. At a minimum, the notice must include the following
20 information:
21         (1) A description of the duties, responsibilities,
22     obligations, and legal liabilities of the placement agency
23     to the home care worker and to the consumer. The
24     description must clearly set forth the person who is
25     responsible for each of the following:
26             (A) The payment of the home care worker's wages,
27         taxes, social security, unemployment insurance, and
28         workers' compensation.
29             (B) Day-to-day supervision of the home care
30         worker.
31             (C) The assignment of duties to the home care
32         worker.
33             (D) The hiring, firing, and discipline of the home
34         care worker.



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1             (E) The provision of equipment or materials for the
2         home care worker's use in providing home care services
3         to the consumer.
4         (2) A statement identifying the placement agency as an
5     employer, joint employer, leasing employer, or
6     non-employer, as applicable, along with the
7     responsibility, if any, that the placement agency will
8     assume for paying the home care worker's wages, taxes,
9     social security, overtime, workers' compensation, and
10     unemployment insurance payments.
11         (3) A statement that, regardless of the placement
12     agency's status, the consumer may be considered an employer
13     under various State and federal employment laws, and that
14     if this is the case, the consumer may be held responsible
15     for the payment of federal, State, and local taxes, social
16     security, overtime and minimum wages, unemployment
17     insurance, and workers' compensation payments.
18         (4) A list of the forms that the consumer may be
19     required by law to complete and submit as an employer.
20         (5) The penalties that may be assessed against the
21     consumer if he or she is determined to be an employer but
22     has not fulfilled his or her obligations as an employer.
23         (6) The appropriate phone numbers and addresses for the
24     Office of the Attorney General in case the consumer or the
25     home care worker has questions concerning the contents of
26     the notice.
27     Section 40. Investigation of complaints.
28     (a) The Attorney General at any time may, and upon
29 receiving a complaint from an interested party shall,
30 investigate a placement agency's alleged violation of this Act
31 or the rules implementing this Act.
32     (b) In conducting an investigation under this Act, the
33 Attorney General or the Attorney General's authorized
34 representative may do the following:
35         (1) Examine the premises of a placement agency.



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1         (2) Compel by subpoena, for examination or inspection,
2     the attendance and testimony of witnesses and the
3     production of books, payrolls, records, papers, and other
4     evidence.
5         (3) Administer oaths or affirmations to witnesses.
6     Section 45. Violation; penalty.
7     (a) After appropriate notice and investigation, and if
8 supported by the evidence, the Attorney General may issue and
9 cause to be served on any person an order (i) to cease and
10 desist from violating this Act or the rules implementing this
11 Act and (ii) to take any further action that is determined
12 necessary to eliminate the effect of the violation.
13     (b) Whenever it appears that any person has violated a
14 valid order of the Attorney General issued under this Act, the
15 Attorney General may commence an action for a court order
16 directing the person to obey the order of the Attorney General.
17     (c) In addition to any other relief authorized under this
18 Act, the Attorney General may bring an action in a court of
19 competent jurisdiction to enjoin any person from violating this
20 Act or the rules implementing this Act.
21     (d) In addition to any other penalty authorized under this
22 Act, a placement agency that violates this Act or the rules
23 implementing this Act is subject to a civil penalty of $1,000
24 per day for each day that the violation continues. The Attorney
25 General may impose a civil penalty under this Section only
26 after he or she provides the following to the person alleged to
27 have committed the violation:
28         (1) Written notice of the alleged violation.
29         (2) Written notice of the person's right to request an
30     administrative hearing on the question of the alleged
31     violation.
32         (3) An opportunity to present evidence, orally or in
33     writing or both, on the question of the alleged violation
34     before an impartial hearing examiner appointed by the
35     Attorney General.



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1         (4) A written decision from the Attorney General, based
2     on the evidence introduced at the hearing and the hearing
3     examiner's recommendations, finding that the person
4     violated this Act or the rules implementing this Act and
5     imposing the civil penalty.
6     The Attorney General may bring an action in the circuit
7 court to enforce the collection of a monetary penalty imposed
8 under this Section. The court may order that a civil penalty
9 imposed under this Section, together with any costs or
10 attorney's fees arising out of the action to collect the
11 penalties, be paid to the Attorney General.
12     The fact that a violation has ceased does not excuse any
13 person from liability for a civil penalty arising from the
14 violation.
15     Section 50. Review under Administrative Review Law. All
16 final administrative decisions of the Attorney General under
17 this Act are subject to judicial review under the
18 Administrative Review Law. The term "administrative decision"
19 is defined as in Section 3-101 of the Code of Civil Procedure.
20     Section 55. Rules. The Attorney General shall adopt rules
21 to implement this Act.
22     Section 99. Effective date. This Act takes effect January
23 1, 2006.