SB3446 103RD GENERAL ASSEMBLY

LRB103 38889 CES 69026 b

103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024
SB3446

Introduced 2/8/2024, by Sen. Javier L. Cervantes

SYNOPSIS AS INTRODUCED:

210 ILCS 45/3-212

from Ch. 111 1/2, par. 4153-212

Amends the Nursing Home Care Act. Provides that the Department of Public Health shall conduct 3 unannounced visits to a facility per quarter to determine bedside care staffing levels. Provides that a facility that does not meet established bedside care staffing levels has committed a type "B" violation and is subject to a fine under the Act. Provides that the Department shall conduct a physical roll call during an inspection. Provides that employee identification cards must belong to the employee with the identification in the employee's possession. The employees present at the facility must match the published shift schedule. Provides that management shall not be considered as part of a shift schedule, unless the manager was added to the schedule no later than the start of the shift or in the case of an emergency and a manager is needed for bedside care. Provides that, for a facility that is not in compliance, the Department may remove the facility operator or assess a fine of no more than $10,000. Provides that an operator of a facility that is not in compliance must submit a plan of correction to the Department which the Department shall consider upon review of the facility's noncompliance. Provides that the Department shall post a notice about ghost schedules on its public Internet website and in common areas of a facility that is not compliant. Effective immediately.

A BILL FOR

AN ACT concerning regulation.

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

Section 5. The Nursing Home Care Act is amended by changing Section 3-212 as follows:

(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. Submission of a facility's current Consumer Choice Information Report required by Section 2-214 shall be verified at time of inspection. 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.

An inspector or an employee of the Department who intentionally prenotifies a facility, orally or in writing, of a pending complaint investigation or inspection shall be guilty of a Class A misdemeanor. Superiors of persons who have prenotified a facility shall be subject to the same penalties, if they have knowingly allowed the prenotification. A person found guilty of prenotifying a facility shall be subject to disciplinary action by his or her employer.

If the Department has a good faith belief, based upon information that comes to its attention, that a violation of this subsection has occurred, it must file a complaint with the Attorney General or the State's Attorney in the county where the violation took place within 30 days after discovery of the information.

(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.

(a-3) The Department shall, by rule, establish guidelines for required continuing education of all employees who inspect, survey, or evaluate a facility. The Department shall offer continuing education opportunities at least quarterly. Employees of a State agency charged with inspecting, surveying, or evaluating a facility are required to complete at least 10 hours of continuing education annually on topics that support the survey process, including, but not limited to, trauma-informed care, infection control, abuse and neglect, and civil monetary penalties. Qualifying hours of continuing education intended to fulfill the requirements of this subsection shall only be offered by the Department. Content presented during the continuing education shall be consistent throughout the State, regardless of survey region. At least 5 of the 10 hours of continuing education required under this subsection shall be separate and distinct from any continuing education hours required for any license that the employee holds. Any continuing education hours provided by the Department in addition to the 10 hours of continuing education required under this subsection may count towards continuing education hours required for any license that the employee holds.

(a-4) The Department shall conduct 3 unannounced visits to a facility per quarter to determine bedside care staffing levels. Any facility that does not meet established bedside care staffing levels has committed a type "B" violation and shall be subject to a fine under Section 3-305 of this Act.

(1) The Department shall conduct a physical roll call during an inspection under (a-4) of this Section. For purposes of this Section, employee identification cards must belong to the employee with the identification in the employee's possession. The employees present at the facility must match the published shift schedule. Management shall not be considered as part of a shift schedule, unless the manager was added to the schedule no later than the start of the shift or in the case of an emergency and a manager is needed for bedside care.

(2) If the facility is not compliant with subsection (1), the Department may remove the facility operator or assess a fine of no more than $10,000. The operator must submit a plan of correction to the Department which the Department shall consider upon review of the facility's non-compliance.

(3) The Department shall post the following on the Department's public Internet website and in the facility common areas: "Ghost schedules are commonly referred to in the nursing home and independent living center industry. These schedules typically will have management staff act as bedside care staff for the purposes of staffing audits to demonstrate complete staffing levels. These schedules give the impression that the facility is fully staffed when it is not."

(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, with the Department's discretion to evaluate whether penalties are warranted, 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 physical or electronic 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 75 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.

(e) Revisit surveys. The Department shall conduct a revisit to its licensure and certification surveys, consistent with federal regulations and guidelines.

(f) Notwithstanding any other provision of this Act, the Department shall, no later than 180 days after the effective date of this amendatory Act of the 98th General Assembly, implement a single survey process that encompasses federal certification and State licensure requirements, health and life safety requirements, and an enhanced complaint investigation initiative.

(1) To meet the requirement of a single survey process, the portions of the health and life safety survey associated with federal certification and State licensure surveys must be started within 7 working days of each other. Nothing in this paragraph (1) of subsection (f) of this Section applies to a complaint investigation.

(2) The enhanced complaint and incident report investigation initiative shall permit the facility to challenge the amount of the fine due to the excessive length of the investigation which results in one or more of the following conditions:

(A) prohibits the timely development and implementation of a plan of correction;

(B) creates undue financial hardship impacting the quality of care delivered to the resident;

(C) delays initiation of corrective training; and

(D) negatively impacts quality assurance and patient improvement standards.

This paragraph (2) does not apply to complaint investigations exited within 14 working days or a situation that triggers an extended survey.

(Source: P.A. 102-947, eff. 1-1-23.)

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