Illinois General Assembly - Full Text of SB1510
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Full Text of SB1510  101st General Assembly


Sen. Jacqueline Y. Collins

Filed: 3/4/2019





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2    AMENDMENT NO. ______. Amend Senate Bill 1510 by replacing
3everything after the enacting clause with the following:
4    "Section 5. The Nursing Home Care Act is amended by
5changing Sections 2-106.1, 2-204, 3-202.05, 3-209, and 3-305
6and by adding Section 3-305.8 as follows:
7    (210 ILCS 45/2-106.1)
8    Sec. 2-106.1. Drug treatment.
9    (a) A resident shall not be given unnecessary drugs. An
10unnecessary drug is any drug used in an excessive dose,
11including in duplicative therapy; for excessive duration;
12without adequate monitoring; without adequate indications for
13its use; or in the presence of adverse consequences that
14indicate the drugs should be reduced or discontinued. The
15Department shall adopt, by rule, the standards for unnecessary
16drugs contained in interpretive guidelines issued by the United



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1States Department of Health and Human Services for the purposes
2of administering Titles XVIII and XIX of the Social Security
4    (b) Psychotropic medication shall not be prescribed
5without the informed consent of the resident, the resident's
6guardian, or other authorized representative. "Psychotropic
7medication" means medication that is used for or listed as used
8for antipsychotic, antidepressant, antimanic, or antianxiety
9behavior modification or behavior management purposes in the
10latest editions of the AMA Drug Evaluations or the Physician's
11Desk Reference. No later than January 1, 2020, the The
12Department shall adopt, by rule, a protocol specifying how
13informed consent for psychotropic medication may be obtained or
14refused. The protocol shall require, at a minimum, a discussion
15between (i) the resident or the resident's authorized
16representative and (ii) the resident's physician, a registered
17pharmacist (who is not a dispensing pharmacist for the facility
18where the resident lives), or a licensed nurse about the
19possible risks and benefits of a recommended medication and the
20use of standardized consent forms designated by the Department.
21Each form developed by the Department (i) shall be written in
22plain language, (ii) shall be able to be downloaded from the
23Department's official website, (iii) shall include information
24specific to the psychotropic medication for which consent is
25being sought, and (iv) shall be used for every resident for
26whom psychotropic drugs are prescribed. In addition to creating



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1those forms, the Department shall approve the use of any other
2informed consent forms that meet criteria developed by the
4    In addition to any other penalty prescribed by law, a
5facility that is found to have violated this subsection, or the
6federal certification requirement that informed consent be
7obtained before administering a psychotropic medication, shall
8thereafter be required to obtain the signatures of 2 licensed
9health care professionals on every form purporting to give
10informed consent for the administration of a psychotropic
11medication, certifying the personal knowledge of each health
12care professional that the consent was obtained in compliance
13with the requirements of this subsection.
14    (b-5) A prescribing clinician must obtain voluntary
15informed consent, in writing, from a resident or the resident's
16legal representative before authorizing the administration of
17a psychotropic medication to that resident. Voluntary informed
18consent shall, at minimum, consist of a written and signed
19affirmation from the resident or the resident's legal
20representative that he or she has been informed of all
21pertinent information concerning the administration of
22psychotropic medication in language that the signer can
23reasonably be expected to understand. The pertinent
24information shall include, but not be limited to:
25        (1) the reason for the drug's prescription and the
26    intended effect of the drug on the resident's condition;



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1        (2) the nature of the drug and the procedure for its
2    administration, including dosage, administration schedule,
3    method of delivery, and expected duration for the drug to
4    be administered;
5        (3) the probable degree of improvement expected from
6    the recommended administration of the drug;
7        (4) the risks and likely side effects associated with
8    administration of the drug;
9        (5) the right of the resident or the resident's legal
10    representative to refuse the administration of the
11    psychotropic medication and the medical and clinical
12    consequences of such refusal; and
13        (6) an explanation of care alternatives to the
14    administration of psychotropic medication and the
15    resident's right to choose such alternatives.
16    A prescribing clinician shall inform the resident or the
17resident's legal representative of the existence of the
18resident's managed care plan and of the facility's policies and
19procedures for compliance with informed consent requirements
20and shall make these available to the resident or resident's
21legal representative prior to administering any antipsychotic
22drug and upon request.
23    (b-10) No facility or managed care plan shall deny
24admission or continued residency to a person on the basis of
25the person's or resident's, or the person's or resident's legal
26representative's, refusal of the administration of



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1psychotropic medication, unless the prescribing clinician or
2facility can demonstrate that the resident's refusal would
3place the health and safety of the resident, the facility
4staff, other residents, or visitors at risk.
5    A facility that alleges that the resident's refusal to
6consent to the administration of psychotropic medication will
7place the health and safety of the resident, the facility
8staff, other residents, or visitors at risk must: (1) document
9the alleged risk in detail; (2) present this documentation to
10the resident or the resident's legal representative, to the
11Department, and to the Office of the State Long Term Care
12Ombudsman; and (3) inform the resident or his or her legal
13representative of his or her right to appeal to the Department.
14The documentation of the alleged risk shall include a
15description of all nonpharmacological or alternative care
16options attempted and why they were unsuccessful.
17    (b-15) Within 100 days after the effective date of this
18amendatory Act of the 101st General Assembly, all facilities
19must submit to the Department written policies and procedures
20for compliance with this Section. The Department shall review
21these written policies and procedures and either:
22        (1) give written notice to the facility that the
23    policies or procedures are sufficient to demonstrate the
24    facility's intent to comply this Section; or
25        (2) provide written notice to the facility that the
26    proposed policies and procedures are deficient, identify



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1    the areas that are deficient, and provide 30 days for the
2    facility to submit amended policies and procedures that
3    demonstrate its intent to comply with this Section.
4    A facility's failure to submit the documentation
5sufficient to demonstrate its intent to comply with this
6Section shall be grounds for review under the Department's
7facility licensure and survey process, the imposition of
8sanctions by the State, or both.
9    All facilities must provide training and education, as
10required under this Section, to all personnel involved in
11providing care to residents and train and educate such
12personnel on the methods and procedures to effectively
13implement the facility's policies. Training and education
14provided under this Section must be documented in each
15personnel file.
16    (b-20) Any violation of this Section may be reported to the
17Department for review. At its discretion, the Department may
18proceed with disciplinary action against the licensee of the
19facility and facility administrative personnel.
20    (b-25) A violation of informed consent under this Section
21is, at minimum, a Type "A" violation.
22    (b-30) Any violation of this Section by a prescribing
23clinician or facility may be prosecuted by an action brought by
24the Attorney General of Illinois for injunctive relief, civil
25penalties, or both injunctive relief and civil penalties in the
26name of the People of Illinois. The Attorney General may



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1initiate such action upon his or her own complaint or the
2complaint of any other interested party.
3    (b-35) Any resident who has been prescribed or has been
4administered a psychotropic medication in violation of this
5Section may bring an action for injunctive relief, civil
6damages, and costs and attorney's fees against any person and
7facility responsible for the violation. Such claim is separate
8and distinct from any claims of negligence, malpractice, or any
9other claims arising from or related to the resident's care. A
10claim under this Section may be brought by the resident, the
11resident's legal representative on behalf of the resident, the
12resident's estate, or any of the resident's survivors.
13    (b-40) An action pursuant to this Section must be filed
14within 2 years of either the date of discovery of the violation
15that gave rise to the claim or the last date of an instance of a
16noncompliant administration of an antipsychotic drug to the
17resident, whichever is later.
18    (b-45) A prescribing clinician or facility subject to
19action under this Section shall be liable for damages of up to
20$500 for each day that the facility or person violates the
21requirements of this Section, as well as costs and attorney's
23    (b-50) Any violation of this Section shall serve as prima
24facie evidence of abuse or criminal neglect of a person in a
25long-term care facility under Section 12-4.4a of the Criminal
26Code of 2012.



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1    (b-55) The rights provided for in this Section are
2cumulative to existing resident rights. No part of this Section
3shall be interpreted as abridging, abrogating, or otherwise
4diminishing existing resident rights or causes of action at law
5or equity.
6    (c) The requirements of this Section are intended to
7control in a conflict with the requirements of Sections 2-102
8and 2-107.2 of the Mental Health and Developmental Disabilities
9Code with respect to the administration of psychotropic
11(Source: P.A. 95-331, eff. 8-21-07; 96-1372, eff. 7-29-10.)
12    (210 ILCS 45/2-204)  (from Ch. 111 1/2, par. 4152-204)
13    Sec. 2-204. The Director shall appoint a Long-Term Care
14Facility Advisory Board to consult with the Department and the
15residents' advisory councils created under Section 2-203.
16    (a) The Board shall be comprised of the following persons:
17        (1) The Director who shall serve as chairman, ex
18    officio and nonvoting; and
19        (2) One representative each of the Department of
20    Healthcare and Family Services, the Department of Human
21    Services, the Department on Aging, and the Office of the
22    State Fire Marshal, all nonvoting members;
23        (3) One member who shall be a physician licensed to
24    practice medicine in all its branches;
25        (4) One member who shall be a registered nurse selected



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1    from the recommendations of professional nursing
2    associations;
3        (5) Four members who shall be selected from the
4    recommendations by organizations whose membership consists
5    of facilities;
6        (6) Two members who shall represent the general public
7    who are not members of a residents' advisory council
8    established under Section 2-203 and who have no
9    responsibility for management or formation of policy or
10    financial interest in a facility;
11        (7) One member who is a member of a residents' advisory
12    council established under Section 2-203 and is capable of
13    actively participating on the Board; and
14        (8) One member who shall be selected from the
15    recommendations of consumer organizations which engage
16    solely in advocacy or legal representation on behalf of
17    residents and their immediate families; .
18        (9) One member who is from a nongovernmental statewide
19    organization that advocates for seniors and Illinois
20    residents over the age of 50;
21        (10) One member who is from a statewide association
22    dedicated to Alzheimer's disease care, support, and
23    research;
24        (11) One member who is a member of a trade or labor
25    union representing persons who provide care services in
26    facilities; and



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1        (12) One member who advocates for the welfare, rights,
2    and care of long-term care residents and represents family
3    caregivers of residents in facilities.
4    (b) The terms of those members of the Board appointed prior
5to the effective date of this amendatory Act of 1988 shall
6expire on December 31, 1988. Members of the Board created by
7this amendatory Act of 1988 shall be appointed to serve for
8terms as follows: 3 for 2 years, 3 for 3 years and 3 for 4
9years. The member of the Board added by this amendatory Act of
101989 shall be appointed to serve for a term of 4 years. Each
11successor member shall be appointed for a term of 4 years. Any
12member appointed to fill a vacancy occurring prior to the
13expiration of the term for which his predecessor was appointed
14shall be appointed for the remainder of such term. The Board
15shall meet as frequently as the chairman deems necessary, but
16not less than 4 times each year. Upon request by 4 or more
17members the chairman shall call a meeting of the Board. The
18affirmative vote of 7 6 members of the Board shall be necessary
19for Board action. A member of the Board can designate a
20replacement to serve at the Board meeting and vote in place of
21the member by submitting a letter of designation to the
22chairman prior to or at the Board meeting. The Board members
23shall be reimbursed for their actual expenses incurred in the
24performance of their duties.
25    (c) The Advisory Board shall advise the Department of
26Public Health on all aspects of its responsibilities under this



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1Act and the Specialized Mental Health Rehabilitation Act of
22013, including the format and content of any rules promulgated
3by the Department of Public Health. Any such rules, except
4emergency rules promulgated pursuant to Section 5-45 of the
5Illinois Administrative Procedure Act, promulgated without
6obtaining the advice of the Advisory Board are null and void.
7In the event that the Department fails to follow the advice of
8the Board, the Department shall, prior to the promulgation of
9such rules, transmit a written explanation of the reason
10thereof to the Board. During its review of rules, the Board
11shall analyze the economic and regulatory impact of those
12rules. If the Advisory Board, having been asked for its advice,
13fails to advise the Department within 90 days, the rules shall
14be considered acted upon.
15(Source: P.A. 97-38, eff. 6-28-11; 98-104, eff. 7-22-13;
1698-463, eff. 8-16-13.)
17    (210 ILCS 45/3-202.05)
18    Sec. 3-202.05. Staffing ratios effective July 1, 2010 and
20    (a) For the purpose of computing staff to resident ratios,
21direct care staff shall include:
22        (1) registered nurses;
23        (2) licensed practical nurses;
24        (3) certified nurse assistants;
25        (4) psychiatric services rehabilitation aides;



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1        (5) rehabilitation and therapy aides;
2        (6) psychiatric services rehabilitation coordinators;
3        (7) assistant directors of nursing;
4        (8) 50% of the Director of Nurses' time; and
5        (9) 30% of the Social Services Directors' time.
6    The Department shall, by rule, allow certain facilities
7subject to 77 Ill. Admin. Code 300.4000 and following (Subpart
8S) to utilize specialized clinical staff, as defined in rules,
9to count towards the staffing ratios.
10    Within 120 days of the effective date of this amendatory
11Act of the 97th General Assembly, the Department shall
12promulgate rules specific to the staffing requirements for
13facilities federally defined as Institutions for Mental
14Disease. These rules shall recognize the unique nature of
15individuals with chronic mental health conditions, shall
16include minimum requirements for specialized clinical staff,
17including clinical social workers, psychiatrists,
18psychologists, and direct care staff set forth in paragraphs
19(4) through (6) and any other specialized staff which may be
20utilized and deemed necessary to count toward staffing ratios.
21    Within 120 days of the effective date of this amendatory
22Act of the 97th General Assembly, the Department shall
23promulgate rules specific to the staffing requirements for
24facilities licensed under the Specialized Mental Health
25Rehabilitation Act of 2013. These rules shall recognize the
26unique nature of individuals with chronic mental health



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1conditions, shall include minimum requirements for specialized
2clinical staff, including clinical social workers,
3psychiatrists, psychologists, and direct care staff set forth
4in paragraphs (4) through (6) and any other specialized staff
5which may be utilized and deemed necessary to count toward
6staffing ratios.
7    (b) (Blank). Beginning January 1, 2011, and thereafter,
8light intermediate care shall be staffed at the same staffing
9ratio as intermediate care.
10    (b-5) For purposes of the minimum staffing ratios in this
11Section, all residents shall be classified as requiring either
12skilled care or intermediate care.
13    As used in this subsection:
14    "Intermediate care" means basic nursing care and other
15restorative services under periodic medical direction.
16    "Skilled care" means skilled nursing care, continuous
17skilled nursing observations, restorative nursing, and other
18services under professional direction with frequent medical
20    (c) Facilities shall notify the Department within 60 days
21after the effective date of this amendatory Act of the 96th
22General Assembly, in a form and manner prescribed by the
23Department, of the staffing ratios in effect on the effective
24date of this amendatory Act of the 96th General Assembly for
25both intermediate and skilled care and the number of residents
26receiving each level of care.



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1    (d)(1) Effective July 1, 2010, for each resident needing
2skilled care, a minimum staffing ratio of 2.5 hours of nursing
3and personal care each day must be provided; for each resident
4needing intermediate care, 1.7 hours of nursing and personal
5care each day must be provided.
6    (2) Effective January 1, 2011, the minimum staffing ratios
7shall be increased to 2.7 hours of nursing and personal care
8each day for a resident needing skilled care and 1.9 hours of
9nursing and personal care each day for a resident needing
10intermediate care.
11    (3) Effective January 1, 2012, the minimum staffing ratios
12shall be increased to 3.0 hours of nursing and personal care
13each day for a resident needing skilled care and 2.1 hours of
14nursing and personal care each day for a resident needing
15intermediate care.
16    (4) Effective January 1, 2013, the minimum staffing ratios
17shall be increased to 3.4 hours of nursing and personal care
18each day for a resident needing skilled care and 2.3 hours of
19nursing and personal care each day for a resident needing
20intermediate care.
21    (5) Effective January 1, 2014, the minimum staffing ratios
22shall be increased to 3.8 hours of nursing and personal care
23each day for a resident needing skilled care and 2.5 hours of
24nursing and personal care each day for a resident needing
25intermediate care.
26    (e) Ninety days after the effective date of this amendatory



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1Act of the 97th General Assembly, a minimum of 25% of nursing
2and personal care time shall be provided by licensed nurses,
3with at least 10% of nursing and personal care time provided by
4registered nurses. These minimum requirements shall remain in
5effect until an acuity based registered nurse requirement is
6promulgated by rule concurrent with the adoption of the
7Resource Utilization Group classification-based payment
8methodology, as provided in Section 5-5.2 of the Illinois
9Public Aid Code. Registered nurses and licensed practical
10nurses employed by a facility in excess of these requirements
11may be used to satisfy the remaining 75% of the nursing and
12personal care time requirements. Notwithstanding this
13subsection, no staffing requirement in statute in effect on the
14effective date of this amendatory Act of the 97th General
15Assembly shall be reduced on account of this subsection.
16    (f) The Department shall adopt rules on or before January
171, 2020 establishing a system for determining compliance with
18minimum direct care staffing standards. Compliance shall be
19determined at least quarterly using the Centers for Medicare
20and Medicaid Services' payroll-based journal and the
21facility's census and payroll data, which shall be obtained
22quarterly by the Department. The Department shall, at minimum,
23use the quarterly payroll-based journal and census and payroll
24data to calculate the number of hours provided per resident per
25day and compare this ratio to the minimums required by this
26Section. The Department shall publish the data quarterly on its



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2    (g) The Department shall adopt rules by January 1, 2020
3establishing monetary penalties for facilities not in
4compliance with minimum staffing standards under this Section.
5Monetary penalties shall be imposed beginning no later than
6October 1, 2020 and quarterly thereafter and shall be based on
7the latest quarter for which the Department has data.
8    Monetary penalties shall be established based on a formula
9that calculates the cost of wages and benefits for the missing
10staff hours and shall be no less than twice the calculated cost
11of wages and benefits for the missing staff hours during the
12quarter or the minimum penalty for a Type "B" violation,
13whichever is greater. The penalty shall be imposed regardless
14of whether the facility has committed other violations of this
15Act during the same quarter. The penalty may not be waived.
16Nothing in this Section precludes a facility from being given a
17high risk designation for failing to comply with this Section
18that, when cited with other violations of this Act, increases
19the otherwise-applicable penalty.
20    (h) A violation of the minimum staffing requirements under
21this Section is, at minimum, a Type "B" violation.
22(Source: P.A. 97-689, eff. 6-14-12; 98-104, eff. 7-22-13.)
23    (210 ILCS 45/3-209)  (from Ch. 111 1/2, par. 4153-209)
24    Sec. 3-209. Required posting of information.
25    (a) Every facility shall conspicuously post for display in



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1an area of its offices accessible to residents, employees, and
2visitors the following:
3        (1) Its current license;
4        (2) A description, provided by the Department, of
5    complaint procedures established under this Act and the
6    name, address, and telephone number of a person authorized
7    by the Department to receive complaints;
8        (3) A copy of any order pertaining to the facility
9    issued by the Department or a court; and
10        (4) A list of the material available for public
11    inspection under Section 3-210.
12    (b) A facility that has received a notice of violation for
13having violated the minimum staffing requirements under
14Section 3-202.05 shall display, for 3 months following the date
15that the notice of violation was issued, a notice stating that
16the facility did not have enough staff to meet the needs of the
17facility's residents during the quarter cited in the notice of
18violation. Notices must be posted, at a minimum, at all
19exterior and interior entryways into the facility for easily
20accessible viewing.
21(Source: P.A. 81-1349.)
22    (210 ILCS 45/3-305)  (from Ch. 111 1/2, par. 4153-305)
23    Sec. 3-305. The license of a facility which is in violation
24of this Act or any rule adopted thereunder may be subject to
25the penalties or fines levied by the Department as specified in



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1this Section.
2    (1) A licensee who commits a Type "AA" violation as defined
3in Section 1-128.5 is automatically issued a conditional
4license for a period of 6 months to coincide with an acceptable
5plan of correction and assessed a fine up to $25,000 per
7    (1.5) A licensee who commits a Type "A" violation as
8defined in Section 1-129 is automatically issued a conditional
9license for a period of 6 months to coincide with an acceptable
10plan of correction and assessed a fine of up to $12,500 per
12    (2) A licensee who commits a Type "B" violation as defined
13in Section 1-130 shall be assessed a fine of up to $1,100 per
14violation or the monetary penalty specified in subsection (g)
15of Section 3-202.05, whichever is greater.
16    (2.5) A licensee who commits 10 or more Type "C"
17violations, as defined in Section 1-132, in a single survey
18shall be assessed a fine of up to $250 per violation. A
19licensee who commits one or more Type "C" violations with a
20high risk designation, as defined by rule, shall be assessed a
21fine of up to $500 per violation.
22    (3) A licensee who commits a Type "AA" or Type "A"
23violation as defined in Section 1-128.5 or 1-129 which
24continues beyond the time specified in paragraph (a) of Section
253-303 which is cited as a repeat violation shall have its
26license revoked and shall be assessed a fine of 3 times the



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1fine computed per resident per day under subsection (1).
2    (4) A licensee who fails to satisfactorily comply with an
3accepted plan of correction for a Type "B" violation or an
4administrative warning issued pursuant to Sections 3-401
5through 3-413 or the rules promulgated thereunder shall be
6automatically issued a conditional license for a period of not
7less than 6 months. A second or subsequent acceptable plan of
8correction shall be filed. A fine shall be assessed in
9accordance with subsection (2) when cited for the repeat
10violation. This fine shall be computed for all days of the
11violation, including the duration of the first plan of
12correction compliance time.
13    (5) For the purpose of computing a penalty under
14subsections (2) through (4), the number of residents per day
15shall be based on the average number of residents in the
16facility during the 30 days preceding the discovery of the
18    (6) When the Department finds that a provision of Article
19II has been violated with regard to a particular resident, the
20Department shall issue an order requiring the facility to
21reimburse the resident for injuries incurred, or $100,
22whichever is greater. In the case of a violation involving any
23action other than theft of money belonging to a resident,
24reimbursement shall be ordered only if a provision of Article
25II has been violated with regard to that or any other resident
26of the facility within the 2 years immediately preceding the



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1violation in question.
2    (7) For purposes of assessing fines under this Section, a
3repeat violation shall be a violation which has been cited
4during one inspection of the facility for which an accepted
5plan of correction was not complied with or a new citation of
6the same rule if the licensee is not substantially addressing
7the issue routinely throughout the facility.
8    (7.5) If an occurrence results in more than one type of
9violation as defined in this Act (that is, a Type "AA", Type
10"A", Type "B", or Type "C" violation), the Department shall
11assess only one fine, which shall not exceed the maximum fine
12that may be assessed for the most serious type of violation
13charged. For purposes of the preceding sentence, a Type "AA"
14violation is the most serious type of violation that may be
15charged, followed by a Type "A", Type "B", or Type "C"
16violation, in that order.
17    (8) The minimum and maximum fines that may be assessed
18pursuant to this Section shall be twice those otherwise
19specified for any facility that willfully makes a misstatement
20of fact to the Department, or willfully fails to make a
21required notification to the Department, if that misstatement
22or failure delays the start of a surveyor or impedes a survey.
23    (9) High risk designation. If the Department finds that a
24facility has violated a provision of the Illinois
25Administrative Code that has a high risk designation, or that a
26facility has violated the same provision of the Illinois



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1Administrative Code 3 or more times in the previous 12 months,
2the Department may assess a fine of up to 2 times the maximum
3fine otherwise allowed.
4    (10) If a licensee has paid a civil monetary penalty
5imposed pursuant to the Medicare and Medicaid Certification
6Program for the equivalent federal violation giving rise to a
7fine under this Section, the Department shall offset the fine
8by the amount of the civil monetary penalty. The offset may not
9reduce the fine by more than 75% of the original fine, however.
10(Source: P.A. 98-104, eff. 7-22-13.)
11    (210 ILCS 45/3-305.8 new)
12    Sec. 3-305.8. Database of nursing home quarterly reports
13and citations. The Department shall publish the quarterly
14reports of facilities in violation of this Act in an easily
15searchable, comprehensive, and downloadable electronic
16database on the Department's website in language that is easily
17understood. The database shall include quarterly reports of all
18facilities that have violated this Act starting from 2005 and
19shall continue indefinitely. The database shall be in an
20electronic format with active hyperlinks to individual
21facility citations. The database shall be updated quarterly and
22shall be electronically searchable using a facility's name and
23address, the facility owner's name and address, and the House
24and Senate legislative districts in which the facility is



10100SB1510sam001- 22 -LRB101 08498 CPF 56343 a

1    Section 99. Effective date. This Act takes effect upon
2becoming law.".