Section 101.10  Illinois Department of Mental Health and Developmental Disabilities – Internal Organization (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.20  Service recipients activity fund in State-operated mental health and developmental centers

 

In accordance with Section 20 of the Mental Health and Developmental Disabilities Administrative Act [20 ILCS 1705/20], service recipients activity funds are established in the Department's mental health and developmental centers.  The facility director/hospital administrator shall be responsible for receipts and expenditures from these funds in accordance with the following provisions:

 

a)         Receipts to the fund shall include:

 

1)         Profits from the operation of commissary stores, including vending machines;

 

2)         Interest or dividend income derived from deposits in financial institutions or from investments of unrestricted cash funds in federal government securities or investments guaranteed or insured by the federal government for the principal amount of the investment.  Unrestricted cash funds means those funds, gifts and donations as provided by Section 22 of the Mental Health and Developmental Disabilities Administrative Act [20 ILCS 1705/22], which are not restricted in their use for a specific purpose by the donor; and

 

3)         Proceeds from the disposition of recipients' unclaimed personal property, including monetary assets in accordance with 59 Ill. Adm. Code 110.10 (Disposition of Unclaimed Personal Property).

 

b)         Expenditures from the fund shall be for the pleasure, comfort, benefit and amusement of recipients except that expenditures from the fund shall be made in accordance with the Illinois Procurement Code [30 ILCS 500].

 

c)         Expenditures from the fund shall not be made for the comfort, pleasure, benefit and amusement of Department employees.

 

(Source:  Amended at 23 Ill. Reg. 11118, effective August 24, 1999)

 

Section 101.30  Payments to the account of service recipients

 

a)         All payments made for the services charges for present or former Department recipients in accordance with 59 Ill. Adm. Code 106 (Services Charges) shall be in the form of check, draft or money order made payable to the Illinois Department of Human Services.

 

b)         Such payments shall be mailed to the Department of Human Services, Bureau of Cash Management, 100 South Grand Avenue East, Springfield IL  62762.

 

c)         The facility resource unit supervisor shall accept payments for services charges for recipients in the form specified in subsection (a) of this Section.  On receipt of such payment, the facility resource unit supervisor shall forward a reminder to the payer that any future payments must be made to the Bureau of Cash Management as indicated in subsection (b) of this Section.

 

d)         If cash payment is offered for services charges for recipients to a facility resource unit supervisor or Department attorney, the payer shall be instructed to obtain a money order, bank draft or check and forward the same as indicated in subsection (b).  The facility resource unit supervisor may accept cash payments when the payer indicates that he or she cannot obtain an instrument of payment due to age, infirmity, or handicapping condition.  Such cash payments shall be deposited in the trust fund account of the recipient for whom the payment was made, with the name of the payer entered in the trust fund records, if other than that of the recipient.  The payer shall be given a receipt for cash received, a copy of which the facility shall retain.  The payer shall be requested to submit future payments in accordance with subsection (b).

 

e)         Department attorneys may receive checks, drafts, or money orders as payment toward or for a judgment entered by a court for transmittal to the Bureau of Cash Management as indicated in subsection (b).

 

f)         Department employees shall not accept payments made or offered to recipients' accounts for purposes or reasons other than those specified in this Section.

 

(Source:  Amended at 23 Ill. Reg. 11118, effective August 24, 1999)

 

Section 101.60  Service contracts (Recodified)

 

(Source:  Recodified to 44 Ill. Adm. Code 1250 at 8 Ill. Reg. 18490)

 

Section 101.70  Conduct of hearings and appeals (Repealed)

 

(Source:  Repealed at 23 Ill. Reg. 11118, effective August 24, 1999)

 

Section 101.75  Conduct of hearings and appeals for Bogard et al. v. Bradley et al. consent decree (88 C 2414, U.S.D.C., N.D. IL) (June 2, 1993)) class members

 

a)         Applicability

            This Section shall apply to decisions concerning the transfer and discharge from community residential settings of Bogard et al. v. Bradley et al. class members.  If there is a conflict between this Section and  59 Ill. Adm. Code 115 and 59 Ill. Adm. Code 120 concerning discharge and transfer that apply to class members, this Section will govern.

 

b)         Definitions

            For the purposes of this Section, the following terms are defined:

 

            "Administrative law judge (ALJ)."  The person appointed by the Secretary to preside at the formal administrative hearing and is synonymous with any other term used to refer to the person conducting such hearings.

 

            "Agency."  An entity that operates a community residential setting.

 

            "Appellant."  The person who requests a hearing.

 

            "Class members."  All persons 18 years of age or older with developmental disabilities who, on or after March 23, 1986, resided in an intermediate care or skilled nursing facility in Illinois as a Medicaid recipient for a period of more than 120 days in the aggregate.  No person shall be excluded from the class because he or she has a primary diagnosis that is not mental retardation or a related condition, provided that such person also has a condition which meets the definition of developmental disability.  However, no person first admitted to a nursing facility on or after April 1, 1994, will be a member of the class.

 

            "Community residential setting."  One of a variety of living arrangements as long as no more than eight people reside together and the setting is designed to promote independence in daily living, community integration, and economic self-sufficiency.  Community residential settings include existing categories such as community integrated living arrangements, community residential alternatives, assisted residential care, supported residential care and adult foster care and may also include newly developed settings which are consistent with these principles.

 

            "Contested case."  Has the meaning ascribed to it in Section 1-30 of the IAPA [5 ILCS 100/1-30].

 

            "Days."  Working days unless otherwise specified.

 

            "Department".  Department of Human Services.

 

            "Developmental disability."  A disability that is attributable to mental retardation, regardless of the need for specialized services or a related condition.  A related condition meets all of the following conditions:

 

            Is attributable to:  cerebral palsy, epilepsy or autism, or any other condition (other than mental illness) found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of individuals with mental retardation and requires treatment or services similar to those required for such individuals;

 

            Is manifested before the person reaches the age of 22;

 

            Is likely to continue indefinitely; and

 

            Results in substantial functional limitations in three or more of the following areas of major life activity:  self-care, language, learning, mobility, self-direction, or capacity for independent living.

 

            "Discharge."  The termination of all services provided to an individual in the community residential setting in which the individual resides.

 

            "IAPA."  The Illinois Administrative Procedure Act [5 ILCS 100].

 

            "Individual services coordinator." A person employed by a pre-admission screening and annual resident review agent, who is a qualified mental retardation professional, as defined in the Department's rules at 59 Ill. Adm. Code 103, and who acts as an agent of the State in assuring that each class member has an appropriate individualized service plan and that the service plan is implemented.

 

            "Intermediate care facility."  Any long-term facility licensed by the Illinois Department of Public Health under the Nursing Home Care Act [210 ILCS 45] as an intermediate care facility.

 

            "Medicaid."  The medical benefits program administered by the Illinois Department of Public Aid pursuant to Title XIX of the Social Security Act. (42 USC 1396a (1998))

 

            "OBRA Management Unit."  A group of individuals charged with coordinating implementation activities under the Bogard et al. v. Bradley et al. consent decree.  There is one person designated from each of the Department's Offices of Developmental Disabilities and Rehabilitation Services and one person designated from each of the Departments of Public Aid, Aging and Public Health to serve on the Unit.

 

            "Omnibus Budget Reconciliation Acts of 1987 and 1990 (OBRA) (42 USC 1396n (1998))."  Federal law requiring that an individual with a mental illness or developmental disability have pre-admission screening before placement in a nursing facility.  The law also requires an initial and annual assessment of all nursing facility residents having a mental illness or developmental disability to determine if they require the level of care provided by a nursing facility and whether they require specialized services related to their disability.

 

            "Pre-admission screening."  A two-phase process of assessing individuals seeking admission to nursing facilities.  The first phase identifies individuals suspected of a possible severe mental illness or developmental disability.  The second phase requires an assessment and determination of the individual's need for the level of services provided by a nursing facility and need for specialized services.

 

            "Pre-admission screening/annual resident review (PASARR) agents." Entities selected by the Department to carry out the pre-admission screening and resident review services required by OBRA.

 

            "Resident review."  A two-phase process to assess individuals residing in nursing facilities.  The first phase identifies individuals suspected of a possible mental illness or developmental disability.  The second phase requires an assessment and determination of the need of the individual with severe mental illness or a developmental disability for the level of services provided by a nursing facility and the need for specialized services.

 

            "Secretary."  The Secretary of the Department of Human Services.

 

            "Skilled nursing facility."  Any long-term facility licensed by the Illinois Department of Public Health under the Nursing Home Care Act as a skilled nursing facility.

 

            "Specialized services."  A continuous program for each individual.  These services include aggressive, consistent implementation of a program of specialized and generic training, treatment health services and related services that are directed toward the acquisition of behaviors necessary for the individual to function physically, intellectually, socially, and vocationally with as much self-determination and independence as possible; and the prevention or deceleration of regression.  Specialized services does not include services to maintain generally independent individuals who are able to function with little supervision or in the absence or a continuous specialized services program.

 

            "Substantial evidence."  Such evidence as a reasonable person can accept as adequate to support a conclusion.

 

            "Transfer."  When an individual ceases to be served by one agency and begins to be served by another agency under the same community residential setting without interruption of services.

 

c)         Decisions subject to appeal

            Decisions by agencies to discharge or transfer class members shall be appealable pursuant to this Section, except when the agency ceases to provide a particular type of community residential setting.

 

d)         Representation

            The appellant and the agency may be represented during the hearing and appeals process by an attorney or any other person who the appellant or agency chooses.  The appellant may also represent him or herself; the agency may represent itself.

 

e)         Notice

 

1)         Notice of an agency decision to discharge or transfer a class member shall be given not less than 30 calendar days before the proposed date of the transfer or discharge.  The notice of the decision shall contain:

 

A)        A statement of the reason for the transfer or discharge;

 

B)        The effective date of the proposed transfer or discharge;

 

C)        A statement which reads:  "You have a right to appeal the agency's decision.  If you think you should not have to leave this program, you must ask the agency to reconsider its decision.  If the agency does not change its decision, you may file a request for a hearing with the Department of Human Services within 20 days after receiving this notice.  You should send a letter saying why you shouldn't leave the program and asking for a hearing to:  Bureau of Administrative Hearings, 100 South Grand Avenue East, Springfield IL 62762.  If you request a hearing, you will not be transferred or discharged while the appeal is going on unless the individual services coordinator decides that a delay in transfer or discharge would imminently imperil you or others.  If you have any questions, call the Department of Human Services, Bureau of Administrative Hearings."

 

D)        The name, address and telephone number of the person charged with the responsibility of supervising the transfer or discharge.

 

2)         The notice of the hearing sent by the Department shall contain:

 

A)        A statement of the nature of the hearing;

 

B)        A statement of the time and place of the hearing or if a pre-hearing conference is scheduled by the Department, the time and place of the conference;

 

C)        A reference to the particular Sections of the statute and rules involved;

 

D)        A statement of the legal authority under which the hearing is held;

 

E)        A concise statement of the matters asserted;

 

F)         A statement of the consequences of failing to respond to the notice;

 

G)        The official file number;

 

H)        The names and addresses of the administrative law judge and the parties involved; and

 

I)         A statement of the right to be represented by the person of the appellant's choice, at his or her expense.

 

3)         All notices under this Section shall be served either personally or by certified mail on the class member and guardian, if any, the class member's individual service coordinator and the agency.  If the agency knows that the class member cannot read English, the notice shall be explained to him or her orally in his or her primary language, including sign language.

 

4)         The Department shall send a notice of hearing and notice of pre-hearing conference within five days after receipt of the request for a hearing.  The administrative law judge shall schedule the hearing to be held no later than 10 days from the date of the notice.

 

f)         Exhaustion of agency remedies

            The class member shall use any agency procedure for appealing the decision before requesting a hearing from the Department.

 

g)         Transfer or discharge pending a hearing

            No transfer or discharge shall proceed pending the Secretary's decision, except as provided for in subsection (h) of this Section.

 

h)         Emergency discharges

            When the physical safety of the class member or others is imminently imperiled and appropriate services are not available at the agency, the class member shall be discharged as soon as arrangements can be made for admission to another facility only if the individual service coordinator, after reviewing the class member's record, gathering the necessary clinical information, and meeting with the class member, determines that a delay in discharge would imminently imperil the physical safety of the class member or others and has documented that in the class member's record.  In that case notice shall be given in accordance with subsection (e) of this Section as soon as possible but in no case later than 48 hours after the discharge.  The hearing shall be held within the time specified in subsection (e)(4) of this Section at the receiving facility, unless the administrative law judge determines that either of the parties would not be able to completely present its case at the receiving facility within the specified time.  The discharging facility shall hold the class member's bed open until the appeal is resolved.

 

i)          Qualifications of administrative law judge

 

            Administrative law judges shall meet the qualifications set out in the Department's rules at 89 Ill. Adm. Code 508.

 

j)          Disqualification of administrative law judge

            At any time prior to the issuance of the hearing officer's recommended decision, the appellant or the agency may move to disqualify the administrative law judge on the grounds of bias or conflict of interest.  Such a motion shall be made in writing to the Secretary, with a copy to the administrative law judge, setting out the specific instances of bias or conflict of interest.  An adverse decision or ruling, in and of itself, is not grounds for disqualification.  The administrative law judge's employment or contract as an administrative law judge by the Department is not, in and of itself, a conflict of interest.  The appeal shall be suspended until the Secretary rules on the  motion.  The Secretary may decline to disqualify the administrative law judge, appoint another administrative law judge to hear the case or decide that the appeal should be granted.

 

k)         Pre-hearing conferences

 

1)         The administrative law judge may schedule a pre-hearing conference at his or her discretion.  This conference shall be held prior to the hearing and shall be for the purpose of considering:

 

A)        A clarification of the issues;

 

B)        The possibility of obtaining admissions of fact and of documents that would avoid unneccessary proof or testimony;

 

C)        The possibility of a resolution of the case without a hearing; and

 

D)        Any other matters that may aid in the disposition of the appeal.

 

2)         The administrative law judge shall invite the class member, the class member's guardian, if any, and a representative of the agency to attend the pre-hearing conference.  Other persons may attend at the discretion of the administrative law judge.  If the class member's guardian or the agency's representative invite other persons, they shall notify the administrative law judge of the invitee's identity at least 24 hours before the pre-hearing conference.

 

3)         If the pre-hearing conference results in a resolution of the appeal by agreement of the parties, the administrative law judge shall issue an order reciting the agreement and dismissing the appeal.  Copies of the order shall be sent to the appellant, the agency and the Department's representative from the OBRA Management Unit.  The appellant's and agency's copies shall be sent by certified mail.

 

l)          Discovery

 

1)         Discovery such as interrogatories and depositions as provided for in the Rules of the Illinois Supreme Court (S. Ct. Rule 1 et seq.) is at the discretion of the administrative law judge.  Requests to take discovery shall be made in writing to the administrative law judge with notice to all parties. Discovery may only be taken with the prior permission of the administrative law judge and is subject to the provisions of the Mental Health and Developmental Disabilities Confidentiality Act [740 ILCS 110].

 

2)         Each party shall, on request by another party or the administrative law judge, serve on all other parties a list of potential witnesses who may be called on to testify at the hearing.  Such list shall include the address or place of employment of each witness and shall be served within seven days after the receipt of the request.

 

3)         The appellant shall, on request, be allowed to inspect and copy any documents which the agency intends to submit at the hearing.  Such request shall be made at least two days before the hearing.

 

m)        Conduct of hearings

 

1)         All hearings shall be closed to the public.  However, individuals who request to attend a hearing may do so with the appellant's consent.

 

2)         The administrative law judge:

 

A)        Shall regulate the course of the hearing;

 

B)        Shall dispose of procedural requests;

 

C)        May continue the hearing from time-to-time when necessary;

 

D)        May examine witnesses; and

 

E)        Shall rule on the relevancy of evidence.

 

3)         At the hearing, both parties may present written and oral evidence.  The agency shall have the burden of proving that there was substantial evidence to support its decision.  After the agency's presentation, the appellant may present written and oral evidence.  Written opening or closing arguments, legal memoranda, trial briefs or similar documents shall be permitted on motion granted or if the parties so stipulate.  This requirement shall not prohibit the administrative law judge, sua sponte, from requesting that certain issues be briefed by the parties.

 

4)         Standards

 

A)        A class member may not be transferred unless the transfer is consistent with the class member's service needs.

 

B)        A class member may not be discharged unless the discharge is consistent with the class member's service needs or unless the class member does not meet the program's eligibility criteria.

 

5)         Evidence

 

A)        The rules of evidence and privileges as applied in the circuit courts of this State shall apply in these hearings.  However, evidence not admissible under such rules shall be admitted if it is of a type commonly relied on by reasonably prudent persons in the conduct of their affairs.  Irrelevant, immaterial or unduly repetitious evidence shall be excluded.

 

B)        A party may conduct cross-examination of a witness subject to the evidentiary requirements in subsection (m)(5)(A) of this Section.

 

C)        Notice may be taken of matters of which the circuit court of this State may take judicial notice.  In addition, notice may be taken of generally recognized scientific or technical facts within the Department's specialized knowledge.  Parties shall be notified before or during the hearing of the material noticed and shall be given an opportunity to contest the material so noticed.

 

6)         The hearing shall be either taped or stenographically recorded at the hearing officer's discretion.  The Department shall retain the tape or a copy of the transcript.  If the appellant or the agency appeals the Secretary's decision, a copy of the tape or the transcript shall be provided to the appellant and the agency on request.

 

n)         Administrative law judge's recommended decision

            Within 20 days after the hearing, the administrative law judge shall issue his or her recommended decision to the Secretary.  The decision shall contain findings of fact, conclusions of law, the reasons for the decision and a recommended disposition of the case.  Copies of the decision shall be sent to both parties by certified mail.  A copy shall also be sent to the Department's representative from the OBRA Management Unit.

 

o)         Post-hearing briefs

 

1)         Both parties shall be given the opportunity to submit a brief to the Secretary in response to the administrative law judge's recommended decision.  The appellant or the agency must notify the Secretary within five days after receipt of the recommended decision if the appellant or the agency intends to submit a brief.  Briefs shall be submitted no later than 20 days after receipt of the recommended decision, unless the administrative law judge grants a party's request for additional time.  Briefs shall be no longer than 10 pages unless the administrative law judge grants a party's request to submit a longer brief.  A copy of the brief shall be sent to the other party.

 

2)         If either party submits a brief, the other party may submit a reply brief to the Secretary.  The appellant or the agency must notify the Secretary in writing within five days after receipt of the brief if it intends to submit a reply brief.  Reply briefs shall be submitted no later than 10 days after receipt of the brief.

 

p)         The record

            The record for a hearing shall include:

 

1)         All notices, motions and rulings;

 

2)         All evidence received and admitted;

 

3)         A statement of matters officially noticed;

 

4)         Any offers of proof, objections and rulings;

 

5)         The administrative law judge's recommended decision; and

 

6)         Any ex parte communication prohibited by Section 10-60 of the IAPA [5 ILCS 100/10-60].

 

q)         Secretary's decision

 

1)         The Secretary shall be provided with the record and all briefs, if any.  Within 20 days after receipt of the record or the post-hearing brief (if any), whichever is later, the Secretary shall issue a final decision adopting, modifying or reversing the recommended decision. The decision shall include findings of facts and conclusions of law.  The Secretary shall adopt the recommended decision if he or she determines that the recommended decision was supported by substantial evidence. Copies of the final decision shall be sent to the appellant,  the agency, the Department's representative from the OBRA Management Unit, and the administrative law judge.  The appellant's and agency's copies shall be sent by certified mail.

 

2)         The Secretary's decision shall constitute a final administrative decision in accordance with the Administrative Review Law [735 ILCS 5/Art. III] and shall include a statement to that effect.

 

r)          Miscellaneous

 

1)         Ex parte communications

            Unless all parties are given notice and an opportunity to participate, the administrative law judge or the Secretary shall not, after notice of hearings or other on-the-record proceeding, communicate directly or indirectly, in connection with any other issues, with:

 

A)        Any party;

 

B)        His or her representative; or

 

C)        Any other person interested in the outcome of the proceeding.

 

2)         Intra-Departmental communications

            A Department employee may communicate with other employees of the Department, and the administrative law judge or Secretary may have the aid and advice of one or more personal assistants.

 

3)         Waiver

            Compliance with this Section or with any or all provisions of the IAPA regarding contested cases [5 ILCS 100/10-25] may be waived by written stipulation of all parties.

 

(Source:  Amended at 23 Ill. Reg. 11118, effective August 24, 1999)

 

Section 101.80  Conflict of interest

 

a)         The Department of Human Services has various statutory responsibilities regarding persons placed in nursing homes and sheltered-care homes which are subject to State licensure. The Department's statutory duties include monitoring of the levels of care given by the homes and input into the licensing process on such matters as staffing and program. It is, therefore, mandatory that no employee of the Department shall have any connection whatsoever with nursing homes or sheltered care homes which may be considered a conflict of interest or which may give rise to an inference that this connection may in any way influence the Department in carrying out its statutory duties in the selection and monitoring of homes for placement purposes. It is, therefore, Department policy that:

 

1)         No employee of the Department whose job classification is at the professional level (salary grade 12 and above) shall serve in any capacity or have any connection as a full-time or part-time employee of any nursing home or sheltered-care home whether or not the Department is presently using that home for placement.

 

2)         No employee shall act as a consultant, either paid or unpaid, for any nursing home or sheltered-care home if such consultation enables the home to meet its licensing requirements or to secure Department approval for program or staffing.

 

3)         No employee who has any connection whatsoever with placement, follow-up care or program monitoring in nursing homes or sheltered-care homes, shall accept any employment or act as a consultant, either paid or unpaid, in any such facilities.

 

b)         As the Department has an extensive grant and purchase care program which funds community-based agencies, it is Department policy that:

 

1)         No employee shall serve on the board of directors or professional advisory committee paid or unpaid of any agency or facility which receives funds from the Department by any mechanism, including grants, purchase of care arrangements or contracts.  If the regional administrator believes that in an individual case, it would be to the advantage of the Department or in the public interest to have an employee serve in an unpaid position on a board of directors or professional advisory committee, he or she shall document the facts and submit them to the Secretary who may make an exception.

 

2)         No employee shall hold an economic interest of any character, nature or amount in any nursing home, sheltered-care home or community agency or facility which receives State funds, whether by grant, purchase of care, contract or any other mechanism.  Employees presently holding any such economic interest in such agencies shall promptly divest themselves of their interest. Economic interest for the purpose of this Section does not include a contract for teaching services at a public or private college, community college or university.

 

3)         No employee, the employee's spouse or any minor child of an employee, may own stock, bonds, debentures, shares or any other ownership or debt interest in any nursing home, sheltered-care home or community facility that receives State funds, whether by grant, purchase of care, contract or other mechanism.

 

4)         No employee's spouse or minor child may hold a position with a nursing home or intermediate care facility or sheltered-care home which receives service recipients placed by the Department if the employee is involved in placement or monitoring.

 

c)         The Illinois Procurement Code [30 ILCS 505] provides that no State employee may have any contract for personal services with any entity which may be satisfied in whole or in part by State funds.  The Governor may grant exemptions for employees whose service to the State is important enough to outweigh the public policy expressed in the law. Any employee planning to work for any agency or facility which receives State funds must apply for and receive an exemption from the Illinois Procurement Code prior to accepting employment. The Office of Legal Services shall be contacted if an exemption is desired.  The Illinois Purchasing Act does not apply to contracts between an employee and  any State-aided school district, community college district, State university or any institution under the Board of Higher Education.  The Illinois Procurement Code also includes monies received on behalf of public aid recipients in the definition of "State funds". Strict compliance with these provisions is mandatory.

 

d)         The Department is required by Section 6 of the Mental Health and Developmental Disabilities Administrative Act [20 ILCS 1705/6] to have information on every executive level employee (pay grade 20 step 7 and above) who has any outside employment of any nature whatever and to share this information with the Department of Central Management Services.  Questionnaires will be distributed once each year to collect this information.  Full and complete disclosure of this information is mandatory.

 

e)         Required disclosure and compliance

 

1)         Section 4A-101 of the Illinois Governmental Ethics Act [5 ILCS 420/4A-101] identifies those State employees who are required to disclose certain economic interests.  Strict compliance with this law is mandatory.

 

2)         The Department may require any employee who is in violation of the foregoing policies to report to the Department in such reasonable detail as the Department may provide as to the fact of such violation and the action taken by the employee to comply with this Section.

 

3)         Violation of these policies shall be cause for suspension or dismissal of employees.

 

f)         Department's statutory, clinical and legal responsibilities

 

1)         The Department has extensive statutory, clinical and legal responsibilities toward those persons it serves as recipients of those services.  The provision of these services require that staff make, on a daily basis, decisions about the care, treatment and well-being of those recipients. One of the decisions staff may be called upon to make is the proper placement of a recipient in a foster home.

 

2)         The Department also has various monitoring responsibilities regarding persons placed in foster homes, including the level of care and input into the continuation of the foster placement.  At various times, Department staff may be called upon to appear and testify in court as to the appropriateness of the foster placement.

 

3)         In view of these responsibilities, it is mandatory that no Department employee become a foster parent of a present or former recipient served in any facility wherein the employee is employed.  To do so would place the employee in the position of making clinical decisions as an employee which directly affect the employee's position as a foster parent.  Moreover, the recipient may be subject to unequal treatment as an inpatient by the employee due to his or her status as the employee's foster child.  This situation creates both a conflict of interest as to the provision of services by the employee and the receipt of services by the recipient.

 

4)         This provision shall have prospective application from the date of its promulgation.  Exceptions to the foregoing provision may be granted, upon proper application, by the Secretary, if sufficient clinical bases exist to support such action.

 

(Source:  Amended at 23 Ill. Reg. 11118, effective August 24, 1999)

 

Section 101.90  Specialized living centers

 

A specialized living center shall be considered to be in compliance with Section 3.06 of the Specialized Living Centers Act [405 ILCS 25/3.06] for the conduct, maintenance and operation of a specialized living center so long as it is licensed by the Illinois Department of Public Health as an intermediate care facility for the developmentally disabled and is in conformance with the Department of Public Health's rules at 77 Ill. Adm. Code 350.

 

(Source:  Amended at 23 Ill. Reg. 11118, effective August 24, 1999)

 

Section 101.100  Community mental health and developmental disabilities service provider participation fee trust fund

 

a)         Definitions

For the purposes of this Section, the following terms are defined:

 

"Actual payments." The absolute amount of Medicaid payments received by a provider from the Department, per written agreement, for the delivery of Medicaid-reimbursable services during the fee year.

 

"Applicable provider" or "provider." A community agency from which the Department purchases services through payments that are matched by federal funds under Medicaid and that the Department has determined to be subject to the provider participation fee.

 

"Days." Calendar days, unless otherwise specified.

 

"Department." The Department of Human Services.

 

"Fee." A fee that each applicable provider shall submit to the community mental health and developmental disabilities services provider participation fee trust fund.

 

"Fee year." The fiscal year beginning July 1 and ending June 30 for which the fee amount applies.

 

"Fund." The community mental health and developmental disabilities services provider participation fee trust fund comprising the fees submitted by applicable providers, the interest accrued on the fees, and the related federal Medicaid matching funds.

 

"Medicaid." Medical assistance issued by the Illinois Department of Public Aid, under the provisions of Title XIX of the Social Security Act (42 USCA 1396 (1998)), for eligible recipients, including Aid to the Aged, Blind and Disabled (AABD), Temporary Assistance to Needy Families (TANF), Medical Assistance No Grant (MANG), and Refugee Repatriate Program (RRP) recipients as well as Title XIX eligible Department of Children and Family Services (DCFS) wards.

 

"Medicaid payments." Payments made by the Department for services covered under Medicaid for which the State receives federal matching funds.

 

"Medicaid reimbursed services." A service provided by a provider under an agreement with the Department for which the State receives reimbursement from the Medicaid program and which is subject to the fee process.

 

"Projected payments." The estimated amount of Medicaid payments to be received by a provider from the Department, per written agreement, for the delivery of Medicaid-reimbursable services during the fee year.

 

b)         Fees

 

1)         Calculation of projected fees

Each year the Department shall calculate a fee which shall be paid by applicable providers. The fee amounts due to the fund by applicable providers shall be based on the projected amount of Medicaid payments to be made by the Department to the provider for the year taking into consideration:

 

A)        The unit rates for services;

 

B)        The units of service billed by the assessed provider for the year prior to the fee year; and

 

C)        Any other factors which will influence a change in the number of units of service to be billed during the fee year.

 

2)         Differential fee collection schedule

 

A)        The Department shall establish a differential fee collection schedule for any provider whose projected Medicaid payments during the current fee year exceeds the actual Medicaid payments for the year prior to the fee year by more than 20 percent.

 

B)        The Department shall establish a differential fee collection schedule for such providers which reflects the increasing payments for the current fee year.

 

C)        The differential fee collection schedules for these providers will require lesser fee submittals during the first quarter with gradually increasing fee submittals according to the providers' projected growth in Medicaid receipts.

 

3)         Adjustment of inaccurate projections

 

A)        If the Department determines that any fee amount assessed a provider was incorrect, the Department will correct the fee error.

 

i)          The Department will issue a revised fee amount for the quarter.

 

ii)         The Department will adjust the fee amounts due for subsequent quarters of the fee year.

 

B)        The Department shall monitor quarterly the ratio of actual to projected total gross payments for those assessed providers whose estimated increase in gross total payment for the fee year is expected to exceed 20 percent.

 

i)          When the accumulated actual fees due to the fund by the assessed provider differ by more than 10 percent from the accumulated projected fees, the Department shall issue a revised fee amount for the immediate calendar quarter and a revised collection schedule for the remainder of the fee year. When this occurs, the provider shall submit the revised fee amount within 30 days after the date of postmark on the Department's written notification of the change.

 

ii)         When the accumulated actual fees due to the fund by an assessed provider are less than the accumulated projected fee amounts, the Department shall return to the provider the appropriate share of overpaid fees.

 

4)         Calculation of provider participation fees

The Department shall multiply the projected Medicaid payments for services which it has determined to be subject to the provider participation fee for the fee year of individual providers by any amount not greater than 15 percent to determine the fee amount owed to the fund.

 

5)         Notification of fee due date

The Department shall notify each assessed provider, in writing, of the amount of the fee 30 days prior to the required fee due date. The Department may modify the notification timeframes and extend the required fee due date for good cause shown.

 

6)         Provider submission of fees

 

A)        Each provider shall submit the specified fee in equal quarterly amounts on or before the first business day of each calendar quarter.

 

B)        Due dates for provider submission of quarterly fee payments shall be January 2, April 1, July 1, and October 1, or, if these dates are on weekends or holidays, the first business day immediately following.

 

7)         Delayed fee collection schedules

 

A)        The Secretary of the Department is authorized to establish delayed fee collection schedules for providers that are unable to make timely payments due to financial difficulties.

 

B)        Delayed fee collection schedules shall be granted only under extraordinary circumstances to qualified providers that meet all of the requirements in subsections (b)(7)(C) and (D).

 

C)        Denial of an application to borrow provider participation fee funds from a financial institution or other lending entity.

 

D)        A signed written agreement with the Department specifying the terms and conditions of the delayed fee collection schedule, which shall contain the following provisions:

 

i)          Specific reason(s) for the establishment of the delayed fee collection schedule;

 

ii)         Specific dates on which submission of the fees will be received by the Department and the amount of the fees which will be received on each specified date described;

 

iii)        The interest that shall be due from the provider as a result of the establishment of the delayed fee collection schedule;

 

iv)        A certification stating that, should the provider entity be sold, the new owners shall be made aware of the liability and shall assume responsibility for repaying the debt to the Department in accordance with the original agreement;

 

v)         A certification stating that all information forwarded to the Department in support of the establishment of the delayed fee collection schedule request is true and accurate to the best of the signatory's knowledge; and

 

vi)        Such other terms and conditions that may be required by the Department.

 

E)        In order to receive consideration for delayed fee collection schedules, providers shall forward their requests in writing (telefax requests are acceptable) to the Department. Requests must be received within five working days after the date of the Department's notification of the provider participation fee due for the subject quarter. All telefax requests must be followed-up with original written requests. All requests shall include:

 

i)          An explanation of the circumstances creating the need for the delayed fee collection schedule;

 

ii)         Supportive documentation to substantiate the emergency nature of the request and risk of irreparable harm to the provider's clients;

 

iii)        Specification of the arrangements being requested by the provider.

 

F)         The Department shall notify the provider, in writing, of its decision with regard to the request for the establishment of a delayed fee collection schedule. An agreement shall be issued to the provider for all approved requests. The agreement shall be signed by the provider's administrator, owner, chief executive officer, or other authorized representative and must be received by the Department before the first scheduled fee submittal date listed in the delayed fee collection schedule.

 

i)          The Department shall waive the penalties for delinquent and/or deficient fee submittal upon the approval of the provider's request for establishment of a delayed fee collection schedule. When a provider's request for establishment of a delayed fee collection schedule is approved and the Department receives the signed agreement in accordance with this subsection, such penalties shall be permanently waived for the subject quarter unless the provider reneges on the conditions of the agreement. When the provider reneges on the conditions of the agreement, the agreement shall be considered null and void and such penalties shall be fully reinstated.

 

ii)         The delayed fee collection schedule shall include interest at a rate not to exceed the State's borrowing rate. The applicable interest rate shall be identified in the agreement described in subsection (b)(7)(E).

 

iii)        When a provider has requested and received Department approval for a delayed fee collection schedule, the provider shall not receive approval for subsequent delayed fee collection schedules until such time as the terms and conditions of any current delayed fee collection agreement has been satisfied. The waiver of penalties described in subsection (b)(7)(F)(i) shall not apply to a provider that has not satisfied the terms and conditions of any current delayed fee collection agreement.

 

8)         Penalty for delinquent or deficient fees

Any provider that fails to submit the fee when due, or submits less than the full amount due, shall be assessed a penalty of 10 percent of the delinquency or deficiency for each month, or fraction thereof, computed on the full amount of the delinquency or deficiency, which includes any penalty accrued and not paid, from the time the fee was due.

 

9)         Notification to comptroller

 

A)        The Secretary may take action to notify the Office of the Comptroller to collect any amount of monies owed by the provider to the fund.

 

B)        The Secretary may take action against providers failing to submit any delinquent or deficient fee or penalty including:

 

i)          Suspension of payments;

 

ii)         Cancellation of the provider contract or agreement; and

 

iii)        Refusal to issue, extend, or reinstate the provider contract or agreement.

 

c)         Local government funds certification

Providers may use local government funds as a source to meet their obligated, quarterly assessed fee amount in part or in whole.

 

1)         If local government funds are used, the provider shall certify the planned spending of these local funds for the specified services in lieu of actual cash payment to the fund by providing a statement from each local government funder stating the intent of that funder to contribute the applicable portion of the fee amount, signed by the chairperson of the local government funder taxing authority.

 

2)         If the certification process is used, the provider shall submit to the Department, by October 31 of the year following the fee year, an annual audit statement from a certified public accounting firm which demonstrates that the local government funds were spent for the intended service and in the amounts required according to the fee amount.

 

3)         Expenditure of funds on Medicaid Services

 

A)        If the local government funds were not spent for the Medicaid service as required:

 

i)          The provider shall submit to the State by October 31 of the year following the fee year the amount of the fee which was not spent;

 

ii)         A fine equal to 25 percent of the amount of the fee not properly covered by the local government funds certification process.

 

B)        This payment shall be submitted to the State Treasury by October 31 of the year following the fee year.

 

d)         Deposit of revenue

Deposits to the fund shall consist of:

 

1)         Federal revenues received under Title XIX of the Social Security Act as a result of the increased rates paid by the Department to providers of Medicaid-reimbursable services;

 

2)         The fees paid by providers of Medicaid-reimbursable services under agreement with the Department which are eligible for reimbursement from Medicaid and which are subject to the fee process;

 

3)         The interest earned on the deposits to the fund; and

 

4)         The revenues generated from fines and penalties levied by the Department on providers in accordance with subsection (c)(3).

 

e)         Protection from reduction

 

1)         The moneys in the fund shall be exempt from any State budget reduction Acts.

 

2)         The funds shall not be used to replace any funds otherwise appropriated to the Medicaid program by the Illinois General Assembly.

 

f)         Administration of contingency reserves

 

1)         Moneys paid from the fund shall be used first to:

 

A)        Pay for the administrative expenses incurred by the Department in performing the duties authorized by Section 18.1 of the Mental Health and Developmental Disabilities Administrative Act [20 ILCS 1705/18.1];

 

B)        Pay any amounts reimbursable to the federal government, which are required to be paid by State warrant.

 

2)         Disbursements from the fund shall be by warrants drawn by the State Comptroller upon receipt of vouchers duly executed and certified by the Department.

 

3)         The Department shall establish a contingency reserve not to exceed three percent in any fee year of the total amount of the revenues described in subsection (d).

 

g)         Fund expenditures

The Department shall spend 100 percent of the moneys in the fund during the fee year from which the monies were collected to reimburse providers for the delivery of Medicaid services less:

 

1)         The administrative expenses incurred in performing the duties authorized by Section 18.1 of the Mental Health and Developmental Disabilities Administrative Act; and

 

2)         A maximum of three percent of the total deposits made to the fund in any fee year for the contingency reserve.

 

h)         Provider assurance

 

1)         In the aggregate, providers under contract with the Department to provide Medicaid reimbursable services that are subject to the fee payment process are entitled to a return of 100 percent of the fee amount paid during any fee year:

 

A)        Plus the federal funding portion;

 

B)        Less the administration expenses incurred by the Department in performing the activities authorized; and

 

C)        Less the allowed three percent contingency reserve.

 

2)         No provider shall receive back less than the amount required as a fee for any given fee year.

 

i)          Department records

The Department shall maintain records showing the amount of money paid by each provider into the fund and the amount of money that has been paid from the fund to each provider for each fee year.

 

j)          Annual audit

 

1)         The Department shall conduct an annual audit of the fund to determine that:

 

A)        Receipts were appropriate and accurate;

 

B)        Disbursements were appropriate and accurate;

 

C)        Delayed fee collection schedules were justified and approved;

 

D)        Interest and penalties were properly calculated and imposed;

 

E)        Local government funds were properly certified;

 

F)         Contingency reserves were accurately calculated;

 

G)        Records were appropriate, complete and correct.

 

2)         Any errors or deficiencies identified as a result of such audit shall be corrected on a timely basis.

 

k)         Fee correction and recovery

If the Department's annual audit identifies erroneous fee or reimbursable payment amounts, then it shall:

 

1)         Correct the fee payment amount and any related fine and notify the provider;

 

2)         Correct the reimbursable payment amount to the provider; or

 

3)         Take the action necessary to recover the required fee or reimbursed payment amount from the provider.

 

l)          Applicability of provider participation fees

 

1)         The Department shall determine which services and which providers will be subject to the provider participation fees.

 

2)         The Department may choose to terminate or revise its policies concerning the computation and/or collection of provider participation fees if laws or regulations are implemented affecting state financing of Medicaid services with mandatory provider participation fees.

 

3)         If the Department terminates the collection of provider participation fees and a positive balance remains in the fund, the Department shall expend the balance as follows:

 

A)        Refund to each provider any portion of the annual fees the provider had submitted, but for which the provider had not yet been reimbursed.

 

B)        Expend whatever is required for any outstanding costs related to the administration of the provider participation fee initiative or to its termination.

 

C)        Distribute any remaining balance among contributing providers proportionally to each provider's contributions to the fund during the 12-month period prior to termination.

 

m)        Appeals procedure

 

1)         Appealable decisions – A provider may request a hearing on the following issues:

 

A)        The initial assessment or change in the amount of the required payment;

 

B)        An audit finding that a provider is required to reimburse the Department for a fee or payment.

 

2)         Notice of appeal rights – The Department shall inform the provider of the right to appeal and the appeal procedure whenever the provider is notified of the initial assessment or change in the amount of the required payment, or of an audit finding that a provider is required to reimburse the Department for a fee or payment.

 

3)         Request for hearing – A provider may appeal the Department's decision by requesting a hearing in writing within 10 days after receipt of the decision. The request shall be sent to:

 

Bureau of Administrative Hearings

Department of Human Services

100 South Grand Avenue East

Springfield IL 62762

 

4)         Stay of proceedings – The request for an appeal shall stay any proceedings or decision taken concerning the provider until the resolution of the appeal.

 

5)         Upon request of the provider at any time prior to the scheduled hearing, the provider may request an informal conference with the Division of Disability and Behavorial Health Services to determine the facts and issues and to resolve any conflicts as amicably as possible.

 

6)         Hearing officer – The hearing shall be conducted by a hearing officer appointed by the Secretary.

 

7)         Scheduling and notice of hearings – Within 60 days after the receipt after the appeal, the hearing officer shall schedule a hearing, to be held in the Department's central offices or a place agreed to by the hearing officer, the Department staff involved and the provider. The hearing officer shall send written notice of the hearing to the provider via certified mail. The notice shall contain:

 

A)        A statement of the nature of the hearing;

 

B)        A statement of the time and place of the hearing;

 

C)        A statement of the right to be represented by an attorney at the provider's expense.

 

8)         Continuances – The hearing officer may, upon good cause shown, grant a continuance requested by the provider.

 

9)         Conduct of hearings

 

A)        The hearing officer shall regulate the course of the hearings; hold informal conferences for the purpose of resolving the case; dispose of procedural issues; continue the hearing from time to time when necessary; examine witnesses and rule upon the relevancy of evidence.

 

B)        At the hearing, the provider and the Department may present written and oral evidence. The Department shall have the burden of proving by substantial evidence that the decision was made in accordance with the statutes and this Section. Upon conclusion of the Department's presentation, the provider may present written and oral evidence.

 

C)        The common law rules of evidence shall not be enforced in the hearing. The hearing officer shall conduct the hearing in a manner that allows participants to present their evidence fully and freely. Either party may ask questions of each other or any witness, and the hearing officer may ask questions of either party or any witness. Questions impeaching the witness' character or credentials shall be improper.

 

D)        The hearing shall be taped or stenographically recorded. The tape or a copy of the transcript shall be retained by the Department. If the provider appeals the hearing officer's decision, a copy of the record shall be provided to the provider upon request.

 

10)         Standard of review – In all appeals, the hearing officer shall decide whether there was substantial evidence showing that the Department's decision was made in accordance with statute and this Section.

 

11)         Decision – Within 10 working days after the hearing, the hearing officer shall issue a written decision that upholds, modifies or reverses the Department's decision. The decision shall contain the reasons for the hearing officer's action. The hearing officer shall mail copies to the provider and the Department via certified mail. The decision shall be accompanied by a letter that informs the provider of the right to appeal the decision and state the procedure for requesting an appeal.

 

12)         Appeal of the hearing officer's decision

 

A)        The provider may request a review of the hearing officer's decision by the Secretary or his or her designee no more than 20 days after the receipt of the hearing officer's decision.

 

B)        Upon receipt of the request for review, the Secretary or designee shall review the hearing officer's decision and copies of all documents considered at the hearing.  Within 20 working days after receipt of the request for review, the Secretary or his or her designee shall issue a decision upholding, modifying or reversing the hearing officer's decision.  The Secretary or his and her designee shall uphold the decision if he or she determines that the decision was supported by substantial evidence.  Copies of the decision shall be sent to the provider, the Department and the hearing officer.

 

C)        The Secretary's decision shall constitute a final administrative decision in accordance with Section 3-101 of the Administrative Review Law [735 ILCS 5/3-101].

 

(Source:  Amended at 23 Ill. Reg. 11118, effective August 24, 1999)

 

Section 101.110  Hearings and appeals under Sections 7 and 8 of the Illinois Grant Funds Recovery Act [30 ILCS 705/7 and 8] (Repealed)

 

(Source:  Repealed at 24 Ill. Reg. 17120, effective November 3, 2000)

 

Section 101.APPENDIX A  Organization Charts (Repealed)

 

Section 101.ILLUSTRATION A  Illinois Department of Mental Health and Developmental Disabilities (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION B  Associate Director (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION C  Division of Developmental Disabilities (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION D  Division of Alcoholism (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION E  Division of Management Services (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION F  Division of Community Services and Interagency Affairs (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION G  Region 1A Office (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION H  Region 1B Office (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION I  Region 2 Office (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION J  Region 2 Developmental Disabilities (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION K  Region 3A Office (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION L  Region 3B Office (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION M  Region 4 Office (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)

 

Section 101.ILLUSTRATION N  Region 5 Office (Repealed)

 

(Source:  Repealed at 8 Ill. Reg. 12265, effective July 1, 1984)