SB0159 94TH GENERAL ASSEMBLY

LRB094 03627 DRJ 38994 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
SB0159

Introduced 2/2/2005, by Sen. M. Maggie Crotty

SYNOPSIS AS INTRODUCED:

New Act

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

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning business.

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

Section 1. Short title. This Act may be cited as the Home Care Consumer and Worker Protection Act.

Section 5. Purpose. The purpose of this Act is to protect consumers of home care services and individuals providing private, individual home care services, by ensuring that both the consumers and the workers are given the ability to make informed, knowing decisions regarding their status as employees, independent contractors, and employers.

Section 10. Definitions. In this Act:

"Consumer" means an individual who receives home care services in his or her temporary or permanent residence provided by a privately employed individual.

"Department" means the Department on Aging.

"Home care services" means non-skilled care provided to an individual in his or her residence for the purpose of enabling that individual to remain safely and comfortably in his or her own residence.

"Home care worker" means a worker who provides home care services to a consumer in the consumer's temporary or permanent residence.

"Person" means an individual, firm, association, partnership, company, or corporation.

"Placement agency" means any person engaged for gain or profit in the business of securing or attempting to secure (i) work for hire for persons seeking work or (ii) workers for employers. The term includes a private employment agency and any other entity that places a worker for private hire by a consumer in that consumer's residence for purposes of providing home care services. The term does not include a person that provides or procures temporary employment in health care facilities, as defined in Section 10 of the Health Care Surrogate Act, for medical personnel including, but not limited to, nurses and certified nurse aides.

"Worker" means any person who performs work or services of any kind or character for hire.

Section 15. Application of Act. This Act applies to every placement agency as defined in this Act, except as follows:

(1) This Act does not apply to a health care facility or agency that is regulated under another Act, including, without limitation, a facility licensed under the Nursing Home Care Act, the Home Health Agency Licensing Act, or the Hospital Licensing Act, a supportive living facility described in Section 5-5.01a of the Illinois Public Aid Code, or an assisted living establishment licensed under the Assisted Living and Shared Housing Act.

(2) This Act does not apply to a program that provides services pursuant to a contract with the State or federal government, including, without limitation, a program providing services (i) funded by the Department on Aging through the community care program or (ii) funded by the Department of Human Services' Office of Rehabilitation Services through the personal assistant program.

(3) This Act does not apply to an adult day care agency.

(4) This Act does not apply to an organization that confines its services to housecleaning services.

Section 20. Placement agency responsibilities.

(a) A placement agency must comply with the Health Care Worker Background Check Act.

(b) A placement agency must ensure that every home care worker placed by the agency for hire by a consumer has the appropriate credentials and is appropriately licensed or certified as required by law.

Section 25. Notice to consumer; consumer's liability to home care worker.

(a) Each time home care services are initiated in a consumer's home, the placement agency must give to the consumer a notice that complies with Section 35. The placement agency must give the notice to the consumer if the consumer is 12 years of age or older. The placement agency must also give the consumer such a notice at least once each year thereafter as long as the consumer continues to receive home care services from a home care worker placed by the agency. The placement agency need not give the consumer such a notice, however, when another home care worker temporarily substitutes for the consumer's regular home care worker.

(b) If the consumer has a guardian or substitute decision maker, the placement agency must also give the notice to the guardian or substitute decision maker. If the consumer is a minor, the placement agency must also give the notice to the consumer's parent or guardian.

(c) The consumer, or the consumer's parent, guardian, or substitute decision maker, if any, must sign the notice, and the placement agency must keep the signed notice on file at its principal office for 7 years.

(d) A placement agency's failure to give a consumer the notice required under this Section does not relieve the consumer of any of his or her duties or obligations as an employer. If a placement agency fails to give a consumer the notice required under this Section and the Department determines that the consumer is liable to the home care worker or on the home care worker's behalf for the payment of wages, taxes, workers' compensation, or unemployment insurance, the consumer has a right of action against the placement agency for relief including, but not be limited to, recovery of the actual amounts paid by the consumer to or on behalf of the home care worker, recovery of any monetary penalties incurred by the consumer, and recovery of the consumer's attorney's fees and costs incurred in pursuing that relief.

Section 30. Notice to home care worker.

(a) Each time a placement agency initially places a home care worker in a consumer's home, the placement agency must give to the home care worker a notice that complies with Section 35. The placement agency need not give the home care worker such a notice, however, if the home care worker is temporarily substituting for the consumer's regular home care worker for a period of 2 days or less.

(b) The consumer must sign the notice, and the placement agency must keep the signed notice on file at its principal office for 7 years.

(c) If a placement agency fails to give a home care worker the notice required under this Section, the placement agency is subject to penalties as provided in Section 45.

Section 35. Form and contents of notice. The notice given to consumers under Section 25 and to home care workers under Section 30 must be in the form prescribed by the Department. At a minimum, the notice must include the following information:

(1) A description of the duties, responsibilities, obligations, and legal liabilities of the placement agency to the home care worker and to the consumer. The description must clearly set forth the person who is responsible for each of the following:

(A) The payment of the home care worker's wages, taxes, social security, unemployment insurance, and workers' compensation.

(B) Day-to-day supervision of the home care worker.

(C) The assignment of duties to the home care worker.

(D) The hiring, firing, and discipline of the home care worker.

(E) The provision of equipment or materials for the home care worker's use in providing home care services to the consumer.

(2) A statement identifying the placement agency as an employer, joint employer, leasing employer, or non-employer, as applicable, along with the responsibility, if any, that the placement agency will assume for paying the home care worker's wages, taxes, social security, overtime, workers' compensation, and unemployment insurance payments.

(3) A statement that, regardless of the placement agency's status, the consumer may be considered an employer under various State and federal employment laws, and that if this is the case, the consumer may be held responsible for the payment of federal, State, and local taxes, social security, overtime and minimum wages, unemployment insurance, and workers' compensation payments.

(4) A list of the forms that the consumer may be required by law to complete and submit as an employer.

(5) The penalties that may be assessed against the consumer if he or she is determined to be an employer but has not fulfilled his or her obligations as an employer.

(6) The appropriate phone numbers and addresses for the Department in case the consumer or the home care worker has questions concerning the contents of the notice.

Section 40. Investigation of complaints.

(a) The Department at any time may, and upon receiving a complaint from an interested party shall, investigate a placement agency's alleged violation of this Act or the rules implementing this Act.

(b) In conducting an investigation under this Act, the Department or the Department's authorized representative may do the following:

(1) Examine the premises of a placement agency.

(2) Compel by subpoena, for examination or inspection, the attendance and testimony of witnesses and the production of books, payrolls, records, papers, and other evidence.

(3) Administer oaths or affirmations to witnesses.

Section 45. Violation; penalty.

(a) After appropriate notice and investigation, and if supported by the evidence, the Department may issue and cause to be served on any person an order (i) to cease and desist from violating this Act or the rules implementing this Act and (ii) to take any further action that is determined necessary to eliminate the effect of the violation.

(b) Whenever it appears that any person has violated a valid order of the Department issued under this Act, the Department may commence an action for a court order directing the person to obey the order of the Department.

(c) In addition to any other relief authorized under this Act, the Department may bring an action in a court of competent jurisdiction to enjoin any person from violating this Act or the rules implementing this Act.

(d) In addition to any other penalty authorized under this Act, a placement agency that violates this Act or the rules implementing this Act is subject to a civil penalty of $1,000 per day for each day that the violation continues. The Department may impose a civil penalty under this Section only after the Department provides the following to the person alleged to have committed the violation:

(1) Written notice of the alleged violation.

(2) Written notice of the person's right to request an administrative hearing on the question of the alleged violation.

(3) An opportunity to present evidence, orally or in writing or both, on the question of the alleged violation before an impartial hearing examiner appointed by the Department.

(4) A written decision from the Department, based on the evidence introduced at the hearing and the hearing examiner's recommendations, finding that the person violated this Act or the rules implementing this Act and imposing the civil penalty.

The Attorney General may bring an action in the circuit court to enforce the collection of a monetary penalty imposed under this Section. The court may order that a civil penalty imposed under this Section, together with any costs or attorney's fees arising out of the action to collect the penalties, be paid to the Department.

The fact that a violation has ceased does not excuse any person from liability for a civil penalty arising from the violation.

Section 50. Review under Administrative Review Law. All final administrative decisions of the Department under this Act are subject to judicial review under the Administrative Review Law. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

Section 55. Rules. The Department shall adopt rules to implement this Act.

Section 99. Effective date. This Act takes effect January 1, 2006.