SB0618sam001 94TH GENERAL ASSEMBLY

Sen. M. Maggie Crotty

Filed: 2/23/2006

09400SB0618sam001 LRB094 04357 RSP 56537 a

AMENDMENT TO SENATE BILL 618

AMENDMENT NO. ______. Amend Senate Bill 618 by replacing everything after the enacting clause with the following:

"Section 1. Short title. This Act may be cited as the Olmstead Implementation Act.

Section 5. Findings. Illinois institutionalizes people with developmental disabilities at a rate higher than almost any other state. Illinois ranks 49th out of the 50 states in the percentage of adults with developmental disabilities being served in community-based settings of 1-6 persons (Reference: The State of the States in Developmental Disabilities 2005). In 2005, 21% of Illinois nursing home residents expressed or indicated a preference to return to the community (Reference: the federal Centers for Medicare and Medicaid Services (CMS) Minimum Data Set). Approximately 73.37% of Illinois' long-term care dollars, however, are currently allocated toward institutional care as compared to 26.63% for community-based care (Reference: MEDSTAT data taken from CMS reports). A preliminary report by the University of Illinois Institute of Government and Public Affairs, commissioned by the House Human Services Appropriations Committee and the Senate Appropriations Committee of the Illinois General Assembly, concluded that "the hallmarks of both Illinois' DD and MH systems are a heavy tilt towards institutional settings that is out of step with national policies and a low level of funding for IDHS-funded, community-provided services". The report calls on the State to "increase support for living in community settings", and notes that "the persistence of institutional care as a major component of State policy in Illinois is not in the spirit of major recent social legislation, including the ADA, the Olmstead decision, the Individuals with Disabilities Education Act (IDEA), and the HCBS waiver, which was intended to rid Medicaid law of its pro-institutional bias" (Reference: The Adequacy of State Payments to Community-Based Agencies, March 31, 2005).

Section 10. Purpose. It is the intent of the General Assembly to promote the civil rights of persons with disabilities by providing community-based services for persons with disabilities when those services are determined appropriate and not opposed by the affected persons, as required by Title II of the Americans with Disabilities Act under the United States Supreme Court's decision in Olmstead v. L.C., 527 U.S. 581 (1999). The purpose of this Act is to eliminate barriers or mechanisms, whether in the State law, the State Medicaid plan, the State budget, or otherwise, that prevent or restrict the flexible use of funds to enable individuals to receive support for appropriate and necessary long-term services in the community settings of their choice.

Section 15. Definitions. As used in this Act:

"Community-based service" means a voluntary service, aid, or benefit that is provided to a person with a disability as part of his or her long-term care that is provided under the State's qualified HCB program, or any other home or community-based program as defined by State or federal law, or that could be provided under such a program but is otherwise provided by the State.

"Community service provider" means any person authorized by the State to provide community services and may include families, agencies, and other new providers who help to create a wider array of community-based services.

"Eligible individual" means a person with a disability of any age who: (i) resides in an institution or institutional facility; (ii) with respect to whom a determination has been made that, but for the provision of community-based services, the individual would continue to require the level of care provided in an institution or institutional facility; and (iii) who is deemed appropriate for community-based services, and does not oppose those services.

"Institution" or "institutional facility" means a skilled nursing or intermediate long-term care facility subject to licensure by the Department of Public Health under the Nursing Care Act, an intermediate care facility for the mentally retarded (ICF-DDs) with over 8 beds, an institution for mental diseases, or a State-operated developmental center or mental health center, whether publicly or privately owned.

"Individual's authorized representative" means, with respect to an eligible individual, the individual's parent, family member, guardian, advocate, or other authorized representative of the individual.

"Qualified residence" means, with respect to an eligible individual: (i) a home owned or leased by the individual or the individual's authorized representative; (ii) an apartment with an individual lease, with lockable access and egress, and that includes living, sleeping, bathing, and cooking areas over which the individual or the individual's authorized representative has domain and control; and (iii) a residence, in a community-based residential setting (as defined by State or federal law), in which no more than 8 unrelated individuals reside.

"Public funds" means any funds appropriated by the General Assembly to the Department of Human Services, the Department on Aging, or the Department of Healthcare and Family Services.

Section 20. Redistribution of public funds; community services.

(a) A person with a disability of any age living in an institution or institutional facility who is deemed appropriate for community-based services, and does not oppose those services, may have public funds that would otherwise have been expended for his or her services provided in an institution expended instead for any community service or support that the State generally offers to people with disabilities. As persons with disabilities relocate from institutions or institutional facilities to a qualified residence, funds shall be redistributed from the institutional line item of the State budget to the community services line item to cover the per person cost of the shift in services.

(b) The cost of community services provided under this Act shall not exceed the cost of care in the institutional facility in which the individual most recently resided. When the redistribution of funds from institutional to community services results in aggregate cost savings, those savings may be used only for the following purposes:

(i) to expand the availability, quality, or stability of community services for people with disabilities; and

(ii) to provide other services necessary to transfer people with disabilities into the community, including housing and home modifications.

The redistribution required in this Section shall not have the effect of:

(i) diminishing or reducing the quality of services available to institutional residents; or

(ii) forcing any institutional resident to involuntarily accept community-based services in lieu of institutional services, or causing any institutional resident to be involuntarily transferred or discharged.

(c) Funding for persons under this Act shall remain available to the person as long as he or she remains eligible for services in an institution and does not oppose the transfer from the institution to the community.

Section 25. Implementation. As people with disabilities relocate from institutional facilities to a qualified residence, the Departments of Human Services, Aging, Public Health, and Healthcare and Family Services shall develop a model by which State funding appropriated to cover the costs of such persons' long term care in institutions may be used to cover the cost of their long term care in the community. In conjunction with these efforts, the Departments shall strengthen efforts to divert people from going into institutions by addressing issues relating to preadmission screening, as well as barriers relating to home and community-based services eligibility and quality.

Section 30. Information and dissemination.

(a) The State shall ensure that persons covered under this Act are informed of their opportunity to receive community services under this Act.

(b) The Department of Human Services, Department on Aging, Department of Public Health, and Department of Healthcare and Family Services shall work together to ensure that persons with disabilities and their families, guardians, and advocates are informed of their opportunities for services under this Act in a manner that is easily understandable and accessible to people with disabilities. The Departments shall ensure that appropriate methods of dissemination are employed and shall make all feasible efforts to inform people currently institutionalized, including at their individual team or program meetings. The Department of Human Services and the Department on Aging shall ensure that all nursing home residents listed under the Minimum Data Set (MDS) of the Centers for Medicare and Medicaid Services as preferring to live in the community are informed of and given the opportunity to exercise their rights under this Act.

(c) The Department of Human Services, Department on Aging, Department of Public Health, and Department of Healthcare and Family Services shall use organizations comprised of or representing people with disabilities to ensure that people with disabilities, particularly residents of institutions covered under this Act, and their families, guardians, and advocates are informed of their opportunities for services under this Act.

(d) The Department of Public Health shall ensure that, as a condition of licensing and certification, all institutions covered under this Act shall inform all residents annually of their opportunities to choose home and community alternatives under this Act. Additionally, the Department shall require each facility to post in a prominent location on each residential ward a notice containing information on services available under this Act. Signs posted on residential wards shall comply with the accessibility standards of the Americans with Disabilities Act.

(e) On or before January 1 of each year, the Department of Healthcare and Family Services and the Department of Public Health shall, jointly, report to the Governor and the General Assembly on the implementation of this Act and include, at a minimum, the following data:

(i) the Departments' efforts to promote community-based services;

(ii) the number of institutional residents referred or identified in the previous year;

(iii) the number of people per institutional facility who applied to transfer to the community;

(iv) the number of institutional residents who in fact transferred from the institution to community-based services;

(v) the number of people who received community services under this Act;

(vi) any obstacles the Departments confronted in assisting institutional residents to make the transition from an institution to a community-based residence; and

(vii) the Departments' recommendations for removing the obstacles.

This report must be made available to the general public, including via the Departments' websites.

Section 35. Effect of the Act on existing rights. This Act does not alter or affect the manner in which persons with disabilities are determined eligible or appropriate for community services, except to the extent the determinations are based on the availability of community services. This Act does not limit in any way the rights of people with disabilities under the U.S. Constitution, the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Social Security Act, or any other State law.

Section 40. Rules. The Department of Human Services, Department on Aging, Department of Public Health, and Department of Healthcare and Family Services shall each adopt any rules necessary for the implementation and administration of this Act.

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