HB5372 95TH GENERAL ASSEMBLY

LRB095 16846 DRJ 42884 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB5372

Introduced , by Rep. Michael P. McAuliffe

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 105/5.708 new

Creates the Retail Health Care Facility Permit Act and amends the State Finance Act. Authorizes the Department of Public Health to issue permits for the operation of retail health care facilities. Sets forth the requirements for a permit and the procedures for obtaining a permit. Sets forth requirements for the operation of retail health care facilities. Sets forth procedures in the case of a denial, suspension, revocation, or nonrenewal of a permit. Authorizes the assessment of civil monetary penalties against a permit holder for violations of the Act. Provides that a facility operating without a valid permit or operating on a revoked permit or operating without an operator on duty is guilty of committing a public nuisance, and provides that a person convicted of knowingly maintaining such a public nuisance is subject to criminal penalties. Creates the Retail Health Care Facility Permit Fund for use by the Department of Public Health in conducting activities relating to retail health care facilities. Effective June 1, 2008.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning retail health care facilities.

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 Retail Health Care Facility Permit Act.

Section 5. Legislative purpose. It is declared to be the public policy of this State that the State has a legitimate interest in assuring that health care services are performed under circumstances that ensure maximum safety. Therefore, the purpose of this Act is to provide for the better protection of the public health through the development, establishment, and enforcement of standards (i) for the care of individuals in retail health care facilities and (ii) for the construction, maintenance, and operation of retail health care facilities, which will promote safe and adequate treatment of individuals in retail health care facilities.

Section 10. Definitions. In this Act:

"Department" means the Illinois Department of Public Health or another public health authority designated by the Director as the Department's agent.

"Director" means the Director of Public Health or his or her designee.

"Operator" means the person designated by a permit holder to operate the facility.

"Retail health care facility" or "facility" means any institution, place, or building, or any portion thereof, devoted to the maintenance and operation of facilities for the performance of health care services located within a retail store or pharmacy at a specific location. The facility may not provide surgical services or any form of general anesthesia. The facility may not provide beds or other accommodations for either long-term or overnight stay of patients, and individual patients shall be discharged in an ambulatory condition without danger to the continued well-being of the patients or shall be transferred to a hospital. Hospitals, long-term care facilities, ambulatory treatment centers, blood banks, clinical laboratories, and offices of physicians, advanced practice nurses, podiatrists, and physician assistants, as well as pharmacies that provide pharmaceutical services, are not to be construed to be retail health care facilities.

Section 15. Permit; fees; application.

(a) A permit issued by the Department shall be required prior to the operation of any facility. The owner of the facility shall file an application for a permit with the Department on a form prescribed by the Department that shall include at least the following information:

(1) Applicant's (owner's) name, address, and telephone number.

(2) Name of the facility and its address and telephone number.

(3) Nature of services to be provided at the facility.

(4) Primary function of the business in which the facility is located.

(5) Operating procedures to be used in the facility.

(b) A fee established by rule, not to exceed the cost of administration and enforcement of the permit program under this Act, shall be submitted with the application to the Department.

(c) If a facility owner owns or operates more than one facility, the owner shall file a separate application for each facility owned or operated.

(d) Within 90 days after receipt of an application, the Department's personnel shall complete the initial inspection of the premises of the facility and ensure that the premises and the facilities are or will be operated in accordance with this Act.

(e) Upon submission of the application and the required fee, and if the initial inspection of the premises indicates that the premises and the facilities are or will be operated in accordance with this Act, the Department shall issue a permit to the owner.

(f) The permit issued by the Department shall be effective for one year following the date of issuance. The Department may stagger permit renewal dates on a quarterly basis with an initial permit being effective for at least 9 months but not more than 15 months. The permit shall be valid only for the location and owner stated on the permit and is not transferable.

(g) The permit shall be displayed in a place within sight of the public when a member of the public enters the premises of the facility.

(h) In the event of a change of ownership, the new owner must apply for a permit to own and operate a facility prior to taking possession of the property. A provisional license may be issued by the Department until an initial inspection for a permit can be performed by the Department.

Section 20. Permit renewal procedures; inspections.

(a) All permits issued by the Department under this Act shall expire on a specified date and may be renewed by submitting to the Department, at least 30 days before the expiration date, a permit renewal application and the annual renewal fee established by rule.

(b) The Department may refuse to renew the permit of any owner or operator who has been found to be in violation of this Act for the safe operation of facilities.

Section 25. Requirements for a permit.

(a) Every retail health care facility shall have policies that ensure the following:

(1) All health care services provided must be in accordance with a limited scope of services as determined by the facility's medical director and approved by the Department. These services shall be minor, with no invasive or surgical care.

(2) No health care services may be provided at the facility unless a physician licensed to practice medicine in all its branches, an advanced practice nurse, or a physician assistant is on the facility premises at the time the services are provided.

(3) All health care services provided by an advanced practice nurse shall be in accordance with the advanced practice nurse's collaborative agreement with a physician as required by Section 65-35 of the Nursing Practice Act. A copy of collaborative agreement shall be maintained at the facility. All health care services provided by a physician assistant shall be in accordance with the written guidelines established by the supervising physician or physician/physician assistant team as required by Section 4 of the Physician Assistant Practice Act of 1987. A copy of the written guidelines shall be maintained at the facility.

(4) The facility must have a medical director who is a physician licensed to practice medicine in all its branches with active medical staff privileges to admit patients to a local licensed hospital. A physician may be a medical director of no more than 2 facilities.

(5) The facility must have a referral system to physician practices or other health care entities appropriate to the patient's condition for both follow-up care and for symptoms outside the limited scope of services provided by the facility.

(6) Collaboration of advanced practice nurses or supervision of physician assistants shall not be construed to necessarily require the presence of a collaborating or supervising physician as long as methods of communication are provided by the facility for immediate consultation with the physician in person or by telecommunications for collaboration on medical problems, complications, emergencies, or patient referrals in accordance with written protocols.

(b) All facility policies must meet the requirements of this Act and the rules adopted by the Department to implement this Act.

Section 30. Standards for issuance of permit. The Director shall issue a permit under this Act only if he or she finds that the applicant (i) complies with this Act, the rules implementing this Act, and regulations adopted pursuant to the Act and rules, (ii) is under the medical direction of one or more physicians, and (iii) permits only a limited scope of covered services approved by the Department.

Section 35. Operating requirements. Each facility shall have on hand at all times an operator adequately trained in the correct operation of the facility. The facility shall comply with the requirements of Section 25 of this Act and the following:

(1) The facility must be operated by a physician licensed to practice medicine in all its branches, an advanced practice nurse, or a physician assistant.

(2) All facility personnel must wear on their persons a clearly visible identification indicating their professional licensure status while acting in the course of their duties.

(3) The facility must establish appropriate sanitation and hygienic protocols and facilities, including, but not limited to, refrigeration, hazardous waste disposal, separate restrooms, and handwashing stations with running hot water as determined by rule.

(4) The facility must operate under written protocols approved by the medical director and the advanced practice nurses or the physician assistants providing services at the facility.

(5) The facility must have a designated receptionist and waiting area.

(6) At the conclusion of each visit, each patient must be given a written notice stressing the importance of having a personal physician who can provide the full range of health care services. Patients shall be notified in writing of their opportunity to purchase medications from any provider whenever they receive a prescription at a facility.

(7) The facility must maintain medical records for all patients for the period required of a licensed hospital under the Hospital Licensing Act and State and federal law.

(8) The facility must provide notification of any patient visits and outcomes to the patient's designated physician. If no physician is designated, then notification shall be made when a patient is referred to a physician for follow-up care.

(9) Patients must be informed in writing of the opportunity to purchase any medications, fill any prescriptions, or seek any services from any provider not affiliated with the facility or the store or pharmacy in which it is located.

Section 40. Department standards; rules; regulations. The Department shall adopt rules and regulations deemed necessary for the proper regulation of retail health care facilities. At a minimum, the rules and regulations shall include, but need not be limited to, the following:

(1) Construction of the facility, including, but not limited to, plumbing, heating, lighting, and ventilation that will ensure the health, safety, comfort, and privacy of patients and protection from fire hazards.

(2) Number and qualifications of all personnel, including administrative and nursing personnel, having responsibility for any part of the care provided to the patients.

(3) Equipment essential to the health, welfare, and safety of the patients.

(4) Facilities, programs, and services to be provided in connection with the care of patients in a facility.

Initial rules shall be adopted by November 1, 2008.

Section 45. Prohibited locations. A retail health care facility may not be located in any store or place that provides alcohol or tobacco products for sale to the public.

Section 50. Nondiscrimination in co-payment, deductible, or co-insurance requirement. No health insurer or health plan or health maintenance organization that requires insureds or enrollees to pay co-payments for services may discriminate unreasonably against or among facilities or providers. Retail health care facility services must be subject to the same co-payment, deductible, or co-insurance requirements that are required of an insured or enrollee in the case of services provided by a physician, advanced practice nurse, or physician assistant. Different co-payment requirements may be established for out-patient and in-patient services.

Section 55. Denial, suspension, revocation, nonrenewal of permits. A permit may be denied, suspended, or revoked, or the renewal of a permit may be denied, for any of the following reasons:

(1) Violation of any of the provisions of this Act or the rules and regulations adopted by the Department under this Act.

(2) Conviction of an applicant or permit holder for an offense arising from false, fraudulent, deceptive, or misleading advertising. The record of conviction or a certified copy shall be conclusive evidence of the conviction.

(3) Revocation of a permit during the previous 5 years, or surrender or expiration of the permit during the pendency of action by the Department to revoke or suspend the permit during the previous 5 years. A controlling owner or controlling combination of owners of the applicant; or any affiliate of the individual applicant or controlling owner of the applicant or affiliate of the applicant was a controlling owner of the prior permit.

Section 60. Administration; enforcement.

(a) The Department may establish a training program for the Department's agents who administer and enforce this Act.

(b) In administering and enforcing this Act, the Department may designate and use full-time municipal, district, county, or multiple-county health departments as its agents in administering and enforcing of this Act and the rules adopted under this Act.

Section 65. Investigation; hearing; notice. The Department shall investigate an applicant or permit holder upon the verified complaint in writing of any person setting forth facts that if proven would constitute grounds for the denial of an application for a permit, or for the refusal to renew a permit, or for the revocation or suspension of a permit. The Department may investigate an applicant or permit holder on its own motion. The Department, after notice and an opportunity for a hearing, may deny any application for, or suspend or revoke, a permit or may refuse to renew a permit. Before denying an application, refusing to renew a permit, or suspending or revoking a permit, the Department shall notify the applicant in writing. The notice shall specify the reasons for the Department's contemplated action. The applicant or permit holder must request a hearing within 10 days after receipt of the notice. Failure to request a hearing within 10 days shall constitute a waiver of the right to a hearing.

Section 70. Conduct of hearing.

(a) If an applicant or permit holder requests a hearing under Section 65, the hearing shall be conducted by the Director or by an individual designated in writing by the Director as a hearing officer. The Director or hearing officer may compel by subpoena or subpoena duces tecum the attendance and testimony of witnesses and the production of books and papers and may administer oaths to witnesses. The hearing shall be conducted at a place designated by the Department. The procedures governing hearings and the issuance of final orders under this Act shall be in accordance with rules adopted by the Department.

(b) All subpoenas issued by the Director or hearing officer may be served as provided for in civil actions. The fees of witnesses for attendance and travel shall be the same as the fees for witnesses before the circuit court and shall be paid by the party to the proceedings at whose request the subpoena is issued. If a subpoena is issued at the request of the Department, the witness fee shall be paid as an administrative expense.

(c) In cases of refusal of a witness to attend or testify, or to produce books or papers, concerning any matter upon which he or she might be lawfully examined, the circuit court of the county in which the hearing is held, upon application of any party to the proceeding, may compel obedience by proceeding as for contempt as in cases of a like refusal to obey a similar order of the court.

Section 75. Findings of fact; conclusions of law; decision. The Director or hearing officer shall make findings of fact and conclusions of law in a hearing conducted under Section 70, and the Director shall render his or her decision, or the hearing officer his or her proposal for decision, within 45 days after the termination of the hearing unless additional time is required by the Director or hearing officer for a proper disposition of the matter. A copy of the final decision of the Director shall be served upon the applicant or permit holder in person or by certified mail.

Section 80. Surrender of permit. Upon the revocation of a permit, a permit holder shall be required to surrender the permit to the Department, and upon his or her failure or refusal to do so, the Department shall have the right to seize the same.

Section 85. Review under Administrative Review law; venue; costs. All final administrative decisions of the Department under this Act shall be subject to judicial review under the provisions of Article III of the Code of Civil Procedure. The term "administrative decision" is defined as under Section 3-101 of the Code of Civil Procedure. Proceedings for judicial review shall be commenced in the circuit court of the county in which the party applying for review resides, except that if the party is not a resident of this State, the venue shall be in Sangamon County. The Department shall not be required to certify any record or file any answer or otherwise appear in any proceeding for judicial review unless the party filing the complaint deposits with the clerk of the court the sum of $0.95 per page, representing the costs of certification of the record or file. Failure on the part of the plaintiff to make the deposit shall be grounds for dismissal of the action.

Section 90. Administrative Procedure Act; application. The provisions of the Illinois Administrative Procedure Act are hereby expressly adopted and shall apply to all administrative rules and procedures of the Department under this Act, except that in case of conflict between the Illinois Administrative Procedure Act and this Act the provisions of this Act shall control, and except that Section 5 of the Illinois Administrative Procedure Act relating to procedures for rulemaking does not apply to the adoption of any rules required by federal law in connection with which the Department is precluded by law from exercising any discretion.

Section 95. Penalties. The Department may establish and assess civil monetary penalties against a permit holder for violations of this Act or regulations adopted under this Act. In no circumstance may any such penalty exceed $1,000 per day for each day the permit holder remains in violation.

Section 100. Public nuisance.

(a) Any facility operating without a valid permit, or operating on a revoked permit, or operating without an operator, as defined in this Act, on duty constitutes a public nuisance.

(b) A person convicted of knowingly maintaining a public nuisance under this Act commits a Class A misdemeanor. A second or subsequent offense under this subsection is a Class 4 felony.

(c) The Attorney General of this State or the State's Attorney of the county in which the nuisance exists may commence an action to abate the nuisance. The court, without notice or bond, may enter a temporary restraining order or a preliminary injunction to enjoin the defendant from operating in violation of this Act.

Section 105. Advertising.

(a) Any facility may advertise the availability of professional services in the public media or on the premises where the professional services are rendered. The advertising shall be limited to the following information:

(1) Publication of the facility's name, office hours, address, and telephone number.

(2) Information pertaining to the professionals providing services at the facility.

(3) Information on usual and customary fees for routine professional services offered.

(4) Announcement of the opening of, change of, absence from, or return to business.

(5) Announcement of additions to or deletions from professional licensed staff.

(6) The issuance of business cards.

(b) It is unlawful for any facility with respect to which a permit has been issued under this Act to use testimonials or claims of superior quality of care to entice the public. It is unlawful for a facility to advertise comparisons of its fees for available services with the fees of other facilities with respect to which a permit has been issued under this Act or that are licensed or otherwise authorized to operate under any other Illinois law.

(c) This Act does not authorize the advertising of professional services that a facility is not authorized to render, nor shall an advertiser use statements that contain false, fraudulent, deceptive, or misleading material or guarantees of success, statements that play upon the vanity or fears of the public, or statements that promote or produce unfair competition.

(d) It is unlawful and punishable under Section 95 for any facility licensed under this Act to knowingly advertise that the facility will accept as payment for services rendered by assignment from any third party payor the amount the third party payor covers as payment in full, if the effect is to give the impression of eliminating the need of payment by the patient of any required deductible or copayment applicable in the patient's health benefit plan.

(e) As used in this Section, "advertise" means solicitation by the permit holder or through another by means of handbills, posters, circulars, motion pictures, radio, newspapers, television, the Internet, or the World Wide Web, or in any other manner.

Section 110. Retail Health Care Facility Permit Fund. There is created in the State Treasury a special fund to be known as the Retail Health Care Facility Permit Fund. All fees and penalties collected by the Department under this Act, and any federal funds collected pursuant to the administration of this Act, shall be deposited into the Fund. The amounts deposited into the Fund shall be appropriated by the General Assembly to the Department for the purpose of conducting activities relating to retail health care facilities under this Act.

Section 115. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 900. The State Finance Act is amended by adding Section 5.708 as follows:

(30 ILCS 105/5.708 new)

Sec. 5.708. The Retail Health Care Facility Permit Fund.

Section 999. Effective date. This Act takes effect June 1, 2008.