SB2147ham002 97TH GENERAL ASSEMBLY

Rep. Lou Lang

Filed: 5/16/2011

09700SB2147ham002 LRB097 09338 RPM 55669 a

AMENDMENT TO SENATE BILL 2147

AMENDMENT NO. ______. Amend Senate Bill 2147 by replacing everything after the enacting clause with the following:

"Section 5. The Department of Public Health Powers and Duties Law of the Civil Administrative Code of Illinois is amended by changing Section 2310-130 as follows:

(20 ILCS 2310/2310-130) (was 20 ILCS 2310/55.82)

Sec. 2310-130. Medicare or Medicaid certification fee; Health Care Facility and Program Survey Fund. To establish and charge a fee to any facility or program applying to be certified to participate in the Medicare program under Title XVIII of the federal Social Security Act or in the Medicaid program under Title XIX of the federal Social Security Act to cover the costs associated with the application, inspection, and survey of the facility or program and processing of the application. The Department shall establish the fee by rule, and the fee shall be based only on those application, inspection, and survey and processing costs not reimbursed to the State by the federal government. The fee shall be paid by the facility or program before the application is processed.

The fees received by the Department under this Section shall be deposited into the Health Care Facility and Program Survey Fund, which is hereby created as a special fund in the State treasury. Moneys in the Fund shall be appropriated to the Department and may be used for any costs incurred by the Department, including personnel costs, in the processing of applications for Medicare or Medicaid certification.

Beginning July 1, 2011, the Department shall employ a minimum of one surveyor for every 500 licensed long term care beds. Subject to a specific appropriation, but not earlier than Beginning July 1, 2012, the Department shall employ a minimum of one surveyor for every 400 licensed long term care beds. Subject to a specific appropriation, but not earlier than Beginning July 1, 2013, the Department shall employ a minimum of one surveyor for every 300 licensed long term care beds.

(Source: P.A. 96-1372, eff. 7-29-10.)

Section 10. The State Finance Act is amended by changing Section 5.589 as follows:

(30 ILCS 105/5.589)

Sec. 5.589. The Equity in Long-term Care Surveyor Quality Fund.

(Source: P.A. 95-331, eff. 8-21-07; 96-1372, eff. 7-29-10.)

Section 15. The Equity in Long-term Care Quality Act is amended by changing the title of the Act and Sections 1 and 15 as follows:

(30 ILCS 772/Act title)

An Act to create the Equity in Long-term Care Surveyor Quality Act.

(30 ILCS 772/1)

Sec. 1. Short title. This Act may be cited as the Equity in Long-term Care Surveyor Quality Act.

(Source: P.A. 96-1372, eff. 7-29-10.)

(30 ILCS 772/15)

Sec. 15. Equity in Long-term Care Surveyor Quality Fund.

(a) There is created in the State treasury a special fund to be known as the Equity in Long-term Care Surveyor Quality Fund. Fifty percent of all Grants shall be funded using federal civil monetary penalties collected and deposited into the Long Term Care Monitor/Receiver Fund established under the Nursing Home Care Act shall be transferred to the Long-term Care Surveyor Fund. Subject to appropriation, moneys in the Fund shall be used to pay for long-term care surveyors improve the quality of nursing home care in areas without access to high-quality long-term care. Interest earned on moneys in the Fund shall be deposited into the Fund. All federal funds received as the result of expenditures from the Fund shall be paid into the Fund

(b) (Blank). The Department may use no more than 10% of the moneys deposited into the Fund in any year to administer the program established by the Fund and to implement the requirements of the Nursing Home Care Act with respect to distressed facilities.

(Source: P.A. 96-1372, eff. 7-29-10.)

Section 20. The Nursing Home Care Act is amended by changing Sections 2-201.7, 3-113, 3-202.05, 3-103, 3-212, 3-304.2, and 3-305 and by adding Section 3-304.2 as follows:

(210 ILCS 45/2-201.7)

Sec. 2-201.7. Expanded criminal history background check pilot program.

(a) The purpose of this Section is to establish a pilot program, subject to appropriation, based in Cook and Will counties in which an expanded criminal history background check screening process will be utilized to better identify residents of licensed long term care facilities who, because of their criminal histories, may pose a risk to other vulnerable residents.

(b) In this Section, "mixed population facility" means a facility that has more than 25 residents with a diagnosis of serious mental illness and residents 65 years of age or older.

(c) Every mixed population facility located in Cook County or Will County shall participate in the pilot program and shall employ expanded criminal history background check screening procedures for all residents admitted to the facility who are at least 18 years of age but less than 65 years of age. Under the pilot program, criminal history background checks required under this Act shall employ fingerprint-based criminal history record inquiries or comparably comprehensive name-based criminal history background checks. Fingerprint-based criminal history record inquiries shall be conducted pursuant to subsection (c-2) of Section 2-201.5. A Criminal History Report and an Identified Offender Report and Recommendation shall be completed pursuant to Section 2-201.6 if the results of the expanded criminal history background check reveal that a resident is an identified offender as defined in Section 1-114.01.

(d) If an expanded criminal history background check reveals that a resident is an identified offender as defined in Section 1-114.01, the facility shall be notified within 72 hours.

(e) The cost of the expanded criminal history background checks conducted pursuant to the pilot program shall not exceed $50 per resident and shall be paid by the facility. The Department of State Police shall implement all potential measures to minimize the cost of the expanded criminal history background checks to the participating long term care facilities.

(f) The pilot program shall run for a period of one year after the effective date of this amendatory Act of the 96th General Assembly. Promptly after the end of that one-year period, the Department shall report the results of the pilot program to the General Assembly.

(Source: P.A. 96-1372, eff. 7-29-10.)

(210 ILCS 45/3-103) (from Ch. 111 1/2, par. 4153-103)

Sec. 3-103. The procedure for obtaining a valid license shall be as follows:

(1) Application to operate a facility shall be made to the Department on forms furnished by the Department.

(2) All license applications shall be accompanied with an application fee. The fee for an annual license shall be $995 $1,990. Facilities that pay a fee or assessment pursuant to Article V-C of the Illinois Public Aid Code shall be exempt from the license fee imposed under this item (2). The fee for a 2-year license shall be double the fee for the annual license. The fees collected shall be deposited with the State Treasurer into the Long Term Care Monitor/Receiver Fund, which has been created as a special fund in the State treasury. This special fund is to be used by the Department for expenses related to the appointment of monitors and receivers as contained in Sections 3-501 through 3-517 of this Act, for the enforcement of this Act, and for implementation of the Abuse Prevention Review Team Act. All federal moneys received as a result of expenditures from the Fund shall be deposited into the Fund. The Department may reduce or waive a penalty pursuant to Section 3-308 only if that action will not threaten the ability of the Department to meet the expenses required to be met by the Long Term Care Monitor/Receiver Fund. The application shall be under oath and the submission of false or misleading information shall be a Class A misdemeanor. The application shall contain the following information:

(a) The name and address of the applicant if an individual, and if a firm, partnership, or association, of every member thereof, and in the case of a corporation, the name and address thereof and of its officers and its registered agent, and in the case of a unit of local government, the name and address of its chief executive officer;

(b) The name and location of the facility for which a license is sought;

(c) The name of the person or persons under whose management or supervision the facility will be conducted;

(d) The number and type of residents for which maintenance, personal care, or nursing is to be provided; and

(e) Such information relating to the number, experience, and training of the employees of the facility, any management agreements for the operation of the facility, and of the moral character of the applicant and employees as the Department may deem necessary.

(3) Each initial application shall be accompanied by a financial statement setting forth the financial condition of the applicant and by a statement from the unit of local government having zoning jurisdiction over the facility's location stating that the location of the facility is not in violation of a zoning ordinance. An initial application for a new facility shall be accompanied by a permit as required by the "Illinois Health Facilities Planning Act". After the application is approved, the applicant shall advise the Department every 6 months of any changes in the information originally provided in the application.

(4) Other information necessary to determine the identity and qualifications of an applicant to operate a facility in accordance with this Act shall be included in the application as required by the Department in regulations.

(Source: P.A. 96-758, eff. 8-25-09; 96-1372, eff. 7-29-10; 96-1504, eff. 1-27-11; 96-1530, eff. 2-16-11; revised 2-23-11.)

(210 ILCS 45/3-113) (from Ch. 111 1/2, par. 4153-113)

Sec. 3-113. The license granted to the transferee shall be subject to the plan of correction submitted by the previous owner and approved by the Department and any conditions contained in a conditional license issued to the previous owner. If there are outstanding violations and no approved plan of correction has been implemented, the Department may issue a conditional license and plan of correction as provided in Sections 3-311 through 3-317. The license granted to a transferee for a facility that is in receivership shall be subject to any contractual obligations assumed by a grantee under the Equity in Long-term Care Quality Act and to the plan submitted by the receiver for continuing and increasing adherence to best practices in providing high-quality nursing home care, unless the grant is repaid, under conditions to be determined by rule by the Department in its administration of the Equity in Long-term Care Quality Act.

(Source: P.A. 96-1372, eff. 7-29-10.)

(210 ILCS 45/3-202.05)

Sec. 3-202.05. Staffing ratios effective July 1, 2010 and thereafter.

(a) For the purpose of computing staff to resident ratios, direct care staff shall include:

(1) registered nurses;

(2) licensed practical nurses;

(3) certified nurse assistants;

(4) psychiatric services rehabilitation aides;

(5) rehabilitation and therapy aides;

(6) psychiatric services rehabilitation coordinators;

(7) assistant directors of nursing;

(8) 50% of the Director of Nurses' time; and

(9) 30% of the Social Services Directors' time.

The Department shall, by rule, allow certain facilities subject to 77 Ill. Admin. Code 300.4000 and following (Subpart S) and 300.6000 and following (Subpart T) to utilize specialized clinical staff, as defined in rules, to count towards the staffing ratios.

(b) Beginning January 1, 2011, and thereafter, light intermediate care shall be staffed at the same staffing ratio as intermediate care.

(c) Facilities shall notify the Department within 60 days after the effective date of this amendatory Act of the 96th General Assembly, in a form and manner prescribed by the Department, of the staffing ratios in effect on the effective date of this amendatory Act of the 96th General Assembly for both intermediate and skilled care and the number of residents receiving each level of care.

(d)(1) Effective July 1, 2010, for each resident needing skilled care, a minimum staffing ratio of 2.5 hours of nursing and personal care each day must be provided; for each resident needing intermediate care, 1.7 hours of nursing and personal care each day must be provided.

(2) Effective January 1, 2011, the minimum staffing ratios shall be increased to 2.7 hours of nursing and personal care each day for a resident needing skilled care and 1.9 hours of nursing and personal care each day for a resident needing intermediate care.

(3) Effective January 1, 2013 2012, the minimum staffing ratios shall be increased to 3.0 hours of nursing and personal care each day for a resident needing skilled care and 2.1 hours of nursing and personal care each day for a resident needing intermediate care.

(4) Effective January 1, 2014 2013, the minimum staffing ratios shall be increased to 3.4 hours of nursing and personal care each day for a resident needing skilled care and 2.3 hours of nursing and personal care each day for a resident needing intermediate care.

(5) Effective January 1, 2015 2014, the minimum staffing ratios shall be increased to 3.8 hours of nursing and personal care each day for a resident needing skilled care and 2.5 hours of nursing and personal care each day for a resident needing intermediate care.

(e) The staffing increases set forth in paragraphs (3), (4), and (5) of subsection (d) of this Section shall not take effect until (i) the methodologies contained in Section 5-5.4 of the Illinois Public Aid Code are approved by the federal government in an appropriate State Plan amendment and (ii) the assessment imposed by Section 5B-2 of the Illinois Public Aid Code is determined to be a permissible tax under Title XIX of the Social Security Act.

(f) The Department shall establish a methodology for determining the number of direct care hours that must be provided to a resident by a registered nurse based on the care needs of the resident.

(Source: P.A. 96-1372, eff. 7-29-10; 96-1504, eff. 1-27-11.)

(210 ILCS 45/3-212) (from Ch. 111 1/2, par. 4153-212)

Sec. 3-212. Inspection.

(a) The Department, whenever it deems necessary in accordance with subsection (b), shall inspect, survey and evaluate every facility to determine compliance with applicable licensure requirements and standards. Submission of a facility's current Consumer Choice Information Report required by Section 2-214 shall be verified at time of inspection. An inspection should occur within 120 days prior to license renewal. The Department may periodically visit a facility for the purpose of consultation. An inspection, survey, or evaluation, other than an inspection of financial records, shall be conducted without prior notice to the facility. A visit for the sole purpose of consultation may be announced. The Department shall provide training to surveyors about the appropriate assessment, care planning, and care of persons with mental illness (other than Alzheimer's disease or related disorders) to enable its surveyors to determine whether a facility is complying with State and federal requirements about the assessment, care planning, and care of those persons.

(a-1) An employee of a State or unit of local government agency charged with inspecting, surveying, and evaluating facilities who directly or indirectly gives prior notice of an inspection, survey, or evaluation, other than an inspection of financial records, to a facility or to an employee of a facility is guilty of a Class A misdemeanor.

An inspector or an employee of the Department who intentionally prenotifies a facility, orally or in writing, of a pending complaint investigation or inspection shall be guilty of a Class A misdemeanor. Superiors of persons who have prenotified a facility shall be subject to the same penalties, if they have knowingly allowed the prenotification. A person found guilty of prenotifying a facility shall be subject to disciplinary action by his or her employer.

If the Department has a good faith belief, based upon information that comes to its attention, that a violation of this subsection has occurred, it must file a complaint with the Attorney General or the State's Attorney in the county where the violation took place within 30 days after discovery of the information.

(a-2) An employee of a State or unit of local government agency charged with inspecting, surveying, or evaluating facilities who willfully profits from violating the confidentiality of the inspection, survey, or evaluation process shall be guilty of a Class 4 felony and that conduct shall be deemed unprofessional conduct that may subject a person to loss of his or her professional license. An action to prosecute a person for violating this subsection (a-2) may be brought by either the Attorney General or the State's Attorney in the county where the violation took place.

(b) In determining whether to make more than the required number of unannounced inspections, surveys and evaluations of a facility the Department shall consider one or more of the following: previous inspection reports; the facility's history of compliance with standards, rules and regulations promulgated under this Act and correction of violations, penalties or other enforcement actions; the number and severity of complaints received about the facility; any allegations of resident abuse or neglect; weather conditions; health emergencies; other reasonable belief that deficiencies exist.

(b-1) The Department shall not be required to determine whether a facility certified to participate in the Medicare program under Title XVIII of the Social Security Act, or the Medicaid program under Title XIX of the Social Security Act, and which the Department determines by inspection under this Section or under Section 3-702 of this Act to be in compliance with the certification requirements of Title XVIII or XIX, is in compliance with any requirement of this Act that is less stringent than or duplicates a federal certification requirement. In accordance with subsection (a) of this Section or subsection (d) of Section 3-702, the Department shall determine whether a certified facility is in compliance with requirements of this Act that exceed federal certification requirements. If a certified facility is found to be out of compliance with federal certification requirements, the results of an inspection conducted pursuant to Title XVIII or XIX of the Social Security Act may be used as the basis for enforcement remedies authorized and commenced, with the Department's discretion to evaluate whether penalties are warranted, under this Act. Enforcement of this Act against a certified facility shall be commenced pursuant to the requirements of this Act, unless enforcement remedies sought pursuant to Title XVIII or XIX of the Social Security Act exceed those authorized by this Act. As used in this subsection, "enforcement remedy" means a sanction for violating a federal certification requirement or this Act.

(c) Upon completion of each inspection, survey and evaluation, the appropriate Department personnel who conducted the inspection, survey or evaluation shall submit a copy of their report to the licensee upon exiting the facility, and shall submit the actual report to the appropriate regional office of the Department. Such report and any recommendations for action by the Department under this Act shall be transmitted to the appropriate offices of the associate director of the Department, together with related comments or documentation provided by the licensee which may refute findings in the report, which explain extenuating circumstances that the facility could not reasonably have prevented, or which indicate methods and timetables for correction of deficiencies described in the report. Without affecting the application of subsection (a) of Section 3-303, any documentation or comments of the licensee shall be provided within 10 days of receipt of the copy of the report. Such report shall recommend to the Director appropriate action under this Act with respect to findings against a facility. The Director shall then determine whether the report's findings constitute a violation or violations of which the facility must be given notice. Such determination shall be based upon the severity of the finding, the danger posed to resident health and safety, the comments and documentation provided by the facility, the diligence and efforts to correct deficiencies, correction of the reported deficiencies, the frequency and duration of similar findings in previous reports and the facility's general inspection history. Violations shall be determined under this subsection no later than 60 90 days after completion of each inspection, survey and evaluation.

(d) The Department shall maintain all inspection, survey and evaluation reports for at least 5 years in a manner accessible to and understandable by the public.

(e) Revisit surveys. The Department shall conduct a revisit to its licensure and certification surveys, consistent with federal regulations and guidelines.

(Source: P.A. 95-823, eff. 1-1-09; 96-1372, eff. 7-29-10.)

(210 ILCS 45/3-304.2)

Sec. 3-304.2. Designation of distressed facilities.

(a) By May 1, 2011, and quarterly thereafter, the Department shall generate and publish quarterly a list of distressed facilities. Criteria for inclusion of certified facilities on the list shall be those used by the U.S. General Accounting Office in report 9-689, until such time as the Department by rule modifies the criteria.

(b) In deciding whether and how to modify the criteria used by the General Accounting Office, the Department shall complete a test run of any substitute criteria to determine their reliability by comparing the number of facilities identified as distressed against the number of distressed facilities generated using the criteria contained in the General Accounting Office report. The Department may not adopt substitute criteria that generate fewer facilities with a distressed designation than are produced by the General Accounting Office criteria during the test run.

(c) The Department shall, by rule, adopt criteria to identify non-Medicaid-certified facilities that are distressed and shall publish this list quarterly beginning October 1, 2011.

(d) The Department shall notify each facility of its distressed designation, and of the calculation on which it is based.

(e) A distressed facility may contract with an independent consultant meeting criteria established by the Department. If the distressed facility does not seek the assistance of an independent consultant, the Department shall place a monitor or a temporary manager in the facility, depending on the Department's assessment of the condition of the facility.

(f) Independent consultant. A facility that has been designated a distressed facility may contract with an independent consultant to develop and assist in the implementation of a plan of improvement to bring and keep the facility in compliance with this Act and, if applicable, with federal certification requirements. A facility that contracts with an independent consultant shall have 90 days to develop a plan of improvement and demonstrate a good faith effort at implementation, and another 90 days to achieve compliance and take whatever additional actions are called for in the improvement plan to maintain compliance. A facility that the Department determines has a plan of improvement likely to bring and keep the facility in compliance and that has demonstrated good faith efforts at implementation within the first 90 days may be eligible to receive a grant under the Equity in Long-term Care Quality Act to assist it in achieving and maintaining compliance. In this subsection, "independent" consultant means an individual who has no professional or financial relationship with the facility, any person with a reportable ownership interest in the facility, or any related parties. In this subsection, "related parties" has the meaning attributed to it in the instructions for completing Medicaid cost reports.

(f) Monitor and temporary managers. A distressed facility that does not contract with a consultant shall be assigned a monitor or a temporary manager at the Department's discretion. The cost of the temporary manager shall be paid by the facility. The temporary manager shall have the authority determined by the Department, which may grant the temporary manager any or all of the authority a court may grant a receiver. The temporary manager may apply to the Equity in Long-term Care Quality Fund for grant funds to implement the plan of improvement.

(g) The Department shall by rule establish a mentor program for owners of distressed facilities.

(h) The Department shall by rule establish sanctions (in addition to those authorized elsewhere in this Article) against distressed facilities that are not in compliance with this Act and (if applicable) with federal certification requirements. Criteria for imposing sanctions shall take into account a facility's actions to address the violations and deficiencies that caused its designation as a distressed facility, and its compliance with this Act and with federal certification requirements (if applicable), subsequent to its designation as a distressed facility, including mandatory revocations if criteria can be agreed upon by the Department, resident advocates, and representatives of the nursing home profession. By February 1, 2011, the Department shall report to the General Assembly on the results of negotiations about creating criteria for mandatory license revocations of distressed facilities and make recommendations about any statutory changes it believes are appropriate to protect the health, safety, and welfare of nursing home residents.

(i) The Department may establish by rule criteria for restricting the owner of a facility on the distressed list from acquiring additional skilled nursing facilities.

(j) Implementation of this Section and any other Sections of this Act referencing distressed facilities shall be placed on hold pending a specific appropriation to cover the cost of developing and maintaining a State-specific rating system and all ordinary and contingent expenses associated with full implementation of this Section.

(Source: P.A. 96-1372, eff. 7-29-10.)

(210 ILCS 45/3-305) (from Ch. 111 1/2, par. 4153-305)

Sec. 3-305. The license of a facility which is in violation of this Act or any rule adopted thereunder may be subject to the penalties or fines levied by the Department as specified in this Section.

(1) A licensee who commits a Type "AA" violation as defined in Section 1-128.5 is automatically issued a conditional license for a period of 6 months to coincide with an acceptable plan of correction and assessed a fine up to $10,000 $25,000 per violation.

(1.5) A licensee who commits a Type "A" violation as defined in Section 1-129 is automatically issued a conditional license for a period of 6 months to coincide with an acceptable plan of correction and assessed a fine of up to $5,000 $12,500 per violation.

(2) A licensee who commits a Type "B" violation as defined in Section 1-130 shall be assessed a fine of up to $500 $1,100 per violation.

(2.5) (Blank). A licensee who commits 10 or more Type "C" violations, as defined in Section 1-132, in a single survey shall be assessed a fine of up to $250 per violation. A licensee who commits one or more Type "C" violations with a high risk designation, as defined by rule, shall be assessed a fine of up to $500 per violation.

(3) A licensee who commits a Type "AA" or Type "A" violation as defined in Section 1-128.5 or 1-129 which continues beyond the time specified in paragraph (a) of Section 3-303 which is cited as a repeat violation shall have its license revoked and shall be assessed a fine of 3 times the fine computed per resident per day under subsection (1).

(4) A licensee who fails to satisfactorily comply with an accepted plan of correction for a Type "B" violation or an administrative warning issued pursuant to Sections 3-401 through 3-413 or the rules promulgated thereunder shall be automatically issued a conditional license for a period of not less than 6 months. A second or subsequent acceptable plan of correction shall be filed. A fine shall be assessed in accordance with subsection (2) when cited for the repeat violation. This fine shall be computed for all days of the violation, including the duration of the first plan of correction compliance time.

(5) For the purpose of computing a penalty under subsections (2) through (4), the number of residents per day shall be based on the average number of residents in the facility during the 30 days preceding the discovery of the violation.

(6) When the Department finds that a provision of Article II has been violated with regard to a particular resident, the Department shall issue an order requiring the facility to reimburse the resident for injuries incurred, or $100, whichever is greater. In the case of a violation involving any action other than theft of money belonging to a resident, reimbursement shall be ordered only if a provision of Article II has been violated with regard to that or any other resident of the facility within the 2 years immediately preceding the violation in question.

(7) For purposes of assessing fines under this Section, a repeat violation shall be a violation which has been cited during one inspection of the facility for which an accepted plan of correction was not complied with or a new citation of the same rule if the licensee is not substantially addressing the issue routinely throughout the facility.

(7.5) If an occurrence results in more than one type of violation as defined in this Act (that is, a Type "AA", Type "A", Type "B", or Type "C" violation), the maximum fine that may be assessed for that occurrence is the maximum fine that may be assessed for the most serious type of violation charged. For purposes of the preceding sentence, a Type "AA" violation is the most serious type of violation that may be charged, followed by a Type "A", Type "B", or Type "C" violation, in that order.

(8) The minimum and maximum fines that may be assessed pursuant to this Section shall be twice those otherwise specified for any facility that willfully makes a misstatement of fact to the Department, or willfully fails to make a required notification to the Department, if that misstatement or failure delays the start of a surveyor or impedes a survey.

(9) High risk designation. If the Department finds that a facility has violated a provision of the Illinois Administrative Code that has a high risk designation, or that a facility has violated the same provision of the Illinois Administrative Code 3 or more times in the previous 12 months, the Department may assess a fine of up to 2 times the maximum fine otherwise allowed.

(10) If a licensee has paid a civil monetary penalty imposed pursuant to the Medicare and Medicaid Certification Program for the equivalent federal violation giving rise to a fine under this Section, the Department shall offset the fine by the amount of the civil monetary penalty. The offset may not reduce the fine by more than 75% of the original fine, however.

(Source: P.A. 96-1372, eff. 7-29-10.)

(30 ILCS 772/5 rep.)

(30 ILCS 772/10 rep.)

(30 ILCS 772/20 rep.)

Section 90. The Equity in Long-term Care Quality Act is amended by repealing Sections 5, 10, and 20.".