HB2100 EngrossedLRB103 25103 RLC 51438 b

1    AN ACT concerning criminal law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Criminal Code of 2012 is amended by
5changing Sections 12-4.4a and 17-56 as follows:
 
6    (720 ILCS 5/12-4.4a)
7    Sec. 12-4.4a. Abuse or criminal neglect of a long term
8care facility resident; criminal abuse or neglect of an
9elderly person or person with a disability.
10    (a) Abuse or criminal neglect of a long term care facility
11resident.
12        (1) A person or an owner or licensee commits abuse of a
13    long term care facility resident when he or she knowingly
14    causes any physical or mental injury to, or commits any
15    sexual offense in this Code against, a resident.
16        (2) A person or an owner or licensee commits criminal
17    neglect of a long term care facility resident when he or
18    she recklessly:
19            (A) performs acts that cause a resident's life to
20        be endangered, health to be injured, or pre-existing
21        physical or mental condition to deteriorate, or that
22        create the substantial likelihood that a resident's an
23        elderly person's or person with a disability's life

 

 

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1        will be endangered, health will be injured, or
2        pre-existing physical or mental condition will
3        deteriorate;
4            (B) fails to perform acts that he or she knows or
5        reasonably should know are necessary to maintain or
6        preserve the life or health of a resident, and that
7        failure causes the resident's life to be endangered,
8        health to be injured, or pre-existing physical or
9        mental condition to deteriorate, or that create the
10        substantial likelihood that a resident's an elderly
11        person's or person with a disability's life will be
12        endangered, health will be injured, or pre-existing
13        physical or mental condition will deteriorate; or
14            (C) abandons a resident.
15        (3) A person or an owner or licensee commits neglect
16    of a long term care facility resident when he or she
17    negligently fails to provide adequate medical care,
18    personal care, or maintenance to the resident which
19    results in physical or mental injury or deterioration of
20    the resident's physical or mental condition. An owner or
21    licensee is guilty under this subdivision (a)(3), however,
22    only if the owner or licensee failed to exercise
23    reasonable care in the hiring, training, supervising, or
24    providing of staff or other related routine administrative
25    responsibilities.
26    (b) Criminal abuse or neglect of an elderly person or

 

 

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1person with a disability.
2        (1) A caregiver commits criminal abuse or neglect of
3    an elderly person or person with a disability when he or
4    she knowingly does any of the following:
5            (A) performs acts that cause the person's life to
6        be endangered, health to be injured, or pre-existing
7        physical or mental condition to deteriorate;
8            (B) fails to perform acts that he or she knows or
9        reasonably should know are necessary to maintain or
10        preserve the life or health of the person, and that
11        failure causes the person's life to be endangered,
12        health to be injured, or pre-existing physical or
13        mental condition to deteriorate;
14            (C) abandons the person;
15            (D) physically abuses, harasses, intimidates, or
16        interferes with the personal liberty of the person; or
17            (E) exposes the person to willful deprivation.
18        (2) It is not a defense to criminal abuse or neglect of
19    an elderly person or person with a disability that the
20    caregiver reasonably believed that the victim was not an
21    elderly person or person with a disability.
22    (c) Offense not applicable.
23        (1) Nothing in this Section applies to a physician
24    licensed to practice medicine in all its branches or a
25    duly licensed nurse providing care within the scope of his
26    or her professional judgment and within the accepted

 

 

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1    standards of care within the community.
2        (2) Nothing in this Section imposes criminal liability
3    on a caregiver who made a good faith effort to provide for
4    the health and personal care of an elderly person or
5    person with a disability, but through no fault of his or
6    her own was unable to provide such care.
7        (3) Nothing in this Section applies to the medical
8    supervision, regulation, or control of the remedial care
9    or treatment of residents in a long term care facility
10    conducted for those who rely upon treatment by prayer or
11    spiritual means in accordance with the creed or tenets of
12    any well-recognized church or religious denomination as
13    described in Section 3-803 of the Nursing Home Care Act,
14    Section 1-102 of the Specialized Mental Health
15    Rehabilitation Act of 2013, Section 3-803 of the ID/DD
16    Community Care Act, or Section 3-803 of the MC/DD Act.
17        (4) Nothing in this Section prohibits a caregiver from
18    providing treatment to an elderly person or person with a
19    disability by spiritual means through prayer alone and
20    care consistent therewith in lieu of medical care and
21    treatment in accordance with the tenets and practices of
22    any church or religious denomination of which the elderly
23    person or person with a disability is a member.
24        (5) Nothing in this Section limits the remedies
25    available to the victim under the Illinois Domestic
26    Violence Act of 1986.

 

 

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1    (d) Sentence.
2        (1) Long term care facility. Abuse of a long term care
3    facility resident is a Class 3 felony. Criminal neglect of
4    a long term care facility resident is a Class 4 felony,
5    unless it results in the resident's death in which case it
6    is a Class 3 felony. Neglect of a long term care facility
7    resident is a petty offense.
8        (2) Caregiver. Criminal abuse or neglect of an elderly
9    person or person with a disability is a Class 3 felony,
10    unless it results in the person's death in which case it is
11    a Class 2 felony, and if imprisonment is imposed it shall
12    be for a minimum term of 3 years and a maximum term of 14
13    years.
14    (e) Definitions. For the purposes of this Section:
15    "Abandon" means to desert or knowingly forsake a resident
16or an elderly person or person with a disability under
17circumstances in which a reasonable person would continue to
18provide care and custody.
19    "Caregiver" means a person who has a duty to provide for an
20elderly person or person with a disability's health and
21personal care, at the elderly person or person with a
22disability's place of residence, including, but not limited
23to, food and nutrition, shelter, hygiene, prescribed
24medication, and medical care and treatment, and includes any
25of the following:
26        (1) A parent, spouse, adult child, or other relative

 

 

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1    by blood or marriage who resides with or resides in the
2    same building with or regularly visits the elderly person
3    or person with a disability, knows or reasonably should
4    know of such person's physical or mental impairment, and
5    knows or reasonably should know that such person is unable
6    to adequately provide for his or her own health and
7    personal care.
8        (2) A person who is employed by the elderly person or
9    person with a disability or by another to reside with or
10    regularly visit the elderly person or person with a
11    disability and provide for such person's health and
12    personal care.
13        (3) A person who has agreed for consideration to
14    reside with or regularly visit the elderly person or
15    person with a disability and provide for such person's
16    health and personal care.
17        (4) A person who has been appointed by a private or
18    public agency or by a court of competent jurisdiction to
19    provide for the elderly person or person with a
20    disability's health and personal care.
21    "Caregiver" does not include a long-term care facility
22licensed or certified under the Nursing Home Care Act or a
23facility licensed or certified under the ID/DD Community Care
24Act, the MC/DD Act, or the Specialized Mental Health
25Rehabilitation Act of 2013, or any administrative, medical, or
26other personnel of such a facility, or a health care provider

 

 

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1who is licensed under the Medical Practice Act of 1987 and
2renders care in the ordinary course of his or her profession.
3    "Elderly person" means a person 60 years of age or older
4who is incapable of adequately providing for his or her own
5health and personal care.
6    "Licensee" means the individual or entity licensed to
7operate a facility under the Nursing Home Care Act, the
8Specialized Mental Health Rehabilitation Act of 2013, the
9ID/DD Community Care Act, the MC/DD Act, or the Assisted
10Living and Shared Housing Act.
11    "Long term care facility" means a private home,
12institution, building, residence, or other place, whether
13operated for profit or not, or a county home for the infirm and
14chronically ill operated pursuant to Division 5-21 or 5-22 of
15the Counties Code, or any similar institution operated by the
16State of Illinois or a political subdivision thereof, which
17provides, through its ownership or management, personal care,
18sheltered care, or nursing for 3 or more persons not related to
19the owner by blood or marriage. The term also includes skilled
20nursing facilities and intermediate care facilities as defined
21in Titles XVIII and XIX of the federal Social Security Act and
22assisted living establishments and shared housing
23establishments licensed under the Assisted Living and Shared
24Housing Act.
25    "Owner" means the owner of a long term care facility as
26provided in the Nursing Home Care Act, the owner of a facility

 

 

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1as provided under the Specialized Mental Health Rehabilitation
2Act of 2013, the owner of a facility as provided in the ID/DD
3Community Care Act, the owner of a facility as provided in the
4MC/DD Act, or the owner of an assisted living or shared housing
5establishment as provided in the Assisted Living and Shared
6Housing Act.
7    "Person with a disability" means a person who suffers from
8a permanent physical or mental impairment, resulting from
9disease, injury, functional disorder, or congenital condition,
10which renders the person incapable of adequately providing for
11his or her own health and personal care.
12    "Resident" means a person residing in a long term care
13facility.
14    "Willful deprivation" has the meaning ascribed to it in
15paragraph (15) of Section 103 of the Illinois Domestic
16Violence Act of 1986.
17(Source: P.A. 98-104, eff. 7-22-13; 99-180, eff. 7-29-15;
1899-642, eff. 7-28-16.)
 
19    (720 ILCS 5/17-56)  (was 720 ILCS 5/16-1.3)
20    Sec. 17-56. Financial exploitation of an elderly person or
21a person with a disability.
22    (a) A person commits financial exploitation of an elderly
23person or a person with a disability when he or she stands in a
24position of trust or confidence with the elderly person or a
25person with a disability and he or she knowingly:

 

 

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1        (1) by deception or intimidation obtains control over
2    the property of an elderly person or a person with a
3    disability; or
4        (2) illegally uses the assets or resources of an
5    elderly person or a person with a disability.
6    (b) Sentence. Financial exploitation of an elderly person
7or a person with a disability is: (1) a Class 4 felony if the
8value of the property is $300 or less, (2) a Class 3 felony if
9the value of the property is more than $300 but less than
10$5,000, (3) a Class 2 felony if the value of the property is
11$5,000 or more but less than $50,000, and (4) a Class 1 felony
12if the value of the property is $50,000 or more or if the
13elderly person is over 70 years of age or older and the value
14of the property is $15,000 or more or if the elderly person is
1580 years of age or older and the value of the property is
16$5,000 or more.
17    (c) For purposes of this Section:
18        (1) "Elderly person" means a person 60 years of age or
19    older.
20        (2) "Person with a disability" means a person who
21    suffers from a physical or mental impairment resulting
22    from disease, injury, functional disorder or congenital
23    condition that impairs the individual's mental or physical
24    ability to independently manage his or her property or
25    financial resources, or both.
26        (3) "Intimidation" means the communication to an

 

 

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1    elderly person or a person with a disability that he or she
2    shall be deprived of food and nutrition, shelter,
3    prescribed medication or medical care and treatment or
4    conduct as provided in Section 12-6 of this Code.
5        (4) "Deception" means, in addition to its meaning as
6    defined in Section 15-4 of this Code, a misrepresentation
7    or concealment of material fact relating to the terms of a
8    contract or agreement entered into with the elderly person
9    or person with a disability or to the existing or
10    pre-existing condition of any of the property involved in
11    such contract or agreement; or the use or employment of
12    any misrepresentation, false pretense or false promise in
13    order to induce, encourage or solicit the elderly person
14    or person with a disability to enter into a contract or
15    agreement.
16    The illegal use of the assets or resources of an elderly
17person or a person with a disability includes, but is not
18limited to, the misappropriation of those assets or resources
19by undue influence, breach of a fiduciary relationship, fraud,
20deception, extortion, or use of the assets or resources
21contrary to law.
22    A person stands in a position of trust and confidence with
23an elderly person or person with a disability when he (i) is a
24parent, spouse, adult child or other relative by blood or
25marriage of the elderly person or person with a disability,
26(ii) is a joint tenant or tenant in common with the elderly

 

 

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1person or person with a disability, (iii) has a legal or
2fiduciary relationship with the elderly person or person with
3a disability, (iv) is a financial planning or investment
4professional, (v) is a paid or unpaid caregiver for the
5elderly person or person with a disability, or (vi) is a friend
6or acquaintance in a position of trust.
7    (d) Limitations. Nothing in this Section shall be
8construed to limit the remedies available to the victim under
9the Illinois Domestic Violence Act of 1986.
10    (e) Good faith efforts. Nothing in this Section shall be
11construed to impose criminal liability on a person who has
12made a good faith effort to assist the elderly person or person
13with a disability in the management of his or her property, but
14through no fault of his or her own has been unable to provide
15such assistance.
16    (f) Not a defense. It shall not be a defense to financial
17exploitation of an elderly person or person with a disability
18that the accused reasonably believed that the victim was not
19an elderly person or person with a disability. Consent is not a
20defense to financial exploitation of an elderly person or a
21person with a disability if the accused knew or had reason to
22know that the elderly person or a person with a disability
23lacked capacity to consent.
24    (g) Civil Liability. A civil cause of action exists for
25financial exploitation of an elderly person or a person with a
26disability as described in subsection (a) of this Section. A

 

 

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1person against whom a civil judgment has been entered for
2financial exploitation of an elderly person or person with a
3disability shall be liable to the victim or to the estate of
4the victim in damages of treble the amount of the value of the
5property obtained, plus reasonable attorney fees and court
6costs. In a civil action under this subsection, the burden of
7proof that the defendant committed financial exploitation of
8an elderly person or a person with a disability as described in
9subsection (a) of this Section shall be by a preponderance of
10the evidence. This subsection shall be operative whether or
11not the defendant has been charged or convicted of the
12criminal offense as described in subsection (a) of this
13Section. This subsection (g) shall not limit or affect the
14right of any person to bring any cause of action or seek any
15remedy available under the common law, or other applicable
16law, arising out of the financial exploitation of an elderly
17person or a person with a disability.
18    (h) If a person is charged with financial exploitation of
19an elderly person or a person with a disability that involves
20the taking or loss of property valued at more than $5,000, a
21prosecuting attorney may file a petition with the circuit
22court of the county in which the defendant has been charged to
23freeze the assets of the defendant in an amount equal to but
24not greater than the alleged value of lost or stolen property
25in the defendant's pending criminal proceeding for purposes of
26restitution to the victim. The burden of proof required to

 

 

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1freeze the defendant's assets shall be by a preponderance of
2the evidence.
3(Source: P.A. 101-394, eff. 1-1-20; 102-244, eff. 1-1-22.)