SB3775 102ND GENERAL ASSEMBLY

LRB102 24482 AMQ 33716 b

102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB3775

Introduced 1/21/2022, by Sen. Omar Aquino

SYNOPSIS AS INTRODUCED:

See Index

Amends the Nurse Agency Licensing Act. Defines "covenant not to compete". Changes the definition of "Department" to the Department of Public Health (rather than the Department or Labor). Changes the definitions of "health care facility" and "nurse". Provides that in an application for licensure under the Act, a limited liability company can apply, evidence of general professional liability insurance in the amount of at least $1,000,000 (instead of $500,000) is required per incident and $3,000,000 (instead of $1,000,000) in the aggregate is required for workers' compensation coverage, and there is an application fee of $2,000. Provides that collected fees shall be deposited in the state treasury and credited to the Nursing Dedicated and Professional Fund. Provides that for renewal of licensure, the licensee shall submit an attestation detailing the number of contracted shifts, number of shifts missed, and number of shifts fulfilled for the 3 quarters preceding the application. Provides that an application for a license may be denied for failure to develop and implement contingency staffing plans to minimize missed shifts. Provides that nurse agencies who knowingly employ, assign, or refer to a health care facility a nurse or certified nurse aid with an illegally or fraudulently obtained or issued diploma, registration, license, certificate, or background study constitutes negligent hiring and are grounds for suspension, revocation, or refusal to issue or renew a license. Provides that the Department shall establish updated minimum standards. Provides that nurse agencies are prohibited from entering into covenants not to compete with nurses and certified nurse aides. Provides that a nurse agency's maximum rate for services provided to a health care facility by a nurse or certified nurse aide may not exceed 130% of the regional average hourly wage for each staffing position. Provides that the Department shall establish a system of reporting complaints against a health care staffing agency or its employees. Increases the civil penalty for violation of the Act to $10,000 per occurrence (currently $1,000 per day for each violation). Makes other changes.

A BILL FOR

AN ACT concerning regulation.

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

Section 5. The Nurse Agency Licensing Act is amended by changing Sections 3, 4, 5, 7, 8, 13, 14, and 14.1 as follows:

(225 ILCS 510/3) (from Ch. 111, par. 953)

Sec. 3. Definitions. As used in this Act:

(a) "Certified nurse aide" means an individual certified as defined in Section 3-206 of the Nursing Home Care Act, Section 3-206 of the ID/DD Community Care Act, or Section 3-206 of the MC/DD Act, as now or hereafter amended.

(a-5) "Covenant not to compete" means an agreement between an employer and an employee that restricts such employee from performing:

(1) any work for another employer for a specified period of time;

(2) any work for a specified geographic area; or

(3) work for another employer that is similar to such employee's work for the employer included as a party to the agreement.

(b) "Department" means the Department of Public Health Labor.

(c) "Director" means the Director of Public Health Labor.

(d) "Health care facility" is defined as in Section 3 of the Illinois Health Facilities Planning Act, as now or hereafter amended, and includes any facility licensed, certified, or approved by any State agency and covered by the Assisted Living and Shared Housing Act or subsection (a) of Section 5-5.01 of the Illinois Public Aid Code.

(e) "Licensee" means any nursing agency which is properly licensed under this Act.

(f) "Nurse" means a registered nurse, or a licensed practical nurse, an advanced practice registered nurse, or any individual licensed under as defined in the Nurse Practice Act.

(g) "Nurse agency" means any individual, firm, corporation, partnership or other legal entity that employs, assigns or refers nurses or certified nurse aides to a health care facility for a fee. The term "nurse agency" includes nurses registries. The term "nurse agency" does not include services provided by home health agencies licensed and operated under the Home Health, Home Services, and Home Nursing Agency Licensing Act or a licensed or certified individual who provides his or her own services as a regular employee of a health care facility, nor does it apply to a health care facility's organizing nonsalaried employees to provide services only in that facility.

(Source: P.A. 98-104, eff. 7-22-13; 99-180, eff. 7-29-15.)

(225 ILCS 510/4) (from Ch. 111, par. 954)

Sec. 4. Licensing. The Department shall license nurse agencies in accordance with this Act for the protection of the health, welfare and safety of patients and residents. No person may establish, operate, maintain, or advertise as a nurse agency in the State of Illinois unless the person is licensed under this Act by the Department of Public Health Labor. Being licensed under the Home Health, Home Services, and Home Nursing Agency Licensing Act does not relieve home health agencies that provide nurse agency services from the requirement of obtaining licensure under this Act. No health care facility shall use the services of an unlicensed nurse agency.

(Source: P.A. 94-379, eff. 1-1-06.)

(225 ILCS 510/5) (from Ch. 111, par. 955)

Sec. 5. Application for license. An application to operate a nurse agency shall be made to the Department on forms provided by the Department. A separate application shall be submitted for each additional location from which a nurse agency is operated. All applications must be under oath and must be accompanied by an equitable application fee which will be set by the Department by rule. A separate license must be obtained for each location from which a nurse agency is operated unless the nurse agency is owned and managed by the same person or persons. Submission of false or misleading information is a petty offense punishable by a fine of $500. The application shall contain the following information:

(1) name and address of the person, partnership, corporation or other entity that is the applicant;

(2) if the applicant is a corporation or a limited liability company, a copy of its articles of incorporation or organization, a copy of its current bylaws, and the names and addresses of its officers and directors and shareholders owning more than 5% of the corporation's stock or membership units;

(3) the name and location of premises from which the applicant will provide services;

(4) the names and addresses of the person or persons under whose management or supervision the nurse agency will be operated;

(5) a statement of financial solvency;

(6) a statement detailing the experience and qualifications of the applicant to operate a nurse agency, however, the failure of a nurse agency to demonstrate previous experience to operate an agency does not in and of itself constitute grounds for the denial of a license;

(7) evidence of compliance or intent to comply with State or federal law relating to employee compensation, including but not limited to, social security taxes, State and federal income taxes, workers' compensation, unemployment taxes, and State and federal overtime compensation laws, and federal occupational safety and health administration laws;

(8) evidence of general professional liability insurance in the amounts of at least $1,000,000 $500,000 per incident and $3,000,000 $1,000,000 in aggregate and workers' compensation coverage for all nurses or certified nursing aides employed, assigned, or referred by the nurse agency to a healthcare facility; and

(9) any other relevant information which the Department determines is necessary to properly evaluate the applicant and application as required by the Department by rule; and .

(10) an application fee of $2,000.

Fees collected under this Section shall be deposited in the State treasury and credited to the Nursing Dedicated and Professional Fund. Funds deposited into the Fund shall be set aside for nursing scholarships awarded pursuant to the Nursing Education Scholarship Law and may not be transferred under Section 8h of the State Finance Act.

(Source: P.A. 86-817; 86-1043; 86-1472; 87-435.)

(225 ILCS 510/7) (from Ch. 111, par. 957)

Sec. 7. Renewal of license. At least 90 days prior to license expiration, the licensee shall submit an attestation detailing the number of contracted shifts, number of shifts missed, and number of shifts fulfilled for the 3 quarters preceding the application and an application which meets the requirements of Section 5 of this Act for renewal of the license. If the application is approved pursuant to Section 6, the license shall be renewed for an additional one-year period.

(Source: P.A. 86-817; 86-1043.)

(225 ILCS 510/8) (from Ch. 111, par. 958)

Sec. 8. Grounds for denial of a license. An application for a license may be denied for any of the following reasons:

(a) failure to comply with the minimum standards set forth by this Act or its rules;

(b) conviction of the applicant of a felony;

(c) insufficient financial or other resources to operate the nurse agency in accordance with the requirements of this Act and the minimum standards, rules and regulations promulgated thereunder; or

(d) failure to establish appropriate personnel policies and procedures for selecting nurses and certified nurse aides for employment, assignment, or referral, or to develop and implement contingency staffing plans to minimize missed shifts.

(Source: P.A. 86-817.)

(225 ILCS 510/13) (from Ch. 111, par. 963)

Sec. 13. Application for employment.

(a) Every nurse agency shall cause each applicant for employment, assignment, or referral, as a nurse to complete an application form including the following information:

(1) name and address of the applicant;

(2) whether or not such applicant is a nurse currently licensed by the Department of Financial and Professional Regulation;

(3) if so licensed, the number and date of such license; and

(4) references and dates and places of previous employment.

Prior to employing, assigning, or referring a nurse, the agency shall contact the Department of Financial and Professional Regulation to determine whether the nurse's license is valid and in good standing and that the nurse is not ineligible to be hired by health care employers or long-term care facilities pursuant to Section 25 of the Health Care Worker Background Check Act. Written verification shall be sent by the Department of Financial and Professional Regulation within 20 working days. At least biennially thereafter, the agency shall contact the Department of Financial and Professional Regulation to verify this information in writing. The nurse agency shall review the disciplinary report published by the Department of Financial and Professional Regulation on a monthly basis to determine whether the nurse's license is valid and in good standing.

(b) Every nurse agency shall cause each applicant for employment, assignment, or referral, as a certified nurse aide to complete an application form including the following information:

(1) name and address of the applicant;

(2) whether or not the nurse aide is registered as having completed a certified course as approved by the Department of Public Health;

(3) references and dates and places of previous employment.

Prior to employing, assigning, or referring a certified nurse aide, the agency shall review the information provided on the Health Care Worker Registry to verify that the certification is valid and that the certified nurse aide is not ineligible to be hired by health care employers or long-term care facilities pursuant to Section 25 of the Health Care Worker Background Check Act.

(c) Every nurse agency shall check at least 2 recent references and the dates of employment provided by the applicant, unless the applicant has not had 2 previous employers.

(c-5) Nurse agencies who knowingly employ, assign, or refer to a health care facility a nurse or certified nurse aid with an illegally or fraudulently obtained or issued diploma, registration, license, certificate, or background study constitutes negligent hiring and are grounds for suspension, revocation, or refusal to issue or renew a license under Section 9 of this Act.

(d) Nurses or certified nurses aides employed, assigned, or referred to a health care facility by a nurse agency shall be deemed to be employees of the nurse agency while working for the nurse agency or on nurse agency employment, assignment or referral.

(Source: P.A. 99-652, eff. 1-1-17.)

(225 ILCS 510/14) (from Ch. 111, par. 964)

Sec. 14. Minimum Standards. (a) The Department, by rule, shall establish minimum standards for the operation of nurse agencies. Those standards shall include, but are not limited to: (1) the maintenance of written policies, and procedures, and documentation, including contracts with all health care facilities to which it assigns or refers nurses or certified nurse aides demonstrating that its employees' scope of work aligns with the appropriate scope of practices and contingency staff plans; and (2) the development of personnel policies which include payroll records, including for nurses or certified nurse aides employed, assigned, or referred to health care facilities, a personal interview, a reference check, an annual evaluation of each employee (which may be based in part upon information provided by health care facilities utilizing nurse agency personnel), documentation that nurses or certified nurse aides who will be assigned or referred to health care facilities meet the minimum licensing, training, and continuing education standards for the position referred or assigned and comply with all pertinent requirements relating to personnel employed in health care facilities, and periodic health examinations.

(b) Each nurse agency shall have a nurse serving as a manager or supervisor of all nurses and certified nurses aides.

(c) Each nurse agency shall ensure that its employees meet the minimum licensing, training, and orientation standards for which those employees are licensed or certified.

(d) A nurse agency shall not employ, assign, or refer for use in an Illinois health care facility a nurse or certified nurse aide unless certified or licensed under applicable provisions of State and federal law or regulations. Each certified nurse aide shall comply with all pertinent regulations of the Illinois Department of Public Health relating to the health and other qualifications of personnel employed in health care facilities.

(e) The Department may adopt rules to monitor the usage of nurse agency services to determine their impact.

(f) Nurse agencies are prohibited from recruiting potential employees on the premises of a health care facility or requiring, as a condition of employment, assignment, or referral, that their employees recruit new employees for the nurse agency from among the permanent employees of the health care facility to which the nurse agency employees have been employed, assigned, or referred, and the health care facility to which such employees are employed, assigned, or referred is prohibited from requiring, as a condition of employment, that their employees recruit new employees from these nurse agency employees. Violation of this provision is a business offense.

(g) Nurse agencies are prohibited from entering into covenants not to compete with nurses and certified nurse aides. After the effective date of this Act of the 102nd General Assembly, a covenant not to compete entered into between a nurse agency and a nurse or certified nurse aid is illegal and void. The nursing agency shall not, in any contract with any employee or health care facility, require the payment of liquidated damages, employment fees, buy out fees, placement fees, or other compensation should the employee be hired as a permanent employee of a health care facility.

(h) A nurse agency's maximum rate for services provided to a health care facility by a nurse or certified nurse aide may not exceed 130% of the regional average hourly wage for each staffing position. The Department shall use and publish the most current median hourly wage data reported by the United States Department of Labor Bureau of Labor Statistics (BLS) in the BLS' Occupational Employment Statistics metropolitan and nonmetropolitan Area Occupational Employment and Wage Estimates for the State. These positions shall include registered nurse, licensed practical nurse, certified nursing assistant, and orderlies, rehab, or therapy aides. The maximum rate shall include all charges for administrative fees, contract fees, or other special charges in addition to the hourly rates for the temporary nursing pool personnel supplied to a health care facility. A health care facility that pays for the actual travel and housing costs for nurse or certified nurse aides working at the facility and that pays these costs to the employee, the agency, or another vendor, is not violating the limitation on charges described in this Section.

(i) No less than 80% of the rates charged to a health care facility shall be passed on to the employee.

(Source: P.A. 86-817.)

(225 ILCS 510/14.1)

Sec. 14.1. Investigations; orders; civil penalties.

(a) The Department may at any time, and shall upon receiving a complaint from any interested person, investigate any person licensed or applying for a license under this Act. The Department shall investigate any person who operates or advertises a nurse agency without being licensed under this Act. The Department shall establish a system of reporting complaints against a health care staffing agency or its employees. Complaints may be made by any member of the public. Complaints against a health care staffing agency shall be investigated by the Office of Health Care Regulation within the Department of Public Health.

The Director or his or her authorized representative may examine the premises of any nurse agency, may compel by subpoena, for examination or inspection, the attendance and testimony of witnesses and the production of books, payrolls, records, papers and other evidence in any investigation or hearing, and may administer oaths or affirmations to witnesses.

(b) After appropriate notice and hearing, and if supported by the evidence, the Department may issue and cause to be served on any person an order to cease and desist from violation of this Act and to take any further action that is reasonable to eliminate the effect of the violation.

Whenever it appears that any person has violated a valid order of the Department issued under this Act, the Director may commence an action and obtain from the court an order directing the person to obey the order of the Department or be subject to punishment for contempt of court.

The Department may petition the court for an order enjoining any violation of this Act.

(c) Any licensee or applicant who violates any provision of this Act or the rules adopted under this Act shall be subject to a civil penalty of $10,000 per occurrence $1,000 per day for each violation. Civil penalties may be assessed by the Department in an administrative action and may, if necessary, be recovered in a civil action brought by the Director through the Attorney General of the State of Illinois or the State's attorney of any county in which the violation occurred. The court may order that the civil penalties assessed for violation of this Act, 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 the violation has ceased does not excuse any person from liability for civil penalties arising from the violation.

(Source: P.A. 88-230.)