SB3466 96TH GENERAL ASSEMBLY

LRB096 20149 KTG 35981 b

96TH GENERAL ASSEMBLY
State of Illinois
2009 and 2010
SB3466

Introduced 2/10/2010, by Sen. Deanna Demuzio

SYNOPSIS AS INTRODUCED:

20 ILCS 105/4.04	from Ch. 23, par. 6104.04
20 ILCS 105/4.04b new

Amends the Illinois Act on the Aging. Provides that prior to representing a resident under the Long Term Care Ombudsman Program, an ombudsman must obtain the resident's written or oral consent to act on that resident's behalf. Requires the Office of State Long Term Care Ombudsman to include in the Consumer Choice Information Reports on long term care facilities additional information concerning each facility's compliance with the relevant State and federal statutes, rules, and standards; customer satisfaction surveys; and information generated from quality measures developed by the Centers for Medicare and Medicaid Services. Requires facilities licensed under the Nursing Home Care Act, supportive living facilities, and assisted living or shared housing establishments to pay to the Department on Aging to be deposited into the Long Term Care Ombudsman Fund an annual $400 fee to cover the costs associated with compiling and publishing the Report. Further provides that these facilities shall pay to the Department on Aging to be deposited into the Fund an annual $7 fee for each bed maintained by the facility for use by a resident during any part of the previous fiscal year. Provides that the Department on Aging, in consultation with the Office of State Long Term Care Ombudsman, shall promulgate administrative rules to establish the forms, deadlines, and procedures for the notification of the facilities subject to the bed fee requirement. Establishes a monetary penalty for facilities that fail to pay the required bed fees within a specified timeframe. Effective January 1, 2011.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning State government.

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

Section 5. The Illinois Act on the Aging is amended by changing Section 4.04 and by adding Section 4.04b as follows:

(20 ILCS 105/4.04) (from Ch. 23, par. 6104.04)

Sec. 4.04. Long Term Care Ombudsman Program.

(a) Long Term Care Ombudsman Program. The Department shall establish a Long Term Care Ombudsman Program, through the Office of State Long Term Care Ombudsman ("the Office"), in accordance with the provisions of the Older Americans Act of 1965, as now or hereafter amended.

(b) Definitions. As used in this Section, unless the context requires otherwise:

(1) "Access" has the same meaning as in Section 1-104 of the Nursing Home Care Act, as now or hereafter amended; that is, it means the right to:

(i) Enter any long term care facility or assisted living or shared housing establishment or supportive living facility;

(ii) Communicate privately and without restriction with any resident, regardless of age, who consents to the communication;

(iii) Seek consent to communicate privately and without restriction with any resident, regardless of age;

(iv) Inspect the clinical and other records of a resident, regardless of age, with the express written consent of the resident;

(v) Observe all areas of the long term care facility or supportive living facilities, assisted living or shared housing establishment except the living area of any resident who protests the observation.

(2) "Long Term Care Facility" means (i) any facility as defined by Section 1-113 of the Nursing Home Care Act, as now or hereafter amended; and (ii) any skilled nursing facility or a nursing facility which meets the requirements of Section 1819(a), (b), (c), and (d) or Section 1919(a), (b), (c), and (d) of the Social Security Act, as now or hereafter amended (42 U.S.C. 1395i-3(a), (b), (c), and (d) and 42 U.S.C. 1396r(a), (b), (c), and (d)).

(2.5) "Assisted living establishment" and "shared housing establishment" have the meanings given those terms in Section 10 of the Assisted Living and Shared Housing Act.

(2.7) "Supportive living facility" means a facility established under Section 5-5.01a of the Illinois Public Aid Code.

(3) "State Long Term Care Ombudsman" means any person employed by the Department to fulfill the requirements of the Office of State Long Term Care Ombudsman as required under the Older Americans Act of 1965, as now or hereafter amended, and Departmental policy.

(3.1) "Ombudsman" means any designated representative of a regional long term care ombudsman program; provided that the representative, whether he is paid for or volunteers his ombudsman services, shall be qualified and designated by the Office to perform the duties of an ombudsman as specified by the Department in rules and in accordance with the provisions of the Older Americans Act of 1965, as now or hereafter amended.

(c) Ombudsman; rules. The Office of State Long Term Care Ombudsman shall be composed of at least one full-time ombudsman and shall include a system of designated regional long term care ombudsman programs. Each regional program shall be designated by the State Long Term Care Ombudsman as a subdivision of the Office and any representative of a regional program shall be treated as a representative of the Office.

The Department, in consultation with the Office, shall promulgate administrative rules in accordance with the provisions of the Older Americans Act of 1965, as now or hereafter amended, to establish the responsibilities of the Department and the Office of State Long Term Care Ombudsman and the designated regional Ombudsman programs. The administrative rules shall include the responsibility of the Office and designated regional programs to investigate and resolve complaints made by or on behalf of residents of long term care facilities, supportive living facilities, and assisted living and shared housing establishments, including the option to serve residents under the age of 60, relating to actions, inaction, or decisions of providers, or their representatives, of long term care facilities, of supported living facilities, of assisted living and shared housing establishments, of public agencies, or of social services agencies, which may adversely affect the health, safety, welfare, or rights of such residents. The Office and designated regional programs may represent all residents, but are not required by this Act to represent persons under 60 years of age, except to the extent required by federal law. When necessary and appropriate, representatives of the Office shall refer complaints to the appropriate regulatory State agency. The Department, in consultation with the Office, shall cooperate with the Department of Human Services and other State agencies in providing information and training to designated regional long term care ombudsman programs about the appropriate assessment and treatment (including information about appropriate supportive services, treatment options, and assessment of rehabilitation potential) of the residents they serve, including children, persons with mental illness (other than Alzheimer's disease and related disorders), and persons with developmental disabilities.

The State Long Term Care Ombudsman and all other ombudsmen, as defined in paragraph (3.1) of subsection (b) must submit to background checks under the Health Care Worker Background Check Act and receive training, as prescribed by the Illinois Department on Aging, before visiting facilities. The training must include information specific to assisted living establishments, supportive living facilities, and shared housing establishments and to the rights of residents guaranteed under the corresponding Acts and administrative rules.

(c-3) Consent. Prior to representing a resident, an ombudsman must obtain the resident's written or oral consent to act on that resident's behalf. In the event oral consent is given, such consent must be contemporaneously documented by the ombudsman. If the resident is unable to give consent, the ombudsman may obtain the resident's consent from a duly authorized guardian or agent of the resident. If the resident's authorized guardian or agent refuses to give consent or is unavailable to give consent after the ombudsman has made a good faith effort to contact the authorized guardian or agent, the regional ombudsman shall consult with the Office of State Long Term Care Ombudsman. If following this consultation, the Office decides that representation is proper, the ombudsman shall represent the resident. This representation may include requesting or appealing, on behalf of the resident, any administrative decision, including involuntary discharges.

(c-5) Consumer Choice Information Reports. The Office shall:

(1) In collaboration with the Attorney General, create a Consumer Choice Information Report form to be completed by all licensed long term care facilities to aid Illinoisans and their families in making informed choices about long term care. The Office shall create a Consumer Choice Information Report for each type of licensed long term care facility.

(2) Develop a database of Consumer Choice Information Reports completed by licensed long term care facilities that includes information in the following consumer categories:

(A) Medical Care, Services, and Treatment.

(B) Special Services and Amenities.

(C) Staffing.

(D) Facility Statistics and Resident Demographics.

(E) Ownership and Administration.

(F) Safety and Security.

(G) Meals and Nutrition.

(H) Rooms, Furnishings, and Equipment.

(I) Family, Volunteer, and Visitation Provisions.

(3) Make this information accessible to the public, including on the Internet by means of a hyperlink labeled "Resident's Right to Know" on the Office's World Wide Web home page.

(4) Have the authority, with the Attorney General, to verify that information provided by a facility is accurate.

(5) Request a new report from any licensed facility whenever it deems necessary.

(6) Include in the Office's Consumer Choice Information Report for each type of licensed long term care facility additional information on each licensed long term care facility in the State of Illinois as well as information regarding each facility's compliance with the relevant State and federal statutes, rules, and standards; customer satisfaction surveys; and information generated from quality measures developed by the Centers for Medicare and Medicaid Services. Each of the following facilities shall annually pay to the Department on Aging to be deposited into the Long Term Care Ombudsman Fund the sum of $400:

(A) A licensed facility as defined in Section 1-113 of the Nursing Home Care Act.

(B) A supportive living facility as defined in Section 5-5.01a of the Illinois Public Aid Code.

(C) An assisted living or shared housing establishment as defined in Section 10 of the Assisted Living and Shared Housing Act.

(d) Access and visitation rights.

(1) In accordance with subparagraphs (A) and (E) of paragraph (3) of subsection (c) of Section 1819 and subparagraphs (A) and (E) of paragraph (3) of subsection (c) of Section 1919 of the Social Security Act, as now or hereafter amended (42 U.S.C. 1395i-3 (c)(3)(A) and (E) and 42 U.S.C. 1396r (c)(3)(A) and (E)), and Section 712 of the Older Americans Act of 1965, as now or hereafter amended (42 U.S.C. 3058f), a long term care facility, supportive living facility, assisted living establishment, and shared housing establishment must:

(i) permit immediate access to any resident, regardless of age, by a designated ombudsman; and

(ii) permit representatives of the Office, with the permission of the resident's legal representative or legal guardian, to examine a resident's clinical and other records, regardless of the age of the resident, and if a resident is unable to consent to such review, and has no legal guardian, permit representatives of the Office appropriate access, as defined by the Department, in consultation with the Office, in administrative rules, to the resident's records.

(2) Each long term care facility, supportive living facility, assisted living establishment, and shared housing establishment shall display, in multiple, conspicuous public places within the facility accessible to both visitors and residents and in an easily readable format, the address and phone number of the Office of the Long Term Care Ombudsman, in a manner prescribed by the Office.

(e) Immunity. An ombudsman or any representative of the Office participating in the good faith performance of his or her official duties shall have immunity from any liability (civil, criminal or otherwise) in any proceedings (civil, criminal or otherwise) brought as a consequence of the performance of his official duties.

(f) Business offenses.

(1) No person shall:

(i) Intentionally prevent, interfere with, or attempt to impede in any way any representative of the Office in the performance of his official duties under this Act and the Older Americans Act of 1965; or

(ii) Intentionally retaliate, discriminate against, or effect reprisals against any long term care facility resident or employee for contacting or providing information to any representative of the Office.

(2) A violation of this Section is a business offense, punishable by a fine not to exceed $501.

(3) The Director of Aging, in consultation with the Office, shall notify the State's Attorney of the county in which the long term care facility, supportive living facility, or assisted living or shared housing establishment is located, or the Attorney General, of any violations of this Section.

(g) Confidentiality of records and identities. The Department shall establish procedures for the disclosure by the State Ombudsman or the regional ombudsmen entities of files maintained by the program. The procedures shall provide that the files and records may be disclosed only at the discretion of the State Long Term Care Ombudsman or the person designated by the State Ombudsman to disclose the files and records, and the procedures shall prohibit the disclosure of the identity of any complainant, resident, witness, or employee of a long term care provider unless:

(1) the complainant, resident, witness, or employee of a long term care provider or his or her legal representative consents to the disclosure and the consent is in writing;

(2) the complainant, resident, witness, or employee of a long term care provider gives consent orally; and the consent is documented contemporaneously in writing in accordance with such requirements as the Department shall establish; or

(3) the disclosure is required by court order.

(h) Legal representation. The Attorney General shall provide legal representation to any representative of the Office against whom suit or other legal action is brought in connection with the performance of the representative's official duties, in accordance with the State Employee Indemnification Act.

(i) Treatment by prayer and spiritual means. Nothing in this Act shall be construed to authorize or require the medical supervision, regulation or control of remedial care or treatment of any resident in a long term care facility operated exclusively by and for members or adherents of any church or religious denomination the tenets and practices of which include reliance solely upon spiritual means through prayer for healing.

(j) The Long Term Care Ombudsman Fund is created as a special fund in the State treasury to receive moneys for the express purposes of this Section. All interest earned on moneys in the fund shall be credited to the fund. All bed fees collected under Section 4.04b of this Act shall be deposited into the fund. Moneys contained in or credited to the fund shall be used to support the purposes of this Section, including covering the costs of operating the State Long Term Care Ombudsman Program. Not less than 80% of the amount appropriated from the fund in each fiscal year shall be distributed to the regional long term care ombudsman programs.

All fees collected under paragraph 6 of subsection (c-5) of this Section shall be deposited into the fund and shall be used to compile and publish the "Consumer Choice Information Report".

(Source: P.A. 95-620, eff. 9-17-07; 95-823, eff. 1-1-09; 96-328, eff. 8-11-09; 96-758, eff. 8-25-09.)

(20 ILCS 105/4.04b new)

Sec. 4.04b. Facility bed fees.

(a) Each of the following facilities shall annually pay to the Department on Aging to be deposited into the Long Term Care Ombudsman Fund the sum of $7 for each bed maintained by the facility for use by a resident during any part of the previous fiscal year:

(1) A licensed facility as defined in Section 1-113 of the Nursing Home Care Act.

(2) A supportive living facility as defined in Section 5-5.01a of the Illinois Public Aid Code.

(3) An assisted living or shared housing establishment as defined in Section 10 of the Assisted Living and Shared Housing Act.

(b) The Department, in consultation with the Office of State Long Term Care Ombudsman, shall promulgate administrative rules to establish the forms, deadlines, and procedures for the notification of facilities subject to this Section and the collection of payments required by this Section.

(c) A facility that fails to pay the required bed fee within 90 days after the established deadline shall be liable for a penalty equal to 2 times the fee amount.

Section 99. Effective date. This Act takes effect January 1, 2011.