HB3508eng 95TH GENERAL ASSEMBLY

HB3508 Engrossed LRB095 08515 DRJ 31907 b

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 Sections 4.03 and 4.04 as follows:

(20 ILCS 105/4.03) (from Ch. 23, par. 6104.03)

Sec. 4.03. The Department on Aging, in cooperation with the Department of Human Services and any other appropriate State, local or federal agency, shall, without regard to income guidelines, establish a nursing home prescreening program to determine whether Alzheimer's Disease and related disorders victims, and persons who are deemed as blind or disabled as defined by the Social Security Act and who are in need of long term care, may be satisfactorily cared for in their homes through the use of home and community based services. Case coordination units under contract with the Department may charge a fee for the prescreening provided under this Section and the fee shall be no greater than the cost of such services to the case coordination unit. At the time of each prescreening, case coordination units shall provide information regarding the Office of State Long Term Care Ombudsman's Residents Right to Know database as authorized in subsection (c-5) of Section 4.04.

(Source: P.A. 89-21, eff. 7-1-95; 89-507, eff. 7-1-97.)

(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 who consents to the communication;

(iii) Seek consent to communicate privately and without restriction with any resident;

(iv) Inspect the clinical and other records of a resident 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 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. 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 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 persons with mental illness (other than Alzheimer's disease and related disorders).

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-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.

(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 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, 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.

(Source: P.A. 93-241, eff. 7-22-03; 93-878, eff. 1-1-05.)

Section 10. The Nursing Home Care Act is amended by changing Sections 3-210 and 3-212 and by adding Section 2-214 as follows:

(210 ILCS 45/2-214 new)

Sec. 2-214. Consumer Choice Information Reports.

(a) Every facility shall complete a Consumer Choice Information Report and shall file it with the Office of State Long Term Care Ombudsman electronically as prescribed by the Office. The Report shall be filed annually and upon request of the Office of State Long Term Care Ombudsman. The Consumer Choice Information Report must be completed by the facility in full.

(b) A violation of any of the provisions of this Section constitutes an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act. All remedies, penalties, and authority granted to the Attorney General by the Consumer Fraud and Deceptive Business Practices Act shall be available to him or her for the enforcement of this Section.

(c) The Department of Public Health shall include verification of the submission of a facility's current Consumer Choice Information Report when conducting an inspection pursuant to Section 3-212.

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

Sec. 3-210. A facility shall retain the following for public inspection:

(1) A complete copy of every inspection report of the facility received from the Department during the past 5 years;

(2) A copy of every order pertaining to the facility issued by the Department or a court during the past 5 years;

(3) A description of the services provided by the facility and the rates charged for those services and items for which a resident may be separately charged;

(4) A copy of the statement of ownership required by Section 3-207;

(5) A record of personnel employed or retained by the facility who are licensed, certified or registered by the Department of Professional Regulation; and

(6) A complete copy of the most recent inspection report of the facility received from the Department.

(7) A copy of the current Consumer Choice Information Report required by Section 2-214.

(Source: P.A. 85-1209)

(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 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 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.

(Source: P.A. 91-799, eff. 6-13-00; 92-209, eff. 1-1-02.)

Section 15. The Consumer Fraud and Deceptive Business Practices Act is amended by adding Section 2ZZ as follows:

(815 ILCS 505/2ZZ new)

Sec. 2ZZ. Long term care facility; Consumer Choice Information Report. A long term care facility that fails to comply with Section 2-214 of the Nursing Home Care Act commits an unlawful practice within the meaning of this Act.