Public Act 0886 103RD GENERAL ASSEMBLY

SB0774 Enrolled LRB103 03230 AMQ 48236 b

Public Act 103-0886

AN ACT concerning regulation.

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

Section 5. The Assisted Living and Shared Housing Act is amended by changing Sections 10 and 70 and by adding Section 79 as follows:

(210 ILCS 9/10)

Sec. 10. Definitions. For purposes of this Act:

"Activities of daily living" means eating, dressing, bathing, toileting, transferring, or personal hygiene.

"Assisted living establishment" or "establishment" means a home, building, residence, or any other place where sleeping accommodations are provided for at least 3 unrelated adults, at least 80% of whom are 55 years of age or older and where the following are provided consistent with the purposes of this Act:

(1) services consistent with a social model that is based on the premise that the resident's unit in assisted living and shared housing is his or her own home;

(2) community-based residential care for persons who need assistance with activities of daily living, including personal, supportive, and intermittent health-related services available 24 hours per day, if needed, to meet the scheduled and unscheduled needs of a resident;

(3) mandatory services, whether provided directly by the establishment or by another entity arranged for by the establishment, with the consent of the resident or resident's representative; and

(4) a physical environment that is a homelike setting that includes the following and such other elements as established by the Department: individual living units each of which shall accommodate small kitchen appliances and contain private bathing, washing, and toilet facilities, or private washing and toilet facilities with a common bathing room readily accessible to each resident. Units shall be maintained for single occupancy except in cases in which 2 residents choose to share a unit. Sufficient common space shall exist to permit individual and group activities.

"Assisted living establishment" or "establishment" does not mean any of the following:

(1) A home, institution, or similar place operated by the federal government or the State of Illinois.

(2) A long term care facility licensed under the Nursing Home Care Act, a facility licensed under the Specialized Mental Health Rehabilitation Act of 2013, a facility licensed under the ID/DD Community Care Act, or a facility licensed under the MC/DD Act. However, a facility licensed under any of those Acts may convert distinct parts of the facility to assisted living. If the facility elects to do so, the facility shall retain the Certificate of Need for its nursing and sheltered care beds that were converted.

(3) A hospital, sanitarium, or other institution, the principal activity or business of which is the diagnosis, care, and treatment of human illness and that is required to be licensed under the Hospital Licensing Act.

(4) A facility for child care as defined in the Child Care Act of 1969.

(5) A community living facility as defined in the Community Living Facilities Licensing Act.

(6) A nursing home or sanitarium operated solely by and for persons who rely exclusively upon treatment by spiritual means through prayer in accordance with the creed or tenants of a well-recognized church or religious denomination.

(7) A facility licensed by the Department of Human Services as a community-integrated living arrangement as defined in the Community-Integrated Living Arrangements Licensure and Certification Act.

(8) A supportive residence licensed under the Supportive Residences Licensing Act.

(9) The portion of a life care facility as defined in the Life Care Facilities Act not licensed as an assisted living establishment under this Act; a life care facility may apply under this Act to convert sections of the community to assisted living.

(10) A free-standing hospice facility licensed under the Hospice Program Licensing Act.

(11) A shared housing establishment.

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

"Certified medication aide" means a person who has met the qualifications for certification under Section 79 and assists with medication administration while under the supervision of a registered professional nurse as authorized by Section 50-75 of the Nurse Practice Act in an assisted living establishment.

"Department" means the Department of Public Health.

"Director" means the Director of Public Health.

"Emergency situation" means imminent danger of death or serious physical harm to a resident of an establishment.

"License" means any of the following types of licenses issued to an applicant or licensee by the Department:

(1) "Probationary license" means a license issued to an applicant or licensee that has not held a license under this Act prior to its application or pursuant to a license transfer in accordance with Section 50 of this Act.

(2) "Regular license" means a license issued by the Department to an applicant or licensee that is in substantial compliance with this Act and any rules promulgated under this Act.

"Licensee" means a person, agency, association, corporation, partnership, or organization that has been issued a license to operate an assisted living or shared housing establishment.

"Licensed health care professional" means a registered professional nurse, an advanced practice registered nurse, a physician assistant, and a licensed practical nurse.

"Mandatory services" include the following:

(1) 3 meals per day available to the residents prepared by the establishment or an outside contractor;

(2) housekeeping services including, but not limited to, vacuuming, dusting, and cleaning the resident's unit;

(3) personal laundry and linen services available to the residents provided or arranged for by the establishment;

(4) security provided 24 hours each day including, but not limited to, locked entrances or building or contract security personnel;

(5) an emergency communication response system, which is a procedure in place 24 hours each day by which a resident can notify building management, an emergency response vendor, or others able to respond to his or her need for assistance; and

(6) assistance with activities of daily living as required by each resident.

"Negotiated risk" is the process by which a resident, or his or her representative, may formally negotiate with providers what risks each are willing and unwilling to assume in service provision and the resident's living environment. The provider assures that the resident and the resident's representative, if any, are informed of the risks of these decisions and of the potential consequences of assuming these risks.

"Owner" means the individual, partnership, corporation, association, or other person who owns an assisted living or shared housing establishment. In the event an assisted living or shared housing establishment is operated by a person who leases or manages the physical plant, which is owned by another person, "owner" means the person who operates the assisted living or shared housing establishment, except that if the person who owns the physical plant is an affiliate of the person who operates the assisted living or shared housing establishment and has significant control over the day to day operations of the assisted living or shared housing establishment, the person who owns the physical plant shall incur jointly and severally with the owner all liabilities imposed on an owner under this Act.

"Physician" means a person licensed under the Medical Practice Act of 1987 to practice medicine in all of its branches.

"Program" means the Certified Medication Aide Program.

"Qualified establishment" means an assisted living and shared housing establishment licensed by the Department of Public Health.

"Resident" means a person residing in an assisted living or shared housing establishment.

"Resident's representative" means a person, other than the owner, agent, or employee of an establishment or of the health care provider unless related to the resident, designated in writing by a resident to be his or her representative. This designation may be accomplished through the Illinois Power of Attorney Act, pursuant to the guardianship process under the Probate Act of 1975, or pursuant to an executed designation of representative form specified by the Department.

"Self" means the individual or the individual's designated representative.

"Shared housing establishment" or "establishment" means a publicly or privately operated free-standing residence for 16 or fewer persons, at least 80% of whom are 55 years of age or older and who are unrelated to the owners and one manager of the residence, where the following are provided:

(1) services consistent with a social model that is based on the premise that the resident's unit is his or her own home;

(2) community-based residential care for persons who need assistance with activities of daily living, including housing and personal, supportive, and intermittent health-related services available 24 hours per day, if needed, to meet the scheduled and unscheduled needs of a resident; and

(3) mandatory services, whether provided directly by the establishment or by another entity arranged for by the establishment, with the consent of the resident or the resident's representative.

"Shared housing establishment" or "establishment" does not mean any of the following:

(1) A home, institution, or similar place operated by the federal government or the State of Illinois.

(2) A long term care facility licensed under the Nursing Home Care Act, a facility licensed under the Specialized Mental Health Rehabilitation Act of 2013, a facility licensed under the ID/DD Community Care Act, or a facility licensed under the MC/DD Act. A facility licensed under any of those Acts may, however, convert sections of the facility to assisted living. If the facility elects to do so, the facility shall retain the Certificate of Need for its nursing beds that were converted.

(3) A hospital, sanitarium, or other institution, the principal activity or business of which is the diagnosis, care, and treatment of human illness and that is required to be licensed under the Hospital Licensing Act.

(4) A facility for child care as defined in the Child Care Act of 1969.

(5) A community living facility as defined in the Community Living Facilities Licensing Act.

(6) A nursing home or sanitarium operated solely by and for persons who rely exclusively upon treatment by spiritual means through prayer in accordance with the creed or tenants of a well-recognized church or religious denomination.

(7) A facility licensed by the Department of Human Services as a community-integrated living arrangement as defined in the Community-Integrated Living Arrangements Licensure and Certification Act.

(8) A supportive residence licensed under the Supportive Residences Licensing Act.

(9) A life care facility as defined in the Life Care Facilities Act; a life care facility may apply under this Act to convert sections of the community to assisted living.

(10) A free-standing hospice facility licensed under the Hospice Program Licensing Act.

(11) An assisted living establishment.

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

"Total assistance" means that staff or another individual performs the entire activity of daily living without participation by the resident.

(Source: P.A. 99-180, eff. 7-29-15; 100-513, eff. 1-1-18.)

(210 ILCS 9/70)

Sec. 70. Service requirements. An establishment must provide all mandatory services and may provide optional services, including medication reminders, supervision of self-administered medication and medication administration as defined by this Section and nonmedical services defined by rule, whether provided directly by the establishment or by another entity arranged for by the establishment with the consent of the resident or the resident's representative.

For the purposes of this Section, "medication reminders" means reminding residents to take pre-dispensed, self-administered medication, observing the resident, and documenting whether or not the resident took the medication.

For the purposes of this Section, "supervision of self-administered medication" means assisting the resident with self-administered medication using any combination of the following: reminding residents to take medication, reading the medication label to residents, checking the self-administered medication dosage against the label of the medication, confirming that residents have obtained and are taking the dosage as prescribed, and documenting in writing that the resident has taken (or refused to take) the medication. If residents are physically unable to open the container, the container may be opened for them. Supervision of self-administered medication shall be under the direction of a licensed health care professional or, in the case of a certified medication aide, under the supervision and delegation of a registered nurse as authorized by Section 50-75 of the Nurse Practice Act.

For the purposes of this Section, "medication administration" refers to a licensed health care professional employed by an establishment engaging in administering insulin and vitamin B-12 injections, oral medications, topical treatments, eye and ear drops, or nitroglycerin patches. A certified medication aide may administer medications under the supervision and delegation of a registered nurse as authorized by Section 50-75 of the Nurse Practice Act, except (i) Schedule II controlled substances as set forth in the Illinois Controlled Substances Act and (ii) any subcutaneous, intramuscular, intradermal, or intravenous medication Non-licensed staff may not administer any medication.

The Department shall specify by rule procedures for medication reminders, supervision of self-administered medication, and medication administration.

Nothing in this Act shall preclude a physician licensed under the Medical Practice Act of 1987 from providing services within the scope of his or her license to any resident.

(Source: P.A. 96-353, eff. 8-13-09.)

(210 ILCS 9/79 new)

Sec. 79. Certified Medication Aide Program.

(a) The Department shall administer and enforce a Certified Medication Aide Program and regulate certified medication aides. To be approved as an establishment qualified to participate in the program, an establishment must satisfy all of the following requirements:

(1) Be licensed and in good standing as an assisted living or shared housing establishment by the Department.

(2) Certify that the employment of a certified medication aide will not replace or diminish the employment of registered nurses or licensed practical nurses at the establishment.

(3) Certify that a registered nurse will be on duty and present in the establishment to delegate and supervise the administration of medication by a certified medication aide at all times.

(4) Certify that, with the exception of licensed health care professionals, only certified medication aides will be employed in the capacity of administering medication.

(5) Provide information regarding patient safety, efficiency, and errors as determined by the Department.

Failure to submit any required report may be grounds for discipline or sanctions as prescribed by the Department. The Department shall submit a report regarding patient safety, efficiency, and errors, as determined by rule, to the General Assembly no later than 2 years after the effective date of this amendatory Act of the 103rd General Assembly.

(b) No person shall practice as a medication aide or hold himself or herself out as a certified medication aide in this State unless he or she is certified in accordance with this Section. Nothing in this Section shall be construed as preventing or restricting the practice, services, or activities of:

(1) any person licensed in this State by any other law from engaging in the profession or occupation for which he or she is licensed;

(2) any person employed as a medication aide by the government of the United States, if such person practices as a medication aide solely under the direction or control of the organization by which he or she is employed; or

(3) any person pursuing a course of study leading to a certificate in medication aide at an accredited or approved educational program if such activities and services constitute a part of a supervised course of study and if such person is designated by a title which clearly indicates his or her status as a student or trainee.

Nothing in this Section shall be construed to limit the delegation of tasks or duties by a physician, dentist, advanced practice registered nurse, or podiatric physician as authorized by law.

(c) A certified medication aide may only practice in a qualified establishment. Certified medication aides must be supervised by and receive delegation by a registered nurse, as authorized by Section 50-75 of the Nurse Practice Act, that is on duty and present in the establishment at all times. Certified medication aides shall not have a direct-care assignment when scheduled to work as a certified medication aide, but may assist residents as needed. Certified medication aides shall not administer any medication until a physician has conducted an initial assessment of the resident.

Certified medication aides shall not administer any Schedule II controlled substances as set forth in the Illinois Controlled Substances Act and may not administer any subcutaneous, intramuscular, intradermal, or intravenous medication.

(d) In addition to any other penalty provided by law, any person who practices, offers to practice, attempts to practice, or holds oneself out to practice as a medication aide without being certified in accordance with this Section shall pay a civil penalty to the Department as determined by the Department. The Department has the authority and power to investigate any and all uncertified activity. The civil penalty shall be paid within 60 days after the date of the order imposing the civil penalty. The order shall constitute a judgment and may be filed and execution had thereon in the same manner as any judgment from any court of record.

(e) Applications for original certification shall be made to the Department in writing on forms prescribed by the Department and shall be accompanied by the required fee, which shall not be refundable. The application shall require such information that, in the judgment of the Department, enables the Department to pass on the qualifications of the applicant for certification.

(f) The Department shall authorize examinations of applicants for a certificate under this Section at the times and places as it may designate. The examination shall be of a character to give a fair test of the qualifications of the applicant to practice as a medication aide.

Applicants for examination as a medication aide shall be required to pay, either to the Department or the designated testing service, a fee covering the cost of providing the examination. Failure to appear for the examination on the scheduled date, at the time and place specified, after the applicant's application for examination has been received and acknowledged by the Department or the designated testing service, shall result in the forfeiture of the examination fee.

If an applicant fails to pass an examination for certification in accordance with this Section within 3 years after filing his or her application, then the application shall be denied. The applicant may thereafter make a new application accompanied by the required fee; however, the applicant shall meet all requirements in effect at the time of subsequent application before obtaining certification. The Department may employ consultants for the purposes of preparing and conducting examinations.

(g) An applicant for certification by examination to practice as a certified medication aide must:

(1) submit a completed written application on forms provided by the Department and fees as established by the Department;

(2) be age 18 or older;

(3) have a high school diploma or a high school equivalency certificate;

(4) demonstrate the ability to speak, read, and write the English language, as determined by rule;

(5) demonstrate competency in math, as determined by rule;

(6) be currently certified in good standing as a certified nursing assistant and provide proof of 2,000 hours of practice as a certified nursing assistant within 3 years before application for a certificate under this Section;

(7) submit to the criminal history records check required under Section 46 of the Health Care Worker Background Check Act;

(8) be currently certified to perform cardiopulmonary resuscitation by the American Heart Association or American Red Cross;

(9) have successfully completed a course of study approved by the Department as defined by rule; to be approved, the program must include a minimum of 60 hours of classroom-based medication aide education, a minimum of 10 hours of simulation laboratory study, and a minimum of 30 hours of registered nurse-supervised clinical practicum with progressive responsibility of patient medication assistance;

(10) have successfully completed the Medication Aide Certification Examination or other examination authorized by the Department; and

(11) submit proof of employment by a qualifying establishment.

(h) The expiration date for each certification to practice as a certified medication aide shall be set by rule.

(i) No person shall use the title "certified medication aide" unless he or she holds a valid certificate issued by the Department in accordance with this Section.

(j) The Department shall propose rules to implement the provisions of this Section within 180 days after the effective date of this amendatory Act of the 103rd General Assembly.

(225 ILCS 65/Art. 80 rep.)

Section 10. The Nurse Practice Act is amended by repealing Article 80.

Section 15. The Illinois Public Aid Code is amended by changing Section 5-5.01a as follows:

(305 ILCS 5/5-5.01a)

Sec. 5-5.01a. Supportive living facilities program.

(a) The Department shall establish and provide oversight for a program of supportive living facilities that seek to promote resident independence, dignity, respect, and well-being in the most cost-effective manner.

A supportive living facility is (i) a free-standing facility or (ii) a distinct physical and operational entity within a mixed-use building that meets the criteria established in subsection (d). A supportive living facility integrates housing with health, personal care, and supportive services and is a designated setting that offers residents their own separate, private, and distinct living units.

Sites for the operation of the program shall be selected by the Department based upon criteria that may include the need for services in a geographic area, the availability of funding, and the site's ability to meet the standards.

(b) Beginning July 1, 2014, subject to federal approval, the Medicaid rates for supportive living facilities shall be equal to the supportive living facility Medicaid rate effective on June 30, 2014 increased by 8.85%. Once the assessment imposed at Article V-G of this Code is determined to be a permissible tax under Title XIX of the Social Security Act, the Department shall increase the Medicaid rates for supportive living facilities effective on July 1, 2014 by 9.09%. The Department shall apply this increase retroactively to coincide with the imposition of the assessment in Article V-G of this Code in accordance with the approval for federal financial participation by the Centers for Medicare and Medicaid Services.

The Medicaid rates for supportive living facilities effective on July 1, 2017 must be equal to the rates in effect for supportive living facilities on June 30, 2017 increased by 2.8%.

The Medicaid rates for supportive living facilities effective on July 1, 2018 must be equal to the rates in effect for supportive living facilities on June 30, 2018.

Subject to federal approval, the Medicaid rates for supportive living services on and after July 1, 2019 must be at least 54.3% of the average total nursing facility services per diem for the geographic areas defined by the Department while maintaining the rate differential for dementia care and must be updated whenever the total nursing facility service per diems are updated. Beginning July 1, 2022, upon the implementation of the Patient Driven Payment Model, Medicaid rates for supportive living services must be at least 54.3% of the average total nursing services per diem rate for the geographic areas. For purposes of this provision, the average total nursing services per diem rate shall include all add-ons for nursing facilities for the geographic area provided for in Section 5-5.2. The rate differential for dementia care must be maintained in these rates and the rates shall be updated whenever nursing facility per diem rates are updated.

Subject to federal approval, beginning January 1, 2024, the dementia care rate for supportive living services must be no less than the non-dementia care supportive living services rate multiplied by 1.5.

(c) The Department may adopt rules to implement this Section. Rules that establish or modify the services, standards, and conditions for participation in the program shall be adopted by the Department in consultation with the Department on Aging, the Department of Rehabilitation Services, and the Department of Mental Health and Developmental Disabilities (or their successor agencies).

(d) Subject to federal approval by the Centers for Medicare and Medicaid Services, the Department shall accept for consideration of certification under the program any application for a site or building where distinct parts of the site or building are designated for purposes other than the provision of supportive living services, but only if:

(1) those distinct parts of the site or building are not designated for the purpose of providing assisted living services as required under the Assisted Living and Shared Housing Act;

(2) those distinct parts of the site or building are completely separate from the part of the building used for the provision of supportive living program services, including separate entrances;

(3) those distinct parts of the site or building do not share any common spaces with the part of the building used for the provision of supportive living program services; and

(4) those distinct parts of the site or building do not share staffing with the part of the building used for the provision of supportive living program services.

(e) Facilities or distinct parts of facilities which are selected as supportive living facilities and are in good standing with the Department's rules are exempt from the provisions of the Nursing Home Care Act and the Illinois Health Facilities Planning Act.

(f) Section 9817 of the American Rescue Plan Act of 2021 (Public Law 117-2) authorizes a 10% enhanced federal medical assistance percentage for supportive living services for a 12-month period from April 1, 2021 through March 31, 2022. Subject to federal approval, including the approval of any necessary waiver amendments or other federally required documents or assurances, for a 12-month period the Department must pay a supplemental $26 per diem rate to all supportive living facilities with the additional federal financial participation funds that result from the enhanced federal medical assistance percentage from April 1, 2021 through March 31, 2022. The Department may issue parameters around how the supplemental payment should be spent, including quality improvement activities. The Department may alter the form, methods, or timeframes concerning the supplemental per diem rate to comply with any subsequent changes to federal law, changes made by guidance issued by the federal Centers for Medicare and Medicaid Services, or other changes necessary to receive the enhanced federal medical assistance percentage.

(g) All applications for the expansion of supportive living dementia care settings involving sites not approved by the Department on January 1, 2024 (the effective date of Public Act 103-102) this amendatory Act of the 103rd General Assembly may allow new elderly non-dementia units in addition to new dementia care units. The Department may approve such applications only if the application has: (1) no more than one non-dementia care unit for each dementia care unit and (2) the site is not located within 4 miles of an existing supportive living program site in Cook County (including the City of Chicago), not located within 12 miles of an existing supportive living program site in DuPage County, Kane County, Lake County, McHenry County, or Will County, or not located within 25 miles of an existing supportive living program site in any other county.

(f) Subject to federal approval, the Department shall allow a certified medication aide to administer medication in a supportive living facility. For purposes of this subsection, "certified medication aide" means a person who has met the qualifications for certification under Section 79 of the Assisted Living and Shared Housing Act and assists with medication administration while under the supervision of a registered professional nurse as authorized by Section 50-75 of the Nurse Practice Act. The Department may adopt rules to implement this subsection.

(Source: P.A. 102-43, eff. 7-6-21; 102-699, eff. 4-19-22; 103-102, Article 20, Section 20-5, eff. 1-1-24; 103-102, Article 100, Section 100-5, eff. 1-1-24; revised 12-15-23.)

Section 99. Effective date. This Act takes effect upon becoming law.