SB0678sam001 96TH GENERAL ASSEMBLY

Sen. Jacqueline Y. Collins

Filed: 3/15/2010

09600SB0678sam001 LRB096 06735 KTG 38983 a

AMENDMENT TO SENATE BILL 678

AMENDMENT NO. ______. Amend Senate Bill 678 by replacing everything after the enacting clause with the following:

"Section 5. The Criminal Identification Act is amended by adding Section 15 as follows:

(20 ILCS 2630/15 new)

Sec. 15. Notification of outstanding warrant. If the existence of an outstanding arrest warrant is identified by the Department in connection with the criminal history background checks conducted pursuant to subsection (b) of Section 2-201.5 of the Nursing Home Care Act, the Department shall notify the issuing jurisdiction of the following: (i) the existence of the warrant and (ii) the name, address, and telephone number of the licensed long term care facility in which the wanted person resides.

Section 10. The Nursing Home Care Act is amended by changing Sections 1-114.01, 2-201.5, and 2-201.6 and by adding Section 3-808 as follows:

(210 ILCS 45/1-114.01)

Sec. 1-114.01. Identified offender. "Identified offender" means a person who has been convicted of any felony or misdemeanor offense listed in Section 25 of the Health Care Worker Background Check Act, is a registered sex offender, or has an outstanding arrest warrant is serving a term of parole, mandatory supervised release, or probation for a felony offense.

(Source: P.A. 94-163, eff. 7-11-05.)

(210 ILCS 45/2-201.5)

Sec. 2-201.5. Screening prior to admission.

(a) All persons age 18 or older seeking admission to a nursing facility must be screened to determine the need for nursing facility services prior to being admitted, regardless of income, assets, or funding source. In addition, any person who seeks to become eligible for medical assistance from the Medical Assistance Program under the Illinois Public Aid Code to pay for long term care services while residing in a facility must be screened prior to receiving those benefits. Screening for nursing facility services shall be administered through procedures established by administrative rule. Screening may be done by agencies other than the Department as established by administrative rule. This Section applies on and after July 1, 1996.

(b) In addition to the screening required by subsection (a), a facility, except for those licensed as long term care for under age 22 facilities, shall, within 24 hours after admission, request a criminal history background check pursuant to the Uniform Conviction Information Act for all persons age 18 or older seeking admission to the facility. Background checks conducted pursuant to this Section shall be based on the resident's name, date of birth, and other identifiers as required by the Department of State Police. If the results of the background check are inconclusive, the facility shall initiate a fingerprint-based check, unless the fingerprint check is waived by the Director of Public Health based on verification by the facility that the resident is completely immobile or that the resident meets other criteria related to the resident's health or lack of potential risk which may be established by Departmental rule. A waiver issued pursuant to this Section shall be valid only while the resident is immobile or while the criteria supporting the waiver exist. The facility shall provide for or arrange for any required fingerprint-based checks to be taken on the premises of the facility. If a fingerprint-based check is required, the facility shall arrange for it to be conducted in a manner that is respectful of the resident's dignity and that minimizes any emotional or physical hardship to the resident.

A facility, except for those licensed as long term care for under age 22 facilities, shall, within 60 days after the effective date of this amendatory Act of the 94th General Assembly, request a criminal history background check pursuant to the Uniform Conviction Information Act for all persons who are residents of the facility on the effective date of this amendatory Act of the 94th General Assembly. The facility shall review the results of the criminal history background checks immediately upon receipt thereof. If the results of the background check are inconclusive, the facility shall initiate a fingerprint-based check unless the fingerprint-based check is waived by the Director of Public Health based on verification by the facility that the resident is completely immobile or that the resident meets other criteria related to the resident's health or lack of potential risk which may be established by Departmental rule. A waiver issued pursuant to this Section shall be valid only while the resident is immobile or while the criteria supporting the waiver exist. The facility shall provide for or arrange for any required fingerprint-based checks to be taken on the premises of the facility. If a fingerprint-based check is required, the facility shall arrange for it to be conducted in a manner that is respectful of the resident's dignity and that minimizes any emotional or physical hardship to the resident.

(c) If the results of a resident's criminal history background check reveal that the resident is an identified offender as defined in Section 1-114.01, the facility shall immediately fax the resident's name and criminal history information to the Illinois Department of State Police Public Health, which shall conduct a Criminal History Analysis pursuant to Section 2-201.6. The Criminal History Analysis shall be conducted independently of the Illinois Department of Public Health's Office of Healthcare Regulation. The Office of Healthcare Regulation shall have no involvement with the process of reviewing or analyzing the criminal history of identified offenders.

(d) The Illinois Department of State Police Public Health shall keep a continuing record of all residents determined to be identified offenders under Section 1-114.01 and shall report the number of identified offender residents annually to the General Assembly.

(Source: P.A. 94-163, eff. 7-11-05; 94-752, eff. 5-10-06.)

(210 ILCS 45/2-201.6)

Sec. 2-201.6. Criminal History Analysis.

(a) The Department of State Police shall immediately commence a Criminal History Analysis when it receives information, through the criminal history background check required pursuant to subsection (b) of Section 2-201.5 or through any other means, that a resident of a facility is an identified offender.

(b) The Department of State Police shall complete the Criminal History Analysis as soon as practicable, but not later than 14 days after receiving notice from the facility under subsection (a).

(c) The Criminal History Analysis shall include, but not be limited to, all of the following:

(1) Consultation with the identified offender's assigned parole agent or probation officer, if applicable.

(2) Consultation with the convicting prosecutor's office.

(3) A review of the statement of facts, police reports, and victim impact statements, if available.

(4) An interview with the identified offender.

(5) Consultation with the facility administrator or facility medical director, or both, regarding the physical condition of the identified offender.

(6) Consideration of the entire criminal history of the offender, including the date of the identified offender's last conviction relative to the date of admission to a long-term care facility.

(7) If the identified offender is a convicted or registered sex offender, a review of any and all sex offender evaluations conducted on that offender. If there is no sex offender evaluation available, the facility in which the identified offender resides Department shall provide for a sex offender evaluation to be conducted on the identified offender. If the convicted or registered sex offender is under supervision by the Illinois Department of Corrections or a county probation department, the sex offender evaluation shall be arranged by and at the expense of the supervising agency. All evaluations conducted on convicted or registered sex offenders under this Act shall be conducted by sex offender evaluators approved by the Sex Offender Management Board.

(d) The Department of State Police shall prepare a Criminal History Analysis Report based on the analysis conducted pursuant to subsection (c). The Report shall include a summary of the Risk Analysis and shall detail whether and to what extent the identified offender's criminal history necessitates the implementation of security measures within the long-term care facility. If the identified offender is a convicted or registered sex offender or if the Department's Criminal History Analysis reveals that the identified offender poses a significant risk of harm to others within the facility, the offender shall be required to have his or her own room within the facility.

(e) The Criminal History Analysis Report shall promptly be provided to the following:

(1) The long-term care facility within which the identified offender resides.

(2) The Chief of Police of the municipality in which the facility is located.

(3) The State of Illinois Long Term Care Ombudsman.

(f) The facility shall incorporate the Criminal History Analysis Report into the identified offender's care plan created pursuant to 42 CFR 483.20.

(g) If, based on the Criminal History Analysis Report, a facility determines that it cannot manage the identified offender resident safely within the facility, it shall commence involuntary transfer or discharge proceedings pursuant to Section 3-402.

(h) Except for willful and wanton misconduct, any person authorized to participate in the development of a Criminal History Analysis or Criminal History Analysis Report is immune from criminal or civil liability for any acts or omissions as the result of his or her good faith effort to comply with this Section.

(Source: P.A. 94-752, eff. 5-10-06.)

(210 ILCS 45/3-808 new)

Sec. 3-808. Nursing home fraud, abuse, and neglect prevention and reporting.

(a) Every licensed long term care facility that receives Medicaid funding shall prominently display in its lobby, in its dining areas, and on each floor of the facility information approved by the Illinois Medicaid Fraud Control Unit on how to report fraud, abuse, and neglect. In addition, information regarding the reporting of fraud, abuse, and neglect shall be provided to each resident at the time of admission and to the resident's family members or emergency contacts, or to both the resident's family members and his or her emergency contacts.

(b) Any owner or licensee of a long term care facility who furnishes or fails to furnish goods or services to a resident that, when based upon competent medical judgment and evaluation within accepted standards of care, are determined to be harmful to the resident or are of grossly inferior quality, is guilty of a Class 4 felony.

(c) Any owner or licensee of a long term care facility licensed under the this Act shall be responsible for the collection and maintenance of any and all records required to be maintained under this Section and any other applicable provisions of this Act, and as a provider under the Illinois Public Aid Code, and shall be responsible for compliance with all of the disclosure requirements under this Section. All books and records and other papers and documents that are required to be kept, and all records showing compliance with all of the disclosure requirements to be made pursuant to this Section, shall be kept at the facility and shall, at all times during business hours, be subject to inspection by any law enforcement or health oversight agency or its duly authorized agents or employees.

(d) Any report of abuse and neglect of residents made by any individual in whatever manner, including, but not limited to, reports made under Sections 2-107 and 3-610 of this Act, or as provided under the Abused and Neglected Long Term Care Facility Residents Reporting Act, that is made to an administrator, a director of nursing, or any other person with management responsibility at a long term care facility must be disclosed to the owners and licensee of the facility within 24 hours of the report. The owners and licensee of a long term care facility shall maintain all records necessary to show compliance with this disclosure requirement.

(e) Any person with an ownership interest in a long term care facility licensed by the Department must, within 30 days of the effective date of this amendatory Act of the 96th General Assembly, disclose the existence of any ownership interest in any vendor who does business with the facility. The disclosures required by this subsection shall be made in the form and manner prescribed by the Department. Licensed long term care facilities who receive Medicaid funding shall submit a copy of the disclosures required by this subsection to the Illinois Medicaid Fraud Control Unit. The owners and licensee of a long term care facility shall maintain all records necessary to show compliance with this disclosure requirement.

(f) Notwithstanding the provisions of Section 3-318 of this Act, and in addition thereto, any person, owner, or licensee who fails to keep and maintain, or fails to produce for inspection, books and records, or fails to make the disclosures required by this Section, is guilty of a Class A misdemeanor. A second or subsequent violation of this Section shall be punishable as a Class 4 felony.

(g) Any owner or licensee who files or causes to be filed a document with false information with the Department, the Department of Healthcare and Family Services, or the Illinois Medicaid Fraud Control Unit or any other law enforcement agency, or who makes a false statement or representation to the Illinois Medicaid Fraud Control Unit or any law enforcement agency, is guilty of a Class 4 felony.

Section 15. The Criminal Code of 1961 is amended by changing Section 12-19 as follows:

(720 ILCS 5/12-19) (from Ch. 38, par. 12-19)

(Text of Section before amendment by P.A. 96-339)

Sec. 12-19. Abuse and Criminal Neglect of a Long Term Care Facility Resident.

(a) Any person or any owner or licensee of a long term care facility who abuses a long term care facility resident is guilty of a Class 3 felony. Any person or any owner or licensee of a long term care facility who criminally neglects a long term care facility resident is guilty of a Class 4 felony. A person whose criminal neglect of a long term care facility resident results in the resident's death is guilty of a Class 3 felony. However, nothing herein shall be deemed to apply to a physician licensed to practice medicine in all its branches or a duly licensed nurse providing care within the scope of his or her professional judgment and within the accepted standards of care within the community. Notwithstanding the provisions of Section 5-4 of this Code, any owner or licensee of a long term care facility, whether an individual, public or private corporation, limited liability company, partnership, unincorporated association, or any other entity doing business in this State, may be prosecuted under this Section if the conduct giving rise to the offense is performed by any agent of the owner or licensee. It shall not be a defense to this Section if the owner or licensee acted with organizational indifference.

(b) Notwithstanding the penalties in subsections (a) and (c) and in addition thereto, if a licensee or owner of a long term care facility or his or her employee has caused neglect of a resident, the licensee or owner is guilty of a petty offense. An owner or licensee is guilty under this subsection (b) only if the owner or licensee failed to exercise reasonable care in the hiring, training, supervising or providing of staff or other related routine administrative responsibilities.

(c) (Blank) Notwithstanding the penalties in subsections (a) and (b) and in addition thereto, if a licensee or owner of a long term care facility or his or her employee has caused gross neglect of a resident, the licensee or owner is guilty of a business offense for which a fine of not more than $10,000 may be imposed. An owner or licensee is guilty under this subsection (c) only if the owner or licensee failed to exercise reasonable care in the hiring, training, supervising or providing of staff or other related routine administrative responsibilities.

(d) For the purpose of this Section:

(1) "Abuse" means intentionally or knowingly causing any physical or mental injury or committing any sexual offense set forth in this Code.

(2) "Criminal neglect" means an act whereby a person recklessly (i) performs acts that cause an elderly person's or person with a disability's life to be endangered, health to be injured, or pre-existing physical or mental condition to deteriorate or creates the substantial likelihood of injury or deterioration, or (ii) fails to perform acts that he or she knows or reasonably should know are necessary to maintain or preserve the life or health of an elderly person or person with a disability, and that failure causes the elderly person's or person with a disability's life to be endangered, health to be injured, or pre-existing physical or mental condition to deteriorate or creates the substantial likelihood of injury or deterioration, or (iii) abandons an elderly person or person with a disability.

(3) "Neglect" means negligently failing to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury or the deterioration of a physical or mental condition.

(4) "Resident" means a person residing in a long term care facility.

(5) "Owner" means the person who owns a long term care facility as provided under the Nursing Home Care Act or an assisted living or shared housing establishment under the Assisted Living and Shared Housing Act.

(6) "Licensee" means the individual or entity licensed to operate a facility under the Nursing Home Care Act or the Assisted Living and Shared Housing Act.

(7) "Facility" or "long term care facility" means a private home, institution, building, residence, or any other place, whether operated for profit or not, or a county home for the infirm and chronically ill operated pursuant to Division 5-21 or 5-22 of the Counties Code, or any similar institution operated by the State of Illinois or a political subdivision thereof, which provides, through its ownership or management, personal care, sheltered care or nursing for 3 or more persons not related to the owner by blood or marriage. The term also includes skilled nursing facilities and intermediate care facilities as defined in Title XVIII and Title XIX of the federal Social Security Act and assisted living establishments and shared housing establishments licensed under the Assisted Living and Shared Housing Act.

(8) "Organizational indifference" means that an owner or licensee failed to exercise reasonable care in the hiring, training, supervising, or providing of staff or other related routine health care responsibilities.

(e) Nothing contained in this Section shall be deemed to apply to the medical supervision, regulation or control of the remedial care or treatment of residents in a facility conducted for those who rely upon treatment by prayer or spiritual means in accordance with the creed or tenets of any well recognized church or religious denomination and which is licensed in accordance with Section 3-803 of the Nursing Home Care Act.

(Source: P.A. 93-301, eff. 1-1-04.)

(Text of Section after amendment by P.A. 96-339)

Sec. 12-19. Abuse and Criminal Neglect of a Long Term Care Facility Resident.

(a) Any person or any owner or licensee of a long term care facility who abuses a long term care facility resident is guilty of a Class 3 felony. Any person or any owner or licensee of a long term care facility who criminally neglects a long term care facility resident is guilty of a Class 4 felony. A person whose criminal neglect of a long term care facility resident results in the resident's death is guilty of a Class 3 felony. However, nothing herein shall be deemed to apply to a physician licensed to practice medicine in all its branches or a duly licensed nurse providing care within the scope of his or her professional judgment and within the accepted standards of care within the community. Notwithstanding the provisions of Section 5-4 of this Code, any owner or licensee of a long term care facility, whether an individual, public or private corporation, limited liability company, partnership, unincorporated association, or any other entity doing business in this State, may be prosecuted under this Section if the conduct giving rise to the offense is performed by any agent of the owner or licensee. It shall not be a defense to this Section if the owner or licensee acted with organizational indifference.

(b) Notwithstanding the penalties in subsections (a) and (c) and in addition thereto, if a licensee or owner of a long term care facility or his or her employee has caused neglect of a resident, the licensee or owner is guilty of a petty offense. An owner or licensee is guilty under this subsection (b) only if the owner or licensee failed to exercise reasonable care in the hiring, training, supervising or providing of staff or other related routine administrative responsibilities.

(c) (Blank) Notwithstanding the penalties in subsections (a) and (b) and in addition thereto, if a licensee or owner of a long term care facility or his or her employee has caused gross neglect of a resident, the licensee or owner is guilty of a business offense for which a fine of not more than $10,000 may be imposed. An owner or licensee is guilty under this subsection (c) only if the owner or licensee failed to exercise reasonable care in the hiring, training, supervising or providing of staff or other related routine administrative responsibilities.

(d) For the purpose of this Section:

(1) "Abuse" means intentionally or knowingly causing any physical or mental injury or committing any sexual offense set forth in this Code.

(2) "Criminal neglect" means an act whereby a person recklessly (i) performs acts that cause an elderly person's or person with a disability's life to be endangered, health to be injured, or pre-existing physical or mental condition to deteriorate or creates the substantial likelihood of injury or deterioration, or (ii) fails to perform acts that he or she knows or reasonably should know are necessary to maintain or preserve the life or health of an elderly person or person with a disability, and that failure causes the elderly person's or person with a disability's life to be endangered, health to be injured, or pre-existing physical or mental condition to deteriorate or creates the substantial likelihood of injury or deterioration, or (iii) abandons an elderly person or person with a disability.

(3) "Neglect" means negligently failing to provide adequate medical or personal care or maintenance, which failure results in physical or mental injury or the deterioration of a physical or mental condition.

(4) "Resident" means a person residing in a long term care facility.

(5) "Owner" means the person who owns a long term care facility as provided under the Nursing Home Care Act, a facility as provided under the MR/DD Community Care Act, or an assisted living or shared housing establishment under the Assisted Living and Shared Housing Act.

(6) "Licensee" means the individual or entity licensed to operate a facility under the Nursing Home Care Act, the MR/DD Community Care Act, or the Assisted Living and Shared Housing Act.

(7) "Facility" or "long term care facility" means a private home, institution, building, residence, or any other place, whether operated for profit or not, or a county home for the infirm and chronically ill operated pursuant to Division 5-21 or 5-22 of the Counties Code, or any similar institution operated by the State of Illinois or a political subdivision thereof, which provides, through its ownership or management, personal care, sheltered care or nursing for 3 or more persons not related to the owner by blood or marriage. The term also includes skilled nursing facilities and intermediate care facilities as defined in Title XVIII and Title XIX of the federal Social Security Act and assisted living establishments and shared housing establishments licensed under the Assisted Living and Shared Housing Act.

(8) "Organizational indifference" means that an owner or licensee failed to exercise reasonable care in the hiring, training, supervising, or providing of staff or other related routine health care responsibilities.

(e) Nothing contained in this Section shall be deemed to apply to the medical supervision, regulation or control of the remedial care or treatment of residents in a facility conducted for those who rely upon treatment by prayer or spiritual means in accordance with the creed or tenets of any well recognized church or religious denomination and which is licensed in accordance with Section 3-803 of the Nursing Home Care Act or Section 3-803 of the MR/DD Community Care Act.

(Source: P.A. 96-339, eff. 7-1-10.)

Section 95. No acceleration or delay. Where this Act makes changes in a statute that is represented in this Act by text that is not yet or no longer in effect (for example, a Section represented by multiple versions), the use of that text does not accelerate or delay the taking effect of (i) the changes made by this Act or (ii) provisions derived from any other Public Act.

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