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91_HB0182sam001 SRS91HB0182DLsaam01 1 AMENDMENT TO HOUSE BILL 182 2 AMENDMENT NO. . Amend House Bill 182 by replacing 3 everything after the enacting clause with the following: 4 "Section 5. The Illinois Act on the Aging is amended by 5 changing Section 4.04 as follows: 6 (20 ILCS 105/4.04) (from Ch. 23, par. 6104.04) 7 (Text of Section before amendment by P.A. 91-656) 8 Sec. 4.04. Long Term Care Ombudsman Program. 9 (a) Long Term Care Ombudsman Program. The Department 10 shall establish a Long Term Care Ombudsman Program, through 11 the Office of State Long Term Care Ombudsman ("the Office"), 12 in accordance with the provisions of the Older Americans Act 13 of 1965, as now or hereafter amended. 14 (b) Definitions. As used in this Section, unless the 15 context requires otherwise: 16 (1) "Access" has the same meaning as in Section 17 1-104 of the Nursing Home Care Act, as now or hereafter 18 amended; that is, it means the right to: 19 (i) Enter any long term care facility; 20 (ii) Communicate privately and without 21 restriction with any resident who consents to the 22 communication; -2- SRS91HB0182DLsaam01 1 (iii) Seek consent to communicate privately 2 and without restriction with any resident; 3 (iv) Inspect the clinical and other records of 4 a resident with the express written consent of the 5 resident; 6 (v) Observe all areas of the long term care 7 facility except the living area of any resident who 8 protests the observation. 9 (2) "Long Term Care Facility" means (i) any 10 facility as defined by Section 1-113 of the Nursing Home 11 Care Act, as now or hereafter amended; and (ii) any 12 skilled nursing facility or a nursing facility which 13 meets the requirements of Section 1819(a), (b), (c), and 14 (d) or Section 1919(a), (b), (c), and (d) of the Social 15 Security Act, as now or hereafter amended (42 U.S.C. 16 1395i-3(a), (b), (c), and (d) and 42 U.S.C. 1396r(a), 17 (b), (c), and (d)). 18 (3) "Ombudsman" means any person employed by the 19 Department to fulfill the requirements of the Office, or 20 any representative of a sub-State long term care 21 ombudsman program; provided that the representative, 22 whether he is paid for or volunteers his ombudsman 23 services, shall be qualified and authorized by the 24 Department to perform the duties of an ombudsman as 25 specified by the Department in rules. 26 (c) Ombudsman; rules. The Office of State Long Term Care 27 Ombudsman shall be composed of at least one full-time 28 ombudsman within the Department and shall include a system of 29 designated sub-State long term care ombudsman programs. Each 30 sub-State program shall be designated by the Department as a 31 subdivision of the Office and any representative of a 32 sub-State program shall be treated as a representative of the 33 Office. 34 The Department shall promulgate administrative rules to -3- SRS91HB0182DLsaam01 1 establish the responsibilities of the Department and the 2 Office of State Long Term Care Ombudsman. The administrative 3 rules shall include the responsibility of the Office to 4 investigate and resolve complaints made by or on behalf of 5 residents of long term care facilities relating to actions, 6 inaction, or decisions of providers, or their 7 representatives, of long term care facilities, of public 8 agencies, or of social services agencies, which may adversely 9 affect the health, safety, welfare, or rights of such 10 residents. When necessary and appropriate, representatives of 11 the Office shall refer complaints to the appropriate 12 regulatory State agency. 13 (d) Access and visitation rights. 14 (1) In accordance with subparagraphs (A) and (E) of 15 paragraph (3) of subsection (c) of Section 1819 and 16 subparagraphs (A) and (E) of paragraph (3) of subsection 17 (c) of Section 1919 of the Social Security Act, as now or 18 hereafter amended (42 U.S.C. 1395i-3 (c)(3)(A) and (E) 19 and 42 U.S.C. 1396r (c)(3)(A) and (E)), and Section 712 20 of the Older Americans Act of 1965, as now or hereafter 21 amended (42 U.S.C. 3058f), a long term care facility 22 must: 23 (i) permit immediate access to any resident by 24 an ombudsman; and 25 (ii) permit representatives of the Office, 26 with the permission of the resident's legal 27 representative or legal guardian, to examine a 28 resident's clinical and other records, and if a 29 resident is unable to consent to such review, and 30 has no legal guardian, permit representatives of the 31 Office appropriate access, as defined by the 32 Department in administrative rules, to the 33 resident's records. 34 (2) Each long term care facility shall display, in -4- SRS91HB0182DLsaam01 1 multiple, conspicuous public places within the facility 2 accessible to both visitors and patients and in an easily 3 readable format, the address and phone number of the 4 Office, in a manner prescribed by the Office. 5 (e) Immunity. An ombudsman or any other representative 6 of the Office participating in the good faith performance of 7 his or her official duties shall have immunity from any 8 liability (civil, criminal or otherwise) in any proceedings 9 (civil, criminal or otherwise) brought as a consequence of 10 the performance of his official duties. 11 (f) Business offenses. 12 (1) No person shall: 13 (i) Intentionally prevent, interfere with, or 14 attempt to impede in any way any representative of 15 the Office in the performance of his official duties 16 under this Act and the Older Americans Act of 1965; 17 or 18 (ii) Intentionally retaliate, discriminate 19 against, or effect reprisals against any long term 20 care facility resident or employee for contacting or 21 providing information to any representative of the 22 Office. 23 (2) A violation of this Section is a business 24 offense, punishable by a fine not to exceed $501. 25 (3) The Director of Aging shall notify the State's 26 Attorney of the county in which the long term care 27 facility is located, or the Attorney General, of any 28 violations of this Section. 29 (g) Confidentiality of records and identities. No files 30 or records maintained by the Office of State Long Term Care 31 Ombudsman shall be disclosed unless the State Ombudsman or 32 the ombudsman having the authority over the disposition of 33 such files authorizes the disclosure in writing. The 34 ombudsman shall not disclose the identity of any complainant, -5- SRS91HB0182DLsaam01 1 resident, witness or employee of a long term care provider 2 involved in a complaint or report unless such person or such 3 person's guardian or legal representative consents in writing 4 to the disclosure, or the disclosure is required by court 5 order. 6 (h) Legal representation. The Attorney General shall 7 provide legal representation to any representative of the 8 Office against whom suit or other legal action is brought in 9 connection with the performance of the representative's 10 official duties, in accordance with "An Act to provide for 11 representation and indemnification in certain civil law 12 suits", approved December 3, 1977, as now or hereafter 13 amended. 14 (i) Treatment by prayer and spiritual means. Nothing in 15 this Act shall be construed to authorize or require the 16 medical supervision, regulation or control of remedial care 17 or treatment of any resident in a long term care facility 18 operated exclusively by and for members or adherents of any 19 church or religious denomination the tenets and practices of 20 which include reliance solely upon spiritual means through 21 prayer for healing. 22 (Source: P.A. 90-639, eff. 1-1-99; 91-174, eff. 7-16-99.) 23 (Text of Section after amendment by P.A. 91-656) 24 Sec. 4.04. Long Term Care Ombudsman Program. 25 (a) Long Term Care Ombudsman Program. The Department 26 shall establish a Long Term Care Ombudsman Program, through 27 the Office of State Long Term Care Ombudsman ("the Office"), 28 in accordance with the provisions of the Older Americans Act 29 of 1965, as now or hereafter amended. 30 (b) Definitions. As used in this Section, unless the 31 context requires otherwise: 32 (1) "Access" has the same meaning as in Section 33 1-104 of the Nursing Home Care Act, as now or hereafter 34 amended; that is, it means the right to: -6- SRS91HB0182DLsaam01 1 (i) Enter any long term care facility or 2 assisted living or shared housing establishment; 3 (ii) Communicate privately and without 4 restriction with any resident who consents to the 5 communication; 6 (iii) Seek consent to communicate privately 7 and without restriction with any resident; 8 (iv) Inspect the clinical and other records of 9 a resident with the express written consent of the 10 resident; 11 (v) Observe all areas of the long term care 12 facility or assisted living or shared housing 13 establishment except the living area of any resident 14 who protests the observation. 15 (2) "Long Term Care Facility" means (i) any 16 facility as defined by Section 1-113 of the Nursing Home 17 Care Act, as now or hereafter amended; and (ii) any 18 skilled nursing facility or a nursing facility which 19 meets the requirements of Section 1819(a), (b), (c), and 20 (d) or Section 1919(a), (b), (c), and (d) of the Social 21 Security Act, as now or hereafter amended (42 U.S.C. 22 1395i-3(a), (b), (c), and (d) and 42 U.S.C. 1396r(a), 23 (b), (c), and (d)). 24 (2.5) "Assisted living establishment" and "shared 25 housing establishment" have the meanings given those 26 terms in Section 10 of the Assisted Living and Shared 27 Housing Act. 28 (3) "Ombudsman" means any person employed by the 29 Department to fulfill the requirements of the Office, or 30 any representative of a sub-State long term care 31 ombudsman program; provided that the representative, 32 whether he is paid for or volunteers his ombudsman 33 services, shall be qualified and authorized by the 34 Department to perform the duties of an ombudsman as -7- SRS91HB0182DLsaam01 1 specified by the Department in rules. 2 (c) Ombudsman; rules. The Office of State Long Term Care 3 Ombudsman shall be composed of at least one full-time 4 ombudsman within the Department and shall include a system of 5 designated sub-State long term care ombudsman programs. Each 6 sub-State program shall be designated by the Department as a 7 subdivision of the Office and any representative of a 8 sub-State program shall be treated as a representative of the 9 Office. 10 The Department shall promulgate administrative rules to 11 establish the responsibilities of the Department and the 12 Office of State Long Term Care Ombudsman. The administrative 13 rules shall include the responsibility of the Office to 14 investigate and resolve complaints made by or on behalf of 15 residents of long term care facilities and assisted living 16 and shared housing establishments relating to actions, 17 inaction, or decisions of providers, or their 18 representatives, of long term care facilities, of assisted 19 living and shared housing establishments, of public agencies, 20 or of social services agencies, which may adversely affect 21 the health, safety, welfare, or rights of such residents. 22 When necessary and appropriate, representatives of the Office 23 shall refer complaints to the appropriate regulatory State 24 agency. The Department shall cooperate with the Department of 25 Human Services in providing information and training to 26 designated sub-State long term care ombudsman programs about 27 the appropriate assessment and treatment (including 28 information about appropriate supportive services, treatment 29 options, and assessment of rehabilitation potential) of 30 persons with mental illness (other than Alzheimer's disease 31 and related disorders). 32 (d) Access and visitation rights. 33 (1) In accordance with subparagraphs (A) and (E) of 34 paragraph (3) of subsection (c) of Section 1819 and -8- SRS91HB0182DLsaam01 1 subparagraphs (A) and (E) of paragraph (3) of subsection 2 (c) of Section 1919 of the Social Security Act, as now or 3 hereafter amended (42 U.S.C. 1395i-3 (c)(3)(A) and (E) 4 and 42 U.S.C. 1396r (c)(3)(A) and (E)), and Section 712 5 of the Older Americans Act of 1965, as now or hereafter 6 amended (42 U.S.C. 3058f), a long term care facility, 7 assisted living establishment, and shared housing 8 establishment must: 9 (i) permit immediate access to any resident by 10 an ombudsman; and 11 (ii) permit representatives of the Office, 12 with the permission of the resident's legal 13 representative or legal guardian, to examine a 14 resident's clinical and other records, and if a 15 resident is unable to consent to such review, and 16 has no legal guardian, permit representatives of the 17 Office appropriate access, as defined by the 18 Department in administrative rules, to the 19 resident's records. 20 (2) Each long term care facility, assisted living 21 establishment, and shared housing establishment shall 22 display, in multiple, conspicuous public places within 23 the facility accessible to both visitors and patients and 24 in an easily readable format, the address and phone 25 number of the Office, in a manner prescribed by the 26 Office. 27 (e) Immunity. An ombudsman or any other representative 28 of the Office participating in the good faith performance of 29 his or her official duties shall have immunity from any 30 liability (civil, criminal or otherwise) in any proceedings 31 (civil, criminal or otherwise) brought as a consequence of 32 the performance of his official duties. 33 (f) Business offenses. 34 (1) No person shall: -9- SRS91HB0182DLsaam01 1 (i) Intentionally prevent, interfere with, or 2 attempt to impede in any way any representative of 3 the Office in the performance of his official duties 4 under this Act and the Older Americans Act of 1965; 5 or 6 (ii) Intentionally retaliate, discriminate 7 against, or effect reprisals against any long term 8 care facility resident or employee for contacting or 9 providing information to any representative of the 10 Office. 11 (2) A violation of this Section is a business 12 offense, punishable by a fine not to exceed $501. 13 (3) The Director of Aging shall notify the State's 14 Attorney of the county in which the long term care 15 facility is located, or the Attorney General, of any 16 violations of this Section. 17 (g) Confidentiality of records and identities. No files 18 or records maintained by the Office of State Long Term Care 19 Ombudsman shall be disclosed unless the State Ombudsman or 20 the ombudsman having the authority over the disposition of 21 such files authorizes the disclosure in writing. The 22 ombudsman shall not disclose the identity of any complainant, 23 resident, witness or employee of a long term care provider 24 involved in a complaint or report unless such person or such 25 person's guardian or legal representative consents in writing 26 to the disclosure, or the disclosure is required by court 27 order. 28 (h) Legal representation. The Attorney General shall 29 provide legal representation to any representative of the 30 Office against whom suit or other legal action is brought in 31 connection with the performance of the representative's 32 official duties, in accordance with the State Employee 33 Indemnification Act. 34 (i) Treatment by prayer and spiritual means. Nothing in -10- SRS91HB0182DLsaam01 1 this Act shall be construed to authorize or require the 2 medical supervision, regulation or control of remedial care 3 or treatment of any resident in a long term care facility 4 operated exclusively by and for members or adherents of any 5 church or religious denomination the tenets and practices of 6 which include reliance solely upon spiritual means through 7 prayer for healing. 8 (Source: P.A. 90-639, eff. 1-1-99; 91-174, eff. 7-16-99; 9 91-656, eff. 1-1-01; revised 1-5-00.) 10 Section 10. The Nursing Home Care Act is amended by 11 changing Section 3-212 as follows: 12 (210 ILCS 45/3-212) (from Ch. 111 1/2, par. 4153-212) 13 Sec. 3-212. Inspection. 14 (a) The Department, whenever it deems necessary in 15 accordance with subsection (b), shall inspect, survey and 16 evaluate every facility to determine compliance with 17 applicable licensure requirements and standards. An 18 inspection should occur within 120 days prior to license 19 renewal. The Department may periodically visit a facility 20 for the purpose of consultation. An inspection, survey, or 21 evaluation, other than an inspection of financial records, 22 shall be conducted without prior notice to the facility. A 23 visit for the sole purpose of consultation may be announced. 24 The Department shall provide training to surveyors about the 25 appropriate assessment, care planning, and care of persons 26 with mental illness (other than Alzheimer's disease or 27 related disorders) to enable its surveyors to determine 28 whether a facility is complying with State and federal 29 requirements about the assessment, care planning, and care of 30 those persons. 31 (a-1) An employee of a State or unit of local government 32 agency charged with inspecting, surveying, and evaluating -11- SRS91HB0182DLsaam01 1 facilities who directly or indirectly gives prior notice of 2 an inspection, survey, or evaluation, other than an 3 inspection of financial records, to a facility or to an 4 employee of a facility is guilty of a Class A misdemeanor. 5 (a-2) An employee of a State or unit of local government 6 agency charged with inspecting, surveying, or evaluating 7 facilities who willfully profits from violating the 8 confidentiality of the inspection, survey, or evaluation 9 process shall be guilty of a Class 4 felony and that conduct 10 shall be deemed unprofessional conduct that may subject a 11 person to loss of his or her professional license. An action 12 to prosecute a person for violating this subsection (a-2) may 13 be brought by either the Attorney General or the State's 14 Attorney in the county where the violation took place. 15 (b) In determining whether to make more than the 16 required number of unannounced inspections, surveys and 17 evaluations of a facility the Department shall consider one 18 or more of the following: previous inspection reports; the 19 facility's history of compliance with standards, rules and 20 regulations promulgated under this Act and correction of 21 violations, penalties or other enforcement actions; the 22 number and severity of complaints received about the 23 facility; any allegations of resident abuse or neglect; 24 weather conditions; health emergencies; other reasonable 25 belief that deficiencies exist. 26 (b-1) The Department shall not be required to determine 27 whether a facility certified to participate in the Medicare 28 program under Title XVIII of the Social Security Act, or the 29 Medicaid program under Title XIX of the Social Security Act, 30 and which the Department determines by inspection under this 31 Section or under Section 3-702 of this Act to be in 32 compliance with the certification requirements of Title XVIII 33 or XIX, is in compliance with any requirement of this Act 34 that is less stringent than or duplicates a federal -12- SRS91HB0182DLsaam01 1 certification requirement. In accordance with subsection (a) 2 of this Section or subsection (d) of Section 3-702, the 3 Department shall determine whether a certified facility is in 4 compliance with requirements of this Act that exceed federal 5 certification requirements. If a certified facility is found 6 to be out of compliance with federal certification 7 requirements, the results of an inspection conducted pursuant 8 to Title XVIII or XIX of the Social Security Act may be used 9 as the basis for enforcement remedies authorized and 10 commenced under this Act. Enforcement of this Act against a 11 certified facility shall be commenced pursuant to the 12 requirements of this Act, unless enforcement remedies sought 13 pursuant to Title XVIII or XIX of the Social Security Act 14 exceed those authorized by this Act. As used in this 15 subsection, "enforcement remedy" means a sanction for 16 violating a federal certification requirement or this Act. 17 (c) Upon completion of each inspection, survey and 18 evaluation, the appropriate Department personnel who 19 conducted the inspection, survey or evaluation shall submit a 20 copy of their report to the licensee upon exiting the 21 facility, and shall submit the actual report to the 22 appropriate regional office of the Department. Such report 23 and any recommendations for action by the Department under 24 this Act shall be transmitted to the appropriate offices of 25 the associate director of the Department, together with 26 related comments or documentation provided by the licensee 27 which may refute findings in the report, which explain 28 extenuating circumstances that the facility could not 29 reasonably have prevented, or which indicate methods and 30 timetables for correction of deficiencies described in the 31 report. Without affecting the application of subsection (a) 32 of Section 3-303, any documentation or comments of the 33 licensee shall be provided within 10 days of receipt of the 34 copy of the report. Such report shall recommend to the -13- SRS91HB0182DLsaam01 1 Director appropriate action under this Act with respect to 2 findings against a facility. The Director shall then 3 determine whether the report's findings constitute a 4 violation or violations of which the facility must be given 5 notice. Such determination shall be based upon the severity 6 of the finding, the danger posed to resident health and 7 safety, the comments and documentation provided by the 8 facility, the diligence and efforts to correct deficiencies, 9 correction of the reported deficiencies, the frequency and 10 duration of similar findings in previous reports and the 11 facility's general inspection history. Violations shall be 12 determined under this subsection no later than 60 days after 13 completion of each inspection, survey and evaluation. 14 (d) The Department shall maintain all inspection, survey 15 and evaluation reports for at least 5 years in a manner 16 accessible to and understandable by the public. 17 (Source: P.A. 88-278; 89-21, eff. 1-1-96; 89-171, eff. 18 1-1-96; 89-197, eff. 7-21-95; 89-626, eff. 8-9-96.) 19 Section 15. The Illinois Public Aid Code is amended by 20 changing Section 5-5.5 as follows: 21 (305 ILCS 5/5-5.5) (from Ch. 23, par. 5-5.5) 22 Sec. 5-5.5. Elements of Payment Rate. 23 (a) The Department of Public Aid shall develop a 24 prospective method for determining payment rates for skilled 25 nursing and intermediate care services in nursing facilities 26 composed of the following cost elements: 27 (1) Standard Services, with the cost of this 28 component being determined by taking into account the 29 actual costs to the facilities of these services subject 30 to cost ceilings to be defined in the Department's rules. 31 (2) Resident Services, with the cost of this 32 component being determined by taking into account the -14- SRS91HB0182DLsaam01 1 actual costs, needs and utilization of these services, as 2 derived from an assessment of the resident needs in the 3 nursing facilities. The Department shall adopt rules 4 governing reimbursement for resident services as listed 5 in Section 5-1.1. Surveys or assessments of resident 6 needs under this Section shall include a review by the 7 facility of the results of such assessments and a 8 discussion of issues in dispute with authorized survey 9 staff, unless the facility elects not to participate in 10 such a review process. Surveys or assessments of 11 resident needs under this Section may be conducted 12 semi-annually and payment rates relating to resident 13 services may be changed on a semi-annual basis. The 14 Illinois Department shall initiate a project, either on a 15 pilot basis or Statewide, to reimburse the cost of 16 resident services based on a methodology which utilizes 17 an assessment of resident needs to determine the level of 18 reimbursement. This methodology shall be different from 19 the payment criteria for resident services utilized by 20 the Illinois Department on July 1, 1981. On March 1, 21 1982, and each year thereafter, until such time when the 22 Illinois Department adopts the methodology used in such 23 project for use statewide or the Illinois Department 24 reports to the Citizens Assembly/Council on Public Aid 25 that the methodology did not meet the Department's goals 26 and objectives and therefore is ceasing such project, the 27 Illinois Department shall report to the General Assembly 28 on the implementation and progress of such project. The 29 report shall include: 30 (A) A statement of the Illinois Department's 31 goals and objectives for such project; 32 (B) A description of such project, including 33 the number and type of nursing facilities involved 34 in the project; -15- SRS91HB0182DLsaam01 1 (C) A description of the methodology used in 2 such project; 3 (D) A description of the Illinois Department's 4 application of the methodology; 5 (E) A statement on the methodology's effect on 6 the quality of care given to residents in the sample 7 nursing facilities; and 8 (F) A statement on the cost of the methodology 9 used in such project and a comparison of this cost 10 with the cost of the current payment criteria. 11 (3) Ancillary Services, with the payment rate being 12 developed for each individual type of service. Payment 13 shall be made only when authorized under procedures 14 developed by the Department of Public Aid. 15 (4) Nurse's Aide Training, with the cost of this 16 component being determined by taking into account the 17 actual cost to the facilities of such training. 18 (5) Real Estate Taxes, with the cost of this 19 component being determined by taking into account the 20 figures contained in the most currently available cost 21 reports (with no imposition of maximums) updated to the 22 midpoint of the current rate year for long term care 23 services rendered between July 1, 1984 and June 30, 1985, 24 and with the cost of this component being determined by 25 taking into account the actual 1983 taxes for which the 26 nursing homes were assessed (with no imposition of 27 maximums) updated to the midpoint of the current rate 28 year for long term care services rendered between July 1, 29 1985 and June 30, 1986. 30 (b) In developing a prospective method for determining 31 payment rates for skilled nursing and intermediate care 32 services in nursing facilities, the Department of Public Aid 33 shall consider the following cost elements: 34 (1) Reasonable capital cost determined by utilizing -16- SRS91HB0182DLsaam01 1 incurred interest rate and the current value of the 2 investment, including land, utilizing composite rates, or 3 by utilizing such other reasonable cost related methods 4 determined by the Department. However, beginning with the 5 rate reimbursement period effective July 1, 1987, the 6 Department shall be prohibited from establishing, 7 including, and implementing any depreciation factor in 8 calculating the capital cost element. 9 (2) Profit, with the actual amount being produced 10 and accruing to the providers in the form of a return on 11 their total investment, on the basis of their ability to 12 economically and efficiently deliver a type of service. 13 The method of payment may assure the opportunity for a 14 profit, but shall not guarantee or establish a specific 15 amount as a cost. 16 (c) The Illinois Department may implement the amendatory 17 changes to this Section made by this amendatory Act of 1991 18 through the use of emergency rules in accordance with the 19 provisions of Section 5.02 of the Illinois Administrative 20 Procedure Act. For purposes of the Illinois Administrative 21 Procedure Act, the adoption of rules to implement the 22 amendatory changes to this Section made by this amendatory 23 Act of 1991 shall be deemed an emergency and necessary for 24 the public interest, safety and welfare. 25 (d) No later than January 1, 2001, the Department of 26 Public Aid shall file with the Joint Committee on 27 Administrative Rules, pursuant to the Illinois Administrative 28 Procedure Act, a proposed rule, or a proposed amendment to an 29 existing rule, regarding payment for appropriate services, 30 including assessment, care planning, and treatment provided 31 by nursing facilities to residents who have a serious mental 32 illness. 33 (Source: P.A. 86-651; 86-705; 86-1028; 87-14; 87-435.) -17- SRS91HB0182DLsaam01 1 Section 99. Effective date. This Act takes effect 2 January 1, 2001.".