Bill Text: IL SB0321 | 2009-2010 | 96th General Assembly | Engrossed

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Bill Title: Amends the Nursing Home Care Act. Provides that if the Director of Public Health determines that it would be in the best interests of the residents of a nursing home to do so, the Director may require that the nursing home use the amount of any penalty assessed under the Act for the purpose of implementing a directed plan of correction rather than pay the amount of the penalty to the Department of Public Health for deposit into the Long Term Care Monitor/Receiver Fund. Provides that if the Director of Public Health requires a facility to use the amount of a penalty for the purpose of implementing a directed plan of correction, it is the Department of Public Health's responsibility to ensure that the facility in fact uses the amount of the penalty for that purpose. Effective immediately.

Sponsorship: Moderate Partisan Bill (Democrat 7-2)

Status: (Passed) 2010-03-01 - Public Act . . . . . . . . . 96-0883 [SB0321 Detail]

Download: Illinois-2009-SB0321-Engrossed.html

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AN ACT concerning regulation.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Act on the Aging is amended by
changing Section 4.04 as follows:
(20 ILCS 105/4.04) (from Ch. 23, par. 6104.04)
Sec. 4.04. Long Term Care Ombudsman Program.
(a) Long Term Care Ombudsman Program. The Department shall
establish a Long Term Care Ombudsman Program, through the
Office of State Long Term Care Ombudsman ("the Office"), in
accordance with the provisions of the Older Americans Act of
1965, as now or hereafter amended.
(b) Definitions. As used in this Section, unless the
context requires otherwise:
(1) "Access" has the same meaning as in Section 1-104
of the Nursing Home Care Act, as now or hereafter amended;
that is, it means the right to:
(i) Enter any long term care facility or assisted
living or shared housing establishment or supportive
living facility;
(ii) Communicate privately and without restriction
with any resident, regardless of age, who consents to
the communication;

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(iii) Seek consent to communicate privately and
without restriction with any resident, regardless of
age;
(iv) Inspect the clinical and other records of a
resident, regardless of age, with the express written
consent of the resident;
(v) Observe all areas of the long term care
facility or supportive living facilities, assisted
living or shared housing establishment except the
living area of any resident who protests the
observation.
(2) "Long Term Care Facility" means (i) any facility as
defined by Section 1-113 of the Nursing Home Care Act, as
now or hereafter amended; and (ii) any skilled nursing
facility or a nursing facility which meets the requirements
of Section 1819(a), (b), (c), and (d) or Section 1919(a),
(b), (c), and (d) of the Social Security Act, as now or
hereafter amended (42 U.S.C. 1395i-3(a), (b), (c), and (d)
and 42 U.S.C. 1396r(a), (b), (c), and (d)).
(2.5) "Assisted living establishment" and "shared
housing establishment" have the meanings given those terms
in Section 10 of the Assisted Living and Shared Housing
Act.
(2.7) "Supportive living facility" means a facility
established under Section 5-5.01a of the Illinois Public
Aid Code.

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(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

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

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

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(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:

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(i) permit immediate access to any resident,
regardless of age, by a designated ombudsman; and
(ii) permit representatives of the Office, with
the permission of the resident's legal representative
or legal guardian, to examine a resident's clinical and
other records, regardless of the age of the resident,
and if a resident is unable to consent to such review,
and has no legal guardian, permit representatives of
the Office appropriate access, as defined by the
Department, in consultation with the Office, in
administrative rules, to the resident's records.
(2) Each long term care facility, supportive living
facility, assisted living establishment, and shared
housing establishment shall display, in multiple,
conspicuous public places within the facility accessible
to both visitors and residents and in an easily readable
format, the address and phone number of the Office of the
Long Term Care Ombudsman, in a manner prescribed by the
Office.
(e) Immunity. An ombudsman or any representative of the
Office participating in the good faith performance of his or
her official duties shall have immunity from any liability
(civil, criminal or otherwise) in any proceedings (civil,
criminal or otherwise) brought as a consequence of the
performance of his official duties.
(f) Business offenses.

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(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

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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.

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(j) The Long Term Care Ombudsman Fund is created as a
special fund in the State treasury to receive moneys for the
express purposes of this Section. All interest earned on moneys
in the fund shall be credited to the fund. Moneys contained in
the fund shall be used to support the purposes of this Section.
(Source: P.A. 95-620, eff. 9-17-07; 95-823, eff. 1-1-09;
revised 9-5-08.)
Section 10. The State Finance Act is amended by adding
Sections 5.719 and 5.720 as follows:
(30 ILCS 105/5.719 new)
Sec. 5.719. The Long Term Care Ombudsman Fund.
(30 ILCS 105/5.720 new)
Sec. 5.720. The Nursing Home Conversion Fund.
Section 15. The Nursing Home Care Act is amended by
changing Sections 3-103 and 3-308 as follows:
(210 ILCS 45/3-103) (from Ch. 111 1/2, par. 4153-103)
Sec. 3-103. The procedure for obtaining a valid license
shall be as follows:
(1) Application to operate a facility shall be made to
the Department on forms furnished by the Department.
(2) All license applications shall be accompanied with

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an application fee. The fee for an annual license shall be
$995. Facilities that pay a fee or assessment pursuant to
Article V-C of the Illinois Public Aid Code shall be exempt
from the license fee imposed under this item (2). The fee
for a 2-year license shall be double the fee for the annual
license set forth in the preceding sentence. The fees
collected shall be deposited with the State Treasurer into
the Long Term Care Monitor/Receiver Fund, which has been
created as a special fund in the State treasury. This
special fund is to be used by the Department for expenses
related to the appointment of monitors and receivers as
contained in Sections 3-501 through 3-517 of this Act, for
the enforcement of this Act, and for implementation of the
Abuse Prevention Review Team Act. At the end of each fiscal
year, any funds in excess of $1,250,000 $1,000,000 held in
the Long Term Care Monitor/Receiver Fund shall be
distributed in the following manner: (i) an amount not to
exceed $250,000 shall be deposited into the Long Term Care
Ombudsman Fund; (ii) from the remainder, if any, an amount
not to exceed $250,000 shall be deposited into the Nursing
Home Conversion Fund; and (iii) the remainder, if any,
shall be deposited in the State's General Revenue Fund. The
application shall be under oath and the submission of false
or misleading information shall be a Class A misdemeanor.
The application shall contain the following information:
(a) The name and address of the applicant if an

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individual, and if a firm, partnership, or
association, of every member thereof, and in the case
of a corporation, the name and address thereof and of
its officers and its registered agent, and in the case
of a unit of local government, the name and address of
its chief executive officer;
(b) The name and location of the facility for which
a license is sought;
(c) The name of the person or persons under whose
management or supervision the facility will be
conducted;
(d) The number and type of residents for which
maintenance, personal care, or nursing is to be
provided; and
(e) Such information relating to the number,
experience, and training of the employees of the
facility, any management agreements for the operation
of the facility, and of the moral character of the
applicant and employees as the Department may deem
necessary.
(3) Each initial application shall be accompanied by a
financial statement setting forth the financial condition
of the applicant and by a statement from the unit of local
government having zoning jurisdiction over the facility's
location stating that the location of the facility is not
in violation of a zoning ordinance. An initial application

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for a new facility shall be accompanied by a permit as
required by the "Illinois Health Facilities Planning Act".
After the application is approved, the applicant shall
advise the Department every 6 months of any changes in the
information originally provided in the application.
(4) Other information necessary to determine the
identity and qualifications of an applicant to operate a
facility in accordance with this Act shall be included in
the application as required by the Department in
regulations.
(Source: P.A. 93-32, eff. 7-1-03; 93-841, eff. 7-30-04; 94-931,
eff. 6-26-06.)
(210 ILCS 45/3-308) (from Ch. 111 1/2, par. 4153-308)
Sec. 3-308. In the case of a Type "A" violation, a penalty
may be assessed from the date on which the violation is
discovered. In the case of a Type "B" or Type "C" violation or
an administrative warning issued pursuant to Sections 3-401
through 3-413 or the rules promulgated thereunder, the facility
shall submit a plan of correction as provided in Section 3-303.
In the case of a Type "B" violation or an administrative
warning issued pursuant to Sections 3-401 through 3-413 or the
rules promulgated thereunder, a penalty shall be assessed on
the date of notice of the violation, but the Director may
reduce the amount or waive such payment for any of the
following reasons:

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(a) The facility submits a true report of correction
within 10 days;
(b) The facility submits a plan of correction within 10
days and subsequently submits a true report of correction
within 15 days thereafter;
(c) The facility submits a plan of correction within 10
days which provides for a correction time that is less than
or equal to 30 days and the Department approves such plan;
or
(d) The facility submits a plan of correction for
violations involving substantial capital improvements
which provides for correction within the initial 90 day
limit provided under Section 3-303.
The Director or his or her designee may reduce the amount
of a penalty assessed pursuant to Section 3-305. A facility
shall submit to the Director a written request for a penalty
reduction, in a form prescribed by the Department, which
includes an accounting of all costs for goods and services
purchased in correcting the violation. A facility that accepts
a penalty reduction under this Section waives its right to
dispute a notice of violation and any remaining fine or penalty
in an administrative hearing. The Director shall consider the
following factors in determinations to reduce or waive such
penalties:
(1) The gravity of the violation, including the
probability that death or serious physical or mental harm

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to a resident will result or has resulted, the severity of
the actual or potential harm, and the extent to which the
provisions of the applicable statutes or regulations were
violated. The violation has not caused actual harm to a
resident;
(2) The reasonable diligence exercised by the licensee
and efforts to correct violations. The facility has made a
diligent effort to correct the violation and to prevent its
recurrence;
(3) Any previous violations committed by the licensee.
The facility has no record of a pervasive pattern of the
same or similar violations; and
(4) The financial benefit to the facility of committing
or continuing the violation. The facility has a record of
substantial compliance with this Act and the regulations
promulgated hereunder.
(5) Facility remediation of the problem beyond the
minimum requirements established by the applicable
regulations.
(6) Any other factors deemed important by the Director.
In all determinations which result in reduction of a
penalty, the Department shall make available to the public,
upon request, information detailing those determinations.
If a plan of correction is approved and carried out for a
Type "C" violation, the fine provided under Section 3-305 shall
be suspended for the time period specified in the approved plan

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of correction. If a plan of correction is approved and carried
out for a Type "B" violation or an administrative warning
issued pursuant to Sections 3-401 through 3-413 or the rules
promulgated thereunder, with respect to a violation that
continues after the date of notice of violation, the fine
provided under Section 3-305 shall be suspended for the time
period specified in the approved plan of correction.
If a good faith plan of correction is not received within
the time provided by Section 3-303, a penalty may be assessed
from the date of the notice of the Type "B" or "C" violation or
an administrative warning issued pursuant to Sections 3-401
through 3-413 or the rules promulgated thereunder served under
Section 3-301 until the date of the receipt of a good faith
plan of correction, or until the date the violation is
corrected, whichever is earlier. If a violation is not
corrected within the time specified by an approved plan of
correction or any lawful extension thereof, a penalty may be
assessed from the date of notice of the violation, until the
date the violation is corrected.
(Source: P.A. 87-549.)
Section 20. The Older Adult Services Act is amended by
changing Section 30 as follows:
(320 ILCS 42/30)
Sec. 30. Nursing home conversion program.

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(a) The Department of Public Health, in collaboration with
the Department on Aging and the Department of Healthcare and
Family Services, shall establish a nursing home conversion
program. Start-up grants, pursuant to subsections (l) and (m)
of this Section, shall be made available to nursing homes as
appropriations permit as an incentive to reduce certified beds,
retrofit, and retool operations to meet new service delivery
expectations and demands.
(b) Grant moneys shall be made available for capital and
other costs related to: (1) the conversion of all or a part of
a nursing home to an assisted living establishment or a special
program or unit for persons with Alzheimer's disease or related
disorders licensed under the Assisted Living and Shared Housing
Act or a supportive living facility established under Section
5-5.01a of the Illinois Public Aid Code; (2) the conversion of
multi-resident bedrooms in the facility into single-occupancy
rooms; and (3) the development of any of the services
identified in a priority service plan that can be provided by a
nursing home within the confines of a nursing home or
transportation services. Grantees shall be required to provide
a minimum of a 20% match toward the total cost of the project.
(c) Nothing in this Act shall prohibit the co-location of
services or the development of multifunctional centers under
subsection (f) of Section 20, including a nursing home offering
community-based services or a community provider establishing
a residential facility.

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(d) A certified nursing home with at least 50% of its
resident population having their care paid for by the Medicaid
program is eligible to apply for a grant under this Section.
(e) Any nursing home receiving a grant under this Section
shall reduce the number of certified nursing home beds by a
number equal to or greater than the number of beds being
converted for one or more of the permitted uses under item (1)
or (2) of subsection (b). The nursing home shall retain the
Certificate of Need for its nursing and sheltered care beds
that were converted for 15 years. If the beds are reinstated by
the provider or its successor in interest, the provider shall
pay to the fund from which the grant was awarded, on an
amortized basis, the amount of the grant. The Department shall
establish, by rule, the bed reduction methodology for nursing
homes that receive a grant pursuant to item (3) of subsection
(b).
(f) Any nursing home receiving a grant under this Section
shall agree that, for a minimum of 10 years after the date that
the grant is awarded, a minimum of 50% of the nursing home's
resident population shall have their care paid for by the
Medicaid program. If the nursing home provider or its successor
in interest ceases to comply with the requirement set forth in
this subsection, the provider shall pay to the fund from which
the grant was awarded, on an amortized basis, the amount of the
grant.
(g) Before awarding grants, the Department of Public Health

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shall seek recommendations from the Department on Aging and the
Department of Healthcare and Family Services. The Department of
Public Health shall attempt to balance the distribution of
grants among geographic regions, and among small and large
nursing homes. The Department of Public Health shall develop,
by rule, the criteria for the award of grants based upon the
following factors:
(1) the unique needs of older adults (including those
with moderate and low incomes), caregivers, and providers
in the geographic area of the State the grantee seeks to
serve;
(2) whether the grantee proposes to provide services in
a priority service area;
(3) the extent to which the conversion or transition
will result in the reduction of certified nursing home beds
in an area with excess beds;
(4) the compliance history of the nursing home; and
(5) any other relevant factors identified by the
Department, including standards of need.
(h) A conversion funded in whole or in part by a grant
under this Section must not:
(1) diminish or reduce the quality of services
available to nursing home residents;
(2) force any nursing home resident to involuntarily
accept home-based or community-based services instead of
nursing home services;

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(3) diminish or reduce the supply and distribution of
nursing home services in any community below the level of
need, as defined by the Department by rule; or
(4) cause undue hardship on any person who requires
nursing home care.
(i) The Department shall prescribe, by rule, the grant
application process. At a minimum, every application must
include:
(1) the type of grant sought;
(2) a description of the project;
(3) the objective of the project;
(4) the likelihood of the project meeting identified
needs;
(5) the plan for financing, administration, and
evaluation of the project;
(6) the timetable for implementation;
(7) the roles and capabilities of responsible
individuals and organizations;
(8) documentation of collaboration with other service
providers, local community government leaders, and other
stakeholders, other providers, and any other stakeholders
in the community;
(9) documentation of community support for the
project, including support by other service providers,
local community government leaders, and other
stakeholders;

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(10) the total budget for the project;
(11) the financial condition of the applicant; and
(12) any other application requirements that may be
established by the Department by rule.
(j) A conversion project funded in whole or in part by a
grant under this Section is exempt from the requirements of the
Illinois Health Facilities Planning Act. The Department of
Public Health, however, shall send to the Health Facilities
Planning Board a copy of each grant award made under this
Section.
(k) Applications for grants are public information, except
that nursing home financial condition and any proprietary data
shall be classified as nonpublic data.
(l) The Department of Public Health may award grants from
the Long Term Care Civil Money Penalties Fund established under
Section 1919(h)(2)(A)(ii) of the Social Security Act and 42 CFR
488.422(g) if the award meets federal requirements.
(m) The Nursing Home Conversion Fund is created as a
special fund in the State treasury. Moneys appropriated by the
General Assembly or transferred from other sources for the
purposes of this Section shall be deposited into the Fund. All
interest earned on moneys in the fund shall be credited to the
fund. Moneys contained in the fund shall be used to support the
purposes of this Section.
(Source: P.A. 95-331, eff. 8-21-07.)
Section 99. Effective date. This Act takes effect upon

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becoming law.