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91_HB0182enr
HB0182 Enrolled LRB9100213WHmg
1 AN ACT to amend certain Acts in relation to mental
2 health.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Illinois Act on the Aging is amended by
6 changing Section 4.04 as follows:
7 (20 ILCS 105/4.04) (from Ch. 23, par. 6104.04)
8 (Text of Section before amendment by P.A. 91-656)
9 Sec. 4.04. Long Term Care Ombudsman Program.
10 (a) Long Term Care Ombudsman Program. The Department
11 shall establish a Long Term Care Ombudsman Program, through
12 the Office of State Long Term Care Ombudsman ("the Office"),
13 in accordance with the provisions of the Older Americans Act
14 of 1965, as now or hereafter amended.
15 (b) Definitions. As used in this Section, unless the
16 context requires otherwise:
17 (1) "Access" has the same meaning as in Section
18 1-104 of the Nursing Home Care Act, as now or hereafter
19 amended; that is, it means the right to:
20 (i) Enter any long term care facility;
21 (ii) Communicate privately and without
22 restriction with any resident who consents to the
23 communication;
24 (iii) Seek consent to communicate privately
25 and without restriction with any resident;
26 (iv) Inspect the clinical and other records of
27 a resident with the express written consent of the
28 resident;
29 (v) Observe all areas of the long term care
30 facility except the living area of any resident who
31 protests the observation.
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1 (2) "Long Term Care Facility" means (i) any
2 facility as defined by Section 1-113 of the Nursing Home
3 Care Act, as now or hereafter amended; and (ii) any
4 skilled nursing facility or a nursing facility which
5 meets the requirements of Section 1819(a), (b), (c), and
6 (d) or Section 1919(a), (b), (c), and (d) of the Social
7 Security Act, as now or hereafter amended (42 U.S.C.
8 1395i-3(a), (b), (c), and (d) and 42 U.S.C. 1396r(a),
9 (b), (c), and (d)).
10 (3) "Ombudsman" means any person employed by the
11 Department to fulfill the requirements of the Office, or
12 any representative of a sub-State long term care
13 ombudsman program; provided that the representative,
14 whether he is paid for or volunteers his ombudsman
15 services, shall be qualified and authorized by the
16 Department to perform the duties of an ombudsman as
17 specified by the Department in rules.
18 (c) Ombudsman; rules. The Office of State Long Term Care
19 Ombudsman shall be composed of at least one full-time
20 ombudsman within the Department and shall include a system of
21 designated sub-State long term care ombudsman programs. Each
22 sub-State program shall be designated by the Department as a
23 subdivision of the Office and any representative of a
24 sub-State program shall be treated as a representative of the
25 Office.
26 The Department shall promulgate administrative rules to
27 establish the responsibilities of the Department and the
28 Office of State Long Term Care Ombudsman. The administrative
29 rules shall include the responsibility of the Office to
30 investigate and resolve complaints made by or on behalf of
31 residents of long term care facilities relating to actions,
32 inaction, or decisions of providers, or their
33 representatives, of long term care facilities, of public
34 agencies, or of social services agencies, which may adversely
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1 affect the health, safety, welfare, or rights of such
2 residents. When necessary and appropriate, representatives of
3 the Office shall refer complaints to the appropriate
4 regulatory State agency.
5 (d) Access and visitation rights.
6 (1) In accordance with subparagraphs (A) and (E) of
7 paragraph (3) of subsection (c) of Section 1819 and
8 subparagraphs (A) and (E) of paragraph (3) of subsection
9 (c) of Section 1919 of the Social Security Act, as now or
10 hereafter amended (42 U.S.C. 1395i-3 (c)(3)(A) and (E)
11 and 42 U.S.C. 1396r (c)(3)(A) and (E)), and Section 712
12 of the Older Americans Act of 1965, as now or hereafter
13 amended (42 U.S.C. 3058f), a long term care facility
14 must:
15 (i) permit immediate access to any resident by
16 an ombudsman; and
17 (ii) permit representatives of the Office,
18 with the permission of the resident's legal
19 representative or legal guardian, to examine a
20 resident's clinical and other records, and if a
21 resident is unable to consent to such review, and
22 has no legal guardian, permit representatives of the
23 Office appropriate access, as defined by the
24 Department in administrative rules, to the
25 resident's records.
26 (2) Each long term care facility shall display, in
27 multiple, conspicuous public places within the facility
28 accessible to both visitors and patients and in an easily
29 readable format, the address and phone number of the
30 Office, in a manner prescribed by the Office.
31 (e) Immunity. An ombudsman or any other representative
32 of the Office participating in the good faith performance of
33 his or her official duties shall have immunity from any
34 liability (civil, criminal or otherwise) in any proceedings
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1 (civil, criminal or otherwise) brought as a consequence of
2 the performance of his official duties.
3 (f) Business offenses.
4 (1) No person shall:
5 (i) Intentionally prevent, interfere with, or
6 attempt to impede in any way any representative of
7 the Office in the performance of his official duties
8 under this Act and the Older Americans Act of 1965;
9 or
10 (ii) Intentionally retaliate, discriminate
11 against, or effect reprisals against any long term
12 care facility resident or employee for contacting or
13 providing information to any representative of the
14 Office.
15 (2) A violation of this Section is a business
16 offense, punishable by a fine not to exceed $501.
17 (3) The Director of Aging shall notify the State's
18 Attorney of the county in which the long term care
19 facility is located, or the Attorney General, of any
20 violations of this Section.
21 (g) Confidentiality of records and identities. No files
22 or records maintained by the Office of State Long Term Care
23 Ombudsman shall be disclosed unless the State Ombudsman or
24 the ombudsman having the authority over the disposition of
25 such files authorizes the disclosure in writing. The
26 ombudsman shall not disclose the identity of any complainant,
27 resident, witness or employee of a long term care provider
28 involved in a complaint or report unless such person or such
29 person's guardian or legal representative consents in writing
30 to the disclosure, or the disclosure is required by court
31 order.
32 (h) Legal representation. The Attorney General shall
33 provide legal representation to any representative of the
34 Office against whom suit or other legal action is brought in
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1 connection with the performance of the representative's
2 official duties, in accordance with "An Act to provide for
3 representation and indemnification in certain civil law
4 suits", approved December 3, 1977, as now or hereafter
5 amended.
6 (i) Treatment by prayer and spiritual means. Nothing in
7 this Act shall be construed to authorize or require the
8 medical supervision, regulation or control of remedial care
9 or treatment of any resident in a long term care facility
10 operated exclusively by and for members or adherents of any
11 church or religious denomination the tenets and practices of
12 which include reliance solely upon spiritual means through
13 prayer for healing.
14 (Source: P.A. 90-639, eff. 1-1-99; 91-174, eff. 7-16-99.)
15 (Text of Section after amendment by P.A. 91-656)
16 Sec. 4.04. Long Term Care Ombudsman Program.
17 (a) Long Term Care Ombudsman Program. The Department
18 shall establish a Long Term Care Ombudsman Program, through
19 the Office of State Long Term Care Ombudsman ("the Office"),
20 in accordance with the provisions of the Older Americans Act
21 of 1965, as now or hereafter amended.
22 (b) Definitions. As used in this Section, unless the
23 context requires otherwise:
24 (1) "Access" has the same meaning as in Section
25 1-104 of the Nursing Home Care Act, as now or hereafter
26 amended; that is, it means the right to:
27 (i) Enter any long term care facility or
28 assisted living or shared housing establishment;
29 (ii) Communicate privately and without
30 restriction with any resident who consents to the
31 communication;
32 (iii) Seek consent to communicate privately
33 and without restriction with any resident;
34 (iv) Inspect the clinical and other records of
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1 a resident with the express written consent of the
2 resident;
3 (v) Observe all areas of the long term care
4 facility or assisted living or shared housing
5 establishment except the living area of any resident
6 who protests the observation.
7 (2) "Long Term Care Facility" means (i) any
8 facility as defined by Section 1-113 of the Nursing Home
9 Care Act, as now or hereafter amended; and (ii) any
10 skilled nursing facility or a nursing facility which
11 meets the requirements of Section 1819(a), (b), (c), and
12 (d) or Section 1919(a), (b), (c), and (d) of the Social
13 Security Act, as now or hereafter amended (42 U.S.C.
14 1395i-3(a), (b), (c), and (d) and 42 U.S.C. 1396r(a),
15 (b), (c), and (d)).
16 (2.5) "Assisted living establishment" and "shared
17 housing establishment" have the meanings given those
18 terms in Section 10 of the Assisted Living and Shared
19 Housing Act.
20 (3) "Ombudsman" means any person employed by the
21 Department to fulfill the requirements of the Office, or
22 any representative of a sub-State long term care
23 ombudsman program; provided that the representative,
24 whether he is paid for or volunteers his ombudsman
25 services, shall be qualified and authorized by the
26 Department to perform the duties of an ombudsman as
27 specified by the Department in rules.
28 (c) Ombudsman; rules. The Office of State Long Term Care
29 Ombudsman shall be composed of at least one full-time
30 ombudsman within the Department and shall include a system of
31 designated sub-State long term care ombudsman programs. Each
32 sub-State program shall be designated by the Department as a
33 subdivision of the Office and any representative of a
34 sub-State program shall be treated as a representative of the
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1 Office.
2 The Department shall promulgate administrative rules to
3 establish the responsibilities of the Department and the
4 Office of State Long Term Care Ombudsman. The administrative
5 rules shall include the responsibility of the Office to
6 investigate and resolve complaints made by or on behalf of
7 residents of long term care facilities and assisted living
8 and shared housing establishments relating to actions,
9 inaction, or decisions of providers, or their
10 representatives, of long term care facilities, of assisted
11 living and shared housing establishments, of public agencies,
12 or of social services agencies, which may adversely affect
13 the health, safety, welfare, or rights of such residents.
14 When necessary and appropriate, representatives of the Office
15 shall refer complaints to the appropriate regulatory State
16 agency. The Department shall cooperate with the Department of
17 Human Services in providing information and training to
18 designated sub-State long term care ombudsman programs about
19 the appropriate assessment and treatment (including
20 information about appropriate supportive services, treatment
21 options, and assessment of rehabilitation potential) of
22 persons with mental illness (other than Alzheimer's disease
23 and related disorders).
24 (d) Access and visitation rights.
25 (1) In accordance with subparagraphs (A) and (E) of
26 paragraph (3) of subsection (c) of Section 1819 and
27 subparagraphs (A) and (E) of paragraph (3) of subsection
28 (c) of Section 1919 of the Social Security Act, as now or
29 hereafter amended (42 U.S.C. 1395i-3 (c)(3)(A) and (E)
30 and 42 U.S.C. 1396r (c)(3)(A) and (E)), and Section 712
31 of the Older Americans Act of 1965, as now or hereafter
32 amended (42 U.S.C. 3058f), a long term care facility,
33 assisted living establishment, and shared housing
34 establishment must:
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1 (i) permit immediate access to any resident by
2 an ombudsman; and
3 (ii) permit representatives of the Office,
4 with the permission of the resident's legal
5 representative or legal guardian, to examine a
6 resident's clinical and other records, and if a
7 resident is unable to consent to such review, and
8 has no legal guardian, permit representatives of the
9 Office appropriate access, as defined by the
10 Department in administrative rules, to the
11 resident's records.
12 (2) Each long term care facility, assisted living
13 establishment, and shared housing establishment shall
14 display, in multiple, conspicuous public places within
15 the facility accessible to both visitors and patients and
16 in an easily readable format, the address and phone
17 number of the Office, in a manner prescribed by the
18 Office.
19 (e) Immunity. An ombudsman or any other representative
20 of the Office participating in the good faith performance of
21 his or her official duties shall have immunity from any
22 liability (civil, criminal or otherwise) in any proceedings
23 (civil, criminal or otherwise) brought as a consequence of
24 the performance of his official duties.
25 (f) Business offenses.
26 (1) No person shall:
27 (i) Intentionally prevent, interfere with, or
28 attempt to impede in any way any representative of
29 the Office in the performance of his official duties
30 under this Act and the Older Americans Act of 1965;
31 or
32 (ii) Intentionally retaliate, discriminate
33 against, or effect reprisals against any long term
34 care facility resident or employee for contacting or
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1 providing information to any representative of the
2 Office.
3 (2) A violation of this Section is a business
4 offense, punishable by a fine not to exceed $501.
5 (3) The Director of Aging shall notify the State's
6 Attorney of the county in which the long term care
7 facility is located, or the Attorney General, of any
8 violations of this Section.
9 (g) Confidentiality of records and identities. No files
10 or records maintained by the Office of State Long Term Care
11 Ombudsman shall be disclosed unless the State Ombudsman or
12 the ombudsman having the authority over the disposition of
13 such files authorizes the disclosure in writing. The
14 ombudsman shall not disclose the identity of any complainant,
15 resident, witness or employee of a long term care provider
16 involved in a complaint or report unless such person or such
17 person's guardian or legal representative consents in writing
18 to the disclosure, or the disclosure is required by court
19 order.
20 (h) Legal representation. The Attorney General shall
21 provide legal representation to any representative of the
22 Office against whom suit or other legal action is brought in
23 connection with the performance of the representative's
24 official duties, in accordance with the State Employee
25 Indemnification Act.
26 (i) Treatment by prayer and spiritual means. Nothing in
27 this Act shall be construed to authorize or require the
28 medical supervision, regulation or control of remedial care
29 or treatment of any resident in a long term care facility
30 operated exclusively by and for members or adherents of any
31 church or religious denomination the tenets and practices of
32 which include reliance solely upon spiritual means through
33 prayer for healing.
34 (Source: P.A. 90-639, eff. 1-1-99; 91-174, eff. 7-16-99;
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1 91-656, eff. 1-1-01; revised 1-5-00.)
2 Section 10. The Nursing Home Care Act is amended by
3 changing Section 3-212 and adding Section 3-202.2 as follows:
4 (210 ILCS 45/3-202.2 new)
5 Sec. 3-202.2. Rules; residents with mental illness. No
6 later than January 1, 2001, the Department of Public Health
7 shall file with the Joint Committee on Administrative Rules,
8 pursuant to the Illinois Administrative Procedure Act, a
9 proposed rule, or a proposed amendment to an existing rule,
10 regarding the provision of services, including assessment,
11 care planning, discharge planning, and treatment, by nursing
12 facilities to residents who have a serious mental illness.
13 (210 ILCS 45/3-212) (from Ch. 111 1/2, par. 4153-212)
14 Sec. 3-212. Inspection.
15 (a) The Department, whenever it deems necessary in
16 accordance with subsection (b), shall inspect, survey and
17 evaluate every facility to determine compliance with
18 applicable licensure requirements and standards. An
19 inspection should occur within 120 days prior to license
20 renewal. The Department may periodically visit a facility
21 for the purpose of consultation. An inspection, survey, or
22 evaluation, other than an inspection of financial records,
23 shall be conducted without prior notice to the facility. A
24 visit for the sole purpose of consultation may be announced.
25 The Department shall provide training to surveyors about the
26 appropriate assessment, care planning, and care of persons
27 with mental illness (other than Alzheimer's disease or
28 related disorders) to enable its surveyors to determine
29 whether a facility is complying with State and federal
30 requirements about the assessment, care planning, and care of
31 those persons.
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1 (a-1) An employee of a State or unit of local government
2 agency charged with inspecting, surveying, and evaluating
3 facilities who directly or indirectly gives prior notice of
4 an inspection, survey, or evaluation, other than an
5 inspection of financial records, to a facility or to an
6 employee of a facility is guilty of a Class A misdemeanor.
7 (a-2) An employee of a State or unit of local government
8 agency charged with inspecting, surveying, or evaluating
9 facilities who willfully profits from violating the
10 confidentiality of the inspection, survey, or evaluation
11 process shall be guilty of a Class 4 felony and that conduct
12 shall be deemed unprofessional conduct that may subject a
13 person to loss of his or her professional license. An action
14 to prosecute a person for violating this subsection (a-2) may
15 be brought by either the Attorney General or the State's
16 Attorney in the county where the violation took place.
17 (b) In determining whether to make more than the
18 required number of unannounced inspections, surveys and
19 evaluations of a facility the Department shall consider one
20 or more of the following: previous inspection reports; the
21 facility's history of compliance with standards, rules and
22 regulations promulgated under this Act and correction of
23 violations, penalties or other enforcement actions; the
24 number and severity of complaints received about the
25 facility; any allegations of resident abuse or neglect;
26 weather conditions; health emergencies; other reasonable
27 belief that deficiencies exist.
28 (b-1) The Department shall not be required to determine
29 whether a facility certified to participate in the Medicare
30 program under Title XVIII of the Social Security Act, or the
31 Medicaid program under Title XIX of the Social Security Act,
32 and which the Department determines by inspection under this
33 Section or under Section 3-702 of this Act to be in
34 compliance with the certification requirements of Title XVIII
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1 or XIX, is in compliance with any requirement of this Act
2 that is less stringent than or duplicates a federal
3 certification requirement. In accordance with subsection (a)
4 of this Section or subsection (d) of Section 3-702, the
5 Department shall determine whether a certified facility is in
6 compliance with requirements of this Act that exceed federal
7 certification requirements. If a certified facility is found
8 to be out of compliance with federal certification
9 requirements, the results of an inspection conducted pursuant
10 to Title XVIII or XIX of the Social Security Act may be used
11 as the basis for enforcement remedies authorized and
12 commenced under this Act. Enforcement of this Act against a
13 certified facility shall be commenced pursuant to the
14 requirements of this Act, unless enforcement remedies sought
15 pursuant to Title XVIII or XIX of the Social Security Act
16 exceed those authorized by this Act. As used in this
17 subsection, "enforcement remedy" means a sanction for
18 violating a federal certification requirement or this Act.
19 (c) Upon completion of each inspection, survey and
20 evaluation, the appropriate Department personnel who
21 conducted the inspection, survey or evaluation shall submit a
22 copy of their report to the licensee upon exiting the
23 facility, and shall submit the actual report to the
24 appropriate regional office of the Department. Such report
25 and any recommendations for action by the Department under
26 this Act shall be transmitted to the appropriate offices of
27 the associate director of the Department, together with
28 related comments or documentation provided by the licensee
29 which may refute findings in the report, which explain
30 extenuating circumstances that the facility could not
31 reasonably have prevented, or which indicate methods and
32 timetables for correction of deficiencies described in the
33 report. Without affecting the application of subsection (a)
34 of Section 3-303, any documentation or comments of the
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1 licensee shall be provided within 10 days of receipt of the
2 copy of the report. Such report shall recommend to the
3 Director appropriate action under this Act with respect to
4 findings against a facility. The Director shall then
5 determine whether the report's findings constitute a
6 violation or violations of which the facility must be given
7 notice. Such determination shall be based upon the severity
8 of the finding, the danger posed to resident health and
9 safety, the comments and documentation provided by the
10 facility, the diligence and efforts to correct deficiencies,
11 correction of the reported deficiencies, the frequency and
12 duration of similar findings in previous reports and the
13 facility's general inspection history. Violations shall be
14 determined under this subsection no later than 60 days after
15 completion of each inspection, survey and evaluation.
16 (d) The Department shall maintain all inspection, survey
17 and evaluation reports for at least 5 years in a manner
18 accessible to and understandable by the public.
19 (Source: P.A. 88-278; 89-21, eff. 1-1-96; 89-171, eff.
20 1-1-96; 89-197, eff. 7-21-95; 89-626, eff. 8-9-96.)
21 Section 15. The Illinois Public Aid Code is amended by
22 changing Section 5-5.5 as follows:
23 (305 ILCS 5/5-5.5) (from Ch. 23, par. 5-5.5)
24 Sec. 5-5.5. Elements of Payment Rate.
25 (a) The Department of Public Aid shall develop a
26 prospective method for determining payment rates for skilled
27 nursing and intermediate care services in nursing facilities
28 composed of the following cost elements:
29 (1) Standard Services, with the cost of this
30 component being determined by taking into account the
31 actual costs to the facilities of these services subject
32 to cost ceilings to be defined in the Department's rules.
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1 (2) Resident Services, with the cost of this
2 component being determined by taking into account the
3 actual costs, needs and utilization of these services, as
4 derived from an assessment of the resident needs in the
5 nursing facilities. The Department shall adopt rules
6 governing reimbursement for resident services as listed
7 in Section 5-1.1. Surveys or assessments of resident
8 needs under this Section shall include a review by the
9 facility of the results of such assessments and a
10 discussion of issues in dispute with authorized survey
11 staff, unless the facility elects not to participate in
12 such a review process. Surveys or assessments of
13 resident needs under this Section may be conducted
14 semi-annually and payment rates relating to resident
15 services may be changed on a semi-annual basis. The
16 Illinois Department shall initiate a project, either on a
17 pilot basis or Statewide, to reimburse the cost of
18 resident services based on a methodology which utilizes
19 an assessment of resident needs to determine the level of
20 reimbursement. This methodology shall be different from
21 the payment criteria for resident services utilized by
22 the Illinois Department on July 1, 1981. On March 1,
23 1982, and each year thereafter, until such time when the
24 Illinois Department adopts the methodology used in such
25 project for use statewide or the Illinois Department
26 reports to the Citizens Assembly/Council on Public Aid
27 that the methodology did not meet the Department's goals
28 and objectives and therefore is ceasing such project, the
29 Illinois Department shall report to the General Assembly
30 on the implementation and progress of such project. The
31 report shall include:
32 (A) A statement of the Illinois Department's
33 goals and objectives for such project;
34 (B) A description of such project, including
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1 the number and type of nursing facilities involved
2 in the project;
3 (C) A description of the methodology used in
4 such project;
5 (D) A description of the Illinois Department's
6 application of the methodology;
7 (E) A statement on the methodology's effect on
8 the quality of care given to residents in the sample
9 nursing facilities; and
10 (F) A statement on the cost of the methodology
11 used in such project and a comparison of this cost
12 with the cost of the current payment criteria.
13 (3) Ancillary Services, with the payment rate being
14 developed for each individual type of service. Payment
15 shall be made only when authorized under procedures
16 developed by the Department of Public Aid.
17 (4) Nurse's Aide Training, with the cost of this
18 component being determined by taking into account the
19 actual cost to the facilities of such training.
20 (5) Real Estate Taxes, with the cost of this
21 component being determined by taking into account the
22 figures contained in the most currently available cost
23 reports (with no imposition of maximums) updated to the
24 midpoint of the current rate year for long term care
25 services rendered between July 1, 1984 and June 30, 1985,
26 and with the cost of this component being determined by
27 taking into account the actual 1983 taxes for which the
28 nursing homes were assessed (with no imposition of
29 maximums) updated to the midpoint of the current rate
30 year for long term care services rendered between July 1,
31 1985 and June 30, 1986.
32 (b) In developing a prospective method for determining
33 payment rates for skilled nursing and intermediate care
34 services in nursing facilities, the Department of Public Aid
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1 shall consider the following cost elements:
2 (1) Reasonable capital cost determined by utilizing
3 incurred interest rate and the current value of the
4 investment, including land, utilizing composite rates, or
5 by utilizing such other reasonable cost related methods
6 determined by the Department. However, beginning with the
7 rate reimbursement period effective July 1, 1987, the
8 Department shall be prohibited from establishing,
9 including, and implementing any depreciation factor in
10 calculating the capital cost element.
11 (2) Profit, with the actual amount being produced
12 and accruing to the providers in the form of a return on
13 their total investment, on the basis of their ability to
14 economically and efficiently deliver a type of service.
15 The method of payment may assure the opportunity for a
16 profit, but shall not guarantee or establish a specific
17 amount as a cost.
18 (c) The Illinois Department may implement the amendatory
19 changes to this Section made by this amendatory Act of 1991
20 through the use of emergency rules in accordance with the
21 provisions of Section 5.02 of the Illinois Administrative
22 Procedure Act. For purposes of the Illinois Administrative
23 Procedure Act, the adoption of rules to implement the
24 amendatory changes to this Section made by this amendatory
25 Act of 1991 shall be deemed an emergency and necessary for
26 the public interest, safety and welfare.
27 (d) No later than January 1, 2001, the Department of
28 Public Aid shall file with the Joint Committee on
29 Administrative Rules, pursuant to the Illinois Administrative
30 Procedure Act, a proposed rule, or a proposed amendment to an
31 existing rule, regarding payment for appropriate services,
32 including assessment, care planning, discharge planning, and
33 treatment provided by nursing facilities to residents who
34 have a serious mental illness.
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1 (Source: P.A. 86-651; 86-705; 86-1028; 87-14; 87-435.)
2 Section 99. Effective date. This Act takes effect upon
3 becoming law.
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