SB1617sam001 96TH GENERAL ASSEMBLY

Sen. Heather Steans

Filed: 3/24/2009

09600SB1617sam001 LRB096 10987 DRJ 24383 a

AMENDMENT TO SENATE BILL 1617

AMENDMENT NO. ______. Amend Senate Bill 1617 by replacing everything after the enacting clause with the following:

"Section 5. The Ambulatory Surgical Treatment Center Act is amended by changing Section 6 as follows:

(210 ILCS 5/6) (from Ch. 111 1/2, par. 157-8.6)

Sec. 6. Upon receipt of an application for a license, the Director may deny the application for any of the following reasons:

(1) Conviction of the applicant, or if the applicant is a firm, partnership or association, of any of its members, or if a corporation, of any of its officers or directors, or of the person designated to manage or supervise the facility, of a felony, or of 2 or more misdemeanors involving moral turpitude, as shown by a certified copy of the record of the court of conviction, or, in the case of the conviction of a misdemeanor by a court not of record, as shown by other evidence, if the Director determines, after investigation, that such person has not been sufficiently rehabilitated to warrant the public trust; or other satisfactory evidence that the moral character of the applicant, or manager, or supervisor of the facility is not reputable;

(2) The licensure status or record of the applicant, or if the applicant is a firm, partnership or association, of any of its members, or if a corporation, of any of its officers or directors, or of the person designated to manage or supervise the facility, from any other state where the applicant has done business in a similar capacity indicates that granting a license to the applicant would be detrimental to the interests of the public; or

(3) The applicant has insufficient financial or other resources to operate and conduct the facility in accordance with the requirements of this Act and the minimum standards, rules and regulations promulgated thereunder.

The Director shall only issue a license if he finds that the applicant facility complies with this Act and the rules, regulations and standards promulgated pursuant thereto and:

(a) is under the medical supervision of one or more physicians;

(b) permits a surgical procedure to be performed only by a physician, podiatrist or dentist who at the time is privileged to have his patients admitted by himself or an associated physician and is himself privileged to perform surgical procedures in at least one Illinois hospital; and

(c) maintains adequate medical records for each patient.

A license, unless sooner suspended or revoked, shall be renewable annually upon approval by the Department and payment of a license fee of $300. Each license shall be issued only for the premises and persons named in the application and shall not be transferable or assignable. The licenses shall be posted in a conspicuous place on the licensed premises. A placard or registry of all physicians on staff in the facility shall be centrally located and available for inspection to any interested person. The Department may, either before or after the issuance of a license, request the cooperation of the State Fire Marshal. The report and recommendations of this agency shall be in writing and shall state with particularity its findings with respect to compliance or noncompliance with such minimum standards, rules and regulations.

On and after the effective date of this amendatory Act of the 96th General Assembly, no license shall be granted or renewed unless the applicant submits a notarized statement signed by the Chief Executive Officer of the organization certifying that the applicant will not refuse service to any patient because the services the patient seeks may be reimbursed under the program of Medical Assistance under Article V of the Illinois Public Aid Code or Medicare. In addition, no license shall be granted or renewed if the Department determines that the applicant has not complied with a prior notarized statement submitted pursuant to this paragraph.

The Director may issue a provisional license to any ambulatory surgical treatment center which does not substantially comply with the provisions of this Act and the standards, rules and regulations promulgated by virtue thereof provided that he finds that such ambulatory surgical treatment center will undertake changes and corrections which upon completion will render the ambulatory surgical treatment center in substantial compliance with the provisions of this Act, and the standards, rules and regulations adopted hereunder, and provided that the health and safety of the patients of the ambulatory surgical treatment center will be protected during the period for which such provisional license is issued. The Director shall advise the licensee of the conditions under which such provisional license is issued, including the manner in which the facilities fail to comply with the provisions of the Act, standards, rules and regulations, and the time within which the changes and corrections necessary for such ambulatory surgical treatment center to substantially comply with this Act, and the standards, rules and regulations of the Department relating thereto shall be completed.

A person or facility not licensed under this Act or the Hospital Licensing Act shall not hold itself out to the public as a "surgery center" or as a "center for surgery".

(Source: P.A. 88-490.)

Section 10. The Health Care Worker Self-Referral Act is amended by changing Sections 15 and 20 and by adding Section 21 as follows:

(225 ILCS 47/15)

Sec. 15. Definitions. In this Act:

(a) "Board" means the Health Facilities Planning Board.

(a-5) "Compensation relationship" means any arrangement involving remuneration, direct or indirect, between a health care worker (or a member of the health care worker's immediate family) and an entity. For purposes of this Act, "compensation relationship" does not include any arrangement satisfying the requirements for exception under Section 1877 of the federal Social Security Act (42 U.S.C. 1395nn).

(b) "Entity" means any individual, partnership, firm, corporation, or other business that provides health services but does not include an individual who is a health care worker who provides professional services to an individual.

(b-5) "Financial relationship" means a direct or indirect investment interest, or a direct or indirect compensation relationship.

(c) "Group practice" means a group of 2 or more health care workers legally organized as a partnership, professional corporation, not-for-profit corporation, faculty practice plan or a similar association in which:

(1) each health care worker who is a member or employee or an independent contractor of the group provides substantially the full range of services that the health care worker routinely provides, including consultation, diagnosis, or treatment, through the use of office space, facilities, equipment, or personnel of the group;

(2) the services of the health care workers are provided through the group, and payments received for health services are treated as receipts of the group; and

(3) the overhead expenses and the income from the practice are distributed by methods previously determined by the group.

(d) "Health care worker" means any individual licensed under the laws of this State to provide health services, including but not limited to: dentists licensed under the Illinois Dental Practice Act; dental hygienists licensed under the Illinois Dental Practice Act; nurses and advanced practice nurses licensed under the Nurse Practice Act; occupational therapists licensed under the Illinois Occupational Therapy Practice Act; optometrists licensed under the Illinois Optometric Practice Act of 1987; pharmacists licensed under the Pharmacy Practice Act; physical therapists licensed under the Illinois Physical Therapy Act; physicians licensed under the Medical Practice Act of 1987; physician assistants licensed under the Physician Assistant Practice Act of 1987; podiatrists licensed under the Podiatric Medical Practice Act of 1987; clinical psychologists licensed under the Clinical Psychologist Licensing Act; clinical social workers licensed under the Clinical Social Work and Social Work Practice Act; speech-language pathologists and audiologists licensed under the Illinois Speech-Language Pathology and Audiology Practice Act; or hearing instrument dispensers licensed under the Hearing Instrument Consumer Protection Act, or any of their successor Acts.

(e) "Health services" means health care procedures and services provided by or through a health care worker.

(f) "Immediate family member" means a health care worker's spouse, child, child's spouse, or a parent.

(g) "Investment interest" means an equity or debt security issued by an entity, including, without limitation, shares of stock in a corporation, units or other interests in a partnership, bonds, debentures, notes, or other equity interests or debt instruments except that investment interest for purposes of Section 20 does not include interest in a hospital licensed under the laws of the State of Illinois.

(h) "Investor" means an individual or entity directly or indirectly owning a legal or beneficial ownership or investment interest, (such as through an immediate family member, trust, or another entity related to the investor).

(i) "Office practice" includes the facility or facilities at which a health care worker, on an ongoing basis, provides or supervises the provision of professional health services to individuals.

(j) "Referral" means any referral of a patient for health services, including, without limitation:

(1) The forwarding of a patient by one health care worker to another health care worker or to an entity outside the health care worker's office practice or group practice that provides health services.

(2) The request or establishment by a health care worker of a plan of care outside the health care worker's office practice or group practice that includes the provision of any health services.

(Source: P.A. 95-639, eff. 10-5-07; 95-689, eff. 10-29-07; 95-876, eff. 8-21-08.)

(225 ILCS 47/20)

Sec. 20. Prohibited referrals and claims for payment.

(a) A health care worker shall not refer a patient for health services to an entity outside the health care worker's office or group practice with in which the health care worker has a financial relationship is an investor, unless the health care worker directly provides health services within the entity and will be personally involved with the provision of care to the referred patient and the entity meets the standards set forth in Section 21.

(b) Pursuant to Board determination that the following exception is applicable, a health care worker may invest in and refer to an entity, whether or not the health care worker provides direct services within said entity, if there is a demonstrated need in the community for the entity and alternative financing is not available. For purposes of this subsection (b), "demonstrated need" in the community for the entity may exist if (1) there is no facility of reasonable quality that provides medically appropriate service, (2) use of existing facilities is onerous or creates too great a hardship for patients, (3) the entity is formed to own or lease medical equipment which replaces obsolete or otherwise inadequate equipment in or under the control of a hospital located in a federally designated health manpower shortage area, or (4) such other standards as established, by rule, by the Board. "Community" shall be defined as a metropolitan area for a city, and a county for a rural area. In addition, the following provisions must be met to be exempt under this Section:

(1) Individuals who are not in a position to refer patients to an entity are given a bona fide opportunity to also invest in the entity on the same terms as those offered a referring health care worker; and

(2) No health care worker who invests shall be required or encouraged to make referrals to the entity or otherwise generate business as a condition of becoming or remaining an investor; and

(3) The entity shall market or furnish its services to referring health care worker investors and other investors on equal terms; and

(4) The entity shall not loan funds or guarantee any loans for health care workers who are in a position to refer to an entity; and

(5) The income on the health care worker's investment shall be tied to the health care worker's equity in the facility rather than to the volume of referrals made; and

(6) Any investment contract between the entity and the health care worker shall not include any covenant or non-competition clause that prevents a health care worker from investing in other entities; and

(7) When making a referral, a health care worker must disclose his investment interest in an entity to the patient being referred to such entity. If alternative facilities are reasonably available, the health care worker must provide the patient with a list of alternative facilities. The health care worker shall inform the patient that they have the option to use an alternative facility other than one in which the health care worker has an investment interest and the patient will not be treated differently by the health care worker if the patient chooses to use another entity. This shall be applicable to all health care worker investors, including those who provide direct care or services for their patients in entities outside their office practices; and

(8) If a third party payor requests information with regard to a health care worker's investment interest, the same shall be disclosed; and

(9) The entity shall establish an internal utilization review program to ensure that investing health care workers provided appropriate or necessary utilization; and

(10) If a health care worker's financial interest in an entity is incompatible with a referred patient's interest, the health care worker shall make alternative arrangements for the patient's care.

The Board shall make such a determination for a health care worker within 90 days of a completed written request. Failure to make such a determination within the 90 day time frame shall mean that no alternative is practical based upon the facts set forth in the completed written request.

(c) It shall not be a violation of this Act for a health care worker to refer a patient for health services to a publicly traded entity in which he or she has an investment interest provided that:

(1) the entity is listed for trading on the New York Stock Exchange or on the American Stock Exchange, or is a national market system security traded under an automated inter-dealer quotation system operated by the National Association of Securities Dealers; and

(2) the entity had, at the end of the corporation's most recent fiscal year, total net assets of at least $30,000,000 related to the furnishing of health services; and

(3) any investment interest obtained after the effective date of this Act is traded on the exchanges listed in paragraph 1 of subsection (c) of this Section after the entity became a publicly traded corporation; and

(4) the entity markets or furnishes its services to referring health care worker investors and other health care workers on equal terms; and

(5) all stock held in such publicly traded companies, including stock held in the predecessor privately held company, shall be of one class without preferential treatment as to status or remuneration; and

(6) the entity does not loan funds or guarantee any loans for health care workers who are in a position to be referred to an entity; and

(7) the income on the health care worker's investment is tied to the health care worker's equity in the entity rather than to the volume of referrals made; and

(8) the investment interest does not exceed 1/2 of 1% of the entity's total equity.

(d) Any hospital licensed under the Hospital Licensing Act shall not discriminate against or otherwise penalize a health care worker for compliance with this Act.

(e) Any health care worker or other entity shall not enter into an arrangement or scheme seeking to make referrals to another health care worker or entity based upon the condition that the health care worker or entity will make referrals with an intent to evade the prohibitions of this Act by inducing patient referrals which would be prohibited by this Section if the health care worker or entity made the referral directly.

(f) If compliance with the need and alternative investor criteria is not practical, the health care worker shall identify to the patient reasonably available alternative facilities. The Board shall, by rule, designate when compliance is "not practical".

(g) Health care workers may request from the Board that it render an advisory opinion that a referral to an existing or proposed entity under specified circumstances does or does not violate the provisions of this Act. The Board's opinion shall be presumptively correct. Failure to render such an advisory opinion within 90 days of a completed written request pursuant to this Section shall create a rebuttable presumption that a referral described in the completed written request is not or will not be a violation of this Act.

(h) Notwithstanding any provision of this Act to the contrary, a health care worker may refer a patient, who is a member of a health maintenance organization "HMO" licensed in this State, for health services to an entity, outside the health care worker's office or group practice, in which the health care worker is an investor, provided that any such referral is made pursuant to a contract with the HMO. Furthermore, notwithstanding any provision of this Act to the contrary, a health care worker may refer an enrollee of a "managed care community network", as defined in subsection (b) of Section 5-11 of the Illinois Public Aid Code, for health services to an entity, outside the health care worker's office or group practice, in which the health care worker is an investor, provided that any such referral is made pursuant to a contract with the managed care community network.

(Source: P.A. 92-370, eff. 8-15-01.)

(225 ILCS 47/21 new)

Sec. 21. Exception to prohibition of referrals; nondiscrimination.

(a) Notwithstanding any other provision of this Act to the contrary, a health care worker may refer a patient for health services to an entity outside the health care worker's office or group practice with which the health care worker has a financial relationship, provided that:

(1) the entity has adopted a policy providing that services will be available to patients who are recipients under the Illinois Public Aid Code and to patients who have no health insurance on the same basis as other patients; and

(2) in determining whether to refer an individual patient to an entity with which the health care provider has a financial relationship, the health care worker shall not discriminate based upon the patient's ability to pay for services or upon the source of funding; in determining whether this condition is met, the Board shall consider whether the percentage of patients referred to the entity by the health care worker who are recipients of assistance under the Illinois Public Aid Code, or who have no health insurance, is comparable to the percentage of such patients served by the health care worker's office or group practice; and

(3) the entity submits a report to the Board on an annual basis regarding its adoption of a policy as provided in paragraph (1), any modifications to that policy, and the percentage of patients served by the entity who were recipients of assistance under the Illinois Public Aid Code and the percentage who had no health insurance.

(b) This Section does not apply to a licensed hospital or to an entity owned in whole or in part by a licensed hospital.

Section 15. The Radiation Protection Act of 1990 is amended by changing Section 5 as follows:

(420 ILCS 40/5) (from Ch. 111 1/2, par. 210-5)

(Section scheduled to be repealed on January 1, 2011)

Sec. 5. Limitations on application of radiation to human beings and requirements for radiation installation operators providing mammography services.

(a) No person shall intentionally administer radiation to a human being unless such person is licensed to practice a treatment of human ailments by virtue of the Illinois Medical, Dental or Podiatric Medical Practice Acts, or, as physician assistant, advanced practice nurse, technician, nurse, or other assistant, is acting under the supervision, prescription or direction of such licensed person. However, no such physician assistant, advanced practice nurse, technician, nurse, or other assistant acting under the supervision of a person licensed under the Medical Practice Act of 1987, shall administer radiation to human beings unless accredited by the Agency, except that persons enrolled in a course of education approved by the Agency may apply ionizing radiation to human beings as required by their course of study when under the direct supervision of a person licensed under the Medical Practice Act of 1987. No person authorized by this Section to apply ionizing radiation shall apply such radiation except to those parts of the human body specified in the Act under which such person or his supervisor is licensed. No person may operate a radiation installation where ionizing radiation is administered to human beings unless all persons who administer ionizing radiation in that radiation installation are licensed, accredited, or exempted in accordance with this Section. Nothing in this Section shall be deemed to relieve a person from complying with the provisions of Section 10.

(a-5) On or after the effective date of this amendatory Act of the 96th General Assembly, no person may administer radiation to a human being in a Class C or Class D radiation installation, as defined in Section 25 of this Act, other than a hospital, unless the radiation installation submits a notarized statement signed by the Chief Executive Officer of the radiation installation certifying that the radiation installation will not refuse service to any patient because the services the patient seeks may be reimbursed under the program of Medical Assistance under Article V of the Illinois Public Aid Code or Medicare. In addition, radiation may not be administered to a human being in a Class C or Class D installation other than a hospital if the Agency determines that the radiation installation has not complied with a prior notarized statement submitted pursuant to this subsection.

(b) In addition, no person shall provide mammography services unless all of the following requirements are met:

(1) the mammography procedures are performed using a radiation machine that is specifically designed for mammography;

(2) the mammography procedures are performed using a radiation machine that is used solely for performing mammography procedures;

(3) the mammography procedures are performed using equipment that has been subjected to a quality assurance program that satisfies quality assurance requirements which the Agency shall establish by rule;

(4) beginning one year after the effective date of this amendatory Act of 1991, if the mammography procedure is performed by a radiologic technologist, that technologist, in addition to being accredited by the Agency to perform radiography, has satisfied training requirements specific to mammography, which the Agency shall establish by rule.

(c) Every operator of a radiation installation at which mammography services are provided shall ensure and have confirmed by each mammography patient that the patient is provided with a pamphlet which is orally reviewed with the patient and which contains the following:

(1) how to perform breast self-examination;

(2) that early detection of breast cancer is maximized through a combined approach, using monthly breast self-examination, a thorough physical examination performed by a physician, and mammography performed at recommended intervals;

(3) that mammography is the most accurate method for making an early detection of breast cancer, however, no diagnostic tool is 100% effective;

(4) that if the patient is self-referred and does not have a primary care physician, or if the patient is unfamiliar with the breast examination procedures, that the patient has received information regarding public health services where she can obtain a breast examination and instructions.

(Source: P.A. 93-149, eff. 7-10-03; 94-104, eff. 7-1-05.)

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