HB4327ham003 98TH GENERAL ASSEMBLY

Rep. Greg Harris

Filed: 3/24/2014

09800HB4327ham003 LRB098 18752 KTG 57553 a

AMENDMENT TO HOUSE BILL 4327

AMENDMENT NO. ______. Amend House Bill 4327 by replacing everything after the enacting clause with the following:

"Section 5. The Adult Protective Services Act is amended by changing Section 7.5 as follows:

(320 ILCS 20/7.5)

Sec. 7.5. Health Care Worker Registry.

(a) Reporting to the Registry. The Department on Aging shall report to the Department of Public Health's Health Care Worker Registry the identity and administrative finding of a verified and substantiated decision of abuse, neglect, or financial exploitation of an eligible adult under this Act that is made against any caregiver, including consultants and volunteers, employed by a provider licensed, certified, or regulated by, or paid with public funds from, the Department of Public Health, Healthcare and Family Services, or Human Services, or the Department on Aging. For uncompensated or privately paid caregivers, the Department on Aging shall report only a verified and substantiated decision of significant abuse, neglect, or financial exploitation of an eligible adult under this Act. An administrative finding placed in the Registry shall preclude any caregiver from providing direct access or other services, including consulting and volunteering, in a position with a provider that is licensed, certified, or regulated by, or paid with public funds from or on behalf of, the State of Illinois or any Department thereof, that permits the caregiver direct access to an adult aged 60 or older or an adult, over 18, with a disability or to that individual's living quarters or personal, financial, or medical records.

(b) Definitions. As used in this Section:

"Direct care" includes, but is not limited to, direct access to an individual, his or her living quarters, or his or her personal, financial, or medical records for the purpose of providing nursing care or assistance with feeding, dressing, movement, bathing, toileting, other personal needs and activities of daily living, or assistance with financial transactions.

"Privately paid caregiver" means any caregiver who has been paid with resources other than public funds, regardless of licensure, certification, or regulation by the State of Illinois and any Department thereof. A privately paid caregiver does not include any caregiver that has been licensed, certified, or regulated by a State agency, or paid with public funds.

"Significant" means a finding of abuse, neglect, or financial exploitation as determined by the Department that (i) represents a meaningful failure to adequately provide for, or a material indifference to, the financial, health, safety, or medical needs of an eligible adult or (ii) results in an eligible adult's death or other serious deterioration of an eligible adult's financial resources, physical condition, or mental condition.

"Uncompensated caregiver" means a caregiver who, in an informal capacity, assists an eligible adult with activities of daily living, financial transactions, or chore housekeeping type duties. "Uncompensated caregiver" does not refer to an individual serving in a formal capacity as a volunteer with a provider licensed, certified, or regulated by a State agency.

(c) Access to and use of the Registry. Access to the Registry shall be limited to licensed, certified, or regulated providers by the Department of Public Health, Healthcare and Family Service, or Human Services, or the Department on Aging. The State of Illinois, any Department thereof, or a provider licensed, certified, or regulated, or paid with public funds by, from, or on behalf of the Department of Public Health, Healthcare and Family Services, or Human Services, or the Department on Aging, shall not hire or compensate any person seeking employment, retain any contractors, or accept any volunteers to provide direct care without first conducting an online check of the person through the Department of Public Health's Health Care Worker Registry. The provider shall maintain a copy of the results of the online check to demonstrate compliance with this requirement. The provider is prohibited from hiring, compensating, or accepting a person, including as a consultant or volunteer, for whom the online check reveals a verified and substantiated claim of abuse, neglect, or financial exploitation, to provide direct access to any adult aged 60 or older or any adult, over 18, with a disability. Additionally, a provider is prohibited from retaining a person for whom they gain knowledge of a verified and substantiated claim of abuse, neglect, or financial exploitation in a position that permits the caregiver direct access to provide direct care to any adult aged 60 or older or any adult, over 18, with a disability or direct access to that individual's living quarters or personal, financial, or medical records. Failure to comply with this requirement may subject such a provider to corrective action by the appropriate regulatory agency or other lawful remedies provided under the applicable licensure, certification, or regulatory laws and rules.

(d) Notice to caregiver. The Department on Aging shall establish rules concerning notice to the caregiver in cases of abuse, neglect, or financial exploitation.

(e) Notification to eligible adults, guardians, or agents. As part of its investigation, the Department on Aging shall notify an eligible adult, or an eligible adult's guardian or agent, that a caregiver's name may be placed on the Registry based on a finding as described in subsection (a) (a-1) of this Section.

(f) Notification to employer. A provider licensed, certified, or regulated by the Department of Public Health, Healthcare and Family Services, or Human Services, or the Department on Aging shall be notified of an administrative finding against any caregiver who is an employee, consultant, or volunteer of a verified and substantiated decision of abuse, neglect, or financial exploitation of an eligible adult under this Act. If there is an imminent risk of danger to the eligible adult or an imminent risk of misuse of personal, medical, or financial information, the caregiver shall immediately be barred from direct access to the eligible adult, his or her living quarters, or his or her personal, financial, or medical records, pending the outcome of any challenge, criminal prosecution, or other type of collateral action.

(g) Caregiver challenges. The Department on Aging shall establish, by rule, procedures concerning caregiver challenges.

(h) Caregiver's rights to collateral action. The Department on Aging shall not make any report to the Registry if a caregiver notifies the Department in writing, including any supporting documentation, that he or she is formally challenging an adverse employment action resulting from a verified and substantiated finding of abuse, neglect, or financial exploitation by complaint filed with the Illinois Civil Service Commission, or by another means which seeks to enforce the caregiver's rights pursuant to any applicable collective bargaining agreement. If an action taken by an employer against a caregiver as a result of a finding of abuse, neglect, or financial exploitation is overturned through an action filed with the Illinois Civil Service Commission or under any applicable collective bargaining agreement after that caregiver's name has already been sent to the Registry, the caregiver's name shall be removed from the Registry.

(i) Removal from Registry. At any time after a report to the Registry, but no more than once in each successive 3-year period thereafter, for a maximum of 3 such requests, a caregiver may write to the Director of the Department on Aging to request removal of his or her name from the Registry in relationship to a single incident. The caregiver shall bear the burden of showing cause that establishes, by a preponderance of the evidence, that removal of his or her name from the Registry is in the public interest. Upon receiving such a request, the Department on Aging shall conduct an investigation and consider any evidentiary material provided. The Department shall issue a decision either granting or denying removal within 60 calendar days, and shall issue such decision to the caregiver and the Registry. The waiver process at the Department of Public Health does not apply to Registry reports from the Department on Aging. The Department on Aging shall establish standards for the removal of a name from the Registry by rule.

(j) Referral of Registry reports to health care facilities. In the event an eligible adult receiving services from a provider agency changes his or her residence from a domestic living situation to that of a health care facility, the provider agency shall use reasonable efforts to promptly inform the health care facility and the appropriate Regional Long Term Care Ombudsman about any Registry reports relating to the eligible adult. For purposes of this Section, a health care facility includes, but is not limited to, any residential facility licensed, certified, or regulated by the Department of Public Health, Healthcare and Family Services, or Human Services.

(k) The Department on Aging shall have immunity, except for willful or wanton misconduct, from any liability, civil or criminal, for reporting information to the Health Care Worker Registry.

(Source: P.A. 98-49, eff. 1-1-14; revised 11-12-13.)

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