SB0770 100TH GENERAL ASSEMBLY

LRB100 05747 SMS 15770 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
SB0770

Introduced 2/1/2017, by Sen. Iris Y. Martinez

SYNOPSIS AS INTRODUCED:

See Index

Amends the Regulatory Sunset Act by extending the repeal date of the Home Medical Equipment and Service Provider License Act from January 1, 2018 to January 1, 2028. Amends the Home Medical Equipment and Services Provider License Act. Makes changes in provisions concerning powers and duties of the Department of Financial and Professional Regulation, the Home Medical Equipment and Services Board, applications for original licensure, discipline of license, investigations, notices and hearings, findings and recommendations by the Board, hearing officers, and the application of the Administrative Review law. Provides that all applicants and licensees shall provide a valid address and email address, which shall serve as the address and email address of record, and shall inform the Department of any change of address or email address through specified means. Provides provisions concerning confidentiality of information collected by the Department in the course of an examination or investigation. Makes other changes. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Regulatory Sunset Act is amended by changing Section 4.28 and by adding Section 4.38 as follows:

(5 ILCS 80/4.28)

Sec. 4.28. Acts repealed on January 1, 2018. The following Acts are repealed on January 1, 2018:

The Illinois Petroleum Education and Marketing Act.

The Podiatric Medical Practice Act of 1987.

The Acupuncture Practice Act.

The Illinois Speech-Language Pathology and Audiology Practice Act.

The Interpreter for the Deaf Licensure Act of 2007.

The Nurse Practice Act.

The Clinical Social Work and Social Work Practice Act.

The Pharmacy Practice Act.

The Home Medical Equipment and Services Provider License Act.

The Marriage and Family Therapy Licensing Act.

The Nursing Home Administrators Licensing and Disciplinary Act.

The Physician Assistant Practice Act of 1987.

(Source: P.A. 95-187, eff. 8-16-07; 95-235, eff. 8-17-07; 95-450, eff. 8-27-07; 95-465, eff. 8-27-07; 95-617, eff. 9-12-07; 95-639, eff. 10-5-07; 95-687, eff. 10-23-07; 95-689, eff. 10-29-07; 95-703, eff. 12-31-07; 95-876, eff. 8-21-08; 96-328, eff. 8-11-09.)

(5 ILCS 80/4.38 new)

Sec. 4.38. Act repealed on January 1, 2028. The following Act is repealed on January 1, 2028:

The Home Medical Equipment and Services Provider License Act.

Section 10. The Home Medical Equipment and Services Provider License Act is amended by changing Sections 10, 15, 20, 25, 30, 75, 95, 100, 110, 115, 125, 135, 150, and 165 and by adding Sections 13 and 185 as follows:

(225 ILCS 51/10)

(Section scheduled to be repealed on January 1, 2018)

Sec. 10. Definitions. As used in this Act:

(1) "Department" means the Department of Financial and Professional Regulation.

(2) "Secretary" means the Secretary of Financial and Professional Regulation.

(3) "Board" means the Home Medical Equipment and Services Board.

(4) "Home medical equipment and services provider" or "provider" means a legal entity, as defined by State law, engaged in the business of providing home medical equipment and services, whether directly or through a contractual arrangement, to an unrelated sick individual or an unrelated individual with a disability where that individual resides.

(5) "Home medical equipment and services" means the delivery, installation, maintenance, replacement, or instruction in the use of medical equipment used by a sick individual or an individual with a disability to allow the individual to be maintained in his or her residence.

(6) "Home medical equipment" means technologically sophisticated medical devices, apparatuses, machines, or other similar articles bearing a label that states "Caution: federal law requires dispensing by or on the order of a physician.", which are usable in a home care setting, including but not limited to:

(A) oxygen and oxygen delivery systems;

(B) ventilators;

(C) respiratory disease management devices, excluding compressor driven nebulizers;

(D) wheelchair seating systems;

(E) apnea monitors;

(F) transcutaneous electrical nerve stimulator (TENS) units;

(G) low air-loss cutaneous pressure management devices;

(H) sequential compression devices;

(I) neonatal home phototherapy devices;

(J) enteral feeding pumps; and

(K) other similar equipment as defined by the Board.

"Home medical equipment" also includes hospital beds and electronic and computer-driven wheelchairs, excluding scooters.

(7) "Address of record" means the designated address recorded by the Department in the applicant's or licensee's application file or license file maintained by the Department's licensure maintenance unit. It is the duty of the applicant or licensee to inform the Department of any change of address, and such changes must be made either through the Department's website or by contacting the Department's licensure maintenance unit.

(8) "Email address of record" means the designated email address recorded by the Department in the applicant's application file or the licensee's license file, as maintained by the Department's licensure maintenance unit.

(Source: P.A. 99-143, eff. 7-27-15.)

(225 ILCS 51/13 new)

Sec. 13. Address of record; email address of record. All applicants and licensees shall:

(1) provide a valid address and email address to the Department, which shall serve as the address of record and email address of record, respectively, at the time of application for licensure or renewal of a license; and

(2) inform the Department of any change of address of record or email address of record within 14 days after such change either through the Department's website or by contacting the Department's licensure maintenance unit.

(225 ILCS 51/15)

(Section scheduled to be repealed on January 1, 2018)

Sec. 15. Licensure requirement; exempt activities.

(a) No entity shall provide or hold itself out as providing home medical equipment and services, or use the title "home medical equipment and services provider" in connection with his or her profession or business, without a license issued by the Department under this Act.

(b) Nothing in this Act shall be construed as preventing or restricting the practices, services, or activities of the following, unless those practices, services, or activities include providing home medical equipment and services through a separate legal entity:

(1) a person licensed or registered in this State by any other law engaging in the profession or occupation for which he or she is licensed or registered;

(2) a home medical services provider entity that is accredited under home care standards by a recognized accrediting body;

(3) home health agencies that do not have a Part B Medicare supplier number or that do not engage in the provision of home medical equipment and services;

(4) hospitals, excluding hospital-owned and hospital-related providers of home medical equipment and services;

(5) manufacturers and wholesale distributors of home medical equipment who do not sell directly to a patient;

(6) health care practitioners who lawfully prescribe or order home medical equipment and services, or who use home medical equipment and services to treat their patients, including but not limited to physicians, nurses, physical therapists, respiratory therapists, occupational therapists, speech-language pathologists, optometrists, chiropractors, and podiatric physicians;

(7) pharmacists, pharmacies, and home infusion pharmacies that are not engaged in the sale or rental of home medical equipment and services;

(8) hospice programs that do not involve the sale or rental of home medical equipment and services;

(9) nursing homes;

(10) veterinarians;

(11) dentists; and

(12) emergency medical service providers.

(Source: P.A. 98-214, eff. 8-9-13.)

(225 ILCS 51/20)

(Section scheduled to be repealed on January 1, 2018)

Sec. 20. Powers and duties of the Department.

(a) The Department shall exercise the powers and duties prescribed by the Civil Administrative Code of Illinois for the administration of licensure Acts and shall exercise other powers and duties necessary for effectuating the purposes of this Act.

(b) The Department may adopt rules to administer and enforce this Act, including but not limited to fees for original licensure and renewal and restoration of licenses, and may prescribe forms to be issued to implement this Act. At a minimum, the rules adopted by the Department shall include standards and criteria for licensure and for professional conduct and discipline. The Department may shall consult with the Board in adopting rules. Notice of proposed rulemaking shall be transmitted to the Board, and the Department shall review the Board's response and any recommendations made in the response. The Department shall notify the Board in writing with proper explanation of deviations from the Board's recommendations and response.

(c) The Department may at any time seek the advice and expert knowledge of the Board on any matter relating to the administration of this Act.

(d) (Blank).

(Source: P.A. 95-703, eff. 12-31-07.)

(225 ILCS 51/25)

(Section scheduled to be repealed on January 1, 2018)

Sec. 25. Home Medical Equipment and Services Board. The Secretary shall appoint a Home Medical Equipment and Services Board, in consultation with a state association representing the home medical equipment and services industry, to serve in an advisory capacity to the Secretary. The Board shall consist of 7 members. Four members shall be home medical equipment and services provider representatives, at least one of whom shall be a pharmacy-based provider. The 3 remaining members shall include one home care clinical specialist, one respiratory care practitioner, and one public member. The public member shall not be engaged in any way, directly or indirectly, as a provider of health care.

Members shall serve 4-year 4 year terms and until their successors are appointed and qualified. No member shall be reappointed to the Board for a term that would cause continuous service on the Board to exceed 8 years. Appointments to fill vacancies shall be made in the same manner as original appointments, for the unexpired portion of the vacated term.

The home medical equipment and services provider representatives appointed to the Board shall have engaged in the provision of home medical equipment and services or related home care services for at least 3 years prior to their appointment, shall be currently engaged in providing home medical equipment and services in the State of Illinois, and must have no record of convictions related to fraud or abuse under either State or federal law.

The membership of the Board should reasonably reflect representation from the geographic areas in this State.

The Board shall annually elect one of its members as chairperson and vice chairperson.

Each Board member shall be paid his or her necessary expenses while engaged in the performance of his or her duties. Members of the Board shall receive as compensation a reasonable sum as determined by the Secretary for each day actually engaged in the duties of the office, and shall be reimbursed for authorized expenses incurred in performing the duties of the office.

The Secretary may terminate the appointment of any member for cause which in the opinion of the Secretary reasonably justifies the termination. The Secretary shall be the sole arbiter of whether the cause reasonably justifies termination.

Members of the Board shall be immune from suit in an action based upon any disciplinary proceedings or other activities performed in good faith as members of the Board.

A majority of Board members currently appointed shall constitute a quorum. A vacancy in the membership of the Board shall not impair the rights of a quorum to exercise the rights and perform all of the duties of the Board.

(Source: P.A. 95-703, eff. 12-31-07.)

(225 ILCS 51/30)

(Section scheduled to be repealed on January 1, 2018)

Sec. 30. Application for original licensure. Applications for original licensure shall be made to the Department in writing or electronically and signed by the applicant on forms prescribed by the Department or by electronic form and shall be accompanied by a nonrefundable fee set by rule of the Department. The Department may require from an applicant information that, in its judgment, will enable the Department to pass on the qualifications of the applicant for licensure.

An applicant has 3 years from the date of application to complete the application process. If the process has not been completed in 3 years, the application shall be denied, the fee shall be forfeited, and the applicant must reapply and meet the requirements in effect at the time of reapplication.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/75)

(Section scheduled to be repealed on January 1, 2018)

Sec. 75. Refused issuance, suspension, or revocation, or other discipline of license.

(a) The Department may refuse to issue, renew, or restore a license, or may revoke, suspend, place on probation, reprimand, impose a fine not to exceed $10,000 for each violation, or take other disciplinary or non-disciplinary action as the Department may deem proper with regard to a licensee for any one or combination of the following reasons:

(1) Making a material misstatement in furnishing information to the Department.

(2) Violation of this Act or its rules.

(3) Conviction of the licensee or any owner or officer of the licensee by plea of guilty or nolo contendere, finding of guilt, jury verdict, or entry of judgment or by sentencing for any crime, including, but not limited to, convictions, preceding sentences of supervision, conditional discharge, or first offender probation, under the laws of any jurisdiction of the United States that (i) is a felony under the laws of this State or (ii) is a misdemeanor, an essential element of which is dishonesty, or that is directly related to the home medical and equipment services. Conviction of or entry of a plea of guilty or nolo contendere to any crime that is a felony under the laws of the United States or any state or territory thereof or a misdemeanor, an essential element of which is dishonesty or that is directly related to the practice of the profession.

(4) Making a misrepresentation to obtain licensure or to violate a provision of this Act.

(5) Gross negligence in practice under this Act.

(6) Engaging in a pattern of practice or other behavior that demonstrates incapacity or incompetence to practice under this Act.

(7) Aiding, assisting, or willingly permitting another person in violating any provision of this Act or its rules.

(8) Failing, within 30 days, to provide information in response to a written request made by the Department.

(9) Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud, or harm the public.

(10) Adverse action taken Discipline by another state, District of Columbia, territory, or foreign nation, if at least one of the grounds for the discipline is the same or substantially equivalent to one set forth in this Act.

(11) Directly or indirectly giving to or receiving from any person, firm, corporation, partnership, or association any fee, commission, rebate, or other form of compensation for any services not actually or personally rendered.

(12) A finding that the licensee, after having its license placed on probationary status, has violated the terms of probation.

(13) Willfully making or filing false records or reports in the course of providing home medical equipment and services, including but not limited to false records or reports filed with State agencies or departments.

(14) Solicitation of business services, other than according to permitted advertising.

(15) The use of any words, abbreviations, figures, or letters with the intention of indicating practice as a home medical equipment and services provider without a license issued under this Act.

(16) Failure to file a return, or to pay the tax, penalty, or interest shown in a filed return, or to pay any final assessment of tax, penalty, or interest, as required by any tax Act administered by the Department of Revenue, until such time as the requirements of any such tax Act are satisfied.

(17) Failure to comply with federal or State laws and regulations concerning home medical equipment and services providers.

(18) Solicitation of professional services using false or misleading advertising.

(19) Failure to display a license in accordance with Section 45.

(20) Habitual or excessive use or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug that results in the inability to practice with reasonable judgment, skill, or safety by an owner or officer of the licensee.

(21) Physical illness, mental illness, or disability, including without limitation deterioration through the aging process and loss of motor skill, that results in the inability to practice the profession with reasonable judgment, skill, or safety by an owner or officer of the licensee.

All fines imposed under this Section shall be paid within 60 days after the effective date of the order imposing the fine or in accordance with the terms set forth in the order imposing the fine.

(Source: P.A. 95-703, eff. 12-31-07.)

(225 ILCS 51/95)

(Section scheduled to be repealed on January 1, 2018)

Sec. 95. Investigations; notice and hearing.

(a) The Department may investigate the actions of an applicant or of an entity holding or claiming to hold a license.

(b) The Department shall, before refusing to issue or renew a license or disciplining a licensee, at least 30 days prior to the date set for the hearing, notify in writing the applicant or licensee of the nature of the charges and that a hearing will be held on the date designated. The Department shall direct the applicant or licensee to file a written answer to the Board under oath within 20 days after the service of the notice and inform the applicant or licensee that failure to file an answer will result in default being taken against the applicant or licensee and that the license may be suspended, revoked, placed on probationary status, or other disciplinary action may be taken, including limiting the scope, nature, or extent of business, as the Secretary may deem proper. Written notice may be served by personal delivery, or certified or registered mail to the applicant or licensee at his or her address of record, or email to the applicant or licensee's email address of record. If the entity fails to file an answer after receiving notice, the entity's license may, in the discretion of the Department, be suspended, revoked, or placed on probationary status, or the Department may take whatever disciplinary or non-disciplinary action it deems proper, including limiting the scope, nature, or extent of the entity's business, or imposing a fine, without a hearing, if the act or acts charged constitute sufficient grounds for such action under this Act. At the time and place fixed in the notice, the Board shall proceed to hear the charges, and the parties or their counsel shall be accorded ample opportunity to present such statements, testimony, evidence, and argument as may be pertinent to the charges or to their defense. The Board may continue a hearing from time to time.

(c) An individual or organization acting in good faith, and not in a willful and wanton manner, by participating in proceedings of the Board, or by serving as a member of the Board, shall not, as a result of such actions, be subject to criminal prosecution or civil damages.

(d) Members of the Board shall be indemnified by the State for any actions occurring within the scope of services on the Board, done in good faith and not willful and wanton in nature. The Attorney General shall defend all such actions unless he or she determines either that there would be a conflict of interest in such representation or that the actions complained of were not in good faith or were willful and wanton.

If the Attorney General declines representation, the member has the right to employ counsel of his or her choice, whose fees shall be provided by the State, after approval by the Attorney General, unless there is a determination by a court that the member's actions were not in good faith or were willful and wanton.

The member must notify the Attorney General within 7 days after receipt of notice of the initiation of any action involving services of the Board. Failure to so notify the Attorney General shall constitute an absolute waiver of the right to a defense and indemnification.

The Attorney General shall determine, within 7 days after receiving such notice, whether he or she will undertake to represent the member.

(Source: P.A. 95-703, eff. 12-31-07.)

(225 ILCS 51/100)

(Section scheduled to be repealed on January 1, 2018)

Sec. 100. Shorthand reporter Stenographer; transcript. The Department, at its expense, shall provide a shorthand reporter to take down the testimony and preserve a record of all proceedings at the formal hearing of any case involving the refusal to issue or renew a license or the discipline of a licensee. The notice of hearing, complaint, and all other documents in the nature of pleadings, written motions filed in the proceedings, the transcript of testimony, the report of the Board, and the order of the Department shall be the record of the proceeding.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/110)

(Section scheduled to be repealed on January 1, 2018)

Sec. 110. Findings and recommendations. At the conclusion of the hearing the Board shall present to the Secretary a written report of its findings and recommendations. The report shall contain a finding of whether or not the accused entity violated this Act or failed to comply with the conditions required in this Act. The Board shall specify the nature of the violation or failure to comply, and shall make its recommendations to the Secretary.

The report of findings of fact, conclusions of law, and recommendation of the Board shall be the basis for the Department's order for refusing to issue, restore, or renew a license, or otherwise disciplining a licensee, or for the granting of a license. If the Secretary disagrees with the report, findings of fact, conclusions of law, and recommendations of the Board, the Secretary may issue an order in contravention of the Board's recommendations. The report of findings and recommendations of the Board may be the basis for the Department's order of refusal or for the granting of licensure unless the Secretary shall determine that the Board's report is contrary to the manifest weight of the evidence, in which case the Secretary may issue an order in contravention of the Board's report. The finding is not admissible in evidence against the entity in a criminal prosecution brought for the violation of this Act, but the hearing and finding are not a bar to a criminal prosecution brought for the violation of this Act.

(Source: P.A. 95-703, eff. 12-31-07.)

(225 ILCS 51/115)

(Section scheduled to be repealed on January 1, 2018)

Sec. 115. Rehearing on motion. In a case involving the refusal to issue or renew a license or the discipline of a licensee, a copy of the Board's report shall be served upon the respondent by the Department, either personally or as provided in this Act for the service of the notice of hearing. Within 20 days after such service, the respondent may present to the Department a motion in writing for a rehearing, which shall specify the particular grounds for the rehearing. If no motion for rehearing is filed, then upon the expiration of the time specified for filing the motion, or if a motion for rehearing is denied, then upon such denial the Secretary may enter an order in accordance with recommendations of the Board except as provided in Sections 110 and Section 120 of this Act.

(Source: P.A. 95-703, eff. 12-31-07.)

(225 ILCS 51/125)

(Section scheduled to be repealed on January 1, 2018)

Sec. 125. Hearing officer. The Secretary has the authority to appoint an attorney duly licensed to practice law in the State of Illinois to serve as the hearing officer in an action for refusal to issue or renew a license, or for the discipline of a licensee. The Secretary shall notify the Board of an appointment. The hearing officer shall have full authority to conduct the hearing. The hearing officer shall report his or her findings and recommendations to the Board and the Secretary. The Board shall have 60 days from receipt of the report to review the report of the hearing officer and present its findings of fact, conclusions of law and recommendation to the Secretary. If the Board fails to present its report within the 60-day 60 day period, the respondent may request in writing a direct appeal to the Secretary, in which case the Secretary may shall, within 7 calendar days after the request, issue an order directing the Board to issue its findings of fact, conclusions of law, and recommendations to the Secretary within 30 calendar days after such order. If the Board fails to issue its findings of fact, conclusions of law, and recommendations within that time frame to the Secretary after the entry of such order, the Secretary shall, within 30 calendar days thereafter, issue an order based upon the report of the hearing officer and the record of the proceedings or issue an order remanding the matter back to the hearing officer for additional proceedings in accordance with the order. If (i) a direct appeal is requested, (ii) the Board fails to issue its findings of fact, conclusions of law, and recommendations within the 30-day mandate from the Secretary or the Secretary fails to order the Board to do so, and (iii) the Secretary fails to issue an order within 30 calendar days thereafter, then the hearing officer's report is deemed accepted and a final decision of the Secretary. Notwithstanding any other provision of this Section, if the Secretary, upon review, determines that substantial justice has not been done in the revocation, suspension, or refusal to issue or renew a license or other disciplinary action taken as the result of the entry of the hearing officer's or Board's report, the Secretary may order a rehearing by the same or other examiners. If the Secretary disagrees in any regard with the report of the Board, the Secretary may issue an order in contravention thereof. If the Secretary determines that the Board's report is contrary to the manifest weight of the evidence, he or she may issue an order in contravention of the Board's report.

(Source: P.A. 95-703, eff. 12-31-07.)

(225 ILCS 51/135)

(Section scheduled to be repealed on January 1, 2018)

Sec. 135. Restoration of license. At any time after the successful completion of a term of probation, suspension, or revocation of a license, the Department may restore the license to the accused entity upon the written recommendation of the Board unless, after an investigation and a hearing, the Board determines that restoration is not in the public interest. Restoration under this Section requires the filing of all applications and payment of all fees required by the Department.

(Source: P.A. 95-703, eff. 12-31-07.)

(225 ILCS 51/150)

(Section scheduled to be repealed on January 1, 2018)

Sec. 150. Administrative Review Law. All final administrative decisions of the Department are subject to judicial review pursuant to the provisions of the Administrative Review Law, as now or hereafter amended, and all rules adopted pursuant to that Law. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure.

Proceedings for judicial review shall be commenced in the circuit court of the county in which the party applying for relief resides, but if the party is not a resident of this State, the venue shall be in Sangamon County.

The Department shall not be required to certify any record to the court or file any answer in court or otherwise appear in any court in a judicial review proceeding, unless and until the Department has received from the plaintiff payment of the costs of furnishing and certifying the record, which costs shall be determined by the Department. Exhibits shall be certified without cost. Failure on the part of the plaintiff to file a receipt in court shall be grounds for dismissal of the action. During the pendency and hearing of any and all judicial proceedings incident to a disciplinary action, any sanctions imposed upon the respondent by the Department because of acts or omissions related to the delivery of direct patient care as specified in the Department's final administrative decision shall, as a matter of public policy, remain in full force and effect in order to protect the public pending final resolution of any of the proceedings.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/165)

(Section scheduled to be repealed on January 1, 2018)

Sec. 165. Illinois Administrative Procedure Act. The Illinois Administrative Procedure Act is hereby expressly adopted and incorporated in this Act as if all of the provisions of that Act were included in this Act, except that the provision of subsection (d) of Section 10-65 of the Illinois Administrative Procedure Act, which provides that at hearings the license holder has the right to show compliance with all lawful requirements for retention, continuation, or renewal of a license, is specifically excluded. For the purposes of this Act, the notice required under Section 10-25 of the Illinois Administrative Procedure Act is deemed sufficient when served personally upon, mailed to the last known address of record of, or emailed to the email address of record of a party.

(Source: P.A. 90-532, eff. 11-14-97.)

(225 ILCS 51/185 new)

Sec. 185. Confidentiality. All information collected by the Department in the course of an examination or investigation of a licensee or applicant, including, but not limited to, any complaint against a licensee filed with the Department and information collected to investigate any such complaint, shall be maintained for the confidential use of the Department and shall not be disclosed. The Department may not disclose the information to anyone other than law enforcement officials, other regulatory agencies that have an appropriate regulatory interest as determined by the Secretary, or to a party presenting a lawful subpoena to the Department. Information and documents disclosed to a federal, State, county, or local law enforcement agency shall not be disclosed by the agency for any purpose to any other agency or person. A formal complaint filed against a licensee by the Department or any order issued by the Department against a licensee or applicant shall be a public record, except as otherwise prohibited by law.

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