Rep. Jay Hoffman

Filed: 1/10/2023

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1836

2    AMENDMENT NO. ______. Amend Senate Bill 1836 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Nurse Agency Licensing Act is amended by
5changing Sections 3, 13, 14, and 14.3 as follows:
 
6    (225 ILCS 510/3)  (from Ch. 111, par. 953)
7    Sec. 3. Definitions. As used in this Act:
8    "Certified nurse aide" means an individual certified as
9defined in Section 3-206 of the Nursing Home Care Act, Section
103-206 of the ID/DD Community Care Act, or Section 3-206 of the
11MC/DD Act, as now or hereafter amended.
12    "Covenant not to compete" means an agreement between a
13nurse agency and an employee that restricts the employee from
14performing:
15        (1) any work for another employer for a specified
16    period of time;

 

 

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1        (2) any work in a specified geographic area; or
2        (3) any work for another employer that is similar to
3    the work the employee performs for the employer that is a
4    party to the agreement.
5    "Department" means the Department of Labor.
6    "Director" means the Director of Labor.
7    "Employee" means a nurse or a certified nurse aide.
8    "Health care facility" is defined as in Section 3 of the
9Illinois Health Facilities Planning Act, as now or hereafter
10amended. "Health care facility" also includes any facility
11licensed, certified, or approved by any State agency and
12subject to regulation under the Assisted Living and Shared
13Housing Act or the Illinois Public Aid Code.
14    "Licensee" means any nurse nursing agency which is
15properly licensed under this Act.
16    "Long-term basis" means the placement of a nurse or a
17certified nurse aide at a health care facility for an initial
18employment, assignment, or referral term of more than 24
19continuous months by a nurse agency that incurs the following
20expenses to place the nurse or certified nurse aide at the
21health care facility: (i) educational material expenses, if
22required; (ii) expenses for credentialing, licensure, or
23certification; or (iii) expenses for airline travel, lodging,
24meals, and ground transportation provided to a nurse or
25certified nurse aide. "Long-term basis" does not include the
26placement of a nurse or a certified nurse aide at a health care

 

 

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1facility for an initial employment, assignment, or referral
2term of an undefined duration.
3    "Nurse" means a registered nurse, a licensed practical
4nurse, an advanced practice registered nurse, or any
5individual licensed under the Nurse Practice Act.
6    "Nurse agency" means any individual, firm, corporation,
7partnership, or other legal entity that employs, assigns, or
8refers nurses or certified nurse aides to a health care
9facility for a fee. The term "nurse agency" includes nurses
10registries. The term "nurse agency" does not include services
11provided by home health agencies licensed and operated under
12the Home Health, Home Services, and Home Nursing Agency
13Licensing Act or a licensed or certified individual who
14provides his or her own services as a regular employee of a
15health care facility, nor does it apply to a health care
16facility's organizing nonsalaried employees to provide
17services only in that facility.
18    "Temporary basis" means an initial employment, assignment,
19or referral term of an undefined duration or a duration of 24
20continuous months or less exclusive of any extension.
21(Source: P.A. 102-946, eff. 7-1-22.)
 
22    (225 ILCS 510/13)  (from Ch. 111, par. 963)
23    Sec. 13. Application for employment.
24    (a) Every nurse agency shall cause each applicant for
25employment, assignment, or referral, as a nurse to complete an

 

 

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1application form including the following information:
2        (1) name and address of the applicant;
3        (2) whether or not such applicant is a nurse currently
4    licensed by the Department of Financial and Professional
5    Regulation;
6        (3) if so licensed, the number and date of such
7    license; and
8        (4) references and dates and places of previous
9    employment.
10    Prior to employing, assigning, or referring a nurse, the
11agency shall contact the Department of Financial and
12Professional Regulation to determine whether the nurse's
13license is valid and in good standing. Written verification
14shall be sent by the Department of Financial and Professional
15Regulation within 20 working days. At least biennially
16thereafter, the nurse agency shall contact the Department of
17Financial and Professional Regulation to verify this
18information in writing. The nurse agency shall review the
19disciplinary report published by the Department of Financial
20and Professional Regulation on a monthly basis to determine
21whether the nurse's license is valid and in good standing.
22    (b) Every nurse agency shall cause each applicant for
23employment, assignment, or referral, as a certified nurse aide
24to complete an application form including the following
25information:
26        (1) name and address of the applicant;

 

 

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1        (2) whether or not the nurse aide is registered as
2    having completed a certified course as approved by the
3    Department of Public Health; and
4        (3) references and dates and places of previous
5    employment.
6    Prior to employing, assigning, or referring a certified
7nurse aide, the agency shall review the information provided
8on the Health Care Worker Registry to verify that the
9certification is valid. Prior to employing, assigning, or
10referring a certified nurse aide to a position at a health care
11employer or long-term facility as defined in the Health Care
12Worker Background Check Act, the nurse agency shall review the
13information provided on the Health Care Worker Registry to
14verify that the certified nurse aide is not ineligible for the
15position pursuant to Section 25 of the Health Care Worker
16Background Check Act.
17    (c) Every nurse agency shall check at least 2 recent
18references and the dates of employment provided by the
19applicant, unless the applicant has not had 2 previous
20employers.
21    (d) Knowingly employing, assigning, or referring to a
22health care facility a nurse or certified nurse aide with an
23illegally or fraudulently obtained or issued diploma,
24registration, license, certificate, or background study
25constitutes negligent hiring by a nurse agency and is a
26violation of this Act.

 

 

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1    (e) Nurses or certified nurses aides employed, assigned,
2or referred to a health care facility by a nurse agency shall
3be deemed to be employees of the nurse agency while working for
4the nurse agency or on nurse agency employment, assignment, or
5referral and may only be terminated by the nurse agency for
6cause.
7(Source: P.A. 102-946, eff. 7-1-22; revised 8-22-22.)
 
8    (225 ILCS 510/14)  (from Ch. 111, par. 964)
9    Sec. 14. Minimum Standards.
10    (a) The Department, by rule, shall establish minimum
11standards for the operation of nurse agencies. Those standards
12shall include, but are not limited to:
13        (1) the maintenance of written policies and
14    procedures;
15        (2) the maintenance and submission to the Department
16    of copies of all contracts between the nurse agency and
17    health care facility to which it assigns or refers nurses
18    or certified nurse aides and copies of all invoices to
19    health care facilities personnel. Executed contracts must
20    be sent to the Department within 5 business days of their
21    effective date; and
22        (3) the development of personnel policies for nurses
23    or certified nurse aides employed, assigned, or referred
24    to health care facilities, including a personal interview,
25    a reference check, an annual evaluation of each employee

 

 

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1    (which may be based in part upon information provided by
2    health care facilities utilizing nurse agency personnel),
3    and periodic health examinations. Executed contracts must
4    be sent to the Department within 5 business days of their
5    effective date and are not subject to disclosure under the
6    Freedom of Information Act.
7        No less than 100% of the nurse or certified nurse aide
8    hourly rate shall be paid to the nurse or certified nurse
9    aide employee.
10    (b) Each nurse agency shall have a nurse serving as a
11manager or supervisor of all nurses and certified nurses
12aides.
13    (c) Each nurse agency shall ensure that its employees meet
14the minimum licensing, training, continuing education, and
15orientation standards for which those employees are licensed
16or certified.
17    (d) A nurse agency shall not employ, assign, or refer for
18use in an Illinois health care facility a nurse or certified
19nurse aide unless certified or licensed under applicable
20provisions of State and federal law or regulations. Each
21certified nurse aide shall comply with all pertinent
22regulations of the Illinois Department of Public Health
23relating to the health and other qualifications of personnel
24employed in health care facilities.
25    (e) The Department may adopt rules to monitor the usage of
26nurse agency services to determine their impact.

 

 

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1    (f) Nurse agencies are prohibited from recruiting
2potential employees on the premises of a health care facility
3or requiring, as a condition of employment, assignment, or
4referral, that their employees recruit new employees for the
5nurse agency from among the permanent employees of the health
6care facility to which the nurse agency employees have been
7employed, assigned, or referred, and the health care facility
8to which such employees are employed, assigned, or referred is
9prohibited from requiring, as a condition of employment, that
10their employees recruit new employees from these nurse agency
11employees. Violation of this provision is a business offense.
12    (g) Nurse agencies are prohibited from entering into
13covenants not to compete with nurses and certified nurse aides
14if the nurse is employed, assigned, or referred by a nurse
15agency to a health care facility on a temporary basis or the
16certified nurse aide is employed, assigned, or referred by a
17nurse agency to a health care facility on a temporary basis. A
18covenant not to compete entered into on or after July 1, 2022
19(the effective date of Public Act 102-946) this amendatory Act
20of the 102nd General Assembly between a nurse agency and a
21nurse or a certified nurse aide is illegal and void if (i) the
22nurse is employed, assigned, or referred by a nurse agency to a
23health care facility on a temporary basis or (ii) the
24certified nurse aide is employed, assigned, or referred by a
25nurse agency to a health care facility on a temporary basis is
26illegal and void. In The nursing agency shall not, in any

 

 

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1contract on a temporary basis with any nurse, certified nurse
2aide, employee or health care facility, a nurse agency is
3prohibited from requiring require the payment of liquidated
4damages, conversion fees, employment fees, buy-out fees,
5placement fees, or other compensation if the nurse or
6certified nurse aide employee is hired as a permanent employee
7of a health care facility.
8    (g-5) Beginning on the effective date of this amendatory
9Act of the 102nd General Assembly and ending on December 31,
102027, a nurse agency may enter into a covenant not to compete
11with a nurse or a certified nurse aide if (i) the nurse is
12employed, assigned, or referred by a nurse agency to a health
13care facility on a long-term basis or (ii) the certified nurse
14aide is employed, assigned, or referred by a nurse agency to a
15health care facility on a long-term basis. However, if a
16covenant not to compete that was entered into on or before
17December 31, 2027 expires on or after January 1, 2028, the
18covenant not to compete shall remain in effect until its
19expiration date. To be enforceable, the term of a covenant not
20to compete entered into under this subsection must be
21concurrent with the term of the initial employment,
22assignment, or referral of the nurse or certified nurse aide
23to a health care facility. A contract on a long-term basis
24between any nurse, certified nurse aide, or health care
25facility and a nurse agency may provide for the payment of
26actual damages, conversion fees, employment fees, buy-out

 

 

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1fees, placement fees, or other reasonable expenses resulting
2from a violation of the contract that occurred during the
3initial employment, assignment, or referral term.
4    (h) A nurse agency shall submit a report quarterly to the
5Department for each health care entity with whom the agency
6contracts that includes all of the following by provider type
7and county in which the work was performed:
8        (1) A list of the average amount charged to the health
9    care facility for each individual employee category.
10        (2) A list of the average amount paid by the agency to
11    employees in each individual employee category.
12        (3) A list of the average amount of labor-related
13    costs paid by the agency for each employee category,
14    including payroll taxes, workers' compensation insurance,
15    professional liability coverage, credentialing and
16    testing, and other employee related costs.
17    The Department shall publish by county in which the work
18was performed the average amount charged to the health care
19facilities by nurse agencies for each individual worker
20category and the average amount paid by the agency to each
21individual worker category.
22    (i) The Department shall publish on its website the
23reports yearly by county.
24    (j) The Department of Labor shall compel production of the
25maintained records, as required under this Section, by the
26nurse agencies.

 

 

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1(Source: P.A. 102-946, eff. 7-1-22.)
 
2    (225 ILCS 510/14.3)
3    Sec. 14.3. Contracts between nurse agencies and health
4care facilities.
5    (a) A contract entered into on or after the effective date
6of this amendatory Act of the 102nd General Assembly between
7the nurse agency and health care facility must contain the
8following provisions:
9        (1) A full disclosure of charges and compensation. The
10    disclosure shall include a schedule of all hourly bill
11    rates per category of employee, a full description of
12    administrative charges, and a schedule of rates of all
13    compensation per category of employee, including, but not
14    limited to, hourly regular pay rate, shift differential,
15    weekend differential, hazard pay, charge nurse add-on,
16    overtime, holiday pay, and travel or mileage pay.
17        (2) A commitment that nurses or certified nurse aides
18    employed, assigned, or referred to a health care facility
19    by the nurse agency perform any and all duties called for
20    within the full scope of practice for which the nurse or
21    certified nurse aide is licensed or certified.
22        (3) No less than 100% of the nurse or certified nurse
23    aide hourly rate shall be paid to the nurse or certified
24    nurse aide employee.
25    (b) A party's failure to comply with the requirements of

 

 

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1subsection (a) shall be a defense to the enforcement of a
2contract between a nurse agency and a health care facility.
3Any health care facility or nurse agency aggrieved by a
4violation of subsection (a) shall have a right of action in a
5State court against the offending party. A prevailing party
6may recover for each violation:
7        (1) liquidated damages of $1,500 or actual damages,
8    whichever is greater;
9        (2) reasonable attorney's fees and costs, including
10    expert witness fees and other litigation expenses; and
11        (3) other relief, including an injunction, as the
12    court may deem appropriate.
13    (c) This Section does not apply to contracts on a
14long-term basis between a nurse agency and a health care
15facility providing for the employment, assignment, or referral
16of nurses or certified nurse aides to the health care
17facility.
18(Source: P.A. 102-946, eff. 7-1-22.)
 
19    Section 99. Effective date. This Act takes effect upon
20becoming law.".