102ND GENERAL ASSEMBLY
State of Illinois
2021 and 2022
SB3775

 

Introduced 1/21/2022, by Sen. Omar Aquino

 

SYNOPSIS AS INTRODUCED:
 
See Index

    Amends the Nurse Agency Licensing Act. Defines "covenant not to compete". Changes the definition of "Department" to the Department of Public Health (rather than the Department or Labor). Changes the definitions of "health care facility" and "nurse". Provides that in an application for licensure under the Act, a limited liability company can apply, evidence of general professional liability insurance in the amount of at least $1,000,000 (instead of $500,000) is required per incident and $3,000,000 (instead of $1,000,000) in the aggregate is required for workers' compensation coverage, and there is an application fee of $2,000. Provides that collected fees shall be deposited in the state treasury and credited to the Nursing Dedicated and Professional Fund. Provides that for renewal of licensure, the licensee shall submit an attestation detailing the number of contracted shifts, number of shifts missed, and number of shifts fulfilled for the 3 quarters preceding the application. Provides that an application for a license may be denied for failure to develop and implement contingency staffing plans to minimize missed shifts. Provides that nurse agencies who knowingly employ, assign, or refer to a health care facility a nurse or certified nurse aid with an illegally or fraudulently obtained or issued diploma, registration, license, certificate, or background study constitutes negligent hiring and are grounds for suspension, revocation, or refusal to issue or renew a license. Provides that the Department shall establish updated minimum standards. Provides that nurse agencies are prohibited from entering into covenants not to compete with nurses and certified nurse aides. Provides that a nurse agency's maximum rate for services provided to a health care facility by a nurse or certified nurse aide may not exceed 130% of the regional average hourly wage for each staffing position. Provides that the Department shall establish a system of reporting complaints against a health care staffing agency or its employees. Increases the civil penalty for violation of the Act to $10,000 per occurrence (currently $1,000 per day for each violation). Makes other changes.


LRB102 24482 AMQ 33716 b

 

 

A BILL FOR

 

SB3775LRB102 24482 AMQ 33716 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Nurse Agency Licensing Act is amended by
5changing Sections 3, 4, 5, 7, 8, 13, 14, and 14.1 as follows:
 
6    (225 ILCS 510/3)  (from Ch. 111, par. 953)
7    Sec. 3. Definitions. As used in this Act:
8    (a) "Certified nurse aide" means an individual certified
9as defined in Section 3-206 of the Nursing Home Care Act,
10Section 3-206 of the ID/DD Community Care Act, or Section
113-206 of the MC/DD Act, as now or hereafter amended.
12    (a-5) "Covenant not to compete" means an agreement between
13an employer and an employee that restricts such employee from
14performing:
15        (1) any work for another employer for a specified
16    period of time;
17        (2) any work for a specified geographic area; or
18        (3) work for another employer that is similar to such
19    employee's work for the employer included as a party to
20    the agreement.
21    (b) "Department" means the Department of Public Health
22Labor.
23    (c) "Director" means the Director of Public Health Labor.

 

 

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1    (d) "Health care facility" is defined as in Section 3 of
2the Illinois Health Facilities Planning Act, as now or
3hereafter amended, and includes any facility licensed,
4certified, or approved by any State agency and covered by the
5Assisted Living and Shared Housing Act or subsection (a) of
6Section 5-5.01 of the Illinois Public Aid Code.
7    (e) "Licensee" means any nursing agency which is properly
8licensed under this Act.
9    (f) "Nurse" means a registered nurse, or a licensed
10practical nurse, an advanced practice registered nurse, or any
11individual licensed under as defined in the Nurse Practice
12Act.
13    (g) "Nurse agency" means any individual, firm,
14corporation, partnership or other legal entity that employs,
15assigns or refers nurses or certified nurse aides to a health
16care facility for a fee. The term "nurse agency" includes
17nurses registries. The term "nurse agency" does not include
18services provided by home health agencies licensed and
19operated under the Home Health, Home Services, and Home
20Nursing Agency Licensing Act or a licensed or certified
21individual who provides his or her own services as a regular
22employee of a health care facility, nor does it apply to a
23health care facility's organizing nonsalaried employees to
24provide services only in that facility.
25(Source: P.A. 98-104, eff. 7-22-13; 99-180, eff. 7-29-15.)
 

 

 

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1    (225 ILCS 510/4)  (from Ch. 111, par. 954)
2    Sec. 4. Licensing. The Department shall license nurse
3agencies in accordance with this Act for the protection of the
4health, welfare and safety of patients and residents. No
5person may establish, operate, maintain, or advertise as a
6nurse agency in the State of Illinois unless the person is
7licensed under this Act by the Department of Public Health
8Labor. Being licensed under the Home Health, Home Services,
9and Home Nursing Agency Licensing Act does not relieve home
10health agencies that provide nurse agency services from the
11requirement of obtaining licensure under this Act. No health
12care facility shall use the services of an unlicensed nurse
13agency.
14(Source: P.A. 94-379, eff. 1-1-06.)
 
15    (225 ILCS 510/5)  (from Ch. 111, par. 955)
16    Sec. 5. Application for license. An application to operate
17a nurse agency shall be made to the Department on forms
18provided by the Department. A separate application shall be
19submitted for each additional location from which a nurse
20agency is operated. All applications must be under oath and
21must be accompanied by an equitable application fee which will
22be set by the Department by rule. A separate license must be
23obtained for each location from which a nurse agency is
24operated unless the nurse agency is owned and managed by the
25same person or persons. Submission of false or misleading

 

 

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1information is a petty offense punishable by a fine of $500.
2The application shall contain the following information:
3    (1) name and address of the person, partnership,
4corporation or other entity that is the applicant;
5    (2) if the applicant is a corporation or a limited
6liability company, a copy of its articles of incorporation or
7organization, a copy of its current bylaws, and the names and
8addresses of its officers and directors and shareholders
9owning more than 5% of the corporation's stock or membership
10units;
11    (3) the name and location of premises from which the
12applicant will provide services;
13    (4) the names and addresses of the person or persons under
14whose management or supervision the nurse agency will be
15operated;
16    (5) a statement of financial solvency;
17    (6) a statement detailing the experience and
18qualifications of the applicant to operate a nurse agency,
19however, the failure of a nurse agency to demonstrate previous
20experience to operate an agency does not in and of itself
21constitute grounds for the denial of a license;
22    (7) evidence of compliance or intent to comply with State
23or federal law relating to employee compensation, including
24but not limited to, social security taxes, State and federal
25income taxes, workers' compensation, unemployment taxes, and
26State and federal overtime compensation laws, and federal

 

 

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1occupational safety and health administration laws;
2    (8) evidence of general professional liability insurance
3in the amounts of at least $1,000,000 $500,000 per incident
4and $3,000,000 $1,000,000 in aggregate and workers'
5compensation coverage for all nurses or certified nursing
6aides employed, assigned, or referred by the nurse agency to a
7healthcare facility; and
8    (9) any other relevant information which the Department
9determines is necessary to properly evaluate the applicant and
10application as required by the Department by rule; and .
11    (10) an application fee of $2,000.
12    Fees collected under this Section shall be deposited in
13the State treasury and credited to the Nursing Dedicated and
14Professional Fund. Funds deposited into the Fund shall be set
15aside for nursing scholarships awarded pursuant to the Nursing
16Education Scholarship Law and may not be transferred under
17Section 8h of the State Finance Act.
18(Source: P.A. 86-817; 86-1043; 86-1472; 87-435.)
 
19    (225 ILCS 510/7)  (from Ch. 111, par. 957)
20    Sec. 7. Renewal of license. At least 90 days prior to
21license expiration, the licensee shall submit an attestation
22detailing the number of contracted shifts, number of shifts
23missed, and number of shifts fulfilled for the 3 quarters
24preceding the application and an application which meets the
25requirements of Section 5 of this Act for renewal of the

 

 

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1license. If the application is approved pursuant to Section 6,
2the license shall be renewed for an additional one-year
3period.
4(Source: P.A. 86-817; 86-1043.)
 
5    (225 ILCS 510/8)  (from Ch. 111, par. 958)
6    Sec. 8. Grounds for denial of a license. An application
7for a license may be denied for any of the following reasons:
8    (a) failure to comply with the minimum standards set forth
9by this Act or its rules;
10    (b) conviction of the applicant of a felony;
11    (c) insufficient financial or other resources to operate
12the nurse agency in accordance with the requirements of this
13Act and the minimum standards, rules and regulations
14promulgated thereunder; or
15    (d) failure to establish appropriate personnel policies
16and procedures for selecting nurses and certified nurse aides
17for employment, assignment, or referral, or to develop and
18implement contingency staffing plans to minimize missed
19shifts.
20(Source: P.A. 86-817.)
 
21    (225 ILCS 510/13)  (from Ch. 111, par. 963)
22    Sec. 13. Application for employment.
23    (a) Every nurse agency shall cause each applicant for
24employment, 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 and that the nurse is not
14ineligible to be hired by health care employers or long-term
15care facilities pursuant to Section 25 of the Health Care
16Worker Background Check Act. Written verification shall be
17sent by the Department of Financial and Professional
18Regulation within 20 working days. At least biennially
19thereafter, the agency shall contact the Department of
20Financial and Professional Regulation to verify this
21information in writing. The nurse agency shall review the
22disciplinary report published by the Department of Financial
23and Professional Regulation on a monthly basis to determine
24whether the nurse's license is valid and in good standing.
25    (b) Every nurse agency shall cause each applicant for
26employment, assignment, or referral, as a certified nurse aide

 

 

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1to complete an application form including the following
2information:
3        (1) name and address of the applicant;
4        (2) whether or not the nurse aide is registered as
5    having completed a certified course as approved by the
6    Department of Public Health;
7        (3) references and dates and places of previous
8    employment.
9    Prior to employing, assigning, or referring a certified
10nurse aide, the agency shall review the information provided
11on the Health Care Worker Registry to verify that the
12certification is valid and that the certified nurse aide is
13not ineligible to be hired by health care employers or
14long-term care facilities pursuant to Section 25 of the Health
15Care Worker Background Check Act.
16    (c) Every nurse agency shall check at least 2 recent
17references and the dates of employment provided by the
18applicant, unless the applicant has not had 2 previous
19employers.
20    (c-5) Nurse agencies who knowingly employ, assign, or
21refer to a health care facility a nurse or certified nurse aid
22with an illegally or fraudulently obtained or issued diploma,
23registration, license, certificate, or background study
24constitutes negligent hiring and are grounds for suspension,
25revocation, or refusal to issue or renew a license under
26Section 9 of this Act.

 

 

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1    (d) 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.
6(Source: P.A. 99-652, eff. 1-1-17.)
 
7    (225 ILCS 510/14)  (from Ch. 111, par. 964)
8    Sec. 14. Minimum Standards. (a) The Department, by rule,
9shall establish minimum standards for the operation of nurse
10agencies. Those standards shall include, but are not limited
11to: (1) the maintenance of written policies, and procedures,
12and documentation, including contracts with all health care
13facilities to which it assigns or refers nurses or certified
14nurse aides demonstrating that its employees' scope of work
15aligns with the appropriate scope of practices and contingency
16staff plans; and (2) the development of personnel policies
17which include payroll records, including for nurses or
18certified nurse aides employed, assigned, or referred to
19health care facilities, a personal interview, a reference
20check, an annual evaluation of each employee (which may be
21based in part upon information provided by health care
22facilities utilizing nurse agency personnel), documentation
23that nurses or certified nurse aides who will be assigned or
24referred to health care facilities meet the minimum licensing,
25training, and continuing education standards for the position

 

 

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1referred or assigned and comply with all pertinent
2requirements relating to personnel employed in health care
3facilities, and periodic health examinations.
4    (b) Each nurse agency shall have a nurse serving as a
5manager or supervisor of all nurses and certified nurses
6aides.
7    (c) Each nurse agency shall ensure that its employees meet
8the minimum licensing, training, and orientation standards for
9which those employees are licensed or certified.
10    (d) A nurse agency shall not employ, assign, or refer for
11use in an Illinois health care facility a nurse or certified
12nurse aide unless certified or licensed under applicable
13provisions of State and federal law or regulations. Each
14certified nurse aide shall comply with all pertinent
15regulations of the Illinois Department of Public Health
16relating to the health and other qualifications of personnel
17employed in health care facilities.
18    (e) The Department may adopt rules to monitor the usage of
19nurse agency services to determine their impact.
20    (f) Nurse agencies are prohibited from recruiting
21potential employees on the premises of a health care facility
22or requiring, as a condition of employment, assignment, or
23referral, that their employees recruit new employees for the
24nurse agency from among the permanent employees of the health
25care facility to which the nurse agency employees have been
26employed, assigned, or referred, and the health care facility

 

 

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1to which such employees are employed, assigned, or referred is
2prohibited from requiring, as a condition of employment, that
3their employees recruit new employees from these nurse agency
4employees. Violation of this provision is a business offense.
5    (g) Nurse agencies are prohibited from entering into
6covenants not to compete with nurses and certified nurse
7aides. After the effective date of this Act of the 102nd
8General Assembly, a covenant not to compete entered into
9between a nurse agency and a nurse or certified nurse aid is
10illegal and void. The nursing agency shall not, in any
11contract with any employee or health care facility, require
12the payment of liquidated damages, employment fees, buy out
13fees, placement fees, or other compensation should the
14employee be hired as a permanent employee of a health care
15facility.
16    (h) A nurse agency's maximum rate for services provided to
17a health care facility by a nurse or certified nurse aide may
18not exceed 130% of the regional average hourly wage for each
19staffing position. The Department shall use and publish the
20most current median hourly wage data reported by the United
21States Department of Labor Bureau of Labor Statistics (BLS) in
22the BLS' Occupational Employment Statistics metropolitan and
23nonmetropolitan Area Occupational Employment and Wage
24Estimates for the State. These positions shall include
25registered nurse, licensed practical nurse, certified nursing
26assistant, and orderlies, rehab, or therapy aides. The maximum

 

 

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1rate shall include all charges for administrative fees,
2contract fees, or other special charges in addition to the
3hourly rates for the temporary nursing pool personnel supplied
4to a health care facility. A health care facility that pays for
5the actual travel and housing costs for nurse or certified
6nurse aides working at the facility and that pays these costs
7to the employee, the agency, or another vendor, is not
8violating the limitation on charges described in this Section.
9    (i) No less than 80% of the rates charged to a health care
10facility shall be passed on to the employee.
11(Source: P.A. 86-817.)
 
12    (225 ILCS 510/14.1)
13    Sec. 14.1. Investigations; orders; civil penalties.
14    (a) The Department may at any time, and shall upon
15receiving a complaint from any interested person, investigate
16any person licensed or applying for a license under this Act.
17The Department shall investigate any person who operates or
18advertises a nurse agency without being licensed under this
19Act. The Department shall establish a system of reporting
20complaints against a health care staffing agency or its
21employees. Complaints may be made by any member of the public.
22Complaints against a health care staffing agency shall be
23investigated by the Office of Health Care Regulation within
24the Department of Public Health.
25    The Director or his or her authorized representative may

 

 

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1examine the premises of any nurse agency, may compel by
2subpoena, for examination or inspection, the attendance and
3testimony of witnesses and the production of books, payrolls,
4records, papers and other evidence in any investigation or
5hearing, and may administer oaths or affirmations to
6witnesses.
7    (b) After appropriate notice and hearing, and if supported
8by the evidence, the Department may issue and cause to be
9served on any person an order to cease and desist from
10violation of this Act and to take any further action that is
11reasonable to eliminate the effect of the violation.
12    Whenever it appears that any person has violated a valid
13order of the Department issued under this Act, the Director
14may commence an action and obtain from the court an order
15directing the person to obey the order of the Department or be
16subject to punishment for contempt of court.
17    The Department may petition the court for an order
18enjoining any violation of this Act.
19    (c) Any licensee or applicant who violates any provision
20of this Act or the rules adopted under this Act shall be
21subject to a civil penalty of $10,000 per occurrence $1,000
22per day for each violation. Civil penalties may be assessed by
23the Department in an administrative action and may, if
24necessary, be recovered in a civil action brought by the
25Director through the Attorney General of the State of Illinois
26or the State's attorney of any county in which the violation

 

 

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1occurred. The court may order that the civil penalties
2assessed for violation of this Act, together with any costs or
3attorney's fees arising out of the action to collect the
4penalties, be paid to the Department. The fact that the
5violation has ceased does not excuse any person from liability
6for civil penalties arising from the violation.
7(Source: P.A. 88-230.)

 

 

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1 INDEX
2 Statutes amended in order of appearance
3    225 ILCS 510/3from Ch. 111, par. 953
4    225 ILCS 510/4from Ch. 111, par. 954
5    225 ILCS 510/5from Ch. 111, par. 955
6    225 ILCS 510/7from Ch. 111, par. 957
7    225 ILCS 510/8from Ch. 111, par. 958
8    225 ILCS 510/13from Ch. 111, par. 963
9    225 ILCS 510/14from Ch. 111, par. 964
10    225 ILCS 510/14.1