SB3559sam001 103RD GENERAL ASSEMBLY

Sen. Lakesia Collins

Filed: 4/5/2024

10300SB3559sam001 LRB103 38350 CES 71941 a

AMENDMENT TO SENATE BILL 3559

AMENDMENT NO. ______. Amend Senate Bill 3559 by replacing everything after the enacting clause with the following:

"Section 5. The Nursing Home Care Act is amended by changing Section 3-810 as follows:

(210 ILCS 45/3-810)

Sec. 3-810. Whistleblower protection.

(a) In this Section, "retaliatory action" means (1) the reprimand, discharge, suspension, demotion, denial of promotion or transfer, or change in the terms and conditions of employment of any employee of a facility that is taken in retaliation for the employee's involvement in a protected activity as set forth in paragraphs (1) through (3) of subsection (b); or (2) reduced access to services, neglect, selective restrictions, adverse actions that interfere with the resident's quality of life at the facility, or threats of such actions that are taken in retaliation for any resident's involvement in a protected activity as set forth in paragraph (1) through (8) of subsection (b-5).

(b) A facility shall not take any retaliatory action against an employee of the facility, including a nursing home administrator, because the employee does any of the following:

(1) Discloses or threatens to disclose to a supervisor or to a public body an activity, inaction, policy, or practice implemented by a facility that the employee reasonably believes is in violation of a law, rule, or regulation.

(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by a nursing home administrator.

(3) Assists or participates in a proceeding to enforce the provisions of this Act.

(b-5) A facility shall not take any retaliatory action against a resident of the facility because the resident does any of the following:

(1) complains, discloses, or threatens to disclose to a supervisor, a public body, including, but not limited to, the Office of the State Long Term Care Ombudsman, or any other person, an activity, inaction, policy, or practice implemented by a facility that the resident reasonably believes is in violation of a law, rule, or regulation or that the resident believes to be problematic;

(2) provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by a nursing home administrator;

(3) assists or participates in a proceeding to enforce the provisions of this Act, including a grievance procedure under Section 2-112;

(4) seeks assistance for the resident or others to transition to independent living or another setting outside of the resident's current nursing home;

(5) makes a request of the facility related to the resident's care;

(6) becomes a member of a resident council described in Section 2-203, resident union, or similar organization;

(7) engages in protected activity under Section 3-608; or

(8) takes any other good faith action in support of any other right or remedy provided by law.

(c) A violation of this Section may be established only upon a finding that (i) the employee of the facility engaged in conduct described in subsection (b) of this Section and this conduct was a contributing factor in the retaliatory action alleged by the employee; or and (ii) the resident of the facility engaged in conduct described in subsection (b-5) of this Section and this conduct was a contributing factor in the retaliatory action alleged by the resident. A resident or employee may allege retaliation as a prima facie case of retaliation, which can be overcome by the facility, within one year after a resident or employee engages in conduct described in subsections (b) or (b-5) this conduct was a contributing factor in the retaliatory action alleged by the employee. There is no violation of this Section, however, if the facility demonstrates by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of that conduct.

(d) The employee of the facility may be awarded all remedies necessary to make the employee whole and to prevent future violations of this Section. Remedies imposed by the court may include, but are not limited to, all of the following:

(1) Reinstatement of the employee to either the same position held before the retaliatory action or to an equivalent position.

(2) Two times the amount of back pay.

(3) Interest on the back pay.

(4) Reinstatement of full fringe benefits and seniority rights.

(5) Payment of reasonable costs and attorney's fees.

(d-5) For each distinct act of retaliation, the resident of the facility may be awarded all remedies necessary to make the resident whole and prevent future violations of this Section. Remedies imposed by the court or other administrative body with appropriate jurisdiction may include, but are not limited to, the following:

(1) injunctive relief;

(2) a minimum of 2 times the average monthly billing rate for Medicaid recipients in facilities, as calculated annually by the Director of Healthcare and Family Services, or the Director's designee; and

(3) payment of reasonable costs and attorney's fees.

(d-6) Monetary damages in excess of the minimum amount in subparagraph (2) of subsection (d-5) of this Section must be established by competent third party evidence.

(d-10) A claim of retaliation under this Act may be filed in any court of competent jurisdiction, any administrative hearing process conducted by the State and its agencies, or departments with jurisdiction to hear complaints by employees or residents against nursing homes, but the same affirmative claim may not be pending in 2 separate forums simultaneously. Affirmative defenses based on claims of retaliation under this Act may be permissively joined with an affirmative claim or may be pending separately at the election of the resident or employee. If a claim of retaliation under this Section is brought in a judicial forum and if that claim is resolved through settlement or final dispensation in favor of the plaintiff or defendant, the employee or resident is prohibited from subsequently filing the same claim in an administrative forum.

(e) Nothing in this Section shall be deemed to diminish the rights, privileges, or remedies of an employee of a facility under any other federal or State law, rule, or regulation or under any employment contract.

(Source: P.A. 96-1372, eff. 7-29-10.)".