Illinois General Assembly - Full Text of HB3811

LRB104 10924 BAB 21006 b

104TH GENERAL ASSEMBLY
State of Illinois
2025 and 2026
HB3811

Introduced 2/18/2025, by Rep. Terra Costa Howard

SYNOPSIS AS INTRODUCED:

210 ILCS 45/2-202	from Ch. 111 1/2, par. 4152-202
210 ILCS 85/6.09	from Ch. 111 1/2, par. 147.09
755 ILCS 5/11a-5	from Ch. 110 1/2, par. 11a-5
755 ILCS 5/11a-15	from Ch. 110 1/2, par. 11a-15
755 ILCS 5/23-2	from Ch. 110 1/2, par. 23-2

Amends the Hospital Licensing Act. Provides that, if a physician determines that an adult patient is so disabled as to be unable to consent to discharge or placement in a facility or a physician reasonably believes an adult patient is a person with a disability in need of a guardian in accordance with the Probate Act of 1975 and there is no family, surrogate decision maker, agent under a power of attorney, trustee, or other close friend who is ready willing and able to assist that adult patient, then the hospital shall notify the Office of State Guardian and the public guardian of the county where the patient resides. Amends the Nursing Home Care Act. Requires a facility to notify the Office of State Guardian and the public guardian in the county where the patient resides before executing a contract in specified circumstances where the patient has diminished capacity. Amends the Probate Act of 1975. Includes private professional guardians as individuals who may act as guardians. Establishes standards for private professional guardians before appointment. Requires a private professional guardian who serves as guardian for 15 or more persons with disabilities to be certified as a National Master Guardian by the Center for Guardianship Certification and imposes other requirements, including background checks. Sets forth provisions concerning private professional guardians as successor guardians and the removal of private professional guardians who fail to comply with the specified requirements.

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 Nursing Home Care Act is amended by changing Section 2-202 as follows:

(210 ILCS 45/2-202) (from Ch. 111 1/2, par. 4152-202)

Sec. 2-202. (a) Before a person is admitted to a facility, or at the expiration of the period of previous contract, or when the source of payment for the resident's care changes from private to public funds or from public to private funds, a written contract shall be executed between a licensee and the following in order of priority:

(1) the person, or if the person is a minor, his parent or guardian; or

(2) the person's guardian, if any, or agent, if any, as defined in Section 2-3 of the Illinois Power of Attorney Act; or

(3) a member of the person's immediate family.

An adult person shall be presumed to have the capacity to contract for admission to a long term care facility unless he has been adjudicated a "person with a disability" within the meaning of Section 11a-2 of the Probate Act of 1975, or unless a petition for such an adjudication is pending in a circuit court of Illinois.

If there is no guardian, agent or member of the person's immediate family available, able or willing to execute the contract required by this Section and a physician determines that a person is so disabled as to be unable to consent to placement in a facility, or if a person has already been found to be a "person with a disability", but no order has been entered allowing residential placement of the person, that person may be admitted to a facility before the execution of a contract required by this Section; provided that a petition for guardianship or for modification of guardianship is filed within 15 days of the person's admission to a facility, and provided further that such a contract is executed within 10 days of the disposition of the petition.

If there is no guardian, agent, or member of the adult's immediate family available, able, or willing to execute the contract required by this Section and a physician determines that the adult is so disabled as to be unable to consent to placement in a facility and the physician reasonably believes the adult is a person with a disability in need of a guardian in accordance with the Probate Act of 1975, then the facility shall notify the Office of State Guardian and the public guardian of the county where the patient resides.

No adult shall be admitted to a facility if he objects, orally or in writing, to such admission, except as otherwise provided in Chapters III and IV of the Mental Health and Developmental Disabilities Code or Section 11a-14.1 of the Probate Act of 1975.

If a person has not executed a contract as required by this Section, then such a contract shall be executed on or before July 1, 1981, or within 10 days after the disposition of a petition for guardianship or modification of guardianship that was filed prior to July 1, 1981, whichever is later.

Before a licensee enters a contract under this Section, it shall provide the prospective resident and his or her guardian, if any, with written notice of the licensee's policy regarding discharge of a resident whose private funds for payment of care are exhausted.

Before a licensee enters into a contract under this Section, it shall provide the resident or prospective resident and his or her guardian, if any, with a copy of the licensee's policy regarding the assignment of Social Security representative payee status as a condition of the contract when the resident's or prospective resident's care is being funded under Title XIX of the Social Security Act and Article V of the Illinois Public Aid Code.

(b) A resident shall not be discharged or transferred at the expiration of the term of a contract, except as provided in Sections 3-401 through 3-423.

(c) At the time of the resident's admission to the facility, a copy of the contract shall be given to the resident, his guardian, if any, and any other person who executed the contract.

(d) A copy of the contract for a resident who is supported by nonpublic funds other than the resident's own funds shall be made available to the person providing the funds for the resident's support.

(e) The original or a copy of the contract shall be maintained in the facility and be made available upon request to representatives of the Department and the Department of Healthcare and Family Services.

(f) The contract shall be written in clear and unambiguous language and shall be printed in not less than 12-point type. The general form of the contract shall be prescribed by the Department.

(g) The contract shall specify:

(1) the term of the contract;

(2) the services to be provided under the contract and the charges for the services;

(3) the services that may be provided to supplement the contract and the charges for the services;

(4) the sources liable for payments due under the contract;

(5) the amount of deposit paid; and

(6) the rights, duties and obligations of the resident, except that the specification of a resident's rights may be furnished on a separate document which complies with the requirements of Section 2-211.

(h) The contract shall designate the name of the resident's representative, if any. The resident shall provide the facility with a copy of the written agreement between the resident and the resident's representative which authorizes the resident's representative to inspect and copy the resident's records and authorizes the resident's representative to execute the contract on behalf of the resident required by this Section.

(i) The contract shall provide that if the resident is compelled by a change in physical or mental health to leave the facility, the contract and all obligations under it shall terminate on 7 days notice. No prior notice of termination of the contract shall be required, however, in the case of a resident's death. The contract shall also provide that in all other situations, a resident may terminate the contract and all obligations under it with 30 days notice. All charges shall be prorated as of the date on which the contract terminates, and, if any payments have been made in advance, the excess shall be refunded to the resident. This provision shall not apply to life-care contracts through which a facility agrees to provide maintenance and care for a resident throughout the remainder of his life nor to continuing-care contracts through which a facility agrees to supplement all available forms of financial support in providing maintenance and care for a resident throughout the remainder of his life.

(j) In addition to all other contract specifications contained in this Section admission contracts shall also specify:

(1) whether the facility accepts Medicaid clients;

(2) whether the facility requires a deposit of the resident or his family prior to the establishment of Medicaid eligibility;

(3) in the event that a deposit is required, a clear and concise statement of the procedure to be followed for the return of such deposit to the resident or the appropriate family member or guardian of the person;

(4) that all deposits made to a facility by a resident, or on behalf of a resident, shall be returned by the facility within 30 days of the establishment of Medicaid eligibility, unless such deposits must be drawn upon or encumbered in accordance with Medicaid eligibility requirements established by the Department of Healthcare and Family Services.

(k) It shall be a business offense for a facility to knowingly and intentionally both retain a resident's deposit and accept Medicaid payments on behalf of that resident.

(Source: P.A. 98-104, eff. 7-22-13; 99-143, eff. 7-27-15.)

Section 10. The Hospital Licensing Act is amended by changing Section 6.09 as follows:

(210 ILCS 85/6.09) (from Ch. 111 1/2, par. 147.09)

Sec. 6.09. (a) In order to facilitate the orderly transition of aged patients and patients with disabilities from hospitals to post-hospital care, whenever a patient who qualifies for the federal Medicare program is hospitalized, the patient shall be notified of discharge at least 24 hours prior to discharge from the hospital. With regard to pending discharges to a skilled nursing facility, the hospital must notify the case coordination unit, as defined in 89 Ill. Adm. Code 240.260, at least 24 hours prior to discharge. When the assessment is completed in the hospital, the case coordination unit shall provide a copy of the required assessment documentation directly to the nursing home to which the patient is being discharged prior to discharge. The Department on Aging shall provide notice of this requirement to case coordination units. When a case coordination unit is unable to complete an assessment in a hospital prior to the discharge of a patient, 60 years of age or older, to a nursing home, the case coordination unit shall notify the Department on Aging which shall notify the Department of Healthcare and Family Services. The Department on Aging shall adopt rules to address these instances to ensure that the patient is able to access nursing home care, the nursing home is not penalized for accepting the admission, and the patient's timely discharge from the hospital is not delayed, to the extent permitted under federal law or regulation. Nothing in this subsection shall preclude federal requirements for a pre-admission screening/mental health (PAS/MH) as required under Section 2-201.5 of the Nursing Home Care Act or State or federal law or regulation. If home health services are ordered, the hospital must inform its designated case coordination unit, as defined in 89 Ill. Adm. Code 240.260, of the pending discharge and must provide the patient with the case coordination unit's telephone number and other contact information.

(b) Every hospital shall develop procedures for a physician with medical staff privileges at the hospital or any appropriate medical staff member to provide the discharge notice prescribed in subsection (a) of this Section. The procedures must include prohibitions against discharging or referring a patient to any of the following if unlicensed, uncertified, or unregistered: (i) a board and care facility, as defined in the Board and Care Home Act; (ii) an assisted living and shared housing establishment, as defined in the Assisted Living and Shared Housing Act; (iii) a facility licensed under the Nursing Home Care Act, the Specialized Mental Health Rehabilitation Act of 2013, the ID/DD Community Care Act, or the MC/DD Act; (iv) a supportive living facility, as defined in Section 5-5.01a of the Illinois Public Aid Code; or (v) a free-standing hospice facility licensed under the Hospice Program Licensing Act if licensure, certification, or registration is required. The Department of Public Health shall annually provide hospitals with a list of licensed, certified, or registered board and care facilities, assisted living and shared housing establishments, nursing homes, supportive living facilities, facilities licensed under the ID/DD Community Care Act, the MC/DD Act, or the Specialized Mental Health Rehabilitation Act of 2013, and hospice facilities. Reliance upon this list by a hospital shall satisfy compliance with this requirement. The procedure may also include a waiver for any case in which a discharge notice is not feasible due to a short length of stay in the hospital by the patient, or for any case in which the patient voluntarily desires to leave the hospital before the expiration of the 24 hour period.

(c) At least 24 hours prior to discharge from the hospital, the patient shall receive written information on the patient's right to appeal the discharge pursuant to the federal Medicare program, including the steps to follow to appeal the discharge and the appropriate telephone number to call in case the patient intends to appeal the discharge.

(d) Before transfer of a patient to a long term care facility licensed under the Nursing Home Care Act where elderly persons reside, a hospital shall as soon as practicable initiate a name-based criminal history background check by electronic submission to the Illinois State Police for all persons between the ages of 18 and 70 years; provided, however, that a hospital shall be required to initiate such a background check only with respect to patients who:

(1) are transferring to a long term care facility for the first time;

(2) have been in the hospital more than 5 days;

(3) are reasonably expected to remain at the long term care facility for more than 30 days;

(4) have a known history of serious mental illness or substance abuse; and

(5) are independently ambulatory or mobile for more than a temporary period of time.

A hospital may also request a criminal history background check for a patient who does not meet any of the criteria set forth in items (1) through (5).

A hospital shall notify a long term care facility if the hospital has initiated a criminal history background check on a patient being discharged to that facility. In all circumstances in which the hospital is required by this subsection to initiate the criminal history background check, the transfer to the long term care facility may proceed regardless of the availability of criminal history results. Upon receipt of the results, the hospital shall promptly forward the results to the appropriate long term care facility. If the results of the background check are inconclusive, the hospital shall have no additional duty or obligation to seek additional information from, or about, the patient.

(e) If a physician determines that an adult patient is so disabled as to be unable to consent to discharge or placement in a facility or a physician reasonably believes an adult patient is a person with a disability in need of a guardian in accordance with the Probate Act of 1975 and there is no family, surrogate decision maker, agent under a power of attorney, trustee, or other close friend who is ready willing and able to assist that adult patient, then the hospital shall notify the Office of State Guardian and the public guardian of the county where the patient resides.

(Source: P.A. 102-538, eff. 8-20-21; 103-102, eff. 1-1-24.)

Section 15. The Probate Act of 1975 is amended by changing Sections 11a-5, 11a-15, and 23-2 as follows:

(755 ILCS 5/11a-5) (from Ch. 110 1/2, par. 11a-5)

Sec. 11a-5. Who may act as guardian.

(a) A person is qualified to act as guardian of the person and as guardian of the estate of a person with a disability if the court finds that the proposed guardian is capable of providing an active and suitable program of guardianship for the person with a disability and that the proposed guardian:

(1) has attained the age of 18 years;

(2) is a resident of the United States;

(3) is not of unsound mind;

(4) is not an adjudged person with a disability as defined in this Act; and

(5) has not been convicted of a felony, unless the court finds appointment of the person convicted of a felony to be in the best interests of the person with a disability, and as part of the best interests determination, the court has considered the nature of the offense, the date of offense, and the evidence of the proposed guardian's rehabilitation. No person shall be appointed who has been convicted of a felony involving harm or threat to a minor or an elderly person or a person with a disability, including a felony sexual offense.

(b) Any public agency, private professional guardian, or not-for-profit corporation found capable by the court of providing an active and suitable program of guardianship for the person with a disability, taking into consideration the nature of such person's disability and the nature of such organization's services, may be appointed guardian of the person or of the estate, or both, of the person with a disability. The court shall not appoint as guardian an agency or employee of an agency that is directly providing residential services to the ward. One person or agency may be appointed guardian of the person and another person or agency appointed guardian of the estate.

(b-5)(1) The court may appoint separate individuals or entities that are qualified to act as guardians under subsections (b) or (c) to act as the guardian of the person and the guardian of the estate of a person with a disability if the court finds it is in the best interests of the person with a disability that separate guardians be appointed. The court shall not appoint a separate person or entity to act as guardian of the person or guardian of the estate with a public guardian or the Office of State Guardian unless the public guardian or the Office of State Guardian agrees to such an appointment.

(2) The court may appoint co-guardians to act as guardian of the person, guardian of the estate, or both the guardian of the person and the guardian of the estate if the court finds it is in the best interests of the person with a disability. When considering appointing co-guardians, the court shall consider the proposed co-guardians' history of cooperating and working together on behalf of the person with a disability. The court shall appoint only co-guardians who agree to serve together. The court shall not appoint a public guardian or the Office of State Guardian as a co-guardian for a person with a disability.

(c) Any corporation qualified to accept and execute trusts in this State may be appointed guardian or limited guardian of the estate of a person with a disability.

(d) "Private professional guardian" means: (1) a person or entity who receives compensation for services as a guardian to 5 or more persons with disabilities who are not related to the guardian by blood or marriage; or (2) a not-for-profit corporation qualified to act as guardian pursuant to subsection (b), including that corporation's officers, directors, and employees. A "private professional guardian" does not include a government agency, the Office of State Guardian, a public guardian, corporations qualified to accept and execute trusts in this state, or a financial institution as defined by Section 2 of the Illinois Banking Act.

(d-5) A private professional guardian may only be appointed as guardian if, in addition to meeting the requirements of subsections (a), (b) or (c), that guardian complies with the following standards:

(1) A private professional guardian shall not:

(A) have any direct or indirect beneficial interest, financial or otherwise, in entities or corporations that transact business with the estate or receive benefits, including referral fees, from persons, entities or corporations that transact business with the estate or on behalf of the person under its guardianship;

(B) own, acquire, or possess any pecuniary interest adverse to the persons or estates under its guardianship; or

(C) on behalf of a person with a disability under its guardianship, directly or indirectly, purchase, rent, lease or sell any property or service from or to any business entity in which the private professional guardian, their spouse, immediate family or household member is an owner, officer, partner, director, shareholder, or retains a financial interest.

(2) The president, director, or other corporate officer of a not-for-profit corporation qualified to act as guardian in accordance with subsection (b) must be named in the order appointing that private professional guardian as guardian of a person with a disability.

(d-10) In addition to meeting the requirements of subsection (d-5), a private professional guardian who serves as guardian for 15 or more persons with disabilities must be certified as a National Master Guardian by the Center for Guardianship Certification and shall:

(1) Use sound fiscal controls and policies in managing the estates under its guardianship and shall arrange for an independent audit, by a qualified examiner, of its financial records on an annual basis. This report shall be made available to any court presiding over any persons with disabilities for whom the private professional guardian serves as guardian.

(2) Maintain a current fee schedule that sets forth information about its hourly rate, costs for its most common and anticipated services such as case management, social work, property management, and such other services as may be appropriate. The fee schedule shall also include the anticipated hourly cost for legal services for the private professional guardian and the annual rate of compensation of its owners, president, directors, and corporate officers. The fee schedule shall be provided to the court prior to the appointment of the private professional guardian as guardian of a person with a disability.

(3) Upon presentation of its initial inventory, and with every annual account thereafter, file a budget with the court that outlines the annual anticipated estate expenses that also includes a statement estimating the length of time the estate of the person with a disability can afford the services of the private professional guardian before the estate is depleted.

(4) If a private professional guardian estimates, in accordance with paragraph (3) of subsection (d10), that the estate of the person with a disability can afford the services of the private professional guardian for 5 years or less before the estate is depleted and the person with a disability is living in their home, then the private professional guardian shall forgo or delay the collection of court awarded fees until the person with a disability is clinically unable to remain in their home or until it is not financially feasible, for reasons other than the collection of court awarded fees, for the person with a disability to remain in their home.

(5) Ensure that any employees of the private professional guardian who are responsible for exercising the guardian's powers and duties as guardian of a person with disability are certified as National Certified Guardians by the Center for Guardianship Certification.

(d-15) The court shall not appoint a private professional guardian as temporary, limited or plenary guardian of a person with a disability until all officers, directors, and employees of the private professional guardian who are responsible for exercising the guardian's powers and duties as guardian of a person with a disability submit the results of their Illinois State Police background checks, which shall include state criminal history, national criminal history and Children Abuse and Neglect Tracking System to the Chief Judge of the Judicial Circuit in which the private professional guardian wishes to be appointed. The private professional guardian shall pay any fees and costs associated with the background checks.

(Source: P.A. 102-72, eff. 1-1-22.)

(755 ILCS 5/11a-15) (from Ch. 110 1/2, par. 11a-15)

Sec. 11a-15. Successor guardian.)

(a) Upon the death, incapacity, resignation, or removal of a guardian of the estate or person of a living ward, the court shall appoint a successor guardian or terminate the adjudication of disability. The powers and duties of the successor guardian shall be the same as those of the predecessor guardian unless otherwise modified.

(b)Notice of the time and place of the hearing on a petition for the appointment of a successor guardian shall be given not less than 3 days before the hearing for a successor to a temporary guardian and not less than 14 days before the hearing for a successor to a limited or plenary guardian. The notice shall be by mail or in person to the alleged person with a disability, to the proposed successor guardian, and to those persons whose names and addresses are listed in the petition for adjudication of disability and appointment of a guardian under Section 11a-8. The court, upon a finding of good cause, may waive the notice requirement under this subsection Section.

(c) In addition to the notice requirement set forth in subsection (b), a private professional guardian serving as limited or plenary guardian of a person with a disability shall provide the Office of State Guardian or a public guardian with at least 120 days' written notice of its intent to file a petition for the appointment of the Office of State Guardian or public guardian as successor guardian for a person with a disability.

(Source: P.A. 103-740, eff. 1-1-25; revised 11-26-24.)

(755 ILCS 5/23-2) (from Ch. 110 1/2, par. 23-2)

Sec. 23-2. Removal.

(a) On petition of any interested person or on the court's own motion, the court may remove a representative if:

(1) the representative is acting under letters secured by false pretenses;

(2) the representative is adjudged a person subject to involuntary admission under the Mental Health and Developmental Disabilities Code or is adjudged a person with a disability;

(3) the representative is convicted of a felony;

(4) the representative wastes or mismanages the estate;

(5) the representative conducts himself or herself in such a manner as to endanger any co-representative or the surety on the representative's bond;

(6) the representative fails to give sufficient bond or security, counter security or a new bond, after being ordered by the court to do so;

(7) the representative fails to file an inventory or accounting after being ordered by the court to do so;

(8) the representative conceals himself or herself so that process cannot be served upon the representative or notice cannot be given to the representative;

(9) the representative becomes incapable of or unsuitable for the discharge of the representative's duties; or

(10) the representative is a private professional guardian who fails to comply with the requirements of subsections (d-5), (d-10), or (d-15) of Section 11a-5(d-5); or

(11) there is other good cause.

(b) If the representative becomes a nonresident of the United States, the court may remove the representative as such representative.

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