HB1885 95TH GENERAL ASSEMBLY

LRB095 08479 DRJ 31078 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB1885

Introduced 2/23/2007, by Rep. Michael P. McAuliffe

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 105/5.675 new

Creates the Retail Health Care Facility Permit Act and amends the State Finance Act. Defines "retail health care facility" as any institution, place, or building, or any portion thereof, devoted to the maintenance and operation of facilities for the performance of health care services and located within a retail store or pharmacy; requires a permit for the operation of such a facility, issued by the Department of Public Health, and sets forth requirements for obtaining a permit. Sets forth operating requirements for a retail health care facility. Provides for denial, suspension, revocation, or nonrenewal of a permit for certain reasons. Provides for monetary penalties for violations of the Act. Restricts advertising by a retail health care facility. Creates the Retail Health Care Facility Permit Fund, to be used by the Department in administering the Act. Effective July 1, 2007.

CORRECTIONAL BUDGET AND IMPACT NOTE ACT MAY APPLY

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 1. Short title. This Act may be cited as the Retail Health Care Facility Permit Act.

Section 5. Legislative purpose. It is declared to be the public policy that the State has a legitimate interest in assuring that health care services are performed under circumstances that ensure maximum safety. Therefore, the purpose of this Act is to provide for the better protection of the public health through the development, establishment, and enforcement of standards (i) for the care of individuals in retail health care facilities and (ii) for the construction, maintenance, and operation of retail health care facilities, which, in light of advancing knowledge, will promote safe and adequate treatment of individuals in retail health care facilities.

Section 10. Definitions. In this Act:

"Department" means the Illinois Department of Public Health or other health authority designated as its agent.

"Director" means the Director of Public Health or his or her designee.

"Operator" means the person designated by a permit holder to operate the facility.

"Retail health care facility" or "facility" means any institution, place, or building, or any portion thereof, devoted to the maintenance and operation of facilities for the performance of health care services and located within a retail store or pharmacy. The facility may not provide surgical services or any form of general anesthesia. Such facility shall not provide beds or other accommodations for either long term or overnight stay of patients, and individual patients shall be discharged in an ambulatory condition without danger to the continued well-being of the patients or shall be transferred to a hospital. Hospitals, long term care facilities, ambulatory treatment centers, blood banks, clinical laboratories, and offices of physicians, advanced practices nurses, and physician assistants as well as pharmacies that provide pharmaceutical services, are not to be construed to be retail health care facilities.

Section 15. Permit; fees; application.

(a) A permit issued by the Department shall be required prior to the operation of any facility. The owner of the facility shall file an application for a permit with the Department on a form prescribed by the Department that shall include at least the following information:

(1) Applicant's (owner) name, address, telephone number.

(2) Name of the facility, address telephone number.

(3) Nature of services to be provided at the facility.

(4) Primary function of the business in which the facility is located.

(5) Operating procedures to be used in the facility.

(b) A fee of $2,500 shall be submitted with the application to the Department.

(c) If the owner owns or operates more than one facility, the owner shall file a separate application for each facility owned or operated.

(d) Within 90 days after receipt of an application, the Department's personnel shall complete the initial inspection of the premises of the facility and ensure that the premises and the facilities are or will be operated in accordance with this Act.

(e) Upon submission of the application and the required fee, and if the initial inspection of the premises indicates that the premises and the facilities are or will be operated in accordance with this Act, the Department shall issue a permit to the owner.

(f) The permit issued by the Department shall be effective for one year following the date of issuance. The Department may stagger permit renewal dates on a quarterly basis with an initial permit being effective from 9 months to 15 months. The permit is valid only for the location and owner stated on the permit and is not transferable.

(g) The permit shall be displayed in a place within sight of the public when entering the premises of the facility.

(h) In the event of a change of ownership, the new owner must apply for a permit to own and operate a facility prior to taking possession of the property. A provisional permit may be issued by the Department until an initial inspection for a permit can be performed by the Department.

Section 20. Permit renewal procedures; inspections.

(a) All permits issued by the Department under this Act shall expire on a specified date and may be renewed by submitting to the Department, at least 30 days before the expiration date, a permit renewal application and the annual renewal fee of $1,250.

(b) The Department may refuse to renew the permit of any owner who has been found to be in violation of this Act for the safe operation of facilities.

(c) Each facility shall be inspected at least once each year after the initial year in which the facility was granted a permit.

Section 25. Requirements for a permit.

(a) All retail health care facilities shall have policies that ensure the following:

(1) All health care services provided must be in accordance with a limited scope of services as determined by the facilities' medical director and approved by the Department.

(2) No health care services may be provided unless a physician licensed to practice medicine in all its branches, an advanced practice nurse, or a physician assistant is on the premises at the time the services are provided.

(3) All health care services provided by an advanced practice nurse (APN) shall be in accordance with the APN's collaborative agreement with a physician as required by Section 25 of the Nursing and Advanced Practice Nursing Act. A copy of the collaborative agreement shall be maintained at the facility. No physician may collaborate with more than 2 advanced practice nurses practicing in retail health care facilities. All health care services provided by a physician assistant (PA) shall be in accordance with the written guidelines established by the supervising physician or physician/physician assistant team as required by Section 4 of the Physician Assistant Practice Act of 1987. A copy of the written guidelines shall be maintained at the facility.

(4) The facility must have a medical director who is a physician licensed to practice medicine in all its branches with active medical staff privileges to admit patients to a local licensed hospital. A physician may be a medical director of no more than 2 facilities.

(5) The facility must have a referral system to physician practices or other health care entities appropriate to the patient's symptoms outside the limited scope of services provided by the facility.

(6) Collaboration of APNs or supervision of PAs shall not be construed to necessarily require the presence of a collaborating or supervising physician as long as methods of communication are available for consultation with the physician in person or by telecommunications in accordance with written protocols.

(7) The facility shall maintain medical records for all patients for the period required of a licensed hospital under the Hospital Licensing Act.

(8) The facility shall provide notification of any patient visits and outcomes to the patient's designated physician.

(9) Patients must be provided the opportunity to purchase any medications, fill any prescriptions, or seek any services from any provider not affiliated with the facility or the store or pharmacy in which it is located.

(b) All facility policies must meet the requirements of this Act and the rules adopted under this Act.

Section 30. Standards for issuance of permit. The Director shall issue a permit under this Act only if he or she finds that the applicant complies with this Act and the rules and regulations adopted pursuant thereto and (i) is under the medical direction of one or more physicians and (ii) permits only a limited scope of covered services.

Section 35. Operating requirements. Each facility shall have on hand at all times an operator adequately trained in the correct operation of the facility. The facility shall comply with the requirements of Section 25 of this Act and the following:

(1) The facility must be operated by a physician licensed to practice medicine in all its branches, an advanced practice nurse, or physician assistant.

(2) Every personnel member shall wear on his or her person a clearly visible identification indicating his or her professional licensure status while acting in the course of his or her duties. The facility must clearly display a notice informing potential patients when a physician is not on the premises.

(3) The facility shall establish appropriate sanitation and hygienic protocols and facilities, including but not limited to refrigeration, hazardous waste disposal, separate restrooms, and handwashing stations with running hot water, as determined by rule.

(4) The facility shall operate under written protocols approved by the medical director and the advanced practice nurses or the physician assistants providing services at the facility.

Section 40. Department standards; rules; regulations. The Department shall issues rules and regulations deemed necessary for the proper regulation of retail health care facilities. At a minimum, the rules and regulations shall include, but need not be limited to:

(1) Construction of the facility, including, but not limited to, plumbing, heating, lighting, and ventilation that will ensure the health, safety, comfort, and privacy of patients and protection from fire hazards.

(2) Number and qualifications of all personnel, including administrative and nursing personnel, having responsibility for any part of the care provided to the patients.

(3) Equipment essential to the health, welfare, and safety of the patients.

(4) Facilities, programs, and services to be provided in connection with the care of patients in the facility.

Section 45. Denial, suspension, revocation, or nonrenewal of permits. A permit may be denied, suspended, or revoked, or the renewal of a permit may be denied, for any of the following reasons:

(1) Violation of any of the provisions of this Act or the rules and regulations adopted by the Department hereunder.

(2) Conviction of an applicant or permit holder of an offense arising from false, fraudulent, deceptive, or misleading advertising. The record of conviction or a certified copy shall be conclusive evidence of the conviction.

(3) Revocation of a permit during the previous 5 years, or surrender or expiration of a permit during the pendency of an action by the Department to revoke or suspend a permit during the previous 5 years. A controlling owner or controlling combination of owners of the applicant; or any affiliate of the individual applicant or controlling owner of the applicant or affiliate of the applicant was a controlling owner of the prior permit.

Section 50. Administration; enforcement.

(a) The Department may establish a training program for the Department's agents for administration and enforcement of this Act.

(b) In the administration and enforcement of this Act, the Department may designate and use full-time municipal, district, county, or multi-county health departments as its agents in the administration and enforcement of this Act and the rules adopted under this Act.

Section 55. Investigation; hearing; notice. The Department may investigate an applicant or permit holder upon its own motion, and shall investigate an applicant or permit holder upon the verified complaint in writing of any person setting forth facts that if proven would constitute grounds for the denial of an application for a permit, or refusal to renew a permit, or revocation of a permit, or suspension of a permit. The Department, after notice and opportunity for hearing, may deny any application for, or suspend or revoke, a permit or may refuse to renew a permit. Before denying an application, or refusing to renew a permit or suspending or revoking a permit, the Department shall notify the applicant in writing. The notice shall specify the reasons for the Department's contemplated action. The applicant or permit holder must request a hearing within 10 days after receipt of the notice. Failure to request a hearing within 10 days shall constitute a waiver of the right to a hearing.

Section 60. Conduct of hearing.

(a) The hearing shall be conducted by the Director or by an individual designated in writing by the Director as a hearing officer. The Director or hearing officer may compel by subpoena or subpoena duces tecum the attendance and testimony of witnesses and the production of books and papers and may administer oaths to witnesses. The hearing shall be conducted at a place designated by the Department. The procedures governing hearings and the issuance of final orders under this Act shall be in accordance with rules adopted by the Department.

(b) All subpoenas issued by the Director or hearing officer may be served as provided for in civil actions. The fees of witnesses for attendance and travel shall be the same as the fees for witnesses before the circuit court and shall be paid by the party to the proceeding at whose request the subpoena is issued. If a subpoena is issued at the request of the Department, the witness fee shall be paid as an administrative expense.

(c) In cases of refusal of a witness to attend or testify, or to produce books or papers, concerning any matter upon which he or she might be lawfully examined, the circuit court of the county in which the hearing is held, upon application of any party to the proceeding, may compel obedience by proceeding as for contempt as in cases of a like refusal to obey a similar order of the court.

Section 65. Findings of fact; conclusions of law; decision. The Director or hearing officer shall make findings of fact and conclusions of law following the hearing, and the Director shall render his or her decision, or the hearing officer his or her proposal for decision, within 45 days after the termination of the hearing unless additional time is required by the Director or hearing officer for a proper disposition of the matter. A copy of the final decision of the Director shall be served upon the applicant or permit holder in person or by certified mail.

Section 70. Surrender of permit. Upon the revocation of a permit, a permit holder shall be required to surrender the permit to the Department, and upon his failure or refusal to do so, the Department shall have the right to seize the same.

Section 75. Review under Administrative Review law; venue; costs. All final administrative decisions of the Department under this Act shall be subject to judicial review under the provisions of Article III of the Code of Civil Procedure. The term "administrative decision" is defined as under 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 review resides; provided, that 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 or file any answer or otherwise appear in any proceeding for judicial review unless the party filing the complaint deposits with the clerk of the court the sum of $0.95 per page, representing the costs of certification of the record or file. Failure on the part of the plaintiff to make the deposit shall be grounds for dismissal of the action.

Section 80. Administrative Procedure Act; application. The provisions of the Illinois Administrative Procedure Act are hereby expressly adopted and shall apply to all administrative rules and procedures of the Department under this Act, except that in the case of a conflict between the Illinois Administrative Procedure Act and this Act, the provisions of this Act shall control, and except that Section 5 of the Illinois Administrative Procedure Act relating to procedures for rulemaking does not apply to the adoption of any rules required by federal law in connection with which the Department is precluded by law from exercising any discretion.

Section 85. Penalties. The Department may establish and assess civil monetary penalties against a permit holder for violations of this Act or regulations adopted under this Act. In no circumstance may any such penalty exceed $1,000 per day for each day the permit holder remains in violation.

Section 90. Public nuisance.

(a) Any facility operating without a valid permit or operating on a revoked permit is guilty of committing a public nuisance.

(b) A person convicted of knowingly maintaining a public nuisance under this Section commits a Class A misdemeanor. Each subsequent offense under this Section is a Class 4 felony.

(c) The Attorney General of this State or the State's Attorney of the county in which the nuisance exists may commence an action to abate the nuisance. The court, without notice or bond, may enter a temporary restraining order or a preliminary injunction to enjoin the defendant from operating in violation of this Act.

Section 95. Advertising.

(a) Any facility may advertise the availability of professional services in the public media or on the premises where such professional services are rendered. Such advertising shall be limited to the following information:

(1) Publication of the facility's name, office hours, address, and telephone number.

(2) Information pertaining to the professionals providing services at the facility.

(3) Information on usual and customary fees for routine professional services offered.

(4) Announcement of the opening of, change of, absence from, or return to business.

(5) Announcement of additions to or deletions from professional licensed staff.

(6) The issuance of business or appointment cards.

(b) It is unlawful for any facility licensed under this Act to use testimonials or claims of superior quality of care to entice the public. It is unlawful to advertise fee comparisons of available services with those of other persons licensed under this Act or any other Illinois law.

(c) This Act does not authorize the advertising of professional services that a facility is not licensed to render, nor shall an advertiser use statements that contain false, fraudulent, deceptive, or misleading material or guarantees of success, statements that play upon the vanity or fears of the public, or statements that promote or produce unfair competition.

(d) It is unlawful and punishable under Section 85 for any facility licensed under this Act to knowingly advertise that the facility will accept as payment for services rendered by assignment from any third party payor the amount the third party payor covers as payment in full, if the effect is to give the impression of eliminating the need of payment by the patient of any required deductible or copayment applicable in the patient's health benefit plan.

(e) As used in this Section, "advertise" means solicitation by the permit holder or through another by means of handbills, posters, circulars, motion pictures, radio, newspapers, television, the Internet, or the World Wide Web, or in any other manner.

Section 100. Retail Health Care Facility Permit Fund. There is created in the State Treasury a special fund to be known as the Retail Health Care Facility Permit Fund. All fees and penalties collected by the Department under this Act, and any federal funds collected pursuant to the administration of this Act, shall be deposited into the Fund. The amount deposited shall be appropriated by the General Assembly to the Department for the purpose of conducting activities relating to retail health care facilities under this Act.

Section 190. Severability. The provisions of this Act are severable under Section 1.31 of the Statute on Statutes.

Section 900. The State Finance Act is amended by adding Section 5.675 as follows:

(30 ILCS 105/5.675 new)

Sec. 5.675. The Retail Health Care Facility Permit Fund.

Section 999. Effective date. This Act takes effect July 1, 2007.