HB5213 95TH GENERAL ASSEMBLY

LRB095 17923 DRJ 44005 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB5213

Introduced , by Rep. David E. Miller

SYNOPSIS AS INTRODUCED:

See Index

Amends the Nursing Home Care Act and the State Mandates Act. Provides that no person may establish or operate a nursing home in Illinois unless and until he or she provides to the Department of Public Health proof of liability insurance coverage in an amount not less than $1,000,000 per occurrence. Requires the Department to deny, suspend, revoke, or refuse to renew a license for failure to maintain liability insurance coverage. Provides that failure to maintain such liability insurance coverage during the term of a facility's license is a Type "A" violation under the Act. Provides that the Director of Public Health may not grant a waiver of a facility's compliance with the requirement to maintain liability insurance coverage. Provides that information concerning a facility's liability insurance coverage is subject to disclosure to the public. Makes other changes with respect to liability insurance coverage. Provides that a licensee shall pay 3 times the actual damages, or $500, whichever is greater (instead of only the actual damages) and costs and attorney's fees to a resident whose rights are violated. Provides that any mandate created by these provisions is exempt from reimbursement by the State.

FISCAL NOTE ACT MAY APPLY

STATE MANDATES ACT MAY REQUIRE REIMBURSEMENT

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 Sections 2-205, 3-103, 3-109, 3-117, 3-119, 3-303.1, 3-304.1, 3-311, and 3-602 and by adding Sections 1-114.7 and 3-202.6 as follows:

(210 ILCS 45/1-114.7 new)

Sec. 1-114.7. Liability insurance. "Liability insurance" means insurance on risks based upon neglect of a resident for which a licensee is or may be responsible.

(210 ILCS 45/2-205) (from Ch. 111 1/2, par. 4152-205)

Sec. 2-205. The following information is subject to disclosure to the public from the Department or the Department of Healthcare and Family Services:

(1) Information submitted under Sections 3-103 (including a facility's proof of liability insurance coverage) and 3-207 except information concerning the remuneration of personnel licensed, registered, or certified by the Department of Professional Regulation and monthly charges for an individual private resident;

(2) Records of license and certification inspections, surveys, and evaluations of facilities, other reports of inspections, surveys, and evaluations of resident care, and reports concerning a facility prepared pursuant to Titles XVIII and XIX of the Social Security Act, subject to the provisions of the Social Security Act;

(3) Cost and reimbursement reports submitted by a facility under Section 3-208, reports of audits of facilities, and other public records concerning costs incurred by, revenues received by, and reimbursement of facilities; and

(4) Complaints filed against a facility and complaint investigation reports, except that a complaint or complaint investigation report shall not be disclosed to a person other than the complainant or complainant's representative before it is disclosed to a facility under Section 3-702, and, further, except that a complainant or resident's name shall not be disclosed except under Section 3-702.

The Department shall disclose information under this Section in accordance with provisions for inspection and copying of public records required by the Freedom of Information Act.

However, the disclosure of information described in subsection (1) shall not be restricted by any provision of the Freedom of Information Act.

(Source: P.A. 95-331, eff. 8-21-07.)

(210 ILCS 45/3-103) (from Ch. 111 1/2, par. 4153-103)

Sec. 3-103. The procedure for obtaining a valid license shall be as follows:

(1) Application to operate a facility shall be made to the Department on forms furnished by the Department.

(2) All license applications shall be accompanied with an application fee. The fee for an annual license shall be $995. Facilities that pay a fee or assessment pursuant to Article V-C of the Illinois Public Aid Code shall be exempt from the license fee imposed under this item (2). The fee for a 2-year license shall be double the fee for the annual license set forth in the preceding sentence. The fees collected shall be deposited with the State Treasurer into the Long Term Care Monitor/Receiver Fund, which has been created as a special fund in the State treasury. This special fund is to be used by the Department for expenses related to the appointment of monitors and receivers as contained in Sections 3-501 through 3-517 of this Act and for implementation of the Abuse Prevention Review Team Act. At the end of each fiscal year, any funds in excess of $1,000,000 held in the Long Term Care Monitor/Receiver Fund shall be deposited in the State's General Revenue Fund. The application shall be under oath and the submission of false or misleading information shall be a Class A misdemeanor. The application shall contain the following information:

(a) The name and address of the applicant if an individual, and if a firm, partnership, or association, of every member thereof, and in the case of a corporation, the name and address thereof and of its officers and its registered agent, and in the case of a unit of local government, the name and address of its chief executive officer;

(b) The name and location of the facility for which a license is sought;

(c) The name of the person or persons under whose management or supervision the facility will be conducted;

(d) The number and type of residents for which maintenance, personal care, or nursing is to be provided; and

(e) Such information relating to the number, experience, and training of the employees of the facility, any management agreements for the operation of the facility, and of the moral character of the applicant and employees as the Department may deem necessary.

(3) Each initial application shall be accompanied by a financial statement setting forth the financial condition of the applicant, including proof of liability insurance coverage as required by this Act, and by a statement from the unit of local government having zoning jurisdiction over the facility's location stating that the location of the facility is not in violation of a zoning ordinance. An initial application for a new facility shall be accompanied by a permit as required by the "Illinois Health Facilities Planning Act". After the application is approved, the applicant shall advise the Department every 6 months of any changes in the information originally provided in the application.

(4) Other information necessary to determine the identity and qualifications of an applicant to operate a facility in accordance with this Act shall be included in the application as required by the Department in regulations.

(Source: P.A. 93-32, eff. 7-1-03; 93-841, eff. 7-30-04; 94-931, eff. 6-26-06.)

(210 ILCS 45/3-109) (from Ch. 111 1/2, par. 4153-109)

Sec. 3-109. Upon receipt and review of an application for a license made under this Article and inspection of the applicant facility under this Article, the Director shall issue a license if he finds:

(1) that the individual applicant, or the corporation, partnership or other entity if the applicant is not an individual, is a person responsible and suitable to operate or to direct or participate in the operation of a facility by virtue of financial capacity, appropriate business or professional experience, a record of compliance with lawful orders of the Department and lack of revocation of a license during the previous 5 years;

(2) that the facility is under the supervision of an administrator who is licensed, if required, under the Nursing Home Administrators Licensing and Disciplinary Act, as now or hereafter amended; and

(3) that the facility is covered by liability insurance as required by this Act; and

(4) (3) that the facility is in substantial compliance with this Act, and such other requirements for a license as the Department by rule may establish under this Act.

(Source: P.A. 95-331, eff. 8-21-07.)

(210 ILCS 45/3-117) (from Ch. 111 1/2, par. 4153-117)

Sec. 3-117. Grounds for denial of license.

(a) An application for a license may be denied for any of the following reasons:

(1) Failure to meet any of the minimum standards set forth by this Act or by rules and regulations promulgated by the Department under this Act.

(2) Conviction of the applicant, or if the applicant is a firm, partnership or association, of any of its members, or if a corporation, the conviction of the corporation or any of its officers or stockholders, or of the person designated to manage or supervise the facility, of a felony, or of 2 or more misdemeanors involving moral turpitude, during the previous 5 years as shown by a certified copy of the record of the court of conviction.

(3) Personnel insufficient in number or unqualified by training or experience to properly care for the proposed number and type of residents.

(4) Insufficient financial or other resources to operate and conduct the facility in accordance with standards promulgated by the Department under this Act.

(5) Revocation of a facility license during the previous 5 years, if such prior license was issued to the individual applicant, a controlling owner or controlling combination of owners of the applicant; or any affiliate of the individual applicant or controlling owner of the applicant and such individual applicant, controlling owner of the applicant or affiliate of the applicant was a controlling owner of the prior license; provided, however, that the denial of an application for a license pursuant to this subsection must be supported by evidence that such prior revocation renders the applicant unqualified or incapable of meeting or maintaining a facility in accordance with the standards and rules promulgated by the Department under this Act.

(6) That the facility is not under the direct supervision of a full-time administrator, as defined by regulation, who is licensed, if required, under the Nursing Home Administrators Licensing and Disciplinary Act.

(b) An application for a license shall be denied for failure to maintain liability insurance as required by this Act.

(Source: P.A. 95-331, eff. 8-21-07.)

(210 ILCS 45/3-119) (from Ch. 111 1/2, par. 4153-119)

Sec. 3-119. Suspension or revocation of license; refusal to renew license.

(a) The Department, after notice to the applicant or licensee, may suspend, revoke or refuse to renew a license in any case in which the Department finds any of the following:

(1) There has been a substantial failure to comply with this Act or the rules and regulations promulgated by the Department under this Act.

(2) Conviction of the licensee, or of the person designated to manage or supervise the facility, of a felony, or of 2 or more misdemeanors involving moral turpitude, during the previous 5 years as shown by a certified copy of the record of the court of conviction.

(3) Personnel is insufficient in number or unqualified by training or experience to properly care for the number and type of residents served by the facility.

(4) Financial or other resources are insufficient to conduct and operate the facility in accordance with standards promulgated by the Department under this Act.

(5) The facility is not under the direct supervision of a full-time administrator, as defined by regulation, who is licensed, if required, under the Nursing Home Administrators Licensing and Disciplinary Act.

(a-5) The Department, after notice to the applicant or licensee, shall suspend, revoke, or refuse to renew a license in any case in which the Department finds that a facility has failed to maintain liability insurance coverage as required by this Act at any time during the term of its license.

(b) Notice under this Section shall include a clear and concise statement of the violations on which the nonrenewal or revocation is based, the statute or rule violated and notice of the opportunity for a hearing under Section 3-703.

(c) If a facility desires to contest the nonrenewal or revocation of a license, the facility shall, within 10 days after receipt of notice under subsection (b) of this Section, notify the Department in writing of its request for a hearing under Section 3-703. Upon receipt of the request the Department shall send notice to the facility and hold a hearing as provided under Section 3-703.

(d) The effective date of nonrenewal or revocation of a license by the Department shall be any of the following:

(1) Until otherwise ordered by the circuit court, revocation is effective on the date set by the Department in the notice of revocation, or upon final action after hearing under Section 3-703, whichever is later.

(2) Until otherwise ordered by the circuit court, nonrenewal is effective on the date of expiration of any existing license, or upon final action after hearing under Section 3-703, whichever is later; however, a license shall not be deemed to have expired if the Department fails to timely respond to a timely request for renewal under this Act or for a hearing to contest nonrenewal under paragraph (c).

(3) The Department may extend the effective date of license revocation or expiration in any case in order to permit orderly removal and relocation of residents.

The Department may refuse to issue or may suspend the license of any person who fails to file a return, or to pay the tax, penalty or interest shown in a filed return, or to pay any final assessment of tax, penalty or interest, as required by any tax Act administered by the Illinois Department of Revenue, until such time as the requirements of any such tax Act are satisfied.

(Source: P.A. 95-331, eff. 8-21-07.)

(210 ILCS 45/3-202.6 new)

Sec. 3-202.6. Liability insurance coverage required. No person may establish, operate, maintain, offer, or advertise a facility within this State unless and until he or she provides to the Department of Public Health proof of liability insurance coverage in an amount not less than $1,000,000 per occurrence. Failure to maintain such liability insurance coverage during the term of a facility's license is a Type "A" violation under this Act.

(210 ILCS 45/3-303.1) (from Ch. 111 1/2, par. 4153-303.1)

Sec. 3-303.1. Upon application by a facility, except as otherwise provided in this Section, the Director may grant or renew the waiver of the facility's compliance with a rule or standard for a period not to exceed the duration of the current license or, in the case of an application for license renewal, the duration of the renewal period. The waiver may be conditioned upon the facility taking action prescribed by the Director as a measure equivalent to compliance. In determining whether to grant or renew a waiver, the Director shall consider the duration and basis for any current waiver with respect to the same rule or standard and the validity and effect upon patient health and safety of extending it on the same basis, the effect upon the health and safety of residents, the quality of resident care, the facility's history of compliance with the rules and standards of this Act and the facility's attempts to comply with the particular rule or standard in question. The Department may provide, by rule, for the automatic renewal of waivers concerning physical plant requirements upon the renewal of a license. The Department shall renew waivers relating to physical plant standards issued pursuant to this Section at the time of the indicated reviews, unless it can show why such waivers should not be extended for the following reasons:

(a) the condition of the physical plant has deteriorated or its use substantially changed so that the basis upon which the waiver was issued is materially different; or

(b) the facility is renovated or substantially remodeled in such a way as to permit compliance with the applicable rules and standards without substantial increase in cost.

A copy of each waiver application and each waiver granted or renewed shall be on file with the Department and available for public inspection. The Director shall annually review such file and recommend to the Long Term Care Facility Advisory Board any modification in rules or standards suggested by the number and nature of waivers requested and granted and the difficulties faced in compliance by similarly situated facilities.

Under no circumstances may the Director grant a waiver of a facility's compliance with the requirement to maintain liability insurance coverage as provided by this Act.

(Source: P.A. 85-1216.)

(210 ILCS 45/3-304.1)

Sec. 3-304.1. Public computer access to information.

(a) The Department must make information regarding nursing homes in the State available to the public in electronic form on the World Wide Web, including all of the following information:

(1) who regulates nursing homes;

(2) information in the possession of the Department that is listed in Sections 3-210 and 3-304;

(2.5) information concerning proof of liability insurance coverage, including the name of the insurance carrier and applicable limitations of liability;

(3) deficiencies and plans of correction;

(4) enforcement remedies;

(5) penalty letters;

(6) designation of penalty monies;

(7) the U.S. Department of Health and Human Services' Health Care Financing Administration special projects or federally required inspections;

(8) advisory standards;

(9) deficiency-free surveys; and

(10) enforcement actions and enforcement summaries.

(b) No fee or other charge may be imposed by the Department as a condition of accessing the information.

(c) The electronic public access provided through the World Wide Web shall be in addition to any other electronic or print distribution of the information.

(d) The information shall be made available as provided in this Section in the shortest practicable time after it is publicly available in any other form.

(Source: P.A. 91-290, eff. 1-1-00.)

(210 ILCS 45/3-311) (from Ch. 111 1/2, par. 4153-311)

Sec. 3-311. In addition to the right to assess penalties under this Act, the Director may issue a conditional license under Section 3-305 to any facility if the Director finds that either a Type "A" or Type "B" violation exists in such facility, except that the Director may not issue such a conditional license unless and until the facility is covered by liability insurance as required by this Act. The issuance of a conditional license shall revoke any license held by the facility.

(Source: P.A. 85-1378.)

(210 ILCS 45/3-602) (from Ch. 111 1/2, par. 4153-602)

Sec. 3-602. The licensee shall pay 3 times the actual damages, or $500, whichever is greater, and costs and attorney's fees to a facility resident whose rights, as specified in Part 1 of Article II of this Act, are violated.

(Source: P.A. 89-197, eff. 7-21-95.)

Section 90. The State Mandates Act is amended by adding Section 8.32 as follows:

(30 ILCS 805/8.32 new)

Sec. 8.32. Exempt mandate. Notwithstanding Sections 6 and 8 of this Act, no reimbursement by the State is required for the implementation of any mandate created by this amendatory Act of the 95th General Assembly.