Full Text of SB3559 103rd General Assembly
SB3559sam001 103RD GENERAL ASSEMBLY | Sen. Lakesia Collins Filed: 4/5/2024 | | 10300SB3559sam001 | | LRB103 38350 CES 71941 a |
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| 1 | | AMENDMENT TO SENATE BILL 3559
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 3559 by replacing | 3 | | everything after the enacting clause with the following: | 4 | | "Section 5. The Nursing Home Care Act is amended by | 5 | | changing Section 3-810 as follows: | 6 | | (210 ILCS 45/3-810) | 7 | | Sec. 3-810. Whistleblower protection. | 8 | | (a) In this Section, "retaliatory action" means (1) the | 9 | | reprimand, discharge, suspension, demotion, denial of | 10 | | promotion or transfer, or change in the terms and conditions | 11 | | of employment of any employee of a facility that is taken in | 12 | | retaliation for the employee's involvement in a protected | 13 | | activity as set forth in paragraphs (1) through (3) of | 14 | | subsection (b) ; or (2) reduced access to services, neglect, | 15 | | selective restrictions, adverse actions that interfere with | 16 | | the resident's quality of life at the facility, or threats of |
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| 1 | | such actions that are taken in retaliation for any resident's | 2 | | involvement in a protected activity as set forth in paragraph | 3 | | (1) through (8) of subsection (b-5) . | 4 | | (b) A facility shall not take any retaliatory action | 5 | | against an employee of the facility, including a nursing home | 6 | | administrator, because the employee does any of the following: | 7 | | (1) Discloses or threatens to disclose to a supervisor | 8 | | or to a public body an activity, inaction, policy, or | 9 | | practice implemented by a facility that the employee | 10 | | reasonably believes is in violation of a law, rule, or | 11 | | regulation. | 12 | | (2) Provides information to or testifies before any | 13 | | public body conducting an investigation, hearing, or | 14 | | inquiry into any violation of a law, rule, or regulation | 15 | | by a nursing home administrator. | 16 | | (3) Assists or participates in a proceeding to enforce | 17 | | the provisions of this Act. | 18 | | (b-5) A facility shall not take any retaliatory action | 19 | | against a resident of the facility because the resident does | 20 | | any of the following: | 21 | | (1) complains, discloses, or threatens to disclose to | 22 | | a supervisor, a public body, including, but not limited | 23 | | to, the Office of the State Long Term Care Ombudsman, or | 24 | | any other person, an activity, inaction, policy, or | 25 | | practice implemented by a facility that the resident | 26 | | reasonably believes is in violation of a law, rule, or |
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| 1 | | regulation or that the resident believes to be | 2 | | problematic; | 3 | | (2) provides information to or testifies before any | 4 | | public body conducting an investigation, hearing, or | 5 | | inquiry into any violation of a law, rule, or regulation | 6 | | by a nursing home administrator; | 7 | | (3) assists or participates in a proceeding to enforce | 8 | | the provisions of this Act, including a grievance | 9 | | procedure under Section 2-112; | 10 | | (4) seeks assistance for the resident or others to | 11 | | transition to independent living or another setting | 12 | | outside of the resident's current nursing home; | 13 | | (5) makes a request of the facility related to the | 14 | | resident's care; | 15 | | (6) becomes a member of a resident council described | 16 | | in Section 2-203, resident union, or similar organization; | 17 | | (7) engages in protected activity under Section 3-608; | 18 | | or | 19 | | (8) takes any other good faith action in support of | 20 | | any other right or remedy provided by law. | 21 | | (c) A violation of this Section may be established only | 22 | | upon a finding that (i) the employee of the facility engaged in | 23 | | conduct described in subsection (b) of this Section and this | 24 | | conduct was a contributing factor in the retaliatory action | 25 | | alleged by the employee; or and (ii) the resident of the | 26 | | facility engaged in conduct described in subsection (b-5) of |
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| 1 | | this Section and this conduct was a contributing factor in the | 2 | | retaliatory action alleged by the resident. A resident or | 3 | | employee may allege retaliation as a prima facie case of | 4 | | retaliation, which can be overcome by the facility, within one | 5 | | year after a resident or employee engages in conduct described | 6 | | in subsections (b) or (b-5) this conduct was a contributing | 7 | | factor in the retaliatory action alleged by the employee . | 8 | | There is no violation of this Section, however, if the | 9 | | facility demonstrates by clear and convincing evidence that it | 10 | | would have taken the same unfavorable personnel action in the | 11 | | absence of that conduct. | 12 | | (d) The employee of the facility may be awarded all | 13 | | remedies necessary to make the employee whole and to prevent | 14 | | future violations of this Section. Remedies imposed by the | 15 | | court may include, but are not limited to, all of the | 16 | | following: | 17 | | (1) Reinstatement of the employee to either the same | 18 | | position held before the retaliatory action or to an | 19 | | equivalent position. | 20 | | (2) Two times the amount of back pay. | 21 | | (3) Interest on the back pay. | 22 | | (4) Reinstatement of full fringe benefits and | 23 | | seniority rights. | 24 | | (5) Payment of reasonable costs and attorney's fees. | 25 | | (d-5) For each distinct act of retaliation, the resident | 26 | | of the facility may be awarded all remedies necessary to make |
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| 1 | | the resident whole and prevent future violations of this | 2 | | Section. Remedies imposed by the court or other administrative | 3 | | body with appropriate jurisdiction may include, but are not | 4 | | limited to, the following: | 5 | | (1) injunctive relief; | 6 | | (2) a minimum of 2 times the average monthly billing | 7 | | rate for Medicaid recipients in facilities, as calculated | 8 | | annually by the Director of Healthcare and Family | 9 | | Services, or the Director's designee; and | 10 | | (3) payment of reasonable costs and attorney's fees. | 11 | | (d-6) Monetary damages in excess of the minimum amount in | 12 | | subparagraph (2) of subsection (d-5) of this Section must be | 13 | | established by competent third party evidence. | 14 | | (d-10) A claim of retaliation under this Act may be filed | 15 | | in any court of competent jurisdiction, any administrative | 16 | | hearing process conducted by the State and its agencies, or | 17 | | departments with jurisdiction to hear complaints by employees | 18 | | or residents against nursing homes, but the same affirmative | 19 | | claim may not be pending in 2 separate forums simultaneously. | 20 | | Affirmative defenses based on claims of retaliation under this | 21 | | Act may be permissively joined with an affirmative claim or | 22 | | may be pending separately at the election of the resident or | 23 | | employee. If a claim of retaliation under this Section is | 24 | | brought in a judicial forum and if that claim is resolved | 25 | | through settlement or final dispensation in favor of the | 26 | | plaintiff or defendant, the employee or resident is prohibited |
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| 1 | | from subsequently filing the same claim in an administrative | 2 | | forum. | 3 | | (e) Nothing in this Section shall be deemed to diminish | 4 | | the rights, privileges, or remedies of an employee of a | 5 | | facility under any other federal or State law, rule, or | 6 | | regulation or under any employment contract. | 7 | | (Source: P.A. 96-1372, eff. 7-29-10.)". |
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