Public Act 90-0532
HB0522 Enrolled LRB9000457DPccA
AN ACT creating the Home Medical Equipment and Services
Provider License Act and amending a named Act.
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 the
Home Medical Equipment and Services Provider License Act.
Section 5. Declaration of legislative findings. The
General Assembly finds that home medical equipment and
services providers in the State of Illinois affect the
public health, welfare, and safety, and therefore finds the
regulation and control of those providers to be in the
public interest. It is further declared that, as a matter of
public policy, home medical equipment and services providers
should merit the confidence of the public and, to this end,
that only qualified entities be permitted to hold themselves
out to the public as home medical equipment and services
providers. This Act shall be liberally construed to best
carry out these findings.
Section 10. Definitions. As used in this Act:
(1) "Department" means the Department of
(2) "Director" means the Director of Professional
(3) "Board" means the Home Medical Equipment and
(4) "Home medical equipment and services provider"
or "provider" means a legal entity, as defined by State
law, engaged in the business of providing home medical
equipment and services, whether directly or through a
contractual arrangement, to an unrelated sick or
disabled individual where that individual resides.
(5) "Home medical equipment and services" means the
delivery, installation, maintenance, replacement, or
instruction in the use of medical equipment used by a
sick or disabled individual to allow the individual to be
maintained in his or her residence.
(6) "Home medical equipment" means technologically
sophisticated medical devices, apparatuses, machines, or
other similar articles bearing a label that states
"Caution: federal law requires dispensing by or on the
order of a physician.", which are usable in a home care
setting, including but not limited to:
(A) oxygen and oxygen delivery systems;
(C) respiratory disease management devices,
excluding compressor driven nebulizers;
(D) wheelchair seating systems;
(E) apnea monitors;
(F) transcutaneous electrical nerve stimulator
(G) low air-loss cutaneous pressure management
(H) sequential compression devices;
(I) neonatal home phototherapy devices;
(J) enteral feeding pumps; and
(K) other similar equipment as defined by the
"Home medical equipment" also includes hospital beds and
electronic and computer-driven wheelchairs, excluding
Section 15. Licensure requirement; exempt activities.
(a) No entity shall provide home medical equipment and
services, or use the title "home medical equipment and
services provider" in connection with his or her profession
or business, without a license issued by the Department under
(b) Nothing in this Act shall be construed as preventing
or restricting the practices, services, or activities of the
following, unless those practices, services, or activities
include providing home medical equipment and services through
a separate legal entity:
(1) a person licensed or registered in this State
by any other law engaging in the profession or occupation
for which he or she is licensed or registered;
(2) a home medical services provider entity that is
accredited under home care standards by a recognized
(3) home health agencies that do not have a Part B
Medicare supplier number or that do not engage in the
provision of home medical equipment and services;
(4) hospitals, excluding hospital-owned and
hospital-related providers of home medical equipment and
(5) manufacturers and wholesale distributors of
home medical equipment who do not sell directly to a
(6) health care practitioners who lawfully
prescribe or order home medical equipment and services,
or who use home medical equipment and services to treat
their patients, including but not limited to physicians,
nurses, physical therapists, respiratory therapists,
occupational therapists, speech-language pathologists,
optometrists, chiropractors, and podiatrists;
(7) pharmacists, pharmacies, and home infusion
pharmacies that are not engaged in the sale or rental of
home medical equipment and services;
(8) hospice programs that do not involve the sale
or rental of home medical equipment and services;
(9) nursing homes;
(11) dentists; and
(12) emergency medical service providers.
Section 20. Powers and duties of the Department.
(a) The Department shall exercise the powers and duties
prescribed by the Civil Administrative Code of Illinois for
the administration of licensure Acts and shall exercise other
powers and duties necessary for effectuating the purposes of
(b) The Department may adopt rules to administer and
enforce this Act, including but not limited to fees for
original licensure and renewal and restoration of licenses,
and may prescribe forms to be issued to implement this Act.
At a minimum, the rules adopted by the Department shall
include standards and criteria for licensure and for
professional conduct and discipline. The Department shall
consult with the Board in adopting rules. Notice of proposed
rulemaking shall be transmitted to the Board, and the
Department shall review the Board's response and any
recommendations made in the response. The Department shall
notify the Board in writing with proper explanation of
deviations from the Board's recommendations and response.
(c) The Department may at any time seek the advice and
expert knowledge of the Board on any matter relating to the
administration of this Act.
(d) The Department shall issue a quarterly report to the
Board of the status of all complaints related to the
profession and filed with the Department.
Section 25. Home Medical Equipment and Services Board.
The Director shall appoint a Home Medical Equipment and
Services Board, in consultation with a state association
representing the home medical equipment and services
industry, to serve in an advisory capacity to the Director.
The Board shall consist of 7 members. Four members shall be
home medical equipment and services provider
representatives, 2 of whom represent businesses grossing less
than $500,000 per year in revenues, 2 of whom represent
businesses grossing $500,000 or more per year in revenues,
and at least one of whom shall also be a pharmacy-based
provider. The 3 remaining members shall include one home care
clinical specialist, one respiratory care practitioner, and
one consumer of home medical equipment and services.
Members shall serve 4 year terms and until their
successors are appointed and qualified, except that of the
initial appointments, the consumer member shall be appointed
to serve for one year, 2 members shall be appointed to serve
for 2 years, 3 members shall be appointed to serve for 3
years, and one member who is a home medical equipment and
services provider representative shall be appointed to serve
for 4 years, and until their successors are appointed and
qualified. No member shall be reappointed to the Board for a
term that would cause continuous service on the Board to
exceed 8 years. Appointments to fill vacancies shall be made
in the same manner as original appointments, for the
unexpired portion of the vacated term.
The home medical equipment and services provider
representatives appointed to the Board shall have engaged in
the provision of home medical equipment and services or
related home care services for at least 3 years prior to
their appointment, shall be currently engaged in providing
home medical equipment and services in the State of Illinois,
and must have no record of convictions related to fraud or
abuse under either State or federal law.
The membership of the Board should reasonably reflect
representation from the geographic areas in this State.
The Board shall annually elect one of its members as
chairperson and vice chairperson.
Members of the Board shall receive as compensation a
reasonable sum as determined by the Director for each day
actually engaged in the duties of the office, and shall be
reimbursed for authorized expenses incurred in performing the
duties of the office.
The Director may terminate the appointment of any member
for cause which in the opinion of the Director reasonably
justifies the termination.
Through consultation with members of a state association
for the home medical equipment and services industry, the
Board may recommend to the Department rules that specify the
medical equipment to be included under this Act, that set
standards for the licensure, professional conduct, and
discipline of entities that provide home medical equipment
and services, and that govern the safety and quality of home
medical equipment and services. The Director shall consider
the recommendations of the Board.
Members of the Board shall be immune from suit in an
action based upon any disciplinary proceedings or other
activities performed in good faith as members of the Board.
A majority of Board members currently appointed shall
constitute a quorum. A vacancy in the membership of the Board
shall not impair the rights of a quorum to exercise the
rights and perform all of the duties of the Board.
Section 30. Application for original licensure.
Applications for original licensure shall be made to the
Department in writing and signed by the applicant on forms
prescribed by the Department and shall be accompanied by a
nonrefundable fee set by rule of the Department. The
Department may require from an applicant information that, in
its judgment, will enable the Department to pass on the
qualifications of the applicant for licensure.
An applicant has 3 years from the date of application to
complete the application process. If the process has not
been completed in 3 years, the application shall be denied,
the fee shall be forfeited, and the applicant must reapply
and meet the requirements in effect at the time of
Section 35. Qualifications for licensure.
(a) An entity is qualified to receive a license as a
home medical equipment and services provider if the entity
meets each of the following requirements:
(1) complies with all applicable federal and State
licensure and regulatory requirements;
(2) maintains a physical facility and medical
equipment inventory. There shall only be one license
permitted at each address;
(3) establishes proof of commercial general
liability insurance, including but not limited to
coverage for products liability and professional
(4) establishes and provides records of annual
continuing education for personnel engaged in the
delivery, maintenance, repair, cleaning, inventory
control, and financial management of home medical
equipment and services;
(5) maintains records on all patients to whom it
provides home medical equipment and services;
(6) establishes equipment management and personnel
(7) makes life sustaining home medical equipment
and services available 24 hours per day and 7 days per
(8) complies with any additional qualifications for
licensure as determined by rule of the Department.
(b) The Department may request a personal interview of
an applicant before the Board to further evaluate the
entity's qualifications for licensure.
Section 40. Issuance of license. The Department shall
begin issuing licenses under this Act within 2 years after
the effective date of this Act. The Department shall issue a
license to an applicant who has met the requirements of
Section 35 and has paid the required application fee.
Section 45. Display of license; advertising; penalties.
(a) An entity that advertises home medical equipment and
services shall, at its place of business, display the license
of the entity.
(b) No entity that provides home medical equipment
services may advertise the equipment and services unless that
entity includes in the advertisement the statement "Licensed
in the State of Illinois".
Section 50. License expiration; renewal. The expiration
date, renewal period, renewal fees, and procedures for
renewal of licenses issued under this Act shall be set by
rule of the Department. An entity may renew its license by
paying the required fee and by meeting the renewal
requirements adopted by the Department under this Section.
Section 55. Restoration of expired license. A home
medical equipment and services provider whose license has
expired may have the license restored by making application
to the Department, by paying the required fees, and by filing
proof acceptable to the Department of fitness to have the
license restored as established by rule.
Section 65. Fees; returned checks. An entity who delivers
a check or other payment to the Department that is returned
to the Department unpaid by the financial institution upon
which it is drawn shall pay to the Department, in addition to
the amount already owed to the Department, a fine of $50. If
the check or other payment was for a renewal or issuance fee
and that entity operates without paying the renewal or
issuance fee and the fine due, an additional fine of $100
shall be imposed. The fines imposed by this Section are in
addition to any other discipline provided under this Act for
unlicensed practice or practice on a nonrenewed license. The
Department shall notify the entity that fees and fines shall
be paid to the Department by certified check or money order
within 30 calendar days of the notification. If, after the
expiration of 30 days from the date of the notification, the
entity has failed to submit the necessary remittance, the
Department shall automatically terminate the license or deny
the application without a hearing. If the entity seeks a
license after termination or denial, the entity shall apply
to the Department for restoration or issuance of the license
and pay all fees and fines owed to the Department. The
Department may establish a fee for the processing of an
application for restoration of a license to pay all expenses
of processing that application. The Director may waive the
fines due under this Section in individual cases where the
Director finds that the fines would be unreasonable or
Section 70. Roster of licensees. The Department shall
maintain a roster of the names and addresses of all licensees
and of all entities whose license has been suspended or
revoked within the previous year. This roster shall be
available upon written request and payment of the required
Section 75. Refused issuance, suspension, or revocation
of license. The Department may refuse to issue, renew, or
restore a license, or may revoke, suspend, place on
probation, reprimand, impose a fine not to exceed $1,000 for
each violation, or take other disciplinary action as the
Department may deem proper with regard to a licensee for any
one or combination of the following reasons:
(1) Making a material misstatement in furnishing
information to the Department.
(2) Negligent or intentional disregard of this Act
or its rules.
(3) Conviction of a crime under the laws of the
United States or any state or territory thereof that is a
felony or a misdemeanor, an essential element of which is
dishonesty, or conviction of a crime that is directly
related to the provision of home medical equipment and
(4) Making a misrepresentation to obtain licensure
or to violate a provision of this Act.
(5) Gross negligence in practice under this Act.
(6) Engaging in a pattern of practice or other
behavior that demonstrates incapacity or incompetence to
practice under this Act.
(7) Aiding, assisting, or willingly permitting
another person in violating any provision of this Act or
(8) Failing, within 60 days, to provide information
in response to a written request made by the Department.
(9) Engaging in dishonorable, unethical, or
unprofessional conduct of a character likely to deceive,
defraud, or harm the public.
(10) Discipline by another state, District of
Columbia, territory, or foreign nation, if at least one
of the grounds for the discipline is the same or
substantially equivalent to one set forth in this Act.
(11) Directly or indirectly giving to or receiving
from any person, firm, corporation, partnership, or
association any fee, commission, rebate, or other form of
compensation for any services not actually or personally
(12) A finding that the licensee, after having its
license placed on probationary status, has violated the
terms of probation.
(13) Willfully making or filing false records or
reports in the course of providing home medical equipment
and services, including but not limited to false records
or reports filed with State agencies or departments.
(14) Solicitation of business services, other than
according to permitted advertising.
(15) The use of any words, abbreviations, figures,
or letters with the intention of indicating practice as a
home medical equipment and services provider without a
license issued under this Act.
(16) Failure 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 Department
of Revenue, until such time as the requirements of any
such tax Act are satisfied.
(17) Failure to comply with federal laws and
regulations concerning home medical equipment and
(18) Solicitation of professional services using
false or misleading advertising.
(19) Failure to display a license in accordance
with Section 45.
Section 80. Cease and desist order.
(a) If any entity violates a provision of this Act, the
Director may, in the name of the People of the State of
Illinois, through the Attorney General of the State of
Illinois, petition for an order enjoining the violation or
for an order enforcing compliance with this Act. Upon the
filing of a verified petition in court, the court may issue a
temporary restraining order, without notice or bond, and may
preliminarily and permanently enjoin the violation, and if it
is established that the entity has violated or is violating
the injunction, the court may punish the offender for
contempt of court. Proceedings under this Section shall be
in addition to, and not in lieu of, all other remedies and
penalties provided by this Act.
(b) If an entity holds itself out as a provider of home
medical equipment and services without a license issued under
this Act, an interested party or any person injured thereby,
in addition to the Director, may petition for relief as
provided in subsection (a) of this Section.
(c) Whenever in the opinion of the Department an entity
violates a provision of this Act, the Department may issue a
rule to show cause why an order to cease and desist should
not be entered against the entity. The rule shall clearly
set forth the grounds relied upon by the Department and shall
provide a period of 7 days from the date of the rule to file
an answer to the satisfaction of the Department. Failure to
answer to the satisfaction of the Department shall cause an
order to cease and desist to be issued immediately.
Section 85. Unlicensed practice; civil penalty.
(a) An entity who practices, offers to practice, attempts
to practice, or holds itself out to practice as a home
medical equipment and services provider without being
licensed under this Act shall, in addition to any other
penalty provided by law, pay a civil penalty to the
Department in an amount not to exceed $5,000 for each offense
as determined by the Department. The civil penalty shall be
assessed by the Department after a hearing is held in
accordance with the provisions set forth in this Act
regarding the provision of a hearing for the discipline of a
licensee. The civil penalty shall be paid within 60 days
after the effective date of the order imposing the civil
penalty. The order shall constitute a judgment and may be
filed and executed in the same manner as any judgment from
any court of record.
(b) The Department may investigate any unlicensed
Section 90. Mandatory inspections. The Department shall
inspect a licensee for compliance with the requirements of
this Act within 3 years after the date of initial licensure
and at least once every 3 years thereafter, unless the
licensee can demonstrate proof of renewal of accreditation
with a recognized national accrediting body. The Department
shall conduct random inspections upon renewal of a license,
for cause or as necessary to assure the integrity and
effectiveness of the licensing process. Upon failure to pass
inspection, a provider's license shall be suspended or denied
as applicable, pending review by the Board. The Department
may authorize qualified individuals to conduct inspections.
The Department shall set by rule, and pay to an inspector, a
fee for each inspection. An entity that fails to pass an
inspection is subject to penalties under Section 80. Upon
notice of failure to pass an inspection, a provider shall
have 30 days to appeal the inspection results. On appeal, a
provider shall have the right to an inspection review or to a
new inspection in accordance with procedures adopted by the
Department. A home medical equipment and services provider
licensed within 2 years after the effective date of this Act
is exempt from the inspection requirements of this Section
during that 2-year period.
Section 95. Investigations; notice and hearing.
(a) The Department may investigate the actions of an
applicant or of an entity holding or claiming to hold a
(b) The Department shall, before refusing to issue or
renew a license or disciplining a licensee, at least 30 days
prior to the date set for the hearing, notify in writing the
applicant or licensee of the nature of the charges and that a
hearing will be held on the date designated. The Department
shall direct the applicant or licensee to file a written
answer to the Board under oath within 20 days after the
service of the notice and inform the applicant or licensee
that failure to file an answer will result in default being
taken against the applicant or licensee and that the license
may be suspended, revoked, placed on probationary status, or
other disciplinary action may be taken, including limiting
the scope, nature, or extent of business, as the Director may
deem proper. Written notice may be served by personal
delivery or certified or registered mail to the respondent at
the address of the entity's last notification to the
Department. If the entity fails to file an answer after
receiving notice, the entity's license may, in the discretion
of the Department, be suspended, revoked, or placed on
probationary status, or the Department may take whatever
disciplinary action it deems proper, including limiting the
scope, nature, or extent of the entity's business, or
imposing a fine, without a hearing, if the act or acts
charged constitute sufficient grounds for such action under
this Act. At the time and place fixed in the notice, the
Board shall proceed to hear the charges, and the parties or
their counsel shall be accorded ample opportunity to present
such statements, testimony, evidence, and argument as may be
pertinent to the charges or to their defense. The Board may
continue a hearing from time to time.
Section 100. Stenographer; transcript. The Department at
its expense, shall preserve a record of all proceedings at
the formal hearing of any case involving the refusal to issue
or renew a license or the discipline of a licensee. The
notice of hearing, complaint, and all other documents in the
nature of pleadings, written motions filed in the
proceedings, the transcript of testimony, the report of the
Board, and the order of the Department shall be the record of
Section 105. Compelling testimony. A circuit court may,
upon application of the Department or its designee or of the
applicant or licensee against whom proceedings under Section
95 are pending, enter an order requiring the attendance of
witnesses and their testimony and the production of
documents, papers, files, books, and records in connection
with any hearing or investigation. The court may compel
obedience to its order by proceedings for contempt.
Section 110. Findings and recommendations. At the
conclusion of the hearing the Board shall present to the
Director a written report of its findings and
recommendations. The report shall contain a finding of
whether or not the accused entity violated this Act or failed
to comply with the conditions required in this Act. The
Board shall specify the nature of the violation or failure to
comply, and shall make its recommendations to the Director.
The report of findings and recommendations of the Board
shall be the basis for the Department's order of refusal or
for the granting of licensure unless the Director shall
determine that the Board's report is contrary to the manifest
weight of the evidence, in which case the Director may issue
an order in contravention of the Board's report. The finding
is not admissible in evidence against the entity in a
criminal prosecution brought for the violation of this Act,
but the hearing and finding are not a bar to a criminal
prosecution brought for the violation of this Act.
Section 115. Rehearing on motion. In a case involving the
refusal to issue or renew a license or the discipline of a
licensee, a copy of the Board's report shall be served upon
the respondent by the Department, either personally or as
provided in this Act for the service of the notice of
hearing. Within 20 days after such service, the respondent
may present to the Department a motion in writing for a
rehearing, which shall specify the particular grounds for the
rehearing. If no motion for rehearing is filed, then upon the
expiration of the time specified for filing the motion, or if
a motion for rehearing is denied, then upon such denial the
Director may enter an order in accordance with
recommendations of the Board except as provided in Section
120 of this Act. If the respondent shall order from the
reporting service and pay for a transcript of the record with
the time for filing a motion for rehearing, the 20 day period
within which such a motion may be filed shall commence upon
the delivery of the transcript to the respondent.
Section 120. Rehearing on order of Director. Whenever the
Director is satisfied that substantial justice has not been
done in the revocation or suspension of a license or refusal
to issue or renew a license, the Director may order a
rehearing by the same or another Board.
Section 125. Hearing officer. The Director has the
authority to appoint an attorney duly licensed to practice
law in the State of Illinois to serve as the hearing officer
in an action for refusal to issue or renew a license, or for
the discipline of a licensee. The Director shall notify the
Board of an appointment. The hearing officer shall have full
authority to conduct the hearing. The hearing officer shall
report his or her findings and recommendations to the Board
and the Director. The Board shall have 60 days from receipt
of the report to review the report of the hearing officer and
present its findings of fact, conclusions of law and
recommendation to the Director. If the Board fails to
present its report within the 60 day period, the Director
shall issue an order based on the report of the hearing
officer. If the Director determines that the Board's report
is contrary to the manifest weight of the evidence, he or she
may issue an order in contravention of the Board's report.
Section 130. Order or certified copy. An order or a
certified copy of an order, over the seal of the Department
and purporting to be signed by the Director, shall be prima
facie proof that:
(1) the signature is the genuine signature of the
(2) the Director is duly appointed and qualified;
(3) the Board and its members are qualified to act.
This proof may be rebutted.
Section 135. Restoration of license. At any time after
the suspension or revocation of a license, the Department may
restore the license to the accused entity upon the written
recommendation of the Board unless, after an investigation
and a hearing, the Board determines that restoration is not
in the public interest.
Section 140. Surrender of license. Upon the revocation
or suspension of a license, the licensee shall immediately
surrender the license to the Department, and if the entity
fails to do so, the Department shall have the right to seize
Section 145. Temporary suspension of a license. The
Director may temporarily suspend the license of a home
medical equipment and services provider without a hearing,
simultaneously with the institution of proceedings for a
hearing provided for in Section 95 of this Act, if the
Director finds that evidence in his or her possession
indicates that the home medical equipment and services
provider's continuation in business would constitute an
imminent danger to the public. If the Director temporarily
suspends the license of a home medical equipment and services
provider without a hearing, a hearing by the Board must be
held within 30 days of the suspension.
Section 150. Administrative Review Law. All final
administrative decisions of the Department are subject to
judicial review pursuant to the provisions of the
Administrative Review Law, as now or hereafter amended, and
all rules adopted pursuant to that Law. The term
"administrative decision" is defined as in 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
relief resides, but if the party is not a resident of this
State, the venue shall be in Sangamon County.
Section 155. Certification of record; costs. The
Department shall not be required to certify any record to a
court or file any answer in court or otherwise appear in a
court in a judicial review proceeding, unless there is filed
in the court, with the complaint, a receipt from the
Department acknowledging payment of the costs of furnishing
and certifying the record. Failure on the part of the
plaintiff to file a receipt in court shall be grounds for
dismissal of the action.
Section 160. Criminal penalties. An entity who is found
to have violated a provision of this Act is guilty of a Class
A misdemeanor. On conviction of a second or subsequent
offense, the violator shall be guilty of a Class 4 felony.
Section 165. Administrative Procedure Act. The Illinois
Administrative Procedure Act is hereby expressly adopted and
incorporated in this Act as if all of the provisions of that
Act were included in this Act, except that the provision of
subsection (d) of Section 10-65 of the Illinois
Administrative Procedure Act, which provides that at hearings
the license holder has the right to show compliance with all
lawful requirements for retention, continuation, or renewal
of a license, is specifically excluded. For the purposes of
this Act, the notice required under Section 10-25 of the
Illinois Administrative Procedure Act is deemed sufficient
when mailed to the last known address of a party.
Section 170. Exclusive State regulation. It is declared
to be the public policy of this State, pursuant to paragraph
(h) of Section 6 of Article VII of the Illinois Constitution
of 1970, that any power or function set forth in this Act to
be exercised by the State is an exclusive State power or
function. Such power or function shall not be exercised
concurrently, whether directly or indirectly, by any unit of
local government, including home rule units, except as
otherwise provided in this Act.
Section 175. Entities currently operating. Entities
engaged in the business of providing home medical equipment
and services at least 3 months prior to the effective date of
this Act shall be issued a license valid for 2 years, upon
application and payment of the required fee, without the
necessity for a determination of compliance with the
requirements of subsection (a) of Section 40. During the
first year of licensure, such providers shall be subject to
random inspections for compliance with applicable standards,
unless such providers have a valid accreditation from a
recognized national accrediting body.
Section 180. Deposit of fees and fines; appropriations.
All of the fees and fines collected under this Act shall be
deposited into the General Professions Dedicated Fund, and
shall be used by the Department, as appropriated, for the
ordinary and contingent expenses of the Department.
Section 300. The Regulatory Agency Sunset Act is amended
by adding Section 4.18 as follows:
(5 ILCS 80/4.18 new)
Sec. 4.18. Act repealed January 1, 2008. The following
Act is repealed January 1, 2008:
The Home Medical Equipment and Services Provider License
Section 999. Effective date. This Act takes effect upon