Part 3 - Violations and Penalties - Illinois Statutes

      (210 ILCS 45/Art. III Pt. 3 heading)PART 3. VIOLATIONS AND PENALTIES

(210 ILCS 45/3‑301) (from Ch. 111 1/2, par. 4153‑301)     Sec. 3‑301. If after receiving the report specified in subsection (c) of Section 3‑212 the Director or his designee determines that a facility is in violation of this Act or of any rule promulgated thereunder, he shall serve a notice of violation upon the licensee within 10 days thereafter. Each notice of violation shall be prepared in writing and shall specify the nature of the violation, and the statutory provision or rule alleged to have been violated. The notice shall inform the licensee of any action the Department may take under the Act, including the requirement of a facility plan of correction under Section 3‑303; placement of the facility on a list prepared under Section 3‑304; assessment of a penalty under Section 3‑305; a conditional license under Sections 3‑311 through 3‑317; or license suspension or revocation under Section 3‑119. The Director or his designee shall also inform the licensee of rights to a hearing under Section 3‑703. (Source: P.A. 85‑1378.)

(210 ILCS 45/3‑302) (from Ch. 111 1/2, par. 4153‑302)     Sec. 3‑302. Each day the violation exists after the date upon which a notice of violation is served under Section 3‑301 shall constitute a separate violation for purposes of assessing penalties or fines under Section 3‑305. The submission of a plan of correction pursuant to subsection (b) of Section 3‑303 does not prohibit or preclude the Department from assessing penalties or fines pursuant to Section 3‑305 for those violations found to be valid except as provided under Section 3‑308 in relation to Type "B" violations. No penalty or fine may be assessed for a condition for which the facility has received a variance or waiver of a standard. (Source: P.A. 85‑1378.)

    (210 ILCS 45/3‑303)(from Ch. 111 1/2, par. 4153‑303)
    Sec. 3‑303. (a) The situation, condition or practice constituting a Type "AA" violation or a Type "A" violation shall be abated or eliminated immediately unless a fixed period of time, not exceeding 15 days, as determined by the Department and specified in the notice of violation, is required for correction.
    (b) At the time of issuance of a notice of a Type "B" violation, the Department shall request a plan of correction which is subject to the Department's approval. The facility shall have 10 days after receipt of notice of violation in which to prepare and submit a plan of correction. The Department may extend this period up to 30 days where correction involves substantial capital improvement. The plan shall include a fixed time period not in excess of 90 days within which violations are to be corrected. If the Department rejects a plan of correction, it shall send notice of the rejection and the reason for the rejection to the facility. The facility shall have 10 days after receipt of the notice of rejection in which to submit a modified plan. If the modified plan is not timely submitted, or if the modified plan is rejected, the facility shall follow an approved plan of correction imposed by the Department.
    (c) If the violation has been corrected prior to submission and approval of a plan of correction, the facility may submit a report of correction in place of a plan of correction. Such report shall be signed by the administrator under oath.
    (d) Upon a licensee's petition, the Department shall determine whether to grant a licensee's request for an extended correction time. Such petition shall be served on the Department prior to expiration of the correction time originally approved. The burden of proof is on the petitioning facility to show good cause for not being able to comply with the original correction time approved.
    (e) If a facility desires to contest any Department action under this Section it shall send a written request for a hearing under Section 3‑703 to the Department within 10 days of receipt of notice of the contested action. The Department shall commence the hearing as provided under Section 3‑703. Whenever possible, all action of the Department under this Section arising out of a violation shall be contested and determined at a single hearing. Issues decided after a hearing may not be reheard at subsequent hearings under this Section.
(Source: P.A. 96‑1372, eff. 7‑29‑10.)

(210 ILCS 45/3‑303.1) (from Ch. 111 1/2, par. 4153‑303.1)     Sec. 3‑303.1. Upon application by a facility, 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. (Source: P.A. 85‑1216.)

    (210 ILCS 45/3‑303.2)(from Ch. 111 1/2, par. 4153‑303.2)
    Sec. 3‑303.2. (a) If the Department finds a situation, condition or practice which violates this Act or any rule promulgated thereunder which does not constitute a Type "AA", Type "A", Type "B", or Type "C" violation, the Department shall issue an administrative warning. Any administrative warning shall be served upon the facility in the same manner as the notice of violation under Section 3‑301. The facility shall be responsible for correcting the situation, condition or practice; however, no written plan of correction need be submitted for an administrative warning, except for violations of Sections 3‑401 through 3‑413 or the rules promulgated thereunder. A written plan of correction is required to be filed for an administrative warning issued for violations of Sections 3‑401 through 3‑413 or the rules promulgated thereunder.
    (b) If, however, the situation, condition or practice which resulted in the issuance of an administrative warning, with the exception of administrative warnings issued pursuant to Sections 3‑401 through 3‑413 or the rules promulgated thereunder, is not corrected by the next on‑site inspection by the Department which occurs no earlier than 90 days from the issuance of the administrative warning, a written plan of correction must be submitted in the same manner as provided in subsection (b) of Section 3‑303.
(Source: P.A. 96‑1372, eff. 7‑29‑10.)

    (210 ILCS 45/3‑304)(from Ch. 111 1/2, par. 4153‑304)
    Sec. 3‑304. (a) The Department shall prepare on a quarterly basis a list containing the names and addresses of all facilities against which the Department during the previous quarter has:
        (1) sent a notice under Section 3‑307 regarding a

penalty assessment under subsection (1) of Section 3‑305;

(2) sent a notice of license revocation under Section

3‑119;

(3) sent a notice refusing renewal of a license under

Section 3‑119;

(4) sent a notice to suspend a license under Section

3‑119;

(5) issued a conditional license for violations that

have not been corrected under Section 3‑303 or penalties or fines described under Section 3‑305 have been assessed under Section 3‑307 or 3‑308;

(6) placed a monitor under subsections (a), (b) and

(c) of Section 3‑501 and under subsection (d) of such Section where license revocation or nonrenewal notices have also been issued;

(7) initiated an action to appoint a receiver;         (8) recommended to the Director of Healthcare and

Family Services (formerly Director of the Department of Public Aid), or the Secretary of the United States Department of Health and Human Services, the decertification for violations in relation to patient care of a facility pursuant to Titles XVIII and XIX of the federal Social Security Act.

(b) In addition to the name and address of the facility,

the list shall include the name and address of the person or licensee against whom the action has been initiated, a self‑explanatory summary of the facts which warranted the initiation of each action, the type of action initiated, the date of the initiation of the action, the amount of the penalty sought to be assessed, if any, and the final disposition of the action, if completed.

(c) The list shall be available to any member of the public upon oral or written request without charge. (Source: P.A. 95‑331, eff. 8‑21‑07.)

    (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;

(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;         (10) enforcement actions and enforcement summaries;

and

(11) distressed facilities.     (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. 96‑1372, eff. 7‑29‑10.)

    (210 ILCS 45/3‑304.2)
    Sec. 3‑304.2. Designation of distressed facilities.
    (a) By May 1, 2011, and quarterly thereafter, the Department shall generate and publish quarterly a list of distressed facilities. Criteria for inclusion of certified facilities on the list shall be those used by the U.S. General Accounting Office in report 9‑689, until such time as the Department by rule modifies the criteria.
    (b) In deciding whether and how to modify the criteria used by the General Accounting Office, the Department shall complete a test run of any substitute criteria to determine their reliability by comparing the number of facilities identified as distressed against the number of distressed facilities generated using the criteria contained in the General Accounting Office report. The Department may not adopt substitute criteria that generate fewer facilities with a distressed designation than are produced by the General Accounting Office criteria during the test run.
    (c) The Department shall, by rule, adopt criteria to identify non‑Medicaid‑certified facilities that are distressed and shall publish this list quarterly beginning October 1, 2011.
    (d) The Department shall notify each facility of its distressed designation, and of the calculation on which it is based.
    (e) A distressed facility may contract with an independent consultant meeting criteria established by the Department. If the distressed facility does not seek the assistance of an independent consultant, the Department shall place a monitor or a temporary manager in the facility, depending on the Department's assessment of the condition of the facility.
    (f) Independent consultant. A facility that has been designated a distressed facility may contract with an independent consultant to develop and assist in the implementation of a plan of improvement to bring and keep the facility in compliance with this Act and, if applicable, with federal certification requirements. A facility that contracts with an independent consultant shall have 90 days to develop a plan of improvement and demonstrate a good faith effort at implementation, and another 90 days to achieve compliance and take whatever additional actions are called for in the improvement plan to maintain compliance. A facility that the Department determines has a plan of improvement likely to bring and keep the facility in compliance and that has demonstrated good faith efforts at implementation within the first 90 days may be eligible to receive a grant under the Equity in Long‑term Care Quality Act to assist it in achieving and maintaining compliance. In this subsection, "independent" consultant means an individual who has no professional or financial relationship with the facility, any person with a reportable ownership interest in the facility, or any related parties. In this subsection, "related parties" has the meaning attributed to it in the instructions for completing Medicaid cost reports.
    (f) Monitor and temporary managers. A distressed facility that does not contract with a consultant shall be assigned a monitor or a temporary manager at the Department's discretion. The cost of the temporary manager shall be paid by the facility. The temporary manager shall have the authority determined by the Department, which may grant the temporary manager any or all of the authority a court may grant a receiver. The temporary manager may apply to the Equity in Long‑term Care Quality Fund for grant funds to implement the plan of improvement.
    (g) The Department shall by rule establish a mentor program for owners of distressed facilities.
    (h) The Department shall by rule establish sanctions (in addition to those authorized elsewhere in this Article) against distressed facilities that are not in compliance with this Act and (if applicable) with federal certification requirements. Criteria for imposing sanctions shall take into account a facility's actions to address the violations and deficiencies that caused its designation as a distressed facility, and its compliance with this Act and with federal certification requirements (if applicable), subsequent to its designation as a distressed facility, including mandatory revocations if criteria can be agreed upon by the Department, resident advocates, and representatives of the nursing home profession. By February 1, 2011, the Department shall report to the General Assembly on the results of negotiations about creating criteria for mandatory license revocations of distressed facilities and make recommendations about any statutory changes it believes are appropriate to protect the health, safety, and welfare of nursing home residents.
    (i) The Department may establish by rule criteria for restricting the owner of a facility on the distressed list from acquiring additional skilled nursing facilities.
(Source: P.A. 96‑1372, eff. 7‑29‑10.)

    (210 ILCS 45/3‑305)(from Ch. 111 1/2, par. 4153‑305)
    Sec. 3‑305. The license of a facility which is in violation of this Act or any rule adopted thereunder may be subject to the penalties or fines levied by the Department as specified in this Section.
    (1) A licensee who commits a Type "AA" violation as defined in Section 1‑128.5 is automatically issued a conditional license for a period of 6 months to coincide with an acceptable plan of correction and assessed a fine up to $25,000 per violation.
    (1.5) A licensee who commits a Type "A" violation as defined in Section 1‑129 is automatically issued a conditional license for a period of 6 months to coincide with an acceptable plan of correction and assessed a fine of up to $12,500 per violation.
    (2) A licensee who commits a Type "B" violation as defined in Section 1‑130 shall be assessed a fine of up to $1,100 per violation.
    (2.5) A licensee who commits 10 or more Type "C" violations, as defined in Section 1‑132, in a single survey shall be assessed a fine of up to $250 per violation. A licensee who commits one or more Type "C" violations with a high risk designation, as defined by rule, shall be assessed a fine of up to $500 per violation.
    (3) A licensee who commits a Type "AA" or Type "A" violation as defined in Section 1‑128.5 or 1‑129 which continues beyond the time specified in paragraph (a) of Section 3‑303 which is cited as a repeat violation shall have its license revoked and shall be assessed a fine of 3 times the fine computed per resident per day under subsection (1).
    (4) A licensee who fails to satisfactorily comply with an accepted plan of correction for a Type "B" violation or an administrative warning issued pursuant to Sections 3‑401 through 3‑413 or the rules promulgated thereunder shall be automatically issued a conditional license for a period of not less than 6 months. A second or subsequent acceptable plan of correction shall be filed. A fine shall be assessed in accordance with subsection (2) when cited for the repeat violation. This fine shall be computed for all days of the violation, including the duration of the first plan of correction compliance time.
    (5) For the purpose of computing a penalty under subsections (2) through (4), the number of residents per day shall be based on the average number of residents in the facility during the 30 days preceding the discovery of the violation.
    (6) When the Department finds that a provision of Article II has been violated with regard to a particular resident, the Department shall issue an order requiring the facility to reimburse the resident for injuries incurred, or $100, whichever is greater. In the case of a violation involving any action other than theft of money belonging to a resident, reimbursement shall be ordered only if a provision of Article II has been violated with regard to that or any other resident of the facility within the 2 years immediately preceding the violation in question.
    (7) For purposes of assessing fines under this Section, a repeat violation shall be a violation which has been cited during one inspection of the facility for which an accepted plan of correction was not complied with or a new citation of the same rule if the licensee is not substantially addressing the issue routinely throughout the facility.
    (7.5) If an occurrence results in more than one type of violation as defined in this Act (that is, a Type "AA", Type "A", Type "B", or Type "C" violation), the maximum fine that may be assessed for that occurrence is the maximum fine that may be assessed for the most serious type of violation charged. For purposes of the preceding sentence, a Type "AA" violation is the most serious type of violation that may be charged, followed by a Type "A", Type "B", or Type "C" violation, in that order.
    (8) The minimum and maximum fines that may be assessed pursuant to this Section shall be twice those otherwise specified for any facility that willfully makes a misstatement of fact to the Department, or willfully fails to make a required notification to the Department, if that misstatement or failure delays the start of a surveyor or impedes a survey.
    (9) High risk designation. If the Department finds that a facility has violated a provision of the Illinois Administrative Code that has a high risk designation, or that a facility has violated the same provision of the Illinois Administrative Code 3 or more times in the previous 12 months, the Department may assess a fine of up to 2 times the maximum fine otherwise allowed.
    (10) If a licensee has paid a civil monetary penalty imposed pursuant to the Medicare and Medicaid Certification Program for the equivalent federal violation giving rise to a fine under this Section, the Department shall offset the fine by the amount of the civil monetary penalty. The offset may not reduce the fine by more than 75% of the original fine, however.
(Source: P.A. 96‑1372, eff. 7‑29‑10.)

    (210 ILCS 45/3‑306)(from Ch. 111 1/2, par. 4153‑306)
    Sec. 3‑306. In determining whether a penalty is to be imposed and in determining the amount of the penalty to be imposed, if any, for a violation, the Director shall consider the following factors:
        (1) The gravity of the violation, including the

probability that death or serious physical or mental harm to a resident will result or has resulted; the severity of the actual or potential harm, and the extent to which the provisions of the applicable statutes or regulations were violated;

(2) The reasonable diligence exercised by the

licensee and efforts to correct violations.

(3) Any previous violations committed by the

licensee; and

(4) The financial benefit to the facility of

committing or continuing the violation.

(Source: P.A. 96‑1372, eff. 7‑29‑10.)

    (210 ILCS 45/3‑307)(from Ch. 111 1/2, par. 4153‑307)
    Sec. 3‑307. The Director may directly assess penalties provided for under Section 3‑305 of this Act. If the Director determines that a penalty should be assessed for a particular violation or for failure to correct it, he shall send a notice to the facility. The notice shall specify the amount of the penalty assessed, the violation, and the statute or rule alleged to have been violated, and shall inform the licensee of the right to hearing under Section 3‑703 of this Act. The notice must contain a detailed computation showing how the amount of the penalty was derived, including the number of days and the number of residents on which the penalty was based. If the violation is continuing, the notice shall specify the amount of additional assessment per day for the continuing violation.
(Source: P.A. 96‑729, eff. 8‑25‑09.)

    (210 ILCS 45/3‑308)(from Ch. 111 1/2, par. 4153‑308)
    Sec. 3‑308. In the case of a Type "A" violation, a penalty may be assessed from the date on which the violation is discovered. In the case of a Type "B" or Type "C" violation or an administrative warning issued pursuant to Sections 3‑401 through 3‑413 or the rules promulgated thereunder, the facility shall submit a plan of correction as provided in Section 3‑303.
    In the case of a Type "B" violation or an administrative warning issued pursuant to Sections 3‑401 through 3‑413 or the rules promulgated thereunder, a penalty shall be assessed on the date of notice of the violation, but the Director may reduce the amount or waive such payment for any of the following reasons:
        (a) The facility submits a true report of correction

within 10 days;

(b) The facility submits a plan of correction within

10 days and subsequently submits a true report of correction within 15 days thereafter;

(c) The facility submits a plan of correction within

10 days which provides for a correction time that is less than or equal to 30 days and the Department approves such plan; or

(d) The facility submits a plan of correction for

violations involving substantial capital improvements which provides for correction within the initial 90 day limit provided under Section 3‑303.

The Director or his or her designee may reallocate the amount of a penalty assessed pursuant to Section 3‑305. A facility shall submit to the Director a written request for a penalty reduction, in a form prescribed by the Department, which includes an accounting of all costs for goods and services purchased in correcting the violation. The amount by which a penalty is reduced may not be greater than the amount of the costs reported by the facility. A facility that accepts a penalty reallocation under this Section waives its right to dispute a notice of violation and any remaining fine or penalty in an administrative hearing. The Director shall consider the following factors:         (1) The violation has not caused actual harm to a

resident.

(2) The facility has made a diligent effort to

correct the violation and to prevent its recurrence.

(3) The facility has no record of a pervasive

pattern of the same or similar violations.

(4) The facility did not benefit financially from

committing or continuing the violation.

At least annually, and upon request, the Department shall provide a list of all reallocations and the reasons for those reallocations.     If a plan of correction is approved and carried out for a Type "C" violation, the fine provided under Section 3‑305 shall be suspended for the time period specified in the approved plan of correction. If a plan of correction is approved and carried out for a Type "B" violation or an administrative warning issued pursuant to Sections 3‑401 through 3‑413 or the rules promulgated thereunder, with respect to a violation that continues after the date of notice of violation, the fine provided under Section 3‑305 shall be suspended for the time period specified in the approved plan of correction.     If a good faith plan of correction is not received within the time provided by Section 3‑303, a penalty may be assessed from the date of the notice of the Type "B" or "C" violation or an administrative warning issued pursuant to Sections 3‑401 through 3‑413 or the rules promulgated thereunder served under Section 3‑301 until the date of the receipt of a good faith plan of correction, or until the date the violation is corrected, whichever is earlier. If a violation is not corrected within the time specified by an approved plan of correction or any lawful extension thereof, a penalty may be assessed from the date of notice of the violation, until the date the violation is corrected. (Source: P.A. 96‑758, eff. 8‑25‑09.)

    (210 ILCS 45/3‑308.5)
    Sec. 3‑308.5. Facilities operated by Department of Veterans' Affairs; penalty offset.
    (a) In the case of a veterans home, institution, or other place operated by or under the authority of the Illinois Department of Veterans' Affairs, the amount of any penalty or fine shall be offset by the cost of the plan of correction, capital improvements, or physical plant repairs. For purposes of this Section only, "offset" means that the amount that the Illinois Department of Veterans' Affairs expends to pay for the cost of a plan of correction shall be deemed by the Illinois Department of Public Health to fully satisfy any monetary penalty or fine imposed by the Department of Public Health. Once a fine or monetary penalty is offset pursuant to this Section, in no case may the Department of Public Health, with respect to the offense for which the fine or penalty was levied, continue to purport to impose a fine or monetary penalty upon the Department of Veterans' Affairs for that violation.
    (b) The Director of Public Health shall issue a Declaration to the Director of Veterans' Affairs confirming the citation of each Type "A" violation and request that immediate action be taken to protect the health and safety of the veterans in the facility.
(Source: P.A. 96‑703, eff. 8‑25‑09.)

    (210 ILCS 45/3‑309)(from Ch. 111 1/2, par. 4153‑309)
    Sec. 3‑309. A facility may contest an assessment of a penalty by sending a written request to the Department for hearing under Section 3‑703. Upon receipt of the request the Department shall hold a hearing as provided under Section 3‑703. Instead of requesting a hearing pursuant to Section 3‑703, a facility may, within 10 business days after receipt of the notice of violation and fine assessment, transmit to the Department (i) 65% of the amount assessed for each violation specified in the penalty assessment or (ii) in the case of a fine subject to offset under paragraph (10) of Section 3‑305, up to 75% of the amount assessed.
(Source: P.A. 96‑1372, eff. 7‑29‑10.)

    (210 ILCS 45/3‑310)(from Ch. 111 1/2, par. 4153‑310)
    Sec. 3‑310. All penalties shall be paid to the Department within 10 days of receipt of notice of assessment or, if the penalty is contested under Section 3‑309, within 10 days of receipt of the final decision, unless the decision is appealed and the order is stayed by court order under Section 3‑713. A facility choosing to waive the right to a hearing under Section 3‑309 shall submit a payment totaling 65% of the original fine amount along with the written waiver. A penalty assessed under this Act shall be collected by the Department and shall be deposited with the State Treasurer into the Long Term Care Monitor/Receiver Fund. If the person or facility against whom a penalty has been assessed does not comply with a written demand for payment within 30 days, the Director shall issue an order to do any of the following:
        (1) Direct the State Treasurer or Comptroller to

deduct the amount of the fine from amounts otherwise due from the State for the penalty, including any payments to be made from the Medicaid Long Term Care Provider Participation Fee Trust Fund established under Section 5‑4.31 of the Illinois Public Aid Code, and remit that amount to the Department;

(2) Add the amount of the penalty to the facility's

licensing fee; if the licensee refuses to make the payment at the time of application for renewal of its license, the license shall not be renewed; or

(3) Bring an action in circuit court to recover the

amount of the penalty.

With the approval of the federal centers for Medicaid and Medicare services, the Director of Public Health shall set aside 50% of the federal civil monetary penalties collected each year to be used to award grants under the Equity in Long‑term Care Quality Act. (Source: P.A. 96‑1372, eff. 7‑29‑10.)

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