Bill Amendment: IL SB3559 | 2023-2024 | 103rd General Assembly
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: ANTI-RETALIATION NURSING HOMES
Status: 2024-05-21 - Added as Co-Sponsor Sen. Laura Fine [SB3559 Detail]
Download: Illinois-2023-SB3559-Senate_Amendment_001.html
Bill Title: ANTI-RETALIATION NURSING HOMES
Status: 2024-05-21 - Added as Co-Sponsor Sen. Laura Fine [SB3559 Detail]
Download: Illinois-2023-SB3559-Senate_Amendment_001.html
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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:
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4 | "Section 5. The Nursing Home Care Act is amended by | ||||||
5 | changing Section 3-810 as follows:
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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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