Section 119.100  Applicability

 

a)         Developmental training programs shall prepare adults 18 years of age or older who are developmentally disabled to live and function in integrated social settings.

 

b)         Developmental training programs shall serve adults with developmental disabilities and major functional skill deficits to promote independence in daily living and economic self-sufficiency.

 

c)         This Part is applicable to state-funded developmental training programs.

 

Section 119.110  Incorporation by reference

 

Any rules or standards of an agency of the United States or of a nationally-recognized organization or association that are incorporated by reference in this Part are incorporated as of the date specified, and do not include any later amendments or editions.

 

Section 119.120  Definitions

 

For the purposes of this Part, the following terms are defined:

 

            "Abuse." Any physical injury, sexual abuse or mental injury inflicted on an individual other than by accidental means. (Section 1-101.1 of the Code)

 

            Physical injury includes all injuries serious enough to require immediate medical treatment by a physician, such as fractures and lacerations which require suturing and all other injuries which because of the circumstances or nature of the injury indicate possible abuse or neglect;

 

            Sexual abuse includes but is not limited to any sexual penetration or sexual conduct between an individual and another person if the individual has been adjudicated legally disabled, or has a guardian, or is unable to understand the nature of the act or is unable to give knowing consent, or is injured, or alleges that there is, or there is evidence of use of force, coercion, or the exchange of money or anything of value; and

 

            Mental injury includes use of words, signs, gestures or other actions by anyone against an individual which intimidates, demeans, harasses, causes emotional anguish or distress, ridicules, threatens, harms or will knowingly incite or precipitate maladaptive behavior on the part of an individual.  Mental injury also includes exploitation, which is any act that uses individuals, their resources or their possessions for an agency employee's personal gain or for an agency's benefit.

 

            "Accreditation." A process establishing that a program complies with nationally-recognized standards of care as set by one of the following:

 

            1997 Hospital Accreditation Standards (Joint Commission on Accreditation of Healthcare Organizations (JCAHO), One Renaissance Boulevard, Oakbrook Terrace, Illinois 60181, 1996);

 

            1997 Standards for Behavioral Health Care (Joint Commission on Accreditation of Healthcare Organizations (JCAHO), One Renaissance Boulevard, Oakbrook Terrace, Illinois 60181, 1996);

 

            1996 Comprehensive Accreditation Manual for Health Care Networks (Joint Commission on Accreditation of Healthcare Organizations (JCAHO), One Renaissance Boulevard, Oakbrook Terrace, Illinois 60181, 1996); or

 

            Council on Accreditation 1997 Standards for Behavioral Health Care Services and Community Support and Education Services (Council on Accreditation of Services for Families and Children, Inc. (COA), 120 Wall Street, 11th Floor, New York, New York 10005, 1996).

 

            Outcome Based Performance Measures (The Council, 100 West Road, Suite 406, Towson, Maryland 21204, 1993);

 

            Standards Manual and Interpretive Guidelines for Behavioral Health (Commission on Accreditation of Rehabilitation Facilities (CARF), 4891 East Grant Road, Tucson, Arizona 85711, 1996);

 

            Standards Manual and Interpretive Guidelines for Employment and Community Support Services (Commission on Accreditation of Rehabilitation Facilities (CARF), 4891 East Grant Road, Tucson, Arizona 85711, 1996);

 

            Education Standards (National Accreditation Council for Agencies Serving the Blind and Visually Handicapped, 15 West 65^th Street, New York, New York 10023, 1994);

 

            "Act." The Mental Health and Developmental Disabilities Confidentiality Act [740 ILCS 110].

 

            "Adaptive behavior." The effectiveness or degree with which the individual approaches the standards of personal independence and social responsibility expected of the individual's age and cultural group as measured by adaptive behavior scales such as the Inventory for Client and Agency Planning (ICAP) (DLM Teaching Resources, One DLM Park, Allen, Texas 75002, 1986) and Scales of Independent Behavior (SIB) (DLM Teaching Resources, One DLM Park, Allen, Texas 75002, 1985).

 

            "Authorized agency representative." A person appointed by the governing body who has responsibility for the program's administration including its content and fiscal affairs.

 

            "Aversive procedures." The application of unpleasant or painful stimuli or stimuli that have a potentially noxious effect, contingent on the exhibition of a specific behavior that is not adaptive.

 

            "Behavior management." Efforts to increase adaptive behaviors and to modify problem behaviors or behaviors that are not adaptive and replace them with behaviors and skills that are adaptive and socially productive.

 

            "Code." The Mental Health and Developmental Disabilities Code [405 ILCS 5].

 

            "Day." A calendar day, unless otherwise indicated.

 

            "Deemed status."  If a provider has been accredited by an approved accrediting body as identified in the definition of "accreditation" in this Section, the Department shall deem the provider to be in substantial compliance with specific Sections of this Part.  Deemed status, however, may be nullified by a finding by the Department that the provider is in substantial non-compliance with one or more of the designated Sections.

 

            "Department." The Department of Human Services.

 

            "Developmental disability." A disability which is attributable to mental retardation, cerebral palsy, epilepsy or autism; or to any other condition which results in an impairment similar to that caused by mental retardation and which requires services similar to those required by individuals with mental retardation.  Such disability must originate before the age of 18, be expected to continue indefinitely, and constitute a substantial handicap. (Section 1-106 of the Code)

 

            "Discharge." The full release of an individual from a program.

 

            "Equivalency." Evidence to substantiate compliance with requirements of this Part by means other than indicated in this Part.

 

            "Exclusion." Preventing an individual's entrance or continuation in a program due to the individual's disability, medical condition, or maladaptive behavior, or due to lack of space in the day program.

 

            "Exploitation."  Any act that uses individuals, their resources or their possessions for the provider's employee's personal gain or for the provider's benefit.

 

            "Family." The individual's spouse, children, mother, father, sister and brother.

 

            "Full compliance." A survey finding that a program has no identified deficiencies with the standards in this Part.

 

            "Governing body." The provider's decision-making authority which establishes policies for the program's operation and the welfare of the individuals served.

 

            "Guardian." The plenary or limited guardian or conservator appointed by the court for an individual over age 18 so long as the limited guardian's duties encompass concerns related to service requirements.

 

            "Imminent risk." A situation in which individuals in a program are or may be subject to mental, physical or psychological harm which is not immediately correctable, such as environmental or safety hazards.

 

            "Individual." A person who is applying for or receiving services in a program.

 

            "Individual record" or "record." Materials kept chronologically by a program in the course of providing services to an individual.

 

            "Individual services plan" or "plan." A written plan which includes an assessment of the individual's strengths and needs, a description of the services needed regardless of availability, objectives for each service, the role of the individual, guardian, significant others, and the family in the implementation, if the individual agrees to their participation. The plan shall also include a timetable for the accomplishment of objectives, and the names of the persons responsible for their implementation.

 

            "Industrial norm." A standard of measured productivity outcomes of a specific work activity  as determined by a time and motion study conducted on workers who are not impaired for the work being performed by age, physical or mental disability, or injury.

 

            "Informed consent." Permission freely granted by the individual or guardian based on full disclosure to the individual or guardian of the benefits and/or liabilities of participation in specific procedures and/or services, including the releases of information, as part of the individual's services plan.

 

            "Interdisciplinary team" or "team." A group consisting of at least the individual, parents (except when a non-legally disabled individual or a legally disabled individual's guardian does not desire them to participate), the guardian, as well as representatives of disciplines and services necessary to identify the individual's needs and to design services and alternatives to meet them. At least one member of the team shall be a qualified mental retardation professional.

 

            "Maladaptive behavior."  Actions by the individual that interrupt services, require a specific program addressing the behavior developed by the interdisciplinary team and exclude instances requiring only a verbal prompt such as "please sit down."

 

            "Mental retardation." Significantly subaverage general intellectual functioning which exists concurrently with impairment in adaptive behavior and which originates before the age of 18 years. (Section 1-116 of the Code)

 

            "Moral turpitude." Moral quality of being inherently base, depraved, vile or wicked.

 

            "Neglect." Failure to provide adequate medical or personal care or maintenance to an individual which results in physical or mental injury or in the deterioration of an individual's physical or mental condition. (Section 1-117.1 of the Code).

 

            "Notice of violation." A report submitted by OAL to a provider listing the program's deficiencies with this Part as noted during a survey.

 

            "OAL."  The Department's Office of Accreditation and Licensure.

 

            "Plan of correction." A written plan submitted by a provider to OAL in response to a notice of violation, which describes the steps the provider will take to bring the program into compliance, including the time-frames for completion of each step.

 

            "Program." Services provided in non-residential facilities to adults who are developmentally disabled and require training in self-help, community living skills, social and leisure skills, communication or productive work.

 

            "Progress notes." Narrative chronological documentation in an individual's record of service provided and its relationship to the plan.

 

            "Provider." A sole proprietorship, association, partnership, corporation or organization, public or private, either for profit or not-for-profit, which operates a developmental training program under the jurisdiction of a governing body or board.

 

            "Qualified mental retardation professional (QMRP)." A QMRP must have at least one year of experience working directly with individuals with mental retardation or other developmental disabilities and be one of the following:

 

            A doctor of medicine or osteopathy licensed pursuant to the Medical Practice Act of 1987 [225 ILCS 60];

 

            A registered nurse licensed pursuant to the Illinois Nursing Act of 1987 [225 ILCS 65];

 

            An occupational therapist or occupational therapist assistant certified by the American Occupational Therapy Association or other comparable body (Illinois Occupational Therapy Practice Act [225 ILCS 75]);

 

            A physical therapist certified by the American Physical Therapy Association or other comparable body (Illinois Physical Therapy Act [225 ILCS 90]);

 

            A physical therapist assistant registered by the American Physical Therapy Association or a graduate of a two-year college-level program approved by the American Physical Therapy Association or comparable body;

 

            A psychologist with at least a master's degree in psychology from an accredited school (Clinical Psychologist Licensing Act [225 ILCS 15]);

 

            A social worker with a bachelor's degree from a college or university or graduate degree from a school of social work accredited or approved by the Council on Social Work Education or another comparable body (the Clinical Social Work and Social Work Practice Act [225 ILCS 20]);

 

            A speech-language pathologist or audiologist with a certificate of Clinical Competence in Speech-Language Pathology or Audiology granted by the American Speech Language Hearing Association or comparable body or meet the education requirements for licensure and be in the process of accumulating the supervised experience required for licensure (the Illinois Speech-Language Pathology and Audiology Practice Act [225 ILCS 110]);

 

            A professional recreation staff person with a bachelor's degree in recreation or in a specialty area such as art, dance, music or physical therapy;

 

            A professional dietician registered by the American Dietetics Association; or

 

            A human services professional with a bachelor's degree in a human services field, including, but not limited to sociology, special education, rehabilitation counseling or psychology.

 

            "Quality assurance." A systematic and objective approach to monitoring and evaluating the appropriateness, adequacy and quality of services in order to identify and resolve problems.

 

            "Restraint." The direct restriction through mechanical means or personal physical force of the limbs, head or body of an individual except as part of a medically prescribed procedure for the treatment of an existing physical disorder or the amelioration of a physical handicap. The partial or total immobilization of an individual for the purpose of performing a medical or surgical procedure shall not constitute restraint. (Section 1-125 of the Code)

 

            "Seclusion." Sequestration by placement of an individual alone in a room from which he or she has no means of leaving. (Section 1-126 of the Code)

 

            "Secretary."  The Secretary of the Department of Human Services or his or her designee.

 

            "Self-administration of medications." An individual's ability to take medications independently or with verbal prompts.

 

            "Skills training." Activities which focus on the development of daily living skills which enable individuals to achieve independent functioning and economic self-sufficiency.

 

            "Substantial compliance." A determination that a surveyed program does not have a deficiency or group of deficiencies sufficient to jeopardize the health, welfare or safety of individuals or prevent their maximum development; or, when deficient, the provider has documented a plan of correction to rectify any deficiency or has an approved equivalency or waiver for it.

 

            "Survey." A process to determine the degree of compliance with this Part which a program has maintained, including surveyor observation and an on-site examination of policies, procedures, records of individuals, written plans, and the physical plant. Interviews of individuals and staff are also a part of the survey.

 

            "Suspension."  The conditional release of an individual from a program.

 

            "Time-out." When an individual is placed in a behavior modification program pursuant to his or her individual services plan, he or she may be removed from a situation that affords positive reinforcement to an area where reinforcement is not available for a reasonable period of time as determined by the team but not to exceed 30 minutes.

 

            "Waiver." Department-granted exceptions to this Part on application by a provider, for a period not to exceed the duration of the current certificate.

 

            "Work activity." The individual performs work such as contract janitorial, simulated assembly, and food service.

 

(Source:  Amended at 21 Ill. Reg. 8297, effective June 25, 1997)

 

Section 119.200  General requirements

 

a)         Programs shall be located to promote integration of individuals into their communities.  In addition to the requirements in subsections (e) and (f) of this Section, examples of integration include locations near public transportation, shopping, restaurants, and recreation.

 

b)         Programs shall provide a minimum of five hours of programming per day, excluding transportation time to and from the program, and excluding mealtime unless training during meals is a documented part of the plan.  Individuals may attend less than 5 hours if required and documented by a physician or the interdisciplinary team.

 

c)         No individual shall be transported in a one-way trip that exceeds one hour, excluding field trips.

 

d)         Transportation required for individuals shall be the responsibility of the provider.

 

e)         Programs shall not be located in buildings where individuals reside.

 

f)         Programs attended by individuals residing in licensed long-term care facilities shall promote the principles of program independence and community integration by meeting two of the following three criteria:

 

1)         No more than 25 percent of the direct-care staff hours allocated to the program shall be provided by personnel also employed by a licensed long-term care facility in a residential services capacity;

 

2)         At least 30 percent of the individuals in the program shall not reside in the same licensed long-term care facility; or

 

3)         The location of the program shall not be within or adjacent to the boundaries of any licensed long-term care facility having individuals in the program.

 

g)         The Department shall grant a waiver of the requirements in subsections (f)(1) and (2) of this Section for individuals of licensed long-term care facilities whose physicians have determined that participation in a program away from the residence will present a risk to the individual's health. Physicians shall document and annually update this medical determination in the individual's records.

 

(Source:  Amended at 22 Ill. Reg. 16244, effective August 27, 1998)

 

Section 119.205  Criteria for participation of individuals

 

a)         A minimum level of skill development shall not be required for entry into a program.

 

b)         The criteria for exit from the program shall be as follows:

 

1)         The individual shall perform four or more skills described in subsections (e)(1) through(7) of this Section; and

 

2)         The individual shall not engage in maladaptive behavior more than 5 percent of the developmental training day. Maladaptive behavior shall require staff intervention and shall be documented in the plan.

 

c)         Individuals who meet or exceed the exit criteria shall not enter or remain in the program unless the program can document that alternative resources in the individual's community do not exist to meet the service needs.  Examples of documentation include denials of admission to other programs because of lack of capacity or the information that no other program exists in the indivdiual's community.

 

d)         The team shall evaluate individuals who have attained the exit criteria to determine whether they should continue in the program, or if they should enter a program more integrated into the community such as supported employment. The team shall document reasons for its decision.

 

e)         The team shall assess individuals on the following skills:

 

1)         Motor development - The individual exhibits fine or gross motor skills independently or with minimal assistance. This is considered met if the individual meets the criteria for dressing, grooming, toilet or eating.

 

2)         Dressing - The individual dresses self with verbal cues only.

 

3)         Grooming - The individual grooms self with verbal cues only.

 

4)         Toileting - The individual toilets with verbal cues only.

 

5)         Eating - The individual eats a meal without cues from staff.

 

6)         Language - The individual understands basic requests and expresses self verbally or with an alternative communication system such as signing, communication board, computer or writing.

 

7)         Productive capacity - The individual consistently maintains a productive level of 25 percent of the industrial norm.

 

f)         At least annually, the team shall assess the individual's skill level and review the current placement to determine if it is meeting the individual's needs.

 

g)         The provider shall identify to the Department, with a release of information in keeping with the Act, the names of all individuals whom the team has determined should exit the program. The Department shall assist the provider in identifying alternative services. An individual shall continue in the program until an alternative day program that meets his or her needs is provided.

 

Section 119.210  Exclusion, suspension or discharge of an individual

 

a)         Exclusion, suspension or discharge may occur due to:

 

1)         The individual's desire to stop participation;

 

2)         The individual's attainment of the exit criteria;

 

3)         The individual's physical disability or medical condition which places the individual in danger; or

 

4)         Maladaptive behavior that places the individual or others in serious danger.

 

b)         Lack of space in a program shall not be used to suspend or discharge individuals and shall be used only to deny admission to a program that is presently filled.

 

c)         The provider shall refer all proposals excluding, suspending or discharging an individual to the team which shall determine whether the criteria in subsection (a) of this Section have been met, recommend alternative services and determine the criteria under which the individual may enter or re-enter the program.

 

d)         Before exclusion, suspension or discharge, the team shall discuss, summarize and place in the individual's record the date and reason for this action.

 

e)         A provider shall not suspend or discharge an individual from a program without at least a 10-day written notice to the individual or guardian except when it is documented that the individual is dangerous to himself or herself or others and the behavior cannot be corrected through special training procedures.

 

f)         An individual shall have the opportunity to appeal to the agency representative the provider's decision to exclude, suspend or discharge him or her in accordance with the procedures required in Section 119.235(e) of this Part.

 

(Source:  Amended at 21 Ill. Reg. 8297, effective June 25, 1997)

 

Section 119.215  Program staff

 

a)         The provider shall designate a program administrator whose level of education and experience shall include an undergraduate degree in education, special education, psychology, rehabilitation counseling or social work, with two or more year's experience working with individuals who are developmentally disabled, or an equivalent combination of education and experience.

 

b)         The provider shall designate at least one developmental instructor whose minimum level of education and experience includes an undergraduate degree in special education or a related human service field as specified in the definition of qualified mental retardation professional, plus one or more years experience working with individuals who are developmentally disabled, or an equivalent combination of education and experience.

 

c)         The provider shall designate developmental trainers whose minimum level of education includes a high school diploma or general equivalency diploma (G.E.D.). A developmental trainer shall address the individual's needs as identified in the plan under the professional oversight of the developmental instructor.

 

1)         The program administrator may function as the developmental instructor.

 

2)         The program shall employ developmental instructors on an overall ratio of one developmental instructor to three developmental trainers.

 

3)         The developmental instructor shall perform instructional duties as well as provide professional oversight of developmental trainers. Professional oversight includes answering questions about the implementation of the individual's plan and providing feedback to the developmental trainer and his or her supervisor on the developmental trainer's activities.

 

d)         Staff ratios

 

1)         The provider shall maintain staff ratios that will meet the individual's program needs. The Department's calculation of provider cost is based on the following ratios, but the provider will be given flexibility in grouping individuals to meet the individual's needs.

 

A)        For individuals who have mild deficits in adaptive behavior as defined in Classification in Mental Retardation (American Association on Mental Retardation, 1719 Kalorama Road, NW, Washington D.C. 20009, 1983), and who have physical disabilities, mental disabilities or behavior disorders, the provider shall maintain on-duty trainers and instructors at a ratio of 1:10.

 

B)        For individuals who have moderate deficits in adaptive behavior as defined in Classification in Mental Retardation and who have physical disabilities, mental disabilities or behavior disorders, the provider shall maintain on-duty trainers and instructors at a ratio of 1:8.

 

C)        For individuals who have severe or profound deficits in adaptive behavior, as defined in Classification in Mental Retardation and who have physical disabilities, mental disabilities or behavior disorders, the provider shall maintain on-duty trainers and instructors at a ratio of 1:5.

 

D)        The provider may request additional staff for individuals whom the team has assessed and who require and who are receiving specialized services stated in one of the following levels:

 

i)          Level I. For individuals requiring and receiving staff assistance for the following specialized care:  aids or appliances for visual or auditory deficits or both; aids, appliances or equipment for physical disabilities; in dwelling catheterization; insulin injections for stabilized diabetics; cardiovascular or respiratory medications and multiple daily monitoring; incontinence care and assistance in personal care; seizure medication and monitoring of unstable condition; or a moderately serious level of maladaptive behavior as measured by the Inventory for Client and Agency Planning (ICAP) (DLM Teaching Resources, One DLM Park, Allen, Texas 75002, 1986);

 

ii)         Level II. For individuals requiring and receiving staff assistance for the following specialized care:  personal care and assistance with transfer and movement about the facility; insulin injections for diabetics who are not stabilized; ostomy care; or a serious level of maladaptive behavior as measured by the ICAP; or

 

iii)        Level III. For individuals requiring and receiving staff assistance for the following specialized care:  intermittent catheterization; wound care; respiratory care; tracheotomy care; tube feeding; or a very serious level of maladaptive behavior as measured by the ICAP.

 

2)         During breaks and non-training lunch periods, supervision shall be provided to maintain the safety of the individual.

 

3)         There shall be at least one QMRP for every 30 individuals.

 

e)         Each individual shall have a designated QMRP who shall:

 

1)         Convene the team as required by Section 119.220 to develop or revise the plan;

 

2)         Assure that the services specified in the plan are being provided;

 

3)         Assure the participation of team members;

 

4)         Identify and address gaps in the provision of service;

 

5)         Monitor the individual's status in relation to the plan;

 

6)         Advocate for the individual's rights and services;

 

7)         Provide for a written record of team meetings; and

 

8)         Initiate and coordinate a meeting of the team as often as the plan specifies or when required by problems or changes.

 

f)         If the interdisciplinary team determines that services required to meet the individual's needs are not available in the developmental training program, the QMRP shall be responsible for linking the individual with the level of service that meets his or her needs.

 

Section 119.220  Interdisciplinary team (team)

 

a)         The provider shall assure that each individual has a single interdisciplinary team which shall be responsible for preparing, revising, documenting and implementing the plan in accordance with Section 119.230.

 

b)         The team shall provide for and invite the active participation of:

 

1)         The individual and his or her legal guardian or both;

 

2)         The persons who work most directly with the individual both at the program and the individual's residence; and

 

3)         The professionals who assess the individual's strengths and needs (in accordance with Section 119.225), and design and evaluate the individual's program.

 

c)         At least one member of the team shall be a QMRP who shall provide services as specified in Section 119.215 and shall be responsible for convening the team.

 

Section 119.225  Assessment of individuals

 

The provider shall assure that, at least annually, each individual receives assessments identified in Sections 119.205(e) and (f) that shall be documented in the individual's record and the results explained to the individual or guardian.

 

a)         The assessment shall determine the individual's strengths and needs, level of adaptive and intellectual functioning, the presenting problem(s) and disability(s), diagnosis and the services required to meet the individual's needs.

 

b)         The assessment shall be performed by staff trained in methods of assessment such as physical, psychological, and functional.

 

c)         Through the method of assessment and the interpretation of results, the assessment shall be sensitive to the individual's:

 

1)         Racial, ethnic and cultural background;

 

2)         Chronological and developmental age;

 

3)         Visual and auditory impairments;

 

4)         Language preferences; and

 

5)         Degree of disability.

 

d)         Annual assessments for individuals shall include the ICAP or the Scales of Independent Behavior (SIB) (DLM Teaching Resources, One DLM Park, Allen, Texas 75002, 1985).

 

Section 119.230  Individual services plan (plan)

 

a)         When the individual enters a program, staff shall:

 

1)         Document in the record those services being provided to the individual until a plan is developed; and

 

2)         Explain to the individual all rights stated in Section 119.235, and provide the individual with a copy of those rights. This shall be documented in the individual's record.

 

b)         Within 30 days after an individual's entry into the program, a plan shall be developed by the team that states goals and objectives for developmental training that:

 

1)         Is based on the assessment results;

 

2)         Reflects the individual's or guardian's preferences for goals, objectives, and services;

 

3)         Identifies services and supports to be provided and by whom; and

 

4)         Has objectives that:

 

A)        Are measurable;

 

B)        Have timeframes for completion; and

 

C)        Have a person assigned responsibility.

 

c)         The plan shall include the names and titles of all staff and other persons contributing to the plan.

 

d)         The plan shall be signed by the QMRP and the individual or guardian.

 

e)         The individual or guardian shall be offered a copy of the plan.

 

f)         The plan shall become a part of the individual's record.

 

g)         At least monthly, the QMRP shall review the plan and document in the record that:

 

1)         Services are being implemented; and

 

2)         Services identified in the plan continue to meet the individual's needs or require modification or change to better meet the individual's needs.

 

h)         The team shall review the plan, at least annually, and shall note the status of the individual including any progress or regression which might require modification to the plan.

 

Section 119.232  Work activities

 

When an individual participates in work activities, the individual services plan must contain assessments or documentation that:

 

a)         The work activities are necessary to achieve the individual's goals and objectives;

 

b)         The work activities are part of an organized training program to teach the individual new skills;

 

c)         The individual is not able to work at a competitive wage level;

 

d)         The individual's other goals, objectives and needs are being addressed, whether in the developmental training program, in the residential program, or in the home; and

 

e)         The work activities are not directly related to the preparation of the individual for a specific paid or unpaid job.

 

(Source:  Added at 22 Ill. Reg. 16244, effective August 27, 1998)

 

Section 119.235  Individual rights and confidentiality

 

To insure that the individual's rights are protected and that all services provided to the individual comply with the laws cited in subsections (a) and (b) of this Section, providers shall assure that:

 

a)         The individual's rights are protected in accordance with the Code, except that the use of seclusion shall not be permitted.

 

b)         The individual's right to confidentiality is in accordance with the Act.

 

c)         Staff shall inform individuals entering a program of their rights in accordance with subsections (a) and (b) of this Section and of their right to contact the Guardianship and Advocacy Commission, Equip for Equality, Inc., and the provider's human rights committee.  Staff shall offer assistance to individuals in contacting these groups, giving each individual the address and telephone number of the Guardianship and Advocacy Commission and Equip for Equality, Inc.  This information shall be given to the individual and his or her guardian in writing.  If the individual is unable to read, the information shall be read and explained to him or her in a language he or she understands.  Staff shall, upon request, offer assistance to individuals in contacting the Commission and Protection and Advocacy.

 

d)         There is documentation in the record that staff have advised the individual of his or her rights, provided justification for any restriction of the individual's rights in accordance with Chapter 2 of the Code or assisted in contacting the Guardianship and Advocacy Commission.

 

e)         Providers have procedures that permit the individual or guardian to present grievances and to appeal decisions to deny, modify, reduce or terminate services up to and including the authorized agency representative.  The procedures shall require, at a minimum:

 

1)         Notification of a right to appeal actions to deny, modify, reduce or terminate services be given to the individual or guardian upon entry into the program;

 

2)         Written notice shall be given, 10 days in advance, of actions to deny, modify, reduce or terminate services;

 

3)         That no provider action shall be implemented pending a final administrative decision;

 

4)         Time frames for notice of intent to appeal and the rendering of a final administrative decision; and

 

5)         That no one directly involved in the action or decisions being grieved or appealed shall be part of the review of that action or decision.

 

f)         The authorized agency representative's decision on the grievance shall constitute a final administrative decision and shall be subject to review in accordance with the Administrative Review Law [735 ILCS 5/Art. III].

 

g)         The individual is not excluded, suspended or discharged from services and services are not reduced for exercising any of his or her rights.

 

Section 119.240  Special training procedures

 

a)         The provider shall develop policies and procedures and shall govern the use of all special training procedures used to modify behaviors that the team determines to be a problem or maladaptive.

 

b)         The program shall prohibit corporal punishment, seclusion, abuse, neglect and exploitation of individuals.

 

c)         To maximize the individual's growth, development and independence, the program shall use positive reinforcement in keeping with the individual's developmental level and learning, emotional, and environmental needs.

 

d)         The plan of an individual who exhibits maladaptive behavior shall include provisions to train the individual in the circumstances, if any, under which the behavior can be exhibited adaptively, or how to channel the behavior into similar but adaptive expressions, or how to replace the maladaptive behavior with adaptive behavior.

 

e)         Procedures used to prevent individuals from harming themselves or others that are not part of the plan shall not be repeated more than three time within a six-month period without being incorporated into the plan.

 

f)         Aversive procedures and time-out shall be used only as part of a plan.

 

g)         Whenever physical restraint, medications to manage behavior, time-out rooms, aversive conditioning or other procedures with similar degrees of restriction or intrusion are used to manage maladaptive behavior:

 

1)         The team shall determine and document in the record that the harmful effects of the behavior clearly outweigh all of the potentially harmful effects of the procedure;

 

2)         The procedure shall be an integral part of the plan which will lead to a less restrictive way to manage, and ultimately eliminate the behavior;

 

3)         The record shall document that informed consent was obtained; and

 

4)         The program's behavior management committee and human rights committee shall review and approve the procedure in accordance with Section 119.245.

 

h)         The behavior management committee and human rights committee shall review and approve proposed special training procedures that call for concurrent administration of more than one medication to manage an individual's behavior while attending the program. Medications so ordered shall be accompanied by a physician's progress note substantiating that use of the medication is justified, is within a therapeutic dosage range, and will not adversely affect the therapeutic benefits of other medications.  The medically supervised  special training procedures shall assure that:

 

1)         The medications are not administered in doses that will interfere with the individual's daily living activities;

 

2)         The medications are monitored for desired responses and adverse consequences; and

 

3)         The medications are gradually withdrawn at least annually unless clinically contraindicated.

 

i)          Programs using restraints in any special training procedure shall comply with Section 2-108 of the Code.

 

j)          The use of time-out rooms shall be in accordance with 42 CFR 483 (1996) (Conditions of Participation for Long Term Care Facilities.)

 

k)         The team shall implement time-out, medications for behavior management and aversive procedures programs only when:

 

1)         The individual's behavior is likely to cause physical or psychological harm to the individual or others;

 

2)         Positive procedures used within the past six months have been documented to be ineffective in reducing or eliminating this particular behavior;

 

3)         Both the human rights committee and the behavior management committee have approved the program prior to implementation; and

 

4)         The authorized agency representative has given written approval.

 

l)          Any approval by the program's human rights and behavior management committees and authorized agency representative of an individual's written aversive procedures program shall expire in 30 days. The program shall not continue beyond that time unless it is reviewed and approved by both committees and the authorized agency representative.

 

Section 119.245  Committees

 

a)         A program shall have a human rights committee.

 

1)         Not more than half of the members shall be program employees.

 

2)         The committee shall review program policies, procedures and practices which restrict an individual's rights.

 

3)         The program shall inform the committee of any complaints involving individual's rights, violations and any corrective actions.

 

4)         At least one member shall be an individual or his or her representative.

 

b)         A program which uses special training procedures as specified in Section 119.240 for managing maladaptive behavior shall establish a behavior management committee.

 

1)         Members shall include persons qualified to evaluate published behavior management studies and the technical adequacy of proposed behavior management interventions.  Persons are qualified by training and experence such as a clinical psychologist to review oversight procedures.

 

2)         When drugs to manage behavior are used, a professional qualified to evaluate their use, such as a physician or pharmacist, shall be a member of the committee.

 

c)         The human rights committee and behavior management committee shall:

 

1)         Approve special training procedures prior to their implementation and review those procedures at least every three months, except aversive conditioning procedures which shall be reviewed and approved at least every 30 days;

 

2)         Maintain minutes, including attendance and decisions made; and

 

3)         Have at least five members.

 

Section 119.250  Medications and medical care

 

a)         All medications shall be specifically prescribed for the individual by a physician or a dentist with the intent of the physician or dentist that it be taken by the individual under program oversight of the provider staff.

 

b)         The provider as it exercises program oversight may, as needed, guide the individual in self-administration of medications as part of the training program for independent living if the individual is not capable of self-administration.

 

c)         Medications shall be secured from unauthorized access and only a physician, pharmacist, registered or licensed practical nurse or program personnel authorized to provide program oversight of the self-administration of medications shall have access to medications.

 

d)         Programs shall provide an area for care of individuals who become ill.

 

e)         Programs shall have available the American Red Cross First Aid Kit or the equivalent contents.

 

Section 119.255  Environmental management

 

a)         Buildings used by the provider for the program shall:

 

1)         Be safe and clean;

 

2)         Conform with Chapters 28, 29, and 31 (specifically Section 31-1.1 through 31-1.6 of Chapter 31) of the NFPA 101, Life Safety Code (National Fire Protection Association, 1988) (Storage buildings of less than 200 square feet of floor area are exempt from compliance with Chapter 29);

 

3)         Conform with the Environmental Barriers Act [410 ILCS 25] and 71 Ill. Adm. Code 400 (Illinois Accessibility Code);

 

4)         Have a normal temperature and humidity comfort range in accordance with the American Society of Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE), Handbook of Fundamentals (National Association of American Society of Heating, Refrigerating, and Air Conditioning, United Engineering Center, 345 East 47th Street, New York, New York 10017, 1977); and

 

5)         Have a written preventive maintenance program which includes a schedule for inspection and service of equipment and physical plant.

 

b)         Toilets and bathrooms shall provide privacy and be located and equipped to facilitate accessibility and independence. When needed by the individual, special assistance or devices shall be provided.

 

c)         The provider shall maintain copies of inspections performed by local and state inspectors in regard to health, sanitation and environment.

 

d)         The provider shall develop, implement and maintain a disaster preparedness plan which shall be reviewed annually, revised as necessary, and ensure that:

 

1)         Records and reports of fire and disaster training are maintained;

 

2)         A record of actions taken to correct noted deficiencies in disaster drills or inspections is maintained;

 

3)         Staff know how to react to fire, severe weather, missing persons, medical emergencies, poison control and deaths;

 

4)         Individuals can react to fire and severe weather emergencies or they are receiving training;

 

5)         Staff and individuals can locate fire-fighting equipment, first aid kits, evacuation routes and procedures; and

 

6)         A telephone is available with a list of the telephone numbers of the nearest poison control center, the police, the fire department and emergency medical personnel.

 

e)         The provider shall have procedures for evacuation which ensure that:

 

1)         Evacuation drills are conducted at a frequency determined by the provider based on the needs and abilities of the individuals served;

 

2)         Evacuation drills occur at least annually;

 

3)         Special provisions are made for those individuals who cannot evacuate the building without assistance, including those with physical disabilities and individuals who are deaf and/or blind;

 

4)         All personnel are trained to carry out their assigned evacuation tasks;

 

5)         Corrective action is taken when inefficiency or problems are identified during an evacuation drill; and

 

6)         Drills include actual evacuation of individuals to safe areas.

 

Section 119.260  Administrative requirements

 

a)         Governing body

 

1)         Each program which is owned or operated by any corporation, association, or unit of local government shall have a governing body in which is vested authority and responsibility for the organization, management, control and operation of the program in compliance with the General Not For Profit Corporation Act of 1986 [805 ILCS 105], and with the Department's rules at 59 Ill. Adm. Code 103 (Grants).

 

2)         The names and addresses of all owners or controlling parties (whether they are sole proprietorship, association, partnership, corporation, or subdivisions of other bodies, such as public agencies or religious, fraternal or other charitable organizations) shall be fully disclosed and provided to the Department annually. For corporations, the names and addresses of all officers, directors, and principal stockholders, either beneficial or of record, shall be disclosed.

 

3)         The governing body shall include persons who have no direct or indirect financial interest in the program and who reside in the geographic area served by the program and include persons with developmental disabilities and consumer representatives.

 

4)         The provider shall notify the governing body of the Department's annual survey and other State and local inspections which indicate the outcome and disposition of any findings resulting from a survey.

 

b)         Advisory board

 

1)         A program which is owned or operated by a sole proprietor or partnership shall appoint and maintain an advisory board whose members shall be persons who have no direct or indirect financial interest in the program, and who reside in the geographic area served by the program, and who include persons with developmental disabilities and consumer representatives.

 

2)         The advisory board shall ensure that each program owned or operated by a sole proprietor or partnership shall have a charter, mission statement, goals and objectives.

 

c)         Authorized agency representative

            The provider shall appoint an authorized agency representative whose qualifications and duties are defined in writing and include authority for program administration and management. His or her performance shall be reviewed and documented annually by the governing body.

 

d)         Provider policy requirements

 

1)         The program shall have written policies which shall be reviewed annually, revised as necessary and approved by the governing body or advisory board and shall describe:

 

A)        Goals and objectives reflecting annual and long-range plans;

 

B)        The population served, including age groups, disabilities and the geographic service area;

 

C)        The services provided in response to individual and community needs including:

 

i)          The hours and days of operation;

 

ii)         The methods used to perform initial screening and assessment of individuals;

 

iii)        A description of processes used for development of the services plan;

 

iv)        The use and approval of special training procedures such as time-out, restraint and aversive techniques;

 

v)         Handling emergencies and disasters; and

 

vi)        Maintenance of buildings, vehicles and equipment.

 

2)         Program policy shall ensure the availability of professional, administrative and support staff to assess and address the needs of individuals. This includes personnel and consultants who can communicate, either verbally or non-verbally, with individuals.

 

3)         Program policy shall ensure that Department-authorized consumer-interest groups shall be permitted, with the consent of the individuals, to visit a program.

 

A)        Consumer interest groups must request authorization in writing to visit specific programs.  The request shall be made to the Department and shall specify the program to be visited and the reason for the group's proposed visit.  If the group agrees to the conditions set out below, the request shall contain those agreements.

 

B)        The Department shall authorize a group to visit a program for a period of one year if:

 

i)          The group has as one of its organizational purposes to review public services for mentally disabled individuals;

 

ii)         The group agrees that its visits will not interfere with the program; and

 

iii)        The group agrees to abide by the provisions of the Act concerning records and communications of individuals in programs.

 

C)        The Department shall revoke its authorization or not renew the authorization if it has information that the group has not abided by the conditions set out above.

 

D)        Any group whose authorization has been denied, revoked or not renewed may appeal the decision in writing to the Secretary, who shall review the decision and accept or reverse it within 30 days.  The Secretary shall uphold the decision if he or she finds that the group has not abided by this Part.

 

e)         Personnel requirements

 

1)         Programs shall not discriminate in the hiring or employment of staff on the basis of race, color, age, national origin, sex, religion, or handicap.

 

2)         Personnel policies and procedures shall be in writing and available for review.

 

3)         The program shall have written job descriptions or contractual agreements for every position, including consultant and direct-service volunteer positions, which list the job title, duties and responsibilities, minimum experience and educational requirements, immediate supervisor and subordinates.

 

4)         Staff shall be licensed, registered or certified by the State, if required.

 

5)         When paraprofessional or untrained staff are used in direct services, they shall be supervised by professional staff.

 

6)         A pay plan for all position titles in use shall be available for review by the Department.

 

7)         An agency shall not employ a person in any capacity until the agency has inquired of the Department of Public Health as to information in the Nurse Aide Registry concerning the person.  If the Registry has information substantiating a finding of abuse or neglect against the person, the agency shall not employ him or her in any capacity.

 

f)         Staff and volunteer training

 

1)         Training in principles and practices in the following areas shall be provided to direct service and professional staff:

 

A)        Cardiopulmonary resuscitation (CPR), Heimlich maneuver and first aid;

 

B)        Behavior management;

 

C)        Normalization;

 

D)        Age and cultural appropriateness;

 

E)        Safety, fire, and disaster procedures including:

 

i)          Use of fire-fighting equipment; and

 

ii)         Familiarity with the disaster preparedness plan.

 

F)         Prevention, handling, and reporting of abuse, neglect, exploitation, unusual incidents (see subsection (h) of this Section):

 

G)        Individual rights in accordance with Chapter 2 of the Code and maintaining confidentiality in accordance with the Act;

 

H)        Team planning;

 

I)         Infection control and sanitation; and

 

J)         Food preparation and handling for staff who prepare and serve food to individuals.

 

2)         Training for volunteers working directly with individuals shall be provided in the areas discussed in subsections (f)(1)(A), (E), (F) and (G) of this Section.  The agency shall provide a training program for other volunteers.

 

g)         Quality assurance

 

1)         There shall be a written quality assurance plan and ongoing activities designed to review and evaluate services to individuals, operation of programs and to resolve identified problems.

 

2)         The scope of quality assurance shall include reviewing semi-annually, or more frequently if problems are identified, at least the following:

 

A)        Service planning;

 

B)        The use of special training procedures including behavior management procedures;

 

C)        Unusual incidents relative to services to individuals;

 

D)        Service utilization;

 

E)        Individuals' records ensuring that they meet the requirements of this Part;

 

F)         Subcontracted services to ensure that the needs of individuals are being met; and

 

G)        The status of individuals receiving service.

 

3)         Records of quality assurance reviews and activities shall be filed separately from the records of individuals.

 

h)         Unusual incidents

 

1)         The provider shall have written policies and procedures for handling, investigating, reporting, tracking and analyzing unusual incidents through the provider's management structure, up to and including the authorized agency representative.  The provider shall ensure that staff demonstrate their knowledge of, and follow such policies and procedures that shall include but are not limited to:

 

A)        Rape or sexual assault;

 

B)        Abuse or neglect;

 

C)        Death;

 

D)        Physical injury;

 

E)        Assault;

 

F)         Missing individuals;

 

G)        Theft; and

 

H)        Criminal conduct.

 

2)         Within 24 hours after becoming aware of an incident, the provider shall report to the appropriate law enforcement agencies any incident which is subject to the Criminal Code of 1961 [720 ILCS 5].

 

3)         The provider shall ensure that suspected instances of abuse or neglect against individuals in programs that are certified by the Department are reported to  the Office of Inspector General (Section 6.2 of the Abused and Neglected Long Term Care Facility Residents Reporting Act [210 ILCS 30/6.2]).

 

i)          Individual's record (record)

 

1)         The program shall ensure the confidentiality of an individual's record in accordance with the Act and shall ensure safekeeping of all records against loss or destruction.  Individuals or their guardians shall have access to the individual's record upon request.

 

2)         The program shall maintain a chronological record for each individual. Records shall be located at a site, designated by the program, that is accessible and convenient to staff contributing to the plan.

 

A)        Each entry shall be legible, dated and authenticated by the signature and title of the person making the entry.

 

B)        Corrections shall be initialed and made in such a way as to leave the original incorrect entry legible.

 

C)        When symbols or abbreviations are used, the program shall provide a legend, standardized throughout the program, to explain them.

 

3)         The following information shall be obtained and recorded when an individual enters a program, and shall be updated as necessary:

 

A)        Identifying information including name, date of birth, sex, race, social security number and legal status;

 

B)        The name, address and telephone number of the guardian or the person to be notified in case of an emergency;

 

C)        The language spoken or understood by the individual including, in the case of a hearing impaired or non-verbal individual, the individual's preferred mode of communication, e.g., American sign language, signed English, aural, oral or tactile communications device;

 

D)        Psychological assessments and recommendations;

 

E)        Prescribed medications, allergies to foods, other medications and substances;

 

F)         Physical and dental examinations and medical history;

 

G)        Consent to receive emergency medical services; and

 

H)        Copies of the authorization for release of information.

 

4)         The following shall be entered in the individual's record during the period of service:

 

A)        Prior service history;

 

B)        Initial assessments and plan and the most recent assessments and plan;

 

C)        Documentation of approval and their results when special training procedures are used such as time-out, restraint and aversive procedures; and

 

D)        Chronological progress notes, at least monthly, documenting the individual's involvement in and response to the plan.

 

j)          Financial and operational requirements

            Programs shall comply with 59 Ill. Adm. Code 103 (Grants).

 

(Source:  Amended at 23 Ill. Reg. 10211, effective August 23, 1999)

 

Section 119.261  Application for waiver of the prohibition against employment

 

a)         Hiring of direct care employees

            A provider shall not knowingly hire or retain any person after January 1, 1998 in a full-time, part-time or contractual direct care position if that person has been convicted of committing or attempting to commit one or more of the following offenses unless the applicant or employee obtains a waiver pursuant to subsections (i) through (l) of this Section (Section 25 of the Health Care Worker Background Check Act [225 ILCS 46/25]):

 

1)         Murder, homicide, manslaughter or concealment of a homicidal death (Sections 9-1 through 9-3.3 of the Criminal Code of 1961 [720 ILCS 5/9-1 through 9-3.3]);

 

2)         Solicitation of murder and solicitation of murder for hire (Sections 8-1.1 and 8-1.2 of the Criminal Code of 1961 [720 ILCS 5/8-1.1 and 8-1.2]);

 

3)         Kidnaping or child abduction (Sections 10-1, 10-2, 10-5 and 10-7 of the Criminal Code of 1961 [720 ILCS 5/10-1, 10-2, 10-5 and 10-7]);

 

4)         Unlawful restraint or forcible detention (Sections 10-3, 10-3.1 and 10-4 of the Criminal Code of 1961 [720 ILCS 5/10-3, 10-3.1 and 10-4]);

 

5)         Assault, battery or infliction of great bodily harm (Sections 12-1, 12-2, 12-3, 12-3.1, 12-3.2, 12-4, 12-4.2, 12-4.3, 12-4.4, 12-6 and 12-7 of the Criminal Code of 1961 [720 ILCS 5/12-1, 12-2, 12-3, 12-3.1, 12-3.2, 12-4, 12-4.2, 12-4.3, 12-4.4, 12-6 and 12-7]);

 

6)         Sexual assault or abuse (Sections 12-13, 12-14, 12-15 and 12-16 of the Criminal Code of 1961 [720 ILCS 5/12-13, 12-14, 12-15 and 12-16]);

 

7)         Indecent solicitation of a child (Section 11-6 of the Criminal Code of 1961 [720 ILCS 5/11-6]);

 

8)         Predatory criminal sexual assault of a child (Section 12-14.1 of the Criminal Code of 1961 [720 ILCS 5/12-14.1]);

 

9)         Sexual exploitation of a child (Section 11-9.1 of the Criminal Code of 1961 [720 ILCS 5/11-9.1]);

 

10)       Exploitation of a child (Section 11-19.2 of the Criminal Code of 1961 [720 ILCS 5/11-19.2]);

 

11)       Child pornography (Section 11-20.1 of the Criminal Code of 1961 [720 ILCS 5/11-20.1]);

 

12)       Endangering the life or health of a child (Section 12-21.6 of the Criminal Code of 1961 [720 ILCS 5/12-21.6]);

 

13)       Cruelty to children (Section 53 of the Criminal Jurisprudence Act [720 ILCS 115/53], repealed by P.A. 89-234, effective January 1, 1996);

 

14)       Abuse or gross neglect of a long-term care facility resident (Section 12-19 of the Criminal Code of 1961 [720 ILCS 5/12-19]);

 

15)       Criminal neglect of an elderly or disabled person (Section 12-21 of the Criminal Code of 1961 [720 ILCS 5/12-21]);

 

16)       Theft, financial exploitation of an elderly or disabled person, robbery or burglary (Sections 16-1, 16-1.3, 16A-3, 18-1, 18-2, 19-1 and 19-3 of the Criminal Code of 1961 [720 ILCS 5/16-1, 16-1.3, 16A-3, 18-1, 18-2, 19-1 and 19-3]);

 

17)       Aggravated robbery (Section 18-5 of the Criminal Code of 1961 [720 ILCS 5/18-5]);

 

18)       Criminal trespass (Section 19-4 of the Criminal Code of 1961 [720 ILCS 5/19-4]);

 

19)       Home invasion (Section 12-11 of Criminal Code of 1961 [720 ILCS 5/12-11]);

 

20)       Arson (Sections 20-1 and 20-1.1 of the Criminal Code of 1961 [720 ILCS 5/20-1 and 20-1.1]);

 

21)       Unlawful use of weapons or aggravated discharge of a firearm (Sections 24-1 and 24-1.2 of the Criminal Code of 1961 [720 ILCS 5/24-1 and 24-1.2]);

 

22)       Armed violence (Article 33A of the Criminal Code of 1961 [720 ILCS 5/Art. 33A]);

 

23)       Heinous battery (Section 12-4.1 of the Criminal Code of 1961 [720 ILCS 5/12-4.1]);

 

24)       Tampering with food, drugs or cosmetics (Section 12-4.5 of the Criminal Code of 1961 [720 ILCS 5/12-4.5]);

 

25)       Aggravated stalking (Section 12-7.4 of the Criminal Code of 1961 [720 ILCS 5/12-7.4]);

 

26)       Ritual mutilation and ritualized abuse of a child (Sections 12-32 and 12-33 of the Criminal Code of 1961 [720 ILCS 5/12-32 and 12-33]);

 

27)       Forgery (Section 17-3 of the Criminal Code of 1961 [720 ILCS 5/17-3]);

 

28)       Vehicular hijacking and aggravated vehicular hijacking (Sections 18-3 and 18-4 of the Criminal Code of 1961 [720 ILCS 5/18-3 and 18-4]);

 

29)       Manufacture, delivery or trafficking of cannabis (Sections 5, 5.1 and 9 of the Cannabis Control Act [720 ILCS 550/5, 5.1 and 9]); and

 

30)       Delivery of cannabis on school grounds (Section 5.2 of the Cannabis Control Act [720 ILCS 550/5.2]);

 

31)       Delivery of cannabis by a person at least 18 years of age to a person under 18 who is at least three years his or her junior (Section 7 of the Cannabis Control Act [720 ILCS 550/7]); and

 

32)       Manufacture, delivery or trafficking of controlled substances (Sections 401, 401.1, 404, 405, 405.1, 407 and 407.1 of the Illinois Controlled Substances Act [720 ILCS 570/401, 401.1, 404, 405, 405.1, 407 and 407.1]).

 

b)         Definitions

            For the purposes of this Section, the following terms are defined:

 

            "Applicant."  A person seeking employment with a provider who has received a bona fide conditional offer of employment.  (Section 15 of the Health Care Worker Background Check Act [225 ILCS 46/15])

 

            "Conditional offer of employment."  A bona fide offer of employment by a provider to an applicant, which is contingent on the receipt of a report from the Department of State Police indicating that the applicant does not have a record of conviction of any of the criminal offenses enumerated in subsections (a)(1) through (32) of this Section. (Section 15 of the Health Care Worker Background Check Act [225 ILCS 46/15])

 

            "Direct care."  The provision of nursing assistance with meals, dressing, movement, bathing, or other personal needs of maintenance, or general supervision and oversight of the physical and mental well-being of an individual who is incapable of maintaining a private, independent residence or who is incapable of managing his or her person whether or not a guardian has been appointed for that individual.  (Section 15 of the Health Care Worker Background Check Act [225 ILCS 46/15])

 

            "Initiate."  The obtaining of the authorization for a record check from a student, applicant, or employee.  The provider shall transmit all necessary information and fees to the Illinois State Police within 10 working days after receipt of the authorization.  (Section 15 or the Health Care Worker Background Check Act [225 ILCS 46/15])

 

            "Nurse Aide Registry."  The registry of nurse aides kept by the Department of Public Health pursuant to Section 3-206.01 of the Nursing Home Care Act [210 ILCS 45/3-206.01].

 

            "UCIA"  The Uniform Conviction Information Act [20 ILCS 2635].

 

c)         Nurse Aide Registry

            For all applicants for nurse aide positions, the provider shall check the Nurse Aide Registry to determine the date of the applicant's last UCIA criminal history record check.  If it has been more than one year since the records check, the provider must initiate or have initiated on its behalf a UCIA criminal history record check for the nurse aide.  (Section 30(b) of the Health Care Worker Background Check Act [225 ILCS 46/30(b)])

 

d)         Conditional offers

            Effective January 1, 1996, if the provider makes a conditional offer of employment to an applicant other than a nurse aide who is not exempt under subsection (m) of this Section for a direct care position, the provider shall initiate or have initiated on its behalf a UCIA criminal history record check except as provided for in subsection (e)(2) of this Section.  (Section 30(c) of the Health Care Worker Background Check Act [225 ILCS 46/30(c)])

 

e)         Initiation of UCIA criminal history record check

 

1)         By January 1, 1997 the provider must initiate a UCIA criminal history record check for all direct care employees who were hired before January 1, 1996, who have not already had a UCIA criminal history record check and who are not exempt in accordance with subsection (m) of this Section. (Section 30 of the Health Care Worker Background Check Act [225 ILCS 46/30])

 

2)         If the agency initiated a criminal background check on an employee hired after January 1, 1996 and before January 1, 1998, the agency does not need to initiate an additional criminal history record check to determine if the employee has a record of conviction of any of the offenses enumerated in subsections (a)(2), (7), (9) through (13), (17), (22) through (28), (30) and (31) of this Section.  (Section 25.1 of the Health Care Worker Background Check Act [225 ILCS 46/25.1])

 

f)         Request for UCIA criminal history record check

            The provider shall request the UCIA criminal history record check in accordance with the requirements of the Department of State Police.  (See 20 Ill. Adm. Code 1265.) The provider shall notify the applicant or employee of the following whenever a non-fingerprint UCIA Criminal History Record search is made.  (Section 30 of the Health Care Worker Background Check Act [225 ILCS 46/30]):

 

1)         That the provider shall request or have requested on its behalf a UCIA criminal history record check pursuant to the Health Care Worker Background Check Act;

 

2)         That the applicant or employee has a right to obtain a copy of the criminal records report, challenge the accuracy and completeness of the report and request a waiver in accordance with subsection (j)(1) of this Section;

 

3)         That the applicant, if hired conditionally, may be terminated if the criminal records report indicates that the applicant has a record of conviction of any of the criminal offenses enumerated in subsections (a)(1) through (32) of this Section unless the applicant's identity is validated and it is determined that the applicant or employee does not have a disqualifying criminal history record based on a fingerprint-based records check pursuant to subsection (h) of this Section or the employee receives a waiver pursuant to subsection (j)(1) of this Section;

 

4)         That the applicant or employee cannot work in a direct care position while a waiver request is pending;

 

5)         That the applicant, if not hired conditionally, shall not be hired if the criminal records report indicates that the applicant has a record of conviction of any of the criminal offenses enumerated in subsections (a)(1) through (32) of this Section unless the applicant's record is cleared based on a fingerprint-based record check pursuant to subsection (h) of this Section or the employee receives a waiver pursuant to subsection (j)(1) of this Section;

 

6)         That the employee may be terminated if the criminal records report indicates that the employee has a record of conviction of any of the criminal offenses enumerated in subsections (a)(1) through (32) of this Section unless the record is cleared based on a fingerprint-based records check pursuant to subsection (h) of this Section or the employee receives a waiver pursuant to subsection (j)(1) of this Section.

 

g)         Conditional employment

            The provider may conditionally employ an applicant to provide direct care for up to three months pending the results of a UCIA criminal history record check.  (Section 30(g) of the Health Care Worker Background Check Act [225 ILCS 46/30(g)])

 

h)         Request for fingerprint-based UCIA criminal records check

            An applicant, employee, or nurse aide whose UCIA criminal history record check indicates a conviction for committing or attempting to commit one or more of the offenses enumerated in subsections (a)(1) through (32) of this Section may request that the provider commence a fingerprint-based UCIA criminal records check by submitting information in a form and manner prescribed by the Department of State Police (see 20 Ill. Adm. Code 1265) within 30 days after receipt of the criminal records report  to validate identity and clear one's record.  (Section 35 of the Health Care Worker Background Check Act [225 ILCS 46/35])

 

i)          Eligibility for waiver

 

1)         An applicant, employee, or nurse aide may request a waiver of the prohibition against employment.  (Section 40 of the Health Care Worker Background Check Act [225 ILCS 46/40])

 

2)         The Department may grant a waiver based on any mitigating circumstances, which may include but not be limited to:

 

A)        The applicant's, employee's or nurse aide's age at the time that the crime was committed;

 

B)        The circumstances surrounding the crime;

 

C)        The length of time since the conviction;

 

D)        The applicant or employee's criminal history since the conviction;

 

E)        The applicant or employee's work history;

 

F)         The applicant or employee's current employment references;

 

G)        The applicant or employee's character references;

 

H)        Nurse Aide Registry records; and

 

I)         Other evidence demonstrating the ability of the applicant or employee to perform the employment responsibilities competently and evidence that the applicant or employee does not pose a threat to the health or safety of residents, recipients or clients. (Section 40(b) of the Health Care Worker Background Check Act [225 ILCS 46/40(b)])

 

j)          Application for waiver

 

1)         If the applicant, employee or nurse aide wishes to request a waiver, the request shall be submitted within 5 calendar days after receipt of the criminal records report. A complete waiver request shall include the following:

 

A)        A statement specifying any mitigating circumstances (see subsection (i)(2) of this Section) the person believes are relevant to the employment in question; and

 

B)        Either:

 

i)          Information necessary for the Department to obtain a fingerprint-based UCIA criminal records check, including a suitable set of fingerprints, in a form and manner prescribed by the Department of State Police (see 20 Ill. Adm. Code 1265), the fee for such a check (which shall not exceed the actual cost of the check) and the findings of the required non fingerprint-based UCIA criminal records check conducted by the Department of State Police; or

 

ii)         The report of the results of the fingerprint-based UCIA criminal records check done pursuant to subsection (h) of this Section.

 

2)         Provider staff may assist the applicant, employee or nurse aide in completing the application.

 

3)         The waiver request shall be submitted to:

 

            Accreditation, Licensure and Certification

            Department of Human Services

            405 Stratton Building

            Springfield IL 62765

 

k)         Waiver decision

 

1)         The waiver request shall be reviewed by a panel of Department staff.  The Department shall return a decision to the applicant, employee, or nurse aide and the provider within 30 calendar days after receipt of the completed waiver request including receipt of a report from the State Police based on the fingerprint-based record check.

 

2)         The provider is not obligated to hire or offer permanent employment to an applicant or to retain an employee who is granted a waiver. (Section 40(f) of the Health Care Worker Background Check Act [225 ILCS 46/40(f)])

 

3)         The Department shall be immune from liability for any waivers granted.  (Section 40(e) of the Health Care Worker Background Check Act [225 ILCS 46/40(e)])

 

l)          Appeal of the decision

 

1)         The applicant, employee, or nurse aide may request further review of his or her request for a waiver within 30 calendar days after the receipt of the Department's denial of the waiver.

 

2)         The applicant, employee, or nurse aide may submit additional documentation of the mitigating circumstances.

 

3)         The appeal shall be submitted to:

 

            Director

            Division of Disability and Behavioral Health Services

            Department of Human Services

            100 South Grand Avenue East

            Springfield IL 62762

 

4)         The Secretary shall act on the appeal within 30 calendar days after receipt of the appeal and shall issue a final decision granting or denying the waiver request.

 

m)        This Section shall not apply to:

 

1)         An individual who is licensed by the Department of Professional Regulation or the Department of Public Health under another law; or

 

2)         An individual employed or retained by the provider as defined by Section 15 of the Health Care Worker Background Check Act [225 ILCS 46/15] for whom a criminal background check is required by another law of this State. (Section 20 of the Health Care Worker Background Check Act [225 ILCS 46/20])

 

n)         The provider shall send a copy of the results of the UCIA criminal history record check to the State Nurse Aide Registry for an individual employed as a nurse aide within 10 working days after receipt of the results.  (Section 30(b) of the Health Care Worker Background Check Act [225 ILCS 46/30(b)])

 

o)         The provider shall retain on file for a period of five years records of criminal records requests for all employees.  The files shall be subject to inspection by the Department's Office of Accreditation and Licensure.  The provider shall retain the results of the UCIA criminal history records check and waiver, if appropriate, for the duration of the individual's employment.  A fine of $500 may be imposed for failure to maintain these records. (Section 50 of the Health Care Worker Background Check Act [225 ILCS 46/50])

 

(Source:  Amended at 23 Ill. Reg. 190, effective December 15, 1998)

 

Section 119.270  Accreditation

 

a)         Providers demonstrating current accreditation status under any of the standards of the accrediting organizations identified in the definition of "accreditation" in Section 119.120 of this Part shall be granted deemed status for the following Sections of this Part:

 

1)         Section 119.200(a) and (b);

 

2)         Section 119.205;

 

3)         Section 119.210(a) through (d);

 

4)         Section 119.215;

 

5)         Section 119.220;

 

6)         Section 119.225;

 

7)         Section 119.230(a) and (c) through (f);

 

8)         Section 119.240(a) and (c) through (h);

 

9)         Section 119.245;

 

10)       Section 119.250; and

 

11)       Section 119.260(a) through (e)(1) through (6), (g), (i) and (j).

 

b)         Demonstration of current accreditation status shall be achieved by submission of a certificate of accreditation and the most recent accreditation report by the provider to the Department.

 

c)         If the provider's accreditation status changes for any reason, the provider shall notify the Department of that change within 30 days after the effective date of the change.

 

(Source:  Amended at 23 Ill. Reg. 10211, effective August 23, 1999)

 

Section 119.300  Issuing a certificate and period of certification

 

a)         The Department shall issue a certificate after receipt of a completed application, including the authorized agency representative's signature and the date, and after verifying the provider's compliance with this Part.

 

b)         The Department shall survey providers and their certified program. The Department shall review the provision of services, observe individuals and staff, and inspect the records and premises for the purpose of determining compliance with this Part.

 

c)         The Department shall survey providers to determine their compliance with this Part at the time of initial certification or certificate renewal.

 

d)         If a provider requests a waiver of any standard in this Part, it shall present to the Department a plan of correction to comply with the required standard, including a timetable for compliance and its rationale for the waiver request.  Standards identified in Sections 119.325(a)(1)(A), (B), (C) and (D) shall not be waived.

 

e)         If a provider is not able to comply with a standard in this Part due to insufficient funding or no funding, the following shall occur:

 

1)         The provider shall request a waiver of the specific standard in its plan of correction which shall state that the provider cannot comply with the standard due to insufficient funding or no funding;

 

2)         The Department's Division of Developmental Disabilities shall review the waiver request and determine if the waiver shall be granted, except that no waiver shall be granted for any standard identified in Sections 119.325(a)(1)(A), (B), (C), and (D); and

 

3)         If the Division of Developmental Disabilities determines that a waiver should be granted, it shall direct the Bureau to waive the specific standard.

 

f)         If a provider requests an equivalency for any standard in this Part, it shall present a written description to the Department of the equivalency containing specific reference as to how the equivalency meets the standard. An equivalency shall not be granted on standards identified in Sections 119.325(a)(1)(A), (B), (C), and (D).

 

g)         A certificate shall be valid for one year unless denied by the Department.

 

Section 119.305  Application for certification

 

a)         Forms

            Providers shall obtain application forms by writing to:

 

            Office of Accreditation and Licensure

            Department of Human Services

            405 Stratton Building

            Springfield IL 62765

 

b)         Certification renewal

 

1)         Each certified provider shall submit a renewal application at least 120 days before expiration of the certification.  The Department shall mail an application to the provider prior to the 120 day period before expiration.

 

2)         Prior to recertification, OAL shall survey a provider.

 

3)         The Department shall recertify a provider in compliance with this Part for an additional one-year period.

 

4)         When the Department does not approve a provider for recertification, the Department shall notify the provider, in writing, within 30 days after the decision.

 

5)         The notice shall include a clear and concise statement of the violation on which the determination is based and notice of the opportunity for a hearing in accordance with Section 119.330 of this Part.

 

6)         The Department shall consider approving written requests for the development and certification of new providers when the following conditions are presented to the Department and verified:

 

A)        The provider shall not force:

 

i)          The provision of a service or residential setting on an individual or guardian which does not meet the individual's needs and desires; or

 

ii)         Residential relocation of individuals away from participating relatives;

 

B)        The provider demonstrates through letters of support or working agreement, a willingness to work cooperatively in coordinating services with residential service providers in the geographic area where services are provided; and

 

C)        The provider shall identify unserved individuals who have been assessed to be in need of developmental training.

 

(Source:  Amended at 21 Ill. Reg. 8297, effective June 25, 1997)

 

Section 119.310  Application acceptance and verification

 

a)         Applications for certification shall be deemed received by the Department on the postmarked date.

 

b)         The Department shall notify a provider of any error or omission made on the application within 30 days. If the provider fails to respond to the notice within 30 days, the Department shall terminate the application process and notify the provider within 30 days.

 

c)         The Department shall either approve or disapprove the application within 90 days after its receipt.

 

d)         The Department shall verify information supplied in applications. This may be done by telephone with the applicant or through information provided by independent parties.

 

Section 119.315  Non-transferability of a certificate

 

a)         A certificate is not assignable or transferable.

 

b)         Change in ownership or discontinuation of operations causes the certificate to be void.

 

c)         Certification documents and all copies shall remain Department property and shall be returned by the provider within 10 days after notifying the Department of a change in ownership.

 

Section 119.320  Cessation of operations

 

a)         When a provider decides to terminate operation of a program, it shall notify the following of its decision at least 60 days in advance of termination:

 

1)         The Department;

 

2)         Individuals who must be transferred or discharged;

 

3)         The individual's guardian and members of the individual's family, when applicable;

 

4)         Contractual staff; and

 

5)         Subcontractors working with affected individuals.

 

b)         The notice shall state the proposed date and reason for the program's termination.

 

c)         The provider shall advise individuals on available alternatives and shall assist them in securing alternative services.  If the provider is unable to find an alternative, the Department shall assure placement for those individuals funded by the Department.  For residents of licensed long-term care facilities, the facility shall assure placement.

 

d)         After termination of a program, funding shall be continued in the individual's new alternative by the State agency funding the individual in the terminating program.

 

Section 119.325  Certificate denial

 

a)         The Department shall deny certification at any time if the provider:

 

1)         Fails to maintain full compliance with standards identified in:

 

A)        Sections 119.235 (a) through (e);

 

B)        Sections 119.240 (b), (g)(4), (i);

 

C)        Sections 119.250 (a), (b); and

 

D)        Sections 119.255 (a)(1) through (a)(3), (b), (d)(1) through (d)(6), (e)(1), (e)(3), (e)(5), (e)(6);

 

2)         Fails to maintain substantial compliance with all standards in this Part other than those identified in subsection (a)(1) of this Section;

 

3)         Fails to submit a plan of correction acceptable to the Department for any violations resulting from an on-site survey by the Department within 30 days of receipt of the notice of violation.  A plan will be acceptable to the Department if the proposed correction will cause compliance with the applicable standard and if the timetable is reasonable.  Criteria for the timetable being reasonable include that the correction be made immediately if the standard not complied with affects the safety or health of individuals, or that compliance occurs within the period of certification for all other standards noted as deficient;

 

4)         Submits false information either on Department forms, plan(s) of correction or during an on-site survey;

 

5)         Refuses to permit or participate in a scheduled or unscheduled survey; or

 

6)         Willfully violates any rights of individuals being served as identified in the Code or in the Act.

 

b)         The Department shall refuse to certify a program or shall deny a certificate if the owner, authorized agency representative or certificate holder has been convicted of a felony, or a misdemeanor involving moral turpitude, as shown by a certified copy of the court of conviction.

 

c)         If the Department determines that individuals are at imminent risk which has not or cannot be corrected, it shall immediately close the affected program, plan for the immediate removal of all individuals and deny the certificate of the provider. The affected program shall not operate and shall not receive Department funding during the period of any appeal.

 

d)         If a provider contests the Department's certification decision pursuant to subsection (a), (b) or (c) of this Section, it may request a hearing in accordance with Section 119.330, by providing written notice.  The Department shall notify the provider of the time and place of the hearing not less than 14 days before the hearing date.

 

e)         If the provider does not provide written notice, the Department shall deny the certificate.

 

f)         The Department shall immediately notify the Department of Public Aid of the decertification of any provider.

 

Section 119.330  Hearings

 

a)         The Department may not deny or suspend a certificate unless the provider is given written notice of the grounds for the Department's action.  Except when denial of a certificate is based on imminent risk as described in Section 119.325, the provider may operate and receive a reimbursement for services during the period preceding the hearing, until such time as a final decision is made.

 

b)         Hearings shall be conducted in accordance with the Department's rule at 89 Ill. Adm. Code 508.

 

(Source:  Amended at 23 Ill. Reg. 10211, effective August 23, 1999)