Ill. Admin. Code tit. 59 § 101.75
This Section shall apply to decisions concerning the transfer and discharge from community residential settings of Bogard et al. v. Bradley et al. class members. If there is a conflict between this Section and 59 Ill. Adm. Code 115 and 59 Ill. Adm. Code 120 concerning discharge and transfer that apply to class members, this Section will govern.
For the purposes of this Section, the following terms are defined:
"Administrative law judge (ALJ)." The person appointed by the Secretary to preside at the formal administrative hearing and is synonymous with any other term used to refer to the person conducting such hearings.
"Agency." An entity that operates a community residential setting.
"Appellant." The person who requests a hearing.
"Class members." All persons 18 years of age or older with developmental disabilities who, on or after March 23, 1986, resided in an intermediate care or skilled nursing facility in Illinois as a Medicaid recipient for a period of more than 120 days in the aggregate. No person shall be excluded from the class because he or she has a primary diagnosis that is not mental retardation or a related condition, provided that such person also has a condition which meets the definition of developmental disability. However, no person first admitted to a nursing facility on or after April 1, 1994, will be a member of the class.
"Community residential setting." One of a variety of living arrangements as long as no more than eight people reside together and the setting is designed to promote independence in daily living, community integration, and economic self-sufficiency. Community residential settings include existing categories such as community integrated living arrangements, community residential alternatives, assisted residential care, supported residential care and adult foster care and may also include newly developed settings which are consistent with these principles.
"Contested case." Has the meaning ascribed to it in Section 1-30 of the IAPA [5 ILCS 100/1-30] .
"Days." Working days unless otherwise specified.
"Department". Department of Human Services.
"Developmental disability." A disability that is attributable to mental retardation, regardless of the need for specialized services or a related condition. A related condition meets all of the following conditions:
Is attributable to: cerebral palsy, epilepsy or autism, or any other condition (other than mental illness) found to be closely related to mental retardation because this condition results in impairment of general intellectual functioning or adaptive behavior similar to that of individuals with mental retardation and requires treatment or services similar to those required for such individuals;
Is manifested before the person reaches the age of 22;
Is likely to continue indefinitely; and
Results in substantial functional limitations in three or more of the following areas of major life activity: self-care, language, learning, mobility, self-direction, or capacity for independent living.
"Discharge." The termination of all services provided to an individual in the community residential setting in which the individual resides.
"IAPA." The Illinois Administrative Procedure Act [5 ILCS 100 ].
"Individual services coordinator." A person employed by a pre-admission screening and annual resident review agent, who is a qualified mental retardation professional, as defined in the Department's rules at 59 Ill. Adm. Code 103, and who acts as an agent of the State in assuring that each class member has an appropriate individualized service plan and that the service plan is implemented.
"Intermediate care facility." Any long-term facility licensed by the Illinois Department of Public Health under the Nursing Home Care Act [210 ILCS 45 ] as an intermediate care facility.
"Medicaid." The medical benefits program administered by the Illinois Department of Public Aid pursuant to Title XIX of the Social Security Act. ( 42 USC 1396 a(1998))
"OBRA Management Unit." A group of individuals charged with coordinating implementation activities under the Bogard et al. v. Bradley et al. consent decree. There is one person designated from each of the Department's Offices of Developmental Disabilities and Rehabilitation Services and one person designated from each of the Departments of Public Aid, Aging and Public Health to serve on the Unit.
"Omnibus Budget Reconciliation Acts of 1987 and 1990 (OBRA) ( 42 USC 1396 n(1998))." Federal law requiring that an individual with a mental illness or developmental disability have pre-admission screening before placement in a nursing facility. The law also requires an initial and annual assessment of all nursing facility residents having a mental illness or developmental disability to determine if they require the level of care provided by a nursing facility and whether they require specialized services related to their disability.
"Pre-admission screening." A two-phase process of assessing individuals seeking admission to nursing facilities. The first phase identifies individuals suspected of a possible severe mental illness or developmental disability. The second phase requires an assessment and determination of the individual's need for the level of services provided by a nursing facility and need for specialized services.
"Pre-admission screening/annual resident review (PASARR) agents." Entities selected by the Department to carry out the pre-admission screening and resident review services required by OBRA.
"Resident review." A two-phase process to assess individuals residing in nursing facilities. The first phase identifies individuals suspected of a possible mental illness or developmental disability. The second phase requires an assessment and determination of the need of the individual with severe mental illness or a developmental disability for the level of services provided by a nursing facility and the need for specialized services.
"Secretary." The Secretary of the Department of Human Services.
"Skilled nursing facility." Any long-term facility licensed by the Illinois Department of Public Health under the Nursing Home Care Act as a skilled nursing facility.
"Specialized services." A continuous program for each individual. These services include aggressive, consistent implementation of a program of specialized and generic training, treatment health services and related services that are directed toward the acquisition of behaviors necessary for the individual to function physically, intellectually, socially, and vocationally with as much self-determination and independence as possible; and the prevention or deceleration of regression. Specialized services does not include services to maintain generally independent individuals who are able to function with little supervision or in the absence or a continuous specialized services program.
"Substantial evidence." Such evidence as a reasonable person can accept as adequate to support a conclusion.
"Transfer." When an individual ceases to be served by one agency and begins to be served by another agency under the same community residential setting without interruption of services.
Decisions by agencies to discharge or transfer class members shall be appealable pursuant to this Section, except when the agency ceases to provide a particular type of community residential setting.
The appellant and the agency may be represented during the hearing and appeals process by an attorney or any other person who the appellant or agency chooses. The appellant may also represent him or herself; the agency may represent itself.
The class member shall use any agency procedure for appealing the decision before requesting a hearing from the Department.
No transfer or discharge shall proceed pending the Secretary's decision, except as provided for in subsection (h) of this Section.
When the physical safety of the class member or others is imminently imperiled and appropriate services are not available at the agency, the class member shall be discharged as soon as arrangements can be made for admission to another facility only if the individual service coordinator, after reviewing the class member's record, gathering the necessary clinical information, and meeting with the class member, determines that a delay in discharge would imminently imperil the physical safety of the class member or others and has documented that in the class member's record. In that case notice shall be given in accordance with subsection (e) of this Section as soon as possible but in no case later than 48 hours after the discharge. The hearing shall be held within the time specified in subsection (e)(4) of this Section at the receiving facility, unless the administrative law judge determines that either of the parties would not be able to completely present its case at the receiving facility within the specified time. The discharging facility shall hold the class member's bed open until the appeal is resolved.
Administrative law judges shall meet the qualifications set out in the Department's rules at 89 Ill. Adm. Code 508.
At any time prior to the issuance of the hearing officer's recommended decision, the appellant or the agency may move to disqualify the administrative law judge on the grounds of bias or conflict of interest. Such a motion shall be made in writing to the Secretary, with a copy to the administrative law judge, setting out the specific instances of bias or conflict of interest. An adverse decision or ruling, in and of itself, is not grounds for disqualification. The administrative law judge's employment or contract as an administrative law judge by the Department is not, in and of itself, a conflict of interest. The appeal shall be suspended until the Secretary rules on the motion. The Secretary may decline to disqualify the administrative law judge, appoint another administrative law judge to hear the case or decide that the appeal should be granted.
Within 20 days after the hearing, the administrative law judge shall issue his or her recommended decision to the Secretary. The decision shall contain findings of fact, conclusions of law, the reasons for the decision and a recommended disposition of the case. Copies of the decision shall be sent to both parties by certified mail. A copy shall also be sent to the Department's representative from the OBRA Management Unit.
The record for a hearing shall include:
Unless all parties are given notice and an opportunity to participate, the administrative law judge or the Secretary shall not, after notice of hearings or other on-the-record proceeding, communicate directly or indirectly, in connection with any other issues, with:
A Department employee may communicate with other employees of the Department, and the administrative law judge or Secretary may have the aid and advice of one or more personal assistants.
Compliance with this Section or with any or all provisions of the IAPA regarding contested cases [5 ILCS 100/10-25] may be waived by written stipulation of all parties.
Ill. Admin. Code tit. 59, § 101.75
Amended at 23 Ill. Reg. 11118, effective August 24, 1999