Understanding the New In-Home Health Care Legislation in Illinois. How It Can Protect You and Those in Your Care

Transcription

1 Understanding the New In-Home Health Care Legislation in Illinois How It Can Protect You and Those in Your Care

2 As our senior population continues to grow, a new law has required home services and home nursing agencies to be licensed by September 1, The Illinois Home Health, Home Services, and Home Nursing Agency Licensing Act will become increasingly important as a means of safeguarding the quality of in-home care for our most vulnerable population while minimizing the legal and financial risks associated with the hiring and placement of such care. It is imperative that family members and fiduciary professionals understand the requirements and applications of this new law in order to make informed decisions that are in the best interests of all concerned. And it is vital that potential short-term savings when hiring in-home care be weighed carefully against the very real risks legal, financial and personal linked with the hiring of unlicensed caregivers. A BIT OF HISTORY With great advancements in medical research and a much broader understanding of health risks and enhancements over the last quarter century, the U.S. population is living longer. We know the devastating effects of smoking and second-hand smoke, the value of proper diet and exercise, and a wide range of health-related facts that until relatively recently were little known theories. We also know how to treat and, in many instances, cure diseases that not long ago were a major medical threat in some parts of the world that sad reality still exists. Along with this aging U.S. population comes a rapid increase in the need for, and availability of, in-home health care providers offering everything from shopping and basic daily living necessities to skilled medical and nursing services. Over the years, associations such as the Illinois Home Care Council, Life Services Network, AARP, National Private Duty Association (NPDA) and others took shape and focused their attention on developing regulations to protect consumers from elder abuse and financial exploitation at the hands of unqualified or unsavory in-home caregivers. To this day, reports of elder abuse and neglect physical, mental and/or financial in nature remain far too commonplace. How often must we hear the consumer was uninformed, that criminal background checks were never executed prior to hiring, or that the private duty or placement agency made licensure or other claims that simply weren t true? According to the National Institute on Aging (NIA), the U.S. population over the age of 65 currently at 12% is expected to double to more than one in five Americans, more than 72 million persons by 2030.

3 A LAW TAKES SHAPE The Illinois Legislature passed The Illinois Home Health, Home Services and Home Nursing Agency Licensing Act (210 ILCS 55/1) into law on July 29, This Act amended the Home Health Agency Licensing Act by adding licensure requirements for home services and home nursing agencies. The Act requires that all home health, home services, and home nursing agencies be licensed by the Illinois Department of Public Health by September 1, Sec It is declared to be the public policy that the State has a legitimate interest in assuring that all home health services, home nursing services, and in-home support services provided to a person at his residence are performed under circumstances that insure consumer protection and quality care. Therefore, the purpose of this Act is to provide for the better protection of the public health, well-being, and safety through the development, establishment, and enforcement of standards for services, as well as standards for the care of individuals receiving home health services and home nursing services, and in the light of advancing knowledge, will provide a viable alternative to the premature institutionalization of these individuals. It is further declared that health care and support services are provided in the consumer s home by three basic types of agencies: home health care, home nursing care, and home support services. It is further understood that each type of agency delivers a different type and scope of care or service. Further, individuals providing the care or service require different levels of education, training, and supervision. Therefore, different types of regulatory oversight are required. Under this new law, agencies will be licensed as one or more of the following entities: Home Health, Home Nursing, and Home Services. Home Nursing and Home Services agencies that function as placement agencies will be designated as such on their licenses. As it relates to Home Nursing and Home Services, a Placement Agency means any person engaged for gain or profit in the business of securing or attempting to secure a) work for hire for persons seeking work or b) workers for employers. The term includes a private employment agency and any other entity that places a worker for private hire by a consumer (or consumer s trust officer or other fiduciary) in that consumer s residence for purposes of providing home services. It should also be noted that under this law, no grandfathering provisions are available to currently licensed home health agencies offering private duty services, or to private duty agencies currently offering services. There is also no cumulative license available. HOW DOES THIS NEW LEGISLATION AFFECT ME? The Illinois Home Health, Home Services and Home Nursing Agency Licensing Act establishes defined safeguards that attempt to provide three stages of protection related to the hiring and use of in-home care. First, it puts in place legal requirements and minimum standards to ensure that the quality of patient/client care is consistently maintained by licensed agencies. Second, it aims to protect both skilled and unskilled in-home workers as employees of licensed agencies by providing them with more defined legal recourse and workers compensation for on-the-job injury. Third, it serves as a guideline to help those with fiduciary responsibility make in-home hiring choices that protect the personal well-being and financial interests of the client or loved one while also effectively minimizing the legal and financial risks to the fiduciary associated with the hiring of unqualified, unlicensed caregivers. In essence, the licensing statute forces the up-front definition of who s who in the relationship and each entity s respective roles and accountability. 2

4 THREE AGENCY- LICENSING CATEGORIES AND THEIR RESPECTIVE Following is a brief look at the three licensed entities established by the new legislation. HOME HEALTH AGENCY This agency provides skilled nursing services and at least one other home health service (for example, physical therapy, occupational therapy, speech therapy, home health aide services) on a part-time or intermittent basis, according to a plan of treatment prescribed by a physician. Home Health agencies must: Provide basic skilled nursing services through agency staff (not independent contractors). Other home health services and skilled specialty nursing services may be provided through a contractual purchase of services. State in writing what services will be provided directly by agency staff and what services will be provided under contractual arrangements. Services provided under contractual arrangements must, via written agreement with the client (patient and/or fiduciary), state responsibility of liability and insurance coverage and also designate full responsibility for agency control over contracted services, among other things. Meet guidelines for acceptance and discharge of patients. Have an individualized plan of treatment and patient care, based on the patient s diagnosis and shortand long-term needs and resources, established in consultation with the home health services team, the patient and his or her appropriate family members or representative. Consult with the patient s physician regarding any modification to the plan of treatment and provide an updated plan to the physician for review at least every 62 days. Operate under written policies governing the supervision and administration of drugs and biological materials. Maintain and update clinical records. Operate a quality-improvement program. Develop written policies and make an evaluation of the agency s total program at least once a year, including a clinical records review and overall policy and administration review. HOME NURSING AGENCY Provides services directly, or acts as a placement agency, in order to deliver skilled nursing and home health aide services to persons in their personal residences. A home nursing agency provides services that would require a licensed nurse to perform. A home nursing agency does not require licensure as a home health agency under this law. Also, a home nursing agency does not include an individually licensed nurse acting as a private contractor or a person that provides or procures temporary employment in health care facilities. Home Nursing agencies must: Have a written agreement with the client (patient and/or fiduciary), stating what services will be provided directly by agency staff and what services will be provided under contractual arrangements. Meet guidelines for acceptance and discharge of patients. 3

5 REGULATORY REQUIREMENTS Have an individualized plan of treatment and patient care, based on the patient s diagnosis and short- and long-term needs and resources, established in consultation with the nursing personnel, the client s health care professional, the client and his or her advocate. The plan must be updated and signed by the client s health care professional every 90 days (or more often should the patient s condition warrant). Consult with the patient s physician regarding any modifications in plan of treatment. Operate under written policies governing the supervision and administration of drugs and biologicals. Maintain and update clinical records and have a written policy on records procedures, including confidentiality of records. Operate a quality-improvement program. HOME SERVICES AGENCY Provides services directly, or acts as a placement agency, for the purpose of placing individuals as workers providing non-medical home services for consumers in their personal residences. These services, intended to assist clients with activities of daily living, include but are not limited to: personal care, medication reminding, housekeeping services, personal laundry, cooking, shopping, assistance in getting to and from appointments, maintenance of household records, and companionship. In addition to a written agreement with client, guidelines for acceptance and discharge of clients, maintenance and updating of client records and the operation of a quality-improvement program and written policies on records procedures and confidentiality of records, Home Services agencies must: Establish a service plan for each client, in consultation with the client and his or her appropriate family members or representative, outlining the services to be provided to the client. The plan shall include, but not be limited to: The level, type and/or scope of services. Identification of any functional limitations of client and the relevance of those limitations to the services provided. Information received from the client, family and/or representative, on circumstances that may impact client activity or involvement, such as medications being taken, treatments received, client s physician, activity, diet and mental status. Ensure the following for their care staff: No disqualifying background check without a waiver. Copy of Social Security card. Visa or proof of citizenship in compliance with federal requirements for employment. Successful completion of a competency evaluation or training program at a licensed home services agency within the prior year. Completion of eight hours of training per year (four hours prior to assignment and four hours within the worker s first 30 days of employment). 4

6 ADDITIONAL REQUIREMENTS OF NOTE: Home Services and Home Nursing agencies must provide notification to workers and consumers as to parties responsible by law for payment of taxes, workers compensation, liability and certain day-to-day issues. All licensed agencies must perform criminal background checks on non-licensed workers. Workers at all licensed agencies must report abuse, neglect or financial exploitation. All licensed agencies must provide some supervision of staff (except placement agencies). All licensed agencies must check the Nurse Aide Registry for findings of abuse, neglect or misappropriation of property if hiring a home health aide. All licensed agencies must evaluate the competency of all home health aides and home service workers. All licensed agencies must follow basic infection control practices as described by the Centers for Disease Control and Prevention. Even with this licensing legislation now in the books, there will still be many well-intentioned individuals, including trust officers and other professional fiduciaries, who either are unaware of the law or decide to hire a caregiver independently rather than going through a licensed agency in order to save the client or the estate some money. Perhaps you ll turn to someone who lives nearby and even babysat your kids a few times. But are you in fact doing the right thing for all concerned? Have you become the person s legal employer taking out withholding, paying social security and other employment taxes, paying workers compensation while ensuring their legal U.S. status and completing a criminal background check? And even if you ve covered your bases regarding legitimate and accountable employment status, this doesn t begin to touch on the actual qualifications, or lack thereof, of the individual to whom you are entrusting such care. Are the dollars you might save up front really worth the high-stakes risk of not working with a credible, licensed provider of home health, home services and home nursing care? These lists are not exhaustive. See the Act and IDPH Regulations for complete requirements and guidelines. CAVEAT EMPTOR LET THE BUYER BEWARE! As with all consumer protection legislation, great laws are only as effective as they are followed. It s not enough to ask the right questions without also conducting your own extensive due diligence. An agency can say it s licensed when, in reality, it only carries a general business license that it purchased for $125. An agency can say it s bonded, but in the context of estates, is it bonded at the mandated oneand-a-half times the estate s value? An agency can say it s insured when it might only carry auto insurance. HARRIS CAN HELP Harris Private Bank has recently introduced Harris encircle, a program designed to help clients better manage financial and other challenges associated with the increasing life spans of seniors. Offered nationally, with dedicated encircle specialists in Illinois, Arizona, Washington State and Florida, this personalized service can alleviate the time and stress often inextricably linked with bill paying, tax return coordination, investment management and, yes, even coordination of health care management services such as qualified and licensed in-home care. When it comes to protecting personal finances, a trusted advisor is an invaluable safety net. When it comes to protecting the people we love, a trusted advisor is so much more. 5

7 CONTRIBUTOR: Joseph T. Monahan is a member of the Harris encircle Advisory Board of Harris Private Bank and the co-founder of Monahan & Cohen, one of the Midwest s leading law firms specializing in health, human services, special education and disability law. He also serves as adjunct professor of law at Loyola University Chicago School of Law. A certified social worker prior to becoming an attorney, Mr. Monahan lectures extensively on legal issues related to guardianship, mental health and child welfare, and has led statewide legislative and policy initiatives concerning child welfare laws and changes in the Mental Health Code and the Probate Act. Mr. Monahan has represented hundreds of clients in adult guardianship Probate Court proceedings, as well as numerous hospitals and social service agencies, providing legal counsel on such matters as guardianship, mental health, risk management, confidentiality, disability and related issues. In 2002, Mr. Monahan was appointed the Illinois State Bar Association representative on the Senate s Committee to revise the Mental Health Code. He is a member and past chair of the Mental Health Law Committee of the Chicago Bar Association, a member and past chair of the Illinois Bar Association s Study Committee of Mental Health Law, and has served on the board of the National Association of Down Syndrome. From 2003 through 2005, Mr. Monahan served as trustee of the Legal Defense Fund for the National Association of Social Workers. He received his law degree in 1984 from DePaul University College of Law. Harris Private Bank is a trade name used by various financial service providers in the Harris Financial Corp. Banking products and services offered by Harris Private Bank are provided by Harris N.A. and their bank affiliates. Member FDIC. Not all products and services are offered in every state and/or location Harris Bankcorp, Inc.

8 Harris Private Bank has helped affluent families grow and preserve their wealth for more than 125 years. We work closely with your existing advisors to make sure all aspects of your wealth strategy fit together in a well-coordinated and tax-efficient way. Our specialists can help you with family office services, investment management (both discretionary and third-party managers), customized banking and estate and trust services. Harris also offers specialized advice to help with succession planning, philanthropy and preparing your children for the responsibilities of wealth. Please contact us for more information and/or for additional white paper titles or copies. We look forward to the privilege of serving you. For more information, visit us at: Or call us at: XXXXX (N 11/08)