Illinois Administrative Code › Title 59 - MENTAL HEALTH › Part 101 - ADMINISTRATION › Section 101.75 - Conduct of hearings and appeals for Bogard et al. v. Bradley et al. consent decree (88 C 2414, U.S.D.C., N.D. IL) (June 2, 1993)) class members

Current through Register Vol. 48, No. 28, July 12, 2024
a) Applicability
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.
b) Definitions
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.
c) Decisions subject to appeal
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.
d) Representation
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.
e) Notice
1)
			 Notice of an agency decision to discharge or transfer a class member shall be
			 given not less than 30 calendar days before the proposed date of the transfer
			 or discharge. The notice of the decision shall contain:
A) A statement of the reason for the transfer
			 or discharge;
B) The effective date
			 of the proposed transfer or discharge;
C) A statement which reads: "You have a right
			 to appeal the agency's decision. If you think you should not have to leave this
			 program, you must ask the agency to reconsider its decision. If the agency does
			 not change its decision, you may file a request for a hearing with the
			 Department of Human Services within 20 days after receiving this notice. You
			 should send a letter saying why you shouldn't leave the program and asking for
			 a hearing to: Bureau of Administrative Hearings, 100 South Grand Avenue East,
			 Springfield IL 62762. If you request a hearing, you will not be transferred or
			 discharged while the appeal is going on unless the individual services
			 coordinator decides that a delay in transfer or discharge would imminently
			 imperil you or others. If you have any questions, call the Department of Human
			 Services, Bureau of Administrative Hearings."
D) The name, address and telephone number of
			 the person charged with the responsibility of supervising the transfer or
			 discharge.