77 Ill. Adm. Code 300.1234
Penalties and Notice of Violation
Section 300.1234Â Penalties and Notice of Violation
a)Â Â Â Â Â Â Â Â Notwithstanding
any other provision of the Act or this Part, the Department will impose
penalties for violations of the minimum staffing requirements of the Act and
Section 300.1230, as follows:
1)
No
monetary penalty will be issued for noncompliance during the implementation
period, which will be July 1, 2020 through September 30, 2020. If a facility is
found to be noncompliant during the implementation period, the Department will provide
a written notice identifying the staffing deficiencies. The facility shall provide
a sufficiently detailed correction plan to meet the statutory minimum staffing
levels.
2)
Monetary
penalties will be imposed by the Department beginning no later than January 1,
2021, and quarterly thereafter, and shall be based on the latest quarter for
which the Department has data.
3)
Monetary
penalties shall be established based on a formula that calculates, on a daily
basis, the cost of wages and benefits for the missing staffing hours. All
notices of noncompliance issued by the Department will include the computations
used to determine noncompliance and establishing the variance between minimum
staffing ratios and the Department's computations.
4)
The
penalty for the first offense shall be 125% of the cost of wages and benefits
for the missing staffing hours. The penalty will increase to 150% of the cost
of wages and benefits for the missing staffing hours for the second offense and
200% of the cost of wages and benefits for the missing staffing hours for the
third and all subsequent offenses.
5)
The
penalty shall be imposed regardless of whether the facility has committed other
violations of the Act
and this Part
during the same period that the
staffing offense occurred.
6)
The
penalty may not be waived, but the Department may determine the gravity of the
violation in situations in which there is no more than a 10% deviation from the
staffing requirements and make appropriate adjustments to the penalty.
A)Â Â Â Â Â Â Â A facility
shall have 30 days from the receipt of the notice of violation to request an
adjustment to the penalty pursuant to this subsection (a)(6).
B)Â Â Â Â Â Â Â This
subsection does not apply to deviations due to a waiver granted under Section
300.1232.
7)
The
Department may waive the penalty when unforeseen circumstances have occurred
that resulted in call-offs of scheduled staff. This provision will be applied
no more than 6 times per quarter.
(Section 3-202.05(g) of the Act)Â A
facility shall have 30 days from the receipt of the notice of violation to
request a waiver of the penalty pursuant to this subsection (a)(7). If the
Department declines to waive the penalty, it will inform the facility of the
reasons why. For the purposes of this Section:
A)Â Â Â Â Â Â Â An
unforeseen circumstance includes, but is not limited to, a disaster as defined
in Section 300.670(a), labor unrest, civil unrest, a viral epidemic or
pandemic, family emergency, or any cause beyond the reasonable control of the
facility.
B)Â Â Â Â Â Â Â "Six
Times" means 6 unforeseen circumstances. If an unforeseen circumstance
occurs, the facility shall document the type of unforeseen circumstance, the
beginning and end dates of the unforeseen circumstance, and how many scheduled
staff called off during the unforeseen circumstance. The facility shall submit
the report to the Department within 24 hours after the end of the unforeseen
circumstance. If the unforeseen circumstance is a viral epidemic or pandemic,
the facility shall submit regular reports to the Department pursuant to Section
300.696.
b)
Nothing
in the Act
or this Section
diminishes a facility's right to appeal
a
Department finding of non-compliance with the minimum staffing requirements of Section
300.1230. (Section 3-202.05(g) of the Act) A facility shall have 30 days from
the receipt of the notice of violation to file an appeal on a Department
finding of non-compliance.
c)Â Â Â Â Â Â Â Â The
Department will notify the facility of non-compliance with the minimum staffing
requirements within 30 days after the latest quarter for which the Department
has complete staffing data. The notice shall contain, at a minimum:
1)Â Â Â Â Â Â Â Â The
year and quarter the staffing shortfall occurred;
2)Â Â Â Â Â Â Â Â A
summary breakdown of the total penalty showing results of calculations made
pursuant to subsection (d);
3)Â Â Â Â Â Â Â Â Citations
to the Act and this Part relative to the violation;
4)Â Â Â Â Â Â Â Â The
total amount of the fine, if any, the date by which payment is due to be paid,
and accepted forms of payment;
5)Â Â Â Â Â Â Â Â An
explanation of consequences for nonpayment, incomplete payment, or late payment
(see subsection (e));
6)Â Â Â Â Â Â Â Â A
statement of the facility's right to file an appeal of the violation, to
request an adjustment of the penalty when there is no more than a 10% deviation
from the staffing requirements, or request a waiver of the penalty for an
unforeseen circumstance; and
7)Â Â Â Â Â Â Â Â The
process for filing an appeal or requesting an adjustment or a waiver of the
penalty.
d)Â Â Â Â Â Â Â Â The
Department will use the following procedures to determine penalties for
facilities that fail to meet minimum direct care staffing ratios:
1)Â Â Â Â Â Â Â Â The
Department will calculate penalties for unmet direct care staffing hours using
the most current median hourly wage data reported by U.S. Department of Labor
Bureau of Labor Statistics (BLS) in the BLS' Occupational Employment
Statistics' metropolitan and nonmetropolitan Area Occupational Employment and
Wage Estimates for the State of Illinois, which is published at
https://www.bls.gov/oes/current/ oessrcma.htm.
A)Â Â Â Â Â Â Â The
hourly wage for unmet registered professional nurse hours will be determined by
the most current median hourly wage available for RNs (defined as
"registered nurses" with the BLS occupational code 29-1141) in the
metropolitan area in which the nursing facility is located.
B)Â Â Â Â Â Â Â The
hourly wage for unmet licensed practical nurse hours will be determined by the
most recent median hourly wage available for LPNs (defined as "licensed
practical and licensed vocational nurses" with the BLS occupational code
29-2061) in the metropolitan area in which the nursing facility is located.
C)Â Â Â Â Â Â Â The
hourly wage for unmet hours of direct care staff who are not registered nurses
or licensed practical nurses will be determined by the most recent median
hourly wage available for CNAs (defined as "nursing assistants" with
the BLS occupational code 31-1014) in the metropolitan area in which the
nursing facility is located.
2)Â Â Â Â Â Â Â Â The
Department will use the following formulas to determine the wage cost for each
day's unmet direct care staffing hours when a staffing-hours shortfall is
greater than zero. For the purposes of this Section, "median wage"
refers to the BLS wage rate for the metropolitan or non-metropolitan area in
which the facility is located.
A)Â Â Â Â Â Â Â The
cost of RN hours shortfall = the RN hours shortfall x the median RN wage.
B)Â Â Â Â Â Â Â The
cost of LPN hours shortfall = the LPN hours shortfall x the median LPN wage.
C)Â Â Â Â Â Â Â The
cost of direct care hours shortfall = the direct care hours shortfall x the
median CNA wage.
3)Â Â Â Â Â Â Â Â The
Department will use the following procedures to add the cost of benefits to the
cost of hourly wages identified in subsection (d)(2):
A)Â Â Â Â Â Â Â The
Department will use a multiplier of 120% of the hourly wage that would have
been paid for each hour of deficiency in skilled, intermediate or direct care.
When calculating, under this subsection (d)(3), the combined wage and benefit
value basis to determine a penalty for each violation, the wage per hour values
shall be determined by the most recent cost reports filed with the Department
of Healthcare and Family Services by facilities licensed under the Nursing Home
Care Act.
B)Â Â Â Â Â Â Â The
Department will calculate the total compensation costs (employee wages and
benefits) of unmet direct care staffing hours using the following formula,
which applies a multiplier based on the percentage identified in subsection (d)(3)(A)
to the total direct care staffing hour shortfalls identified in subsections (d)(2)(A),
(B), and (C):
Total Compensation Cost of Unmet
Direct Care Staffing Hours = (1.0 + (the Cost of Benefits Per Hour Worked/the
Cost of Wages Per Hour Worked)) X (Cost of RN Hours Shortfall + Cost of LPN
Hours Shortfall + Cost of Direct Care Hours Shortfall)
4)Â Â Â Â Â Â Â Â The
total penalty amount will be calculated based on the total compensation cost of
unmet direct care staffing hours calculated in subsection (d)(3)(B), as
follows:
A)Â Â Â Â Â Â Â If the
violation is the facility's first violation for unmet direct care staffing
hours, the Total Compensation Cost for Unmet Direct Care Staffing Hours will be
multiplied by 125%.
B)Â Â Â Â Â Â Â If the
violation is the facility's second violation for unmet direct care staffing
hours, the Total Compensation Cost for Unmet Direct Care Staffing Hours will be
multiplied by 150%.
C)Â Â Â Â Â Â Â If the
violation is the facility's third violation or any violation beyond the third,
the Total Compensation Cost for Unmet Direct Care Staffing Hours will be
multiplied by 200%.
D)Â Â Â Â Â Â Â Any
shortfall of hours within a quarter, regardless of whether the shortfall is in
all or only one direct care staff category, constitutes one violation.
e)
If
the person or facility against whom a penalty has been assessed does not comply
with a written demand for payment within 30 days
after receiving a notice
of violation,
the
Department will
issue an order to do any of the
following:
1)
Direct
the State Treasurer or Comptroller to deduct the amount of the fine from amounts
otherwise due from the State for the penalty and remit that amount to the
Department;
2)
Add
the amount of the penalty to the facility's licensing fee. If the licensee
refuses to make the payment at the time of application for renewal of its
license, the license shall not be renewed;
or
3)
Bring
an action in circuit court to recover the amount of the penalty.
(Section
3-310 of the Act)