Bill Text: IL HB2452 | 2023-2024 | 103rd General Assembly | Introduced

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Bill Title: Creates the Ensuring Essential Services Act. Provides that the purpose of the Act is to ensure the State meets its obligation to provide certain essential services for individuals with developmental disabilities at consistent quality levels in accordance with its waiver agreement with the Centers for Medicare and Medicaid Services, all while allocating scarce taxpayer resources. Provides that any contract entered into between the Department of Human Services and an agency shall include a provision assuring the State of the uninterrupted delivery of the contracted-for services. Provides that such assurance shall provide that the agency has entered into a binding labor peace agreement with any labor organization that is the exclusive representative of the agency's frontline and direct support staff or, where no exclusive representation has been established, that the agency has or will enter into an agreement with any labor organization that seeks to become the agency's frontline and direct support staff's exclusive representative. Provides that the assurance shall become a condition of any contract entered into, renewed, or amended on or after the effective date of the Act. Requires the Department of Healthcare and Family Services to, no later than 90 days after the effective date of the Act, apply to the Centers for Medicare and Medicaid Services for a waiver or State Plan amendment to allow implementation of the contracting requirements. Requires the Department of Human Services, no later than 60 days after the effective date of the Act, to adopt rules implementing the requirements of the Act. Contains provisions on contract requirements for Department of Human Services' contracts; enforcement of contractual assurances; remedial actions for noncompliance; and other matters. Effective June 1, 2023.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced) 2023-05-19 - Rule 19(a) / Re-referred to Rules Committee [HB2452 Detail]

Download: Illinois-2023-HB2452-Introduced.html

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103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 HB2452 Introduced , by Rep. Edgar Gonzalez, Jr. SYNOPSIS AS INTRODUCED:
New Act
Creates the Ensuring Essential Services Act. Provides that the purpose of the Act is to ensure the State meets its obligation to provide certain essential services for individuals with developmental disabilities at consistent quality levels in accordance with its waiver agreement with the Centers for Medicare and Medicaid Services, all while allocating scarce taxpayer resources. Provides that any contract entered into between the Department of Human Services and an agency shall include a provision assuring the State of the uninterrupted delivery of the contracted-for services. Provides that such assurance shall provide that the agency has entered into a binding labor peace agreement with any labor organization that is the exclusive representative of the agency's frontline and direct support staff or, where no exclusive representation has been established, that the agency has or will enter into an agreement with any labor organization that seeks to become the agency's frontline and direct support staff's exclusive representative. Provides that the assurance shall become a condition of any contract entered into, renewed, or amended on or after the effective date of the Act. Requires the Department of Healthcare and Family Services to, no later than 90 days after the effective date of the Act, apply to the Centers for Medicare and Medicaid Services for a waiver or State Plan amendment to allow implementation of the contracting requirements. Requires the Department of Human Services, no later than 60 days after the effective date of the Act, to adopt rules implementing the requirements of the Act. Contains provisions on contract requirements for Department of Human Services' contracts; enforcement of contractual assurances; remedial actions for noncompliance; and other matters. Effective June 1, 2023.
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A BILL FOR
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AN ACT concerning essential services for persons with
developmental disabilities.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Ensuring Essential Services Act.
Section 5. Findings and purposes.
(a) The General Assembly finds that the State of Illinois
administers a program for the provision of home and
community-based support services for individuals with
developmental disabilities (IDD) in accordance with a waiver
program agreement entered into between the State and the
Centers for Medicare and Medicaid Services. Pursuant to a
consent decree entered in Ligas v. Hamos, Case No.
1:05-cv-04331 (N.D. Ill.), the State is required to implement
sufficient measures to ensure the availability of IDD
services, supports, and other resources of sufficient quality,
scope, and variety to meet the State's obligations under the
consent decree and the implementation plan consistent with
such choices. The number of individuals served each year by
the program is based on available State appropriation levels.
The General Assembly finds that the Department of Human
Services is designated as the State agency having primary

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responsibility for overseeing the delivery of habilitation
services to individuals with developmental disabilities under
the program, and in that capacity procures services for
approximately 27,000 Illinoisans who, together with their
families and guardians, depend on the daily and uninterrupted
provision of these services so that they can attend to the
necessities of life. An interruption in the delivery of
services under the program would have disastrous consequences
for participants, their families, and their communities.
The General Assembly finds that effects of the ongoing
COVID-19 pandemic, which has claimed hundreds of thousands of
American lives and disrupted the distribution of essential
services to the most needy inhabitants of the State has
affected the provision of services in unforeseen ways,
exacerbating already existing labor shortage high turnover,
and causing labor unrest and stoppages.
The General Assembly finds that there currently exists an
acute shortage of frontline and direct support staff
indicating that the agencies with which the State has
contracted to provide IDD services under the program have
inadequately ensured the training, retention, and recruitment
of the workforce necessary to meet the State's obligations
under the program, and such shortage and existing labor
conditions escalate the probability of disruptions in the
delivery of essential services owing to labor disputes and
employee dissatisfaction.

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The General Assembly finds that as a procurer of services
comprising the program the State administers, either in the
form of purchase of service contracts, grants, or otherwise,
that the State has a proprietary interest in assuring the
delivery of quality, reliable, and uninterrupted provision of
services to individuals receiving benefits under the program.
The General Assembly finds that a strike, labor dispute,
or other inability to deliver essential service under the
program would be costly to the State as it struggles to fill
the gap to provide these essential services, due to the
excessive cost of locating alternative treatment options on an
emergent basis, including, but not limited to, the need to pay
substantial overtime to employees at public hospitals which
would be forced to admit increasing numbers of patients as a
matter of last resort. Such disruptions would have
consequential and dire effects on program recipients, their
families, and guardians.
The General Assembly finds that agreements between
employers and labor organizations to refrain from resolving
labor disputes through economic action promote the efficient
and uninterrupted delivery of services. Such agreements are
common and have been adopted within the behavioral health and
disability support industries. A program of labor management
cooperation has proven effective in addressing issues related
to establishing appropriate wages and compensation, improving
quality of care, increasing worker retention, reducing

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workforce turnover, and mitigating the likelihood of service
disruption.
(b) The purpose of this Act is to ensure the State meets
its obligation to provide these essential services at
consistent quality levels in accordance with its waiver
agreement with the Centers for Medicare and Medicaid Services,
all while allocating scarce taxpayer resources. The State, as
procurer of home and community-based support services, has
determined to take steps to ensure the uninterrupted delivery
of services to individuals receiving IDD services under the
program.
Section 10. Definitions. As used in this Act:
"Agency" means a private entity, including a non-profit
corporation, other than a corporation established in
accordance with the Religious Corporation Act, that has
contracted with the Department of Human Services to provide
direct care services under the Home and Community-Based
Services Waiver Program for Persons with Developmental
Disabilities.
"Comptroller" means the Comptroller of the State of
Illinois and its agents or designees.
"Contract" means the written agreement entered into
between an agency and the Department of Human Services (or any
other State entity) establishing the terms and conditions for
the provision of, and payment for services under the program,

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and shall include, but is not limited to, fee-for-service,
service purchase contracts, or grants.
"Frontline and direct support staff" means an employee of
an agency who performs the direct care, support, educational,
training and case management, and other services integral to
the delivery of the services required of the agency under its
contract with the Department of Human Services and funded by
the program. This includes, but is not limited to, direct
support personnel, qualified intellectual disability
personnel, employment specialists, and early intervention
specialists.
"Labor peace agreement" means a written agreement between
an agency and a labor organization that contains, at a
minimum, provisions under which the parties agree to refrain
from actions intended to or having the effect of disrupting or
interrupting services and also provides for an expedient
mechanism for the binding resolution of disputes between them.
"Labor organization" means an organization defined under
29 U.S.C. 152(5) that has as its members frontline and direct
support staff.
"Program" means the Home and Community-Based Services
Waiver Program for Adults with Developmental Disabilities that
is funded through a waiver authorized under Section 1915(c) of
the federal Social Security Act and that is administered by
the Department of Human Services' Division of Developmental
Disabilities. Services under the program include, but are not

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limited to, community integrated living arrangements,
community living facilities of 16 or fewer individuals,
home-based support services, day programs, and therapies.
"Program" also includes newly developed programs and settings
that are funded through the Home and Community-Based Services
Waiver Program for Persons with Developmental Disabilities.
"Secretary" means the Secretary of Human Services.
Section 15. Assurance of uninterrupted delivery of
services.
(a) Any contract entered into between the Department of
Human Services and an agency shall include a provision
assuring the State of the uninterrupted delivery of the
contracted-for services.
(b) The assurance required under subsection (a) shall
provide that the agency has entered into a binding labor peace
agreement with any labor organization that is the exclusive
representative of the agency's frontline and direct support
staff or, where no exclusive representation has been
established, that the agency has or will enter into an
agreement with any labor organization that seeks to become the
agency's frontline and direct support staff's exclusive
representative.
(c) The assurance required under subsection (a) shall
become a condition of any contract entered into, renewed, or
amended on or after the effective date of this Act.

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Section 20. Implementation.
(a) To the extent necessary to effectuate the requirements
of this Act, the Department of Healthcare and Family Services
shall submit the necessary application to the federal Centers
for Medicare and Medicaid Services for a waiver or State Plan
amendment to allow implementation of the contracting
requirements established in this Act. The application shall be
submitted no later than 90 days after the effective date of
this Act. The provisions of this Act shall apply during the
pendency of any such application.
(b) No later than 60 days after the effective date of this
Act, the Department of Human Services shall adopt rules
implementing the requirements of this Act. Specifically, the
Department of Human Services shall adopt contract addenda
terms and attestations sufficient to satisfy the requirements
of this Section and a means of informing agencies of the
requirements of the Act and any other rules necessary to
implement Section 25.
(c) The Department of Human Services shall include in each
contract and in each solicitation for a contract:
(1) a requirement that the agency comply with all
applicable requirements under this Act and any rules
adopted in accordance with this Act, and that such
requirements constitute a material term of the contract;
and

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(2) a provision providing that:
(A) failure to comply with the requirements of
this Section may constitute a material breach by the
agency of the terms of the contract;
(B) such failure shall be determined by the
Comptroller; and
(C) if the agency receives written notice of a
breach and fails to cure such breach, the State shall
have the right to pursue any rights or remedies
available under the terms of the contract or under
applicable law, including termination of the contract
attendant to transition of services to qualified
agencies.
(d) The Department of Human Services shall amend 59 Ill.
Adm. Code Part 120 to clarify that compliance with this Act
shall be a requirement for both initial certification and
recertification with respect to services provided by frontline
and direct support staff under the program.
Section 25. Enforcement.
(a) The contractual assurance required under Section 15
shall be a qualification to participate in the program and a
continuing obligation of each agency during the term of its
contract.
(b) Each agency shall report to the Department of Human
Services, on a form to be adopted by the Department of Human

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Services, its compliance with the contractual assurance
required under this Act at each of the following times:
(1) if the assurance gives rise to an obligation on
the part of an agency to enter into a labor peace agreement
and such agency has not entered into such an agreement;
(2) if an agency's existing agreement meeting the
requirements of a labor peace agreement lapses or expires;
and
(3) on the anniversary date of the contract's
effective date.
The report shall include a copy of any agreement that
satisfies the assurance or shall state in writing or shall be
signed under penalty of perjury that the agency is unaware of
any circumstances giving rise to an obligation to enter into
any labor peace agreement.
(c) If an agency fails to submit to the Department of Human
Services the reports required under this Section, or if the
Department of Human Services otherwise learns of a failure on
the part of an agency to meet its contractual obligations, the
Department of Human Services shall take the following remedial
actions:
(1) Inform the agency and the Comptroller of its lack
of compliance and provide a 30-day notice to correct the
deficiency.
(2) Investigate and assist the agency by providing a
plan of correction.

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(3) If, after 30 days from the date of the Department
of Human Services' notice, it is determined the agency is
out of compliance, the Department of Human Services shall
issue a notice of nonrenewal to the agency, which shall
provide the basis for the disqualification, upon which the
Department of Human Services shall ensure continuity of
care, transition of services, and placement referrals to
qualified agencies upon the expiration of the term of the
contract. The Department of Human Services shall notify
the Comptroller of the notice of nonrenewal within 14
days.
(4) The Department of Human Services shall require
that an agency that receives a notice of nonrenewal shall
be ineligible for recertification or relicensure, provided
the agency is afforded notice and an opportunity to appeal
in accordance with the processes under Subpart C of Part
104 of Title 89 of the Illinois Administrative Code, the
sole issue at hearing, in which any interested party may
participate, shall be whether the agency is in compliance
with the requirements of this Act.
(5) After receiving a notice of nonrenewal for an
Agency, the Comptroller shall cease distribution of all
State funds to the Agency. The Comptroller shall continue
to withhold payments unless and until the Agency
successfully appeals the notice of nonrenewal as described
in paragraph (4).

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Section 30. Severability. If any provision of this Act or
its application to any person or circumstance is held invalid,
the invalidity of that provision or application does not
affect other provisions or applications of this Act that can
be given effect without the invalid provision or application.
Section 35. Construction of Act. Nothing in this Act shall
be construed to require any agency to enter into an agreement
that contains terms or under circumstances that violate the
National Labor Relations Act, 29 U.S.C. 151 et seq., as
amended.
Section 99. Effective date. This Act takes effect June 1,
2023.