Clark Kaericher | Executive Director, Healthcare Council & Sr. VP of Government Affairs | 618-806-1501
January 20, 2023

The purpose of the Healthcare Council is to develop and take actions to achieve affordable, accessible, efficient, high-quality healthcare options for the employers and residents of our state. We advocate for market-based solutions that encourage innovation in healthcare delivery – and work against costly mandates and burdensome regulations. Through quarterly meetings, the Council brings together the diverse voices of the healthcare community and provides a forum to interact with government and private sector leaders at the highest levels.
It’s NFL Divisional Playoff Weekend.  The commercials might not be as entertaining, but I think this is the best weekend for the league.  Who are you taking?    
 
I’ve got the Chiefs, Giants (and the points), Bengals and the 49ers.  
 
Schedule Updates

Next week, the only the Senate is in session.  The following week the House will convene by themselves. 
 
I am meeting with the Senate President and his Chief of Staff early next week.  Feel free to drop a line if there are issues you want us to work into the discussion.  I have a short list of things to discuss, among them BIPA and the independent contractors issue. 
 
Committee Updates

There are no committees scheduled for next week.  The Senate has yet to announce its committee chairs and members.  
The Speaker’s office did release the names of Committee Chairs.  Among the notable ones for our purposes:  
  • Rep. Lilly will chair the Health and Human Services Appropriations,  
  • Health Care Availability and Access goes to Rep. Collins,   
  • Health Care Licenses is Rep. Morgan, 
  • Human Services Rep. Moeller,  
  • Insurance Committee headed by Rep. Jones 
  • Rep. Gong-Gershowitz will remain the Judiciary-Civil Chair,  
  • Mental Health chair is Rep. LaPointe,  
  • Prescription Drug Affordability lead by Rep. J. Williams,  
  • Public Health will be chaired by Rep. Stava-Murray, and 
  • Rep. Rita will continue to chair the powerful Executive Committee despite his promotion to leadership.  
 
Governor Pritzker Signs HB 240- Healthcare Omnibus- from 102nd General Assembly

Earlier this week, Governor Pritzker signed the healthcare omnibus, HB 240 that was passed in Lame Duck Session a few weeks ago.   Here’s a recap:  
HB 240 passed both legislative chambers on the final day of lame duck session.  The bill was sponsored by Representative Greg Harris and Senator Gillespie.  The bill was a healthcare omnibus.  Here are a few of the notable provisions:  
  • Federal money for rural hospitals 
  • Nursing home staffing requirements and additional money for nursing homes 
  • DHS has 60 days (instead of 20) to take jailed persons with mental health issues. This was opposed by the Sheriff’s Association.  
  • Expansion of ABA therapy 
  • A fee waiver for podiatrists 
  • Emergency ambulance ARPA funds distributions 
  • Crisis intervention services mental health and substance abuse funding 
 
The bill passed 32-15 in the Senate and 85-24 in the House.  The law is effective immediately.  
 
New Legislation Filed

While the Senate has yet to read in their new legislation, the House has filed approximately 1,250 bills.  We’ve reviewed all of them for your benefit (thankfully there were a lot of shell bills. Please don’t remind me I said this later this Spring).  As always, your input is critical.  
There were quite a few healthcare related bills of interest. I’ll try and break them up roughly by topic so you can skim for your interests. Here are the ones I flagged:

Hospitals
HB 1002 (Flowers) - Amends the University of Illinois Hospital Act and the Hospital Licensing Act. Provides that before using any diagnostic algorithm to diagnose a patient, a hospital must first confirm that the diagnostic algorithm has been certified by the Department of Public Health and the Department of Innovation and Technology, has been shown to achieve as or more accurate diagnostic results than other diagnostic means, and is not the only method of diagnosis available to a patient. Amends the Medical Patient Rights Act. Provides that a patient has the right to be told when a diagnostic algorithm will be used to diagnose him or her. Provides that before a diagnostic algorithm is used to diagnose a patient, the patient must first be presented with the option of being diagnosed without the diagnostic algorithm and consent to the diagnostic algorithm's use. 

HB 1030 (Flowers) - Amends the Fair Patient Billing Act. Provides that, notwithstanding any provision of law to the contrary, a hospital or a hospital's agent may not aggressively pursue debt collection for non-payment of a hospital bill against a patient with an annual household income of $51,000 or less by garnishing wages, seizing moneys from tax returns, or pursuing an action that may result in foreclosure on the patient's home. Provides that, notwithstanding any provision of law to the contrary, a hospital, whenever possible and after reviewing a patient's eligibility, shall charge as much as possible of the patient's hospital bill to insurers, public assistance programs, the medical assistance program established under the Illinois Public Aid Code, or the Medicare program rather than the patient. Provides that the hospital, and not the patient, is responsible for seeking reimbursement from insurers, public assistance programs, the medical assistance program established under the Illinois Public Aid Code, or the Medicare program. 

HB 1137 (Caulkins) - Requires a health care facility or health care practitioner to notify the patient in writing when the health care facility or health care practitioner alters the patient's record within 3 business days of the alteration. Requires a health care facility or health care practitioner to provide an electronic copy of an altered record within 7 calendar days of the receipt of a written request by a patient. Requires any health care facility that accepts Medicaid to, upon written request, provide an electronic copy of an altered record within 4 business days. Provides that the failure to comply with the time limit requirements of the new provisions shall result in a rebuttable presumption that the health care record was altered to fraudulently conceal a failure to meet the applicable standard of care. 

HB 1230 (Jones) - Amends the Biometric Information Privacy Act. Provides that nothing in the Act shall be construed to apply to any health care employer that (1) hires an employee under the Health Care Worker Background Check Act and the employee has submitted to a fingerprint-based criminal history records check, (2) uses and stores biometric information or biometric identifiers exclusively for employment, human resources, compliance, payroll, identification, authentication, safety, security, or fraud prevention purposes, (3) does not sell, lease, or trade the biometric information or biometric identifiers collected, and (4) maintains and follows a documented process to delete any biometric information or biometric identifier. 

Insurance
HB 1054 (Mayfield) - Amends the Illinois Insurance Code. Provides that a group or individual policy of accident and health insurance amended, delivered, issued, or renewed on or after January 1, 2024 that provides coverage for prescription drugs shall require that a covered individual's defined cost sharing for each prescription drug shall be calculated at the point of sale based on a price that is reduced by an amount equal to at least 100% of all rebates received in connection with the dispensation or administration of the prescription drug. Provides that an insurer shall apply any rebate amount in excess of the defined cost sharing amount to the health plan to reduce premiums. 

HB 1186 (Croke) -  Amends the Health Maintenance Organization Act. Provides that the powers of a health maintenance organization include the voluntary use of a referral system for enrollees to access providers under contract with or employed by the health maintenance organization. Provides that the provisions shall not be construed as requiring the use of a referral system to obtain a certificate of authority. Changes the definition of "health care plan". Defines "referral system". Effective January 1, 2024. 

HB 1229 (Jones) - Amends the Illinois Health Benefits Exchange Law. Provides that the Department of Insurance has the authority to operate the Illinois Health Benefits Exchange. Provides that the Director of Insurance may require plans in the individual market to be made available for comparison on the exchange, but may not require all plans be purchased exclusively on the exchange. Provides that the Director may require that plans offered on the exchange conform with standardized plan designs. Provides that the Director may apply a monthly assessment to each health benefits plan sold in the Illinois Health Benefits Exchange according to specified rates. 

Medicaid
HB 1000 (Flowers) - Extends medical assistance coverage to all women of childbearing age regardless of income level. 

HB 1029 (Flowers) - Amends the Medical Assistance Article of the Illinois Public Aid Code. Provides that the Department of Healthcare and Family Services shall transition pharmacy services for managed care enrollees from the State's managed care medical assistance program back to the State's traditional fee-for-service program, thereby assuming direct responsibility for all pharmacy services provided under the Article. Provides that the transition back to a fee-for-service reimbursement model for pharmacy services shall be implemented by the Department upon the expiration of any managed care contracts the Department has with managed care organizations on the effective date of the amendatory Act. Provides that, to ensure managed care enrollees do not experience an interruption in pharmacy services during the transition from managed care to fee-for-service coverage, the Department must, at a minimum, do the following: add an additional pharmacist to its staff; stress-test its existing claims processing system; increase its capacity for prior authorizations; and educate the public and its help desk staff about the change in coverage for pharmacy services.
 
HB 1031 (Flowers) - Amends the Medical Assistance Article of the Illinois Public Aid Code. Provides that, to address maternal mental health conditions and reduce the incidence of maternal mortality and morbidity and postpartum depression, pregnant women eligible to receive medical assistance shall receive coverage for prenatal and postnatal support services during pregnancy and during the 5-year period beginning on the last day of the pregnancy. Provides that prenatal and postnatal support services covered under the medical assistance program include, but are not limited to, services provided by doulas, lactation counselors, labor assistants, childbirth educators, community mental health centers or behavioral clinics, social workers, and public health nurses as well as any other evidence-based mental health and social care services that are designed to screen, identify, and manage maternal mental disorders
 
HB 1044 (Flowers) - Requires the Department of Healthcare and Family Services, in collaboration with the Department of Human Services, to update its eligibility verification and enrollment processing system to allow for the automatic enrollment of all eligible uninsured childless adults into the medical assistance program. Provides that under the updated processing system, hospitals, community-based organizations, and other entities approved by the Departments shall be authorized to screen and identify for medical assistance uninsured childless adults aged 19 or older, but younger than 65, who otherwise meet the eligibility requirements for medical assistance. Provides that a hospital, community-based organization, or other approved entity shall inform a Medicaid-eligible uninsured childless adult that the adult is presumptively eligible for medical assistance and offer to submit an electronic application for medical assistance on the adult's behalf. 

HB 1096 (Flowers) - Provides that a redetermination of eligibility for medical assistance benefits shall be conducted once every 12 months. Effective January 1, 2024. 

Medical Devices 
HB 1001 (Flowers) - Creates the Medical Device Safety Act. Provides that (i) all medical devices to be used by, surgically applied to, or surgically implanted within a patient be under warranty, regardless of the severity of the patient's medical condition necessitating the device, (ii) all persons and entities that produce, sell, offer for sale, or provide medical devices to be used by, surgically applied to, or surgically implanted within a patient are liable for all costs to the patient for the replacement of each medical device if the medical device malfunctions due to no fault of the patient, and (iii) all hospitals and ambulatory surgical treatment centers shall waive the costs charged to patients for follow-up surgeries that result from defective medical devices, regardless of whether or not those defective medical devices are capable of being implanted. Amends the University of Illinois Hospital Act, the Ambulatory Surgical Treatment Center Act, and the Hospital Licensing Act. Requires that the University of Illinois Hospital, all ambulatory surgical treatment centers, and all hospitals licensed under the Hospital Licensing Act waive the costs charged to patients for follow-up surgeries that result from previous surgical errors.
 
Licensing
HB 1027 (Flowers) - Amends the Podiatric Medical Practice Act of 1987. Provides that a podiatric physician may provide and administer vaccinations, including, but not limited to, vaccinations for COVID-19 and influenza. Effective immediately. 
 
Pharmaceuticals
HB 1 (Ford) - Creates the Compassionate Use and Research of Entheogens Act. Establishes the Illinois Psilocybin Advisory Board within the Department of Public Health for the purpose of advising and making recommendations to the Department regarding the provision of psilocybin and psilocybin services. Provides that the Department shall begin receiving applications for the licensing of persons to manufacture or test psilocybin products, operate service centers, or facilitate psilocybin services. 

HB 2 (Ford) - Amends the Substance Use Disorder Act. Requires the Department of Human Services to (i) establish a new intervention license category entitled "OPS Harm Reduction Services", (ii) establish standards for entities to become licensed under the OPS Harm Reduction Services category, and (iii) create a licensing application process.  

HB 23 (Ford) - Amends the Medical Assistance Article of the Illinois Public Aid Code. Requires the Department of Healthcare and Family Services to conduct a study on managed care pharmacy access standards. Provides that the study shall review the current access standards, with a focus on disproportionately impacted areas. Requires the Department to seek input from consumers of pharmacy services. Requires the Department to report its findings to the Governor and the General Assembly by January 1, 2024 and to publish the report on the Department's website. Provides that any retail pharmacy that is enrolled as an eligible retail pharmacy provider in the medical assistance program and is not sanctioned under investigation for fraud, waste, or abuse shall provide retail pharmacy services to any medical assistance recipient who resides in the same zip code as the pharmacy, regardless of whether the retail pharmacy is contracted to provide pharmacy services for the managed care organization that the recipient is enrolled with. Requires the managed care organization to pay the retail pharmacy the managed care organization's standard contractual rate.

HB 1007 (Flowers) - Requires that at least one registered pharmacy technician be on duty whenever the practice of pharmacy is conducted. Requires that a pharmacy set a prescription filing limit of not more than 10 prescriptions filled per hour. Requires a pharmacy to mandate at least 10 pharmacy technician hours per 100 prescriptions filled. Prohibits pharmacies from requiring pharmacists to participate in advertising or soliciting activities that may jeopardize patient health, safety, or welfare and any activities or external factors that interfere with the pharmacist's ability to provide appropriate professional services. Provides that a pharmacist shall receive specified break periods. Provides that a pharmacy may not require a pharmacist to work during a break period, shall make available a break room meeting specified requirements, shall keep a complete and accurate record of the break periods, and may not require a pharmacist to work more than 8 hours a workday. 

HB 1034 (Flowers) - Provides that a manufacturer of a prescription drug with a wholesale acquisition cost of more than $40 for a course of therapy shall notify specified parties if the increase in the wholesale acquisition cost of the prescription drug is more than 10%, including the proposed increase and cumulative increase. Provides that the notice of price increase shall be provided in writing at least 60 days prior to the planned date of the increase. Provides that no later than 30 days after notification of a price increase or new prescription drug the manufacturer shall report specified additional information to specified parties. Provides that a manufacturer of a prescription drug shall provide written notice if the manufacturer is introducing a new prescription drug to market at a wholesale acquisition cost that exceeds a specified threshold. Provides that failure to provide notice under the amendatory provisions shall result in a civil penalty of $10,000 per day for every day after the notification period that the manufacturer fails to report the information.
 
HB 1054 (Mayfield) - Amends the Illinois Insurance Code. Provides that a group or individual policy of accident and health insurance amended, delivered, issued, or renewed on or after January 1, 2024 that provides coverage for prescription drugs shall require that a covered individual's defined cost sharing for each prescription drug shall be calculated at the point of sale based on a price that is reduced by an amount equal to at least 100% of all rebates received in connection with the dispensation or administration of the prescription drug. Provides that an insurer shall apply any rebate amount in excess of the defined cost sharing amount to the health plan to reduce premiums. 
 
Reproductive Health
HB 3 (Flowers) - Provides that the amendatory Act may be referred to as the Reproductive Liberty and Justice Act. Expands the definition of "medical facility" to include a reproductive health center established at a nonprofit community health centerMakes changes to the definition of "birth center". Provides that a birth center and any licensed provider of abortion and birth control services on-site may be co-located at the same facility. Requires the Department of Public Health to adopt rules for licensing and designating co-located facilities to provide specified essential reproductive health care services. Provides that a licensed certified professional midwife may provide out-of-hospital care to a childbearing individual who has had a previous cesarean section, if authorized by the Department of Financial and Professional Regulation. Removes language prohibiting a licensed certified professional midwife from (1) performing an abortion or (2) knowingly accepting responsibility for prenatal or intrapartum care of a client with alcohol abuse or drug addiction. Removes from the definition of "neglected child" any child who is a newborn infant whose blood, urine, or meconium contains any amount of a controlled substance. Makes corresponding changes to the Juvenile Court Act of 1987, the Adoption Act, and the Vital Records Act. Contains provisions concerning CAPTA notifications and prohibited disclosures regarding the results of a toxicology test administered on a newborn or pregnant person.  

HB 999 (Flowers) - Requires the Department of Public Health to establish women's health clinics throughout the State to provide affordable health care for women. Requires the services provided at the women's health clinics to be offered at an affordable price and to include specified services, including women's health examinations, pregnancy confirmation, prenatal care, labor and delivery services, postpartum care, family planning examinations and birth control services, and care for sexually transmitted diseases and infections. 
 
Walton v. Roosevelt Oral Arguments Heard This Week 
 
On Wednesday, the Illinois Supreme Court held oral arguments in Walton v. Roosevelt, which was held by Zoom due to a Covid outbreak among  court staff. 
Several justices, including Chief Justice Theis, seemed focused on the uniform body of federal case law holding BIPA claims are preempted by the LMRA, which the Appellate Court relied upon.  Under the Illinois Supreme Court’s decision in State Bank of Cherry, where federal courts are uniform in their interpretation of a federal statute, the Illinois courts should follow that interpretation unless it is “outside of logic and reason.”  This is a favorable standard for Roosevelt, and its counsel relied heavily on it. 
 
Plaintiff’s counsel mostly tried to argue the merits of the BIPA claim and that a union should not be permitted to “waive” (his term) the private BIPA rights of an individual employee.  He also argued that the court should extensively review the CBA at issue to see if it says anything about biometrics.  
 
Overall, the case is, as we emphasized in our amicus brief, really a dispute about preemption and forum selection.  The Court should not consider the merits, but instead should enforce the arbitration clause so the claim can go through the grievance process in the CBA.  We are optimistic that the Supreme Court will follow the uniform federal cases and affirm the Appellate Court. 
I want to once again thank our friends Matt Wolfe and Melissa Sibert and their firm SHB for their work on this issue.  They authored the Illinois Chamber of Commerce’s amicus brief in this case and provided the oral argument summary.  
 
Rulemaking of Note 

Autism Services: The DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES proposed amendments to Medical Payment (89 IAC 140; 47 Ill Reg 315) implementing Public Act 101-10, which mandates coverage of treatment for autism spectrum disorders on and after 2/1/22. The rulemaking authorizes payment for Adaptive Behavior Support (ABS) services provided by Behavioral Health Clinics or independent ABS clinicians, who may include Board Certified Behavior Analysts, Licensed Clinical Psychologists, Licensed Clinical Professional Counselors, Licensed Clinical Social Workers, Licensed Marriage and Family Therapists, licensed Occupational Therapists, or licensed Speech-Language Pathologists. 
 
Family Planning: The DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES proposed amendments to Medical Assistance Programs (89 IAC 120; 47 Ill Reg 14) and Medical Payment (89 IAC 140; 47 Ill Reg 32) implementing Public Act 102-665, which establishes a Family Planning Program to provide targeted medical assistance coverage for persons of childbearing age who do not qualify for regular Medicaid/ Medical Assistance.  Amendments to Part 120 extend Family Planning Program eligibility to Illinois residents who are not pregnant at the time of enrollment, do not otherwise qualify for Medical Assistance under the Public Aid Code, and whose income is at or below 208% of the Federal Poverty Level, with all applicable disregards, for a household of 1 or 2 persons. 
 
Infertility Coverage: The DEPARTMENT OF INSURANCE adopted amendments to the Part titled Infertility Coverage (50 IAC 2015; 45 Ill Reg 16140) effective 12/20/22, implementing various changes to the Illinois Insurance Code [215 ILCS 5] as it applies to group health insurance policies that provide pregnancy-related coverage to businesses with 25 or more full-time employees. 
 
Quick JCAR Membership Note 
Senator Castro has been appointed to JCAR to replace Senate President Harmon. Reps. Demmer and Wheeler will have to be replaced by the House GOP as their terms in the GA have expired.  
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