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ILLINOIS CAPITOL RECAP: State Supreme Court again declines to rule on FOID Act

Capitol News Illinois
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In a 4-3 decision with a blistering dissent from the Republican minority, the Illinois Supreme Court declined to rule on a question of whether Illinois Firearm Owners Identification Act is unconstitutional.

It was the second time the case of the People v. Vivian Brown came before the court and the second time the court declined to rule on the constitutionality of the state statute requiring Illinoisans to receive a permit to legally own a gun.

The majority opinion released Thursday was written by Chief Justice Anne M. Burke and was procedural in nature. It contended that the White County Circuit Court failed to adhere to the Supreme Court’s previous 2020 ruling in the case, so it once again vacated the lower court’s ruling that the FOID Act was unconstitutional.

Burke was joined in the majority by Democrats Mary Jane Theis, P. Scott Neville Jr. and Robert Carter.

Justice Michael Burke – who is not related to the chief justice – wrote the dissent.

He argued the majority decision was “based on a misunderstanding of the record and a misreading of this court’s precedents,” and that it could keep the defendant in “legal limbo” for an untold period of years.

The case involves a White County resident, Vivian Claudine Brown, who was charged in March 2017 with possession of a firearm without a FOID card.

A circuit judge in White County threw out the charge, ruling that the fees and forms required to receive a FOID imposed an unconstitutional burden on Brown’s Second Amendment right to keep a firearm in her own home.

But an alternative ruling from the court contended that the Illinois General Assembly, when it passed the FOID Act, never meant for it to apply in the home, because if it did, it would mean anybody with knowledge of a firearm and exclusive control over the area where it was kept could be construed as possessing the gun.

Because the circuit court ruled on an aspect of the FOID Act pertaining to state law, the Supreme Court’s 2020 decision vacated the order pertaining to constitutionality and sent the matter back to White County to “permit the normal appellate process to run its course.”

The ruling was essentially a win for Brown, but her legal team contended it wouldn’t stand up to an appeal. Thus, Brown’s attorneys filed a motion to reconsider, arguing that the inevitable loss on appeal would delay clarity in the case.

The circuit court agreed and reinstated the charges. Brown’s attorneys then filed a new motion to dismiss on constitutional grounds, which the judge upheld, finding that “any fee associated with exercising the core fundamental Constitutional right of armed self-defense within the confines of one’s home violates the Second Amendment.”

Thus, the state appealed the ruling back to the Supreme Court, leading to the Thursday ruling in which the majority decided the lower court had no authority to reconsider the case after the Supreme Court’s 2020 ruling.

In his dissent, Michael Burke predicted the case will ultimately end up back at the Supreme Court on the constitutional basis, only after a significant delay to Brown’s detriment as the case moves through the appellate court.

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UNEMPLOYMENT FRAUD: A state audit released Thursday found nearly $2 billion in federal money intended to help unemployed Illinoisans during the pandemic was lost to fraudulent claims in Illinois.

The Illinois Department of Employment Security blamed “insufficient and flawed federal guidance” and a lack of controls on a hastily constructed program put together by the Trump administration.

The federally-funded Pandemic Unemployment Assistance program provided up to 39 weeks of benefits for unemployed individuals who ran out of regular unemployment benefits and for self-employed individuals, gig workers and others not eligible for regular unemployment.

The report released Thursday by Auditor General Frank Mautino covered much of the life of the program, July 2020 through June 2021.

In the early days of the pandemic, amid business shutdowns and high unemployment, states struggled under a crush of claims from those laid off during those shutdowns. Amid this volume of claims, IDES was forced to try to weed out the fraudulent claims while under pressure to get money into the hands of the recently unemployed.

The Pritzker administration has said the PUA program was designed hastily and does not give employers an opportunity to challenge fraudulent claims because the type of workers applying for benefits do not technically have employers. The PUA program also eliminated existing controls, including income and employment verification, according to a statement by IDES.

Much of the fraud, up to $163 billion estimated nationwide, involved identity theft.

Scammers filed unemployment claims using false identities and then had the payment method switched from the debit cards that people receive when they qualify for benefits to direct deposit into an account accessible by them.

The audit found that, of the $3.6 billion in PUA paid out from July 2020 through June 2021, nearly $1.9 billion was found to be fraudulent, mostly due to identity theft.

The audit found IDES failed to implement general information technology controls over PUA, failed to maintain accurate and complete claimant data and failed to perform timely cash reconciliations.

IDES responded that the system used to manage the PUA program is independent of the system used to manage regular unemployment benefits. From the beginning of the pandemic in March 2020 through the end of 2021, IDES stopped $40 billion in fraudulent payments from both state and federal programs, according to the agency’s statement.

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COVID OUTBREAK: At least 16 residents and six staff at the state-run veterans home in Manteno have tested positive for COVID-19 and one COVID-positive resident who was in hospice died Wednesday morning, according to the Illinois Department of Veterans’ Affairs.

The number of residents reached 17 Thursday after a roommate of one of the residents who had tested positive also tested positive.

The multiple positive results were uncovered Monday, according to an IDVA spokesperson, after the facility initiated broad testing in response to a positive case in the days prior. The spokesperson said protocols call for testing when a resident shows symptoms or when there is a positive test associated with a particular wing or unit.

All of the positive residents had received at least two doses of a COVID-19 vaccine and all but one of them were up to date on boosters, according to a news release from the department. Some of the residents are showing mild symptoms with most experiencing no symptoms, according to IDVA.

A department spokesperson said 99 percent of the Manteno home residents and 92 percent of staff had received initial vaccine doses, while 97 percent of residents and 34 percent of staff had received at least one booster dose.

A staff physician was assessing the need for anti-viral post-exposure medicine, which were in ample supply at the home.

The resident who died was nearly 80 years old, in hospice care and “completely asymptomatic,” according to the department. The resident had received his booster dose on June 7 and passed away a week later shortly after the positive test results.

The COVID-positive residents have been moved to a negative pressure isolation unit, and the Illinois Department of Public Health “only hours after the tests came back positive” to help mitigate spread.

Current CDC guidelines will still allow visitors at the Manteno home amid the outbreak, according to IDVA, which noted that “families have been notified that we are in outbreak status and that rescheduling visitation should be considered.”

Precautions include daily health screenings, routine testing of residents and staff, use of N-95 respirators, face shields and other personal protective equipment, cleaning protocols, and social distancing.

Residents are being encouraged to stay in their rooms and communal activities have been “curtailed,” with staff developing leisure activities in accordance with social distancing guidelines.

The Manteno home is one of five state-run veterans homes in Illinois and is located in Kankakee County. That area had a medium level of COVID-19 community spread as of Wednesday, while 32 counties in the state had a high level of spread.

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CHILD CARE: Thousands more families in Illinois will soon be eligible for subsidized child care and child care providers will see a pay raise under a series of initiatives that Gov. JB Pritzker announced Monday, June 13.

Starting July 1, the state will invest more than $175 million in additional funding for child care and early childhood education.

Speaking at an early learning center in Chicago, Pritzker said the initiatives are meant to ease the burden for working families to find affordable child care while also making it easier for those providers to stay in business.

Starting July 1, he said, providers enrolled in the state’s Child Care Assistance Program, or CCAP, which subsidizes child care for low-income families, will see an 8 percent increase in their reimbursement rates.

In addition, he said, the income eligibility limit to qualify for those subsidies will go up to 225 percent of the federal poverty level, or $51,818 a year for a family of three. After that, when families go through redetermination to see if they are still eligible, the income limit will go up to 275 percent of the poverty level, or $63,333 for a family of three.

The governor’s office said in a news release that those increases will make the subsidies available to an additional 20,000 children.

Pritzker also announced the state will implement a 3 percent cost-of-living adjustment to reimbursement rates for early intervention services.

And families that qualify for CCAP with a parent or guardian working in child care will have their copays capped at $1.

Child care providers will also have additional time to qualify for Child Care Restoration Grants, which have been funded with federal COVID-19 relief funds. That program had been set to expire this month, but it is now being extended through December, delivering an estimated $60 million to approximately 2,400 child care providers.

And Pritzker announced his administration is extending the Strengthen and Grow Child Care Grant program through June 2023. That program, funded through the American Rescue Plan Act, provides funding for eligible child care centers, child care homes and group child care homes.

Additional policy changes announced Monday include eliminating child care copays for families experiencing homelessness; expanding eligibility to parents and guardians who are attending online school from home; continuing to provide three months of child care assistance for unemployed parents seeking to reenter the workforce through December 2022; launching an early childhood enrollment campaign, including investments in community outreach; and extending the hold on family fee collection for early intervention services through the end of this calendar year.

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SEXUAL ASSAULT BILLS: Gov. JB Pritzker signed two bills into law Thursday, June 16, aimed at protecting the victims of sexual assault.

One of those new laws allows victims to press charges, even if they were voluntarily intoxicated at the time of the attack. Another expands where survivors can access treatment and for how long, as well as requiring Federally Qualified Health Centers to provide medical forensic services by trained professionals.

House Bill 5441 closes what many people called a “loophole” in existing law that prevented victims from filing charges if they were intoxicated at the time of the attack but the intoxicating substance was not administered by the accused individual.

It inserts new language into the law that says a person is unable to knowingly give consent when intoxicated if they are “unconscious of the nature of the act, and this condition was known or reasonably should have been known by the accused,” even if the accused individual did not administer the substance.

That language was inspired by a young woman, Kaylyn Anh, who spoke at the bill signing about how she was raped by someone she knew in July 2021 after she had voluntarily become intoxicated at a friend’s house.

Three months after the attack, she said, she reported it to police but was told that they would not investigate the incident because, under Illinois law, it did not qualify as rape.

“He told me there was absolutely no way the prosecutor would ever pick up my case,” she said. “When I asked him if there were any other legal options to pursue, he said, ‘The only thing you can do now is just try to not let it happen again and move on.’ This is my defiant refusal to do so.”

Senate Bill 3023 amends the Sexual Assault Survivors Emergency Treatment Act, which governs the health care that hospitals are required to provide to victims of sexual assault. It doubles the amount of time a victim can access care under the act to 180 days and guarantees that victims seeking treatment will have access to a trained medical forensic examiner as well as other medical staff trained to care for victims of sexual assault.

It also authorizes the Department of Public Health to designate up to six Federally Qualified Health Centers, located in geographically diverse areas of the state, to develop sexual assault treatment plans and to offer on-site services during their regular operating hours. It also requires them to employ a sexual assault nurse examiner coordinator.

Both bills passed unanimously out of both chambers of the General Assembly earlier this year.

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RAINY DAY FUND: The state’s “rainy day” fund – spent down to essentially nothing during the 2015-2017 budget impasse – now has its highest-ever balance of $750 million after a $320 million deposit this week.

The Budget Stabilization Fund, as it’s officially called, was written into statute in 2000 for the purpose of “reducing the need for future tax increases, maintaining the highest possible bond rating, reducing the need for short term borrowing, providing available resources to meet State obligations whenever casual deficits or failures in revenue occur, and providing the means of addressing budgetary shortfalls.”

It has remained woefully underfunded since its first deposit of $600,000 at that time.

“The first year I took office in 2016, the rainy day fund had withered to about $60,000 – not enough to run state operations for 30 seconds,” Comptroller Susana Mendoza said in a statement Thursday.

Mendoza took office in December 2016, right in the middle of the two-year period in which the state failed to pass a budget, spending billions of dollars more each year than it collected in revenue.

Thus, the “rainy day” fund was used to keep the wheels of state government in motion, and its $276 million balance as of June 2016 bottomed out to around $69,000 at the end of 2017. It rebounded to about $17 million at the end of 2021 while seeing dips amid the COVID-19 pandemic.

The balance marks a near-tripling of its previous high-water mark.

Per the spending plan signed by Gov. JB Pritzker for the upcoming fiscal year, it’ll receive another $280 million after July 1, bringing its balance to over $1 billion. The budget also retired more than $1 billion in other interest-accruing state liabilities.

That’s been noted by the three major credit rating agencies, which have upgraded Illinois’ credit rating by two notches each in the past year.

While Illinois remains at the bottom of all states in terms of credit rating, reversing the downward slide for the first time since the Pat Quinn administration is something Pritzker will hang his hat on as he seeks a second term.

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MENTAL HEALTH: Gov. JB Pritzker signed a bill Friday, June 10, aimed at expanding the state’s mental health workforce and improving access to mental and behavioral health services throughout the state

Senate Bill 3617, an omnibus mental health bill, passed unanimously out of both chambers this spring. Among other things, it makes it easier for out-of-state providers to become licensed in Illinois and enables people whose licenses have lapsed in the past five years to be reinstated.

“As governor, as a father and as a person who grew up in a household impacted by addiction, mental health care has been an issue that is important to me,” Pritzker said at a bill signing ceremony in Chicago. “Personally, I've always said that we need to pull mental health out of the shadows of stigma in order to truly advance holistic health care. And it didn't take a pandemic to show us the extent of our mental health crisis. But it's clearer than ever.”

The new law also establishes a tax credit program for employers that hire individuals who voluntarily state that they are in a recovery program for mental illness or addiction.

It also authorizes the Department of Human Services to award grants or contracts to community clinics for training programs for those pursuing licenses as clinical social workers, clinical professional counselors and marriage and family therapists.

David Jones, the state’s behavioral health officer within the Department of Human Services, noted that in 2019 a state task force estimated that by 2030 Illinois would have a shortage of more than 3,300 behavioral health treatment providers.

“When inadequate staff exists to serve people in behavioral health crises, pain and trauma are perpetuated, and less healing and recovery occurs,” he said. “Today, we are witnessing action to alleviate the pain of mental health and substance use disorders faced by so many.”

Pritzker conceded that SB 3617 alone will not solve the health care workforce shortage in Illinois, but he pointed to other steps the administration has taken in recent years to relieve the shortage, including expanding scholarship opportunities for nursing students.

* * *

BILLS SIGNED: Gov. JB Pritzker has signed 406 bills sent to him this calendar year, including Friday, June 10 signatures on a measure taking aim at wage theft in the construction industry and a pair of bills aimed at increasing access to treatment for HIV.

The wage theft measure, House Bill 5412, was a major initiative of a regional carpenters’ union that allows a worker with a wage theft or fringe benefit grievance against a subcontractor to sue the primary contractor to rectify the situation.

The Mid-America Carpenters Regional Council was the main backer of HB 5412. Minority contractors lobbied against the proposal, which they said would drive up costs and limit work opportunities for smaller contractors.

HB 5412 specifically exempts union projects, homes built on private property where the property owner is the general contractor, and projects contracted through state, local and federal governments.

A follow-up measure, House Bill 4600, was also signed Friday. It exempts any renovations or repairs to existing residential structures, any project that costs less than $20,000 to complete, and construction on any single unit within a multi-family dwelling. It also created the Bond Reform in the Construction Industry Task Force to report to the General Assembly by March 1, 2023.

The laws took effect upon the governor’s signature.

HIV Treatment: House Bill 4430 allows pharmacists to order and conduct testing and dispense pre- and post-exposure HIV medications to individuals who are at high risk for infection. The law takes effect Jan. 1, 2023.

The pharmacists would need to have a standing order issued by a licensed physician or county health department that would allow them to offer care for the individual seeking help, but it would not require a prior patient referral.

The law also requires pharmacists to receive training and specifies that insurance providers must cover the treatments provided by a pharmacist at the same rate as treatment from a physician.

The governor signed that bill the same day he signed House Bill 5549, which requires that for every $3 million in the state’s special African American HIV/AIDS Response Fund, the fund must maintain at least one Black-led Center of Excellence HIV Biomedical Resource Hub. Its fund balance was $4.5 million as of Monday, according to the Illinois Comptroller’s database.

Family bereavement: On Thursday, June 9, Pritzker signed Senate Bill 3120 expanding the state’s child bereavement leave act to allow for unpaid leave related to pregnancy loss, failed adoptions, unsuccessful reproductive procedures and other pregnancy-related events.

It expands existing law that allows 10 days of unpaid leave for workers suffering losses, and the new law expands the list of individuals for which a worker can take the leave.

The measure didn’t specify an effective date, meaning it will go into effect on Jan. 1, 2023.

Health care visits: Senate Bill 1405 requires that a health care facility must ensure “an opportunity for at least one visitor to visit a resident or patient,” even amid a gubernatorial disaster declaration. A clergyperson would not count against the limit. It became effective when signed on May 27.

Health safety guidelines set by the facility, U.S. Centers for Medicare and Medicaid Services, and the Centers for Disease Control and Prevention would still apply. The person seeking entry may be required to pass a health screening and denied entry if they fail it.

Rep. Chris Bos, R-Lake Zurich, the bill’s chief House sponsor said in April it was in response to constituent anger over Pritzker’s COVID-19 executive orders. Bos said facilities would still have to comply with local health department guidance as well.

Fentanyl testing: House Bill 4556 expands access for pharmacists and other health care professionals to distribute fentanyl testing strips to help reduce opioid overdoses. The testing strips can detect fentanyl in counterfeit pills and drugs.

The bill is designed to expand on the Overdose Prevention and Harm Reduction Act, passed in 2019. That law authorizes government agencies and nongovernmental organizations to create needle access programs aimed at reducing HIV and other bloodborne diseases.

The measure took effect immediately when signed June 2.

Higher education: House Bill 5464 requires state public universities and community colleges to develop and implement equity plans to increase the access, retention, completion, and student loan repayment rates for minority students, rural students, adult students, women, and people with disabilities.

The Illinois Board of Higher Education and Illinois Community College Board will guide implementation of the new equity plans. HB 5464 took effect when signed on Tuesday, June 7.

House Bill 4201, which goes into effect Jan. 1, 2023, requires state universities and community colleges to employ “benefits navigators” to connect students to any federal, state or local assistance programs.

Vegan lunches: House Bill 4089 requires school districts to provide a plant-based lunch option that complies with federal nutritional requirements to any student who submits a prior request to the district asking for such an option. The law takes effect in August 2023 and was signed May 13.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government that is distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.