Public Act 103-0428

Public Act 0428 103RD GENERAL ASSEMBLY

  
  
  

 


 
Public Act 103-0428
 
HB2102 EnrolledLRB103 25089 AMQ 51424 b

    AN ACT concerning regulation.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Health Care Worker Background Check Act is
amended by changing Sections 25 and 33 as follows:
 
    (225 ILCS 46/25)
    Sec. 25. Hiring of people with criminal records by health
care employers and long-term care facilities.
    (a) A health care employer or long-term care facility may
hire, employ, or retain any individual in a position involving
direct care for clients, patients, or residents, or access to
the living quarters or the financial, medical, or personal
records of clients, patients, or residents who has been
convicted of committing or attempting to commit one or more of
the following offenses under the laws of this State, or of an
offense that is substantially equivalent to the following
offenses under the laws of any other state or of the laws of
the United States, as verified by court records, records from
a state agency, or a Federal Bureau of Investigation criminal
history records check, only with a waiver described in Section
40: those defined in Sections 8-1(b), 8-1.1, 8-1.2, 9-1,
9-1.2, 9-2, 9-2.1, 9-3, 9-3.1, 9-3.2, 9-3.3, 9-3.4, 10-1,
10-2, 10-3, 10-3.1, 10-4, 10-5, 10-7, 11-1.20, 11-1.30,
11-1.40, 11-1.50, 11-1.60, 11-6, 11-9.1, 11-9.2, 11-9.3,
11-9.4-1, 11-9.5, 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-1,
12-2, 12-3.05, 12-3.1, 12-3.2, 12-3.3, 12-4, 12-4.1, 12-4.2,
12-4.3, 12-4.4, 12-4.5, 12-4.6, 12-4.7, 12-7.4, 12-11, 12-13,
12-14, 12-14.1, 12-15, 12-16, 12-19, 12-20.5, 12-21, 12-21.5,
12-21.6, 12-32, 12-33, 12C-5, 12C-10, 16-1, 16-1.3, 16-25,
16A-3, 17-3, 17-56, 18-1, 18-2, 18-3, 18-4, 18-5, 19-1, 19-3,
19-4, 19-6, 20-1, 20-1.1, 24-1, 24-1.2, 24-1.5, 24-1.8,
24-3.8, or 33A-2, or subdivision (a)(4) of Section 11-14.4, or
in subsection (a) of Section 12-3 or subsection (a) or (b) of
Section 12-4.4a, of the Criminal Code of 1961 or the Criminal
Code of 2012; those provided in Section 4 of the Wrongs to
Children Act; those provided in Section 53 of the Criminal
Jurisprudence Act; those defined in subsection (c), (d), (e),
(f), or (g) of Section 5 or Section 5.1, 5.2, 7, or 9 of the
Cannabis Control Act; those defined in the Methamphetamine
Control and Community Protection Act; those defined in
Sections 401, 401.1, 404, 405, 405.1, 407, or 407.1 of the
Illinois Controlled Substances Act; or subsection (a) of
Section 3.01, Section 3.02, or Section 3.03 of the Humane Care
for Animals Act.
    (a-1) A health care employer or long-term care facility
may hire, employ, or retain any individual in a position
involving direct care for clients, patients, or residents, or
access to the living quarters or the financial, medical, or
personal records of clients, patients, or residents who has
been convicted of committing or attempting to commit one or
more of the following offenses under the laws of this State, or
of an offense that is substantially equivalent to the
following offenses under the laws of any other state or of the
laws of the United States, as verified by court records,
records from a state agency, or a Federal Bureau of
Investigation criminal history records check, only with a
waiver described in Section 40: those offenses defined in
Section 12-3.3, 12-4.2-5, 16-2, 16-30, 16G-15, 16G-20, 17-33,
17-34, 17-36, 17-44, 18-5, 20-1.2, 24-1.1, 24-1.2-5, 24-1.6,
24-3.2, or 24-3.3, or subsection (b) of Section 17-32,
subsection (b) of Section 18-1, or subsection (b) of Section
20-1, of the Criminal Code of 1961 or the Criminal Code of
2012; Section 4, 5, 6, 8, or 17.02 of the Illinois Credit Card
and Debit Card Act; or Section 11-9.1A of the Criminal Code of
1961 or the Criminal Code of 2012 or Section 5.1 of the Wrongs
to Children Act; or (ii) violated Section 50-50 of the Nurse
Practice Act.
    A health care employer is not required to retain an
individual in a position with duties involving direct care for
clients, patients, or residents, and no long-term care
facility is required to retain an individual in a position
with duties that involve or may involve contact with residents
or access to the living quarters or the financial, medical, or
personal records of residents, who has been convicted of
committing or attempting to commit one or more of the offenses
enumerated in this subsection.
    (b) A health care employer shall not hire, employ, or
retain, whether paid or on a volunteer basis, any individual
in a position with duties involving direct care of clients,
patients, or residents, and no long-term care facility shall
knowingly hire, employ, or retain, whether paid or on a
volunteer basis, any individual in a position with duties that
involve or may involve contact with residents or access to the
living quarters or the financial, medical, or personal records
of residents, if the health care employer becomes aware that
the individual has been convicted in another state of
committing or attempting to commit an offense that has the
same or similar elements as an offense listed in subsection
(a) or (a-1), as verified by court records, records from a
state agency, or an FBI criminal history record check, unless
the applicant or employee obtains a waiver pursuant to Section
40 of this Act. This shall not be construed to mean that a
health care employer has an obligation to conduct a criminal
history records check in other states in which an employee has
resided.
    (c) A health care employer shall not hire, employ, or
retain, whether paid or on a volunteer basis, any individual
in a position with duties involving direct care of clients,
patients, or residents, who has a finding by the Department of
abuse, neglect, misappropriation of property, or theft denoted
on the Health Care Worker Registry.
    (d) A health care employer shall not hire, employ, or
retain, whether paid or on a volunteer basis, any individual
in a position with duties involving direct care of clients,
patients, or residents if the individual has a verified and
substantiated finding of abuse, neglect, or financial
exploitation, as identified within the Adult Protective
Service Registry established under Section 7.5 of the Adult
Protective Services Act.
    (e) A health care employer shall not hire, employ, or
retain, whether paid or on a volunteer basis, any individual
in a position with duties involving direct care of clients,
patients, or residents who has a finding by the Department of
Human Services of physical or sexual abuse, financial
exploitation, or egregious neglect of an individual denoted on
the Health Care Worker Registry.
(Source: P.A. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
 
    (225 ILCS 46/33)
    Sec. 33. Fingerprint-based criminal history records check.
    (a) A fingerprint-based criminal history records check is
not required for health care employees who have been
continuously employed by a health care employer since October
1, 2007, have met the requirements for criminal history
background checks prior to October 1, 2007, and have no
disqualifying convictions or requested and received a waiver
of those disqualifying convictions. These employees shall be
retained on the Health Care Worker Registry as long as they
remain active. Nothing in this subsection (a) shall be
construed to prohibit a health care employer from initiating a
criminal history records check for these employees. Should
these employees seek a new position with a different health
care employer, then a fingerprint-based criminal history
records check shall be required.
    (b) On October 1, 2007 or as soon thereafter as is
reasonably practical, in the discretion of the Director of
Public Health, and thereafter, any student, applicant, or
employee who desires to be included on the Department of
Public Health's Health Care Worker Registry shall authorize
the Department of Public Health or its designee to request a
fingerprint-based criminal history records check to determine
if the individual has a conviction for a disqualifying
offense. This authorization shall allow the Department of
Public Health to request and receive information and
assistance from any State or governmental agency. Each
individual shall submit his or her fingerprints to the
Illinois State Police in an electronic format that complies
with the form and manner for requesting and furnishing
criminal history record information prescribed by the Illinois
State Police. Such fingerprints shall be transmitted through a
livescan fingerprint vendor licensed by the Department of
Financial and Professional Regulation. The fingerprints
submitted under this Section shall be checked against the
Illinois State Police and Federal Bureau of Investigation
criminal history record databases, now and hereafter filed,
including, but not limited to, civil, criminal, and latent
fingerprint databases. the fingerprint records now and
hereafter filed in the Illinois State Police criminal history
record databases. The Illinois State Police shall charge a fee
for conducting the criminal history records check, which shall
be deposited into the State Police Services Fund and shall not
exceed the actual cost of the records check. The Illinois
State Police shall furnish, pursuant to positive
identification, records of Illinois convictions and shall
forward the national criminal history record information to
the department or agency. The Illinois State Police shall
forward the applicant's fingerprints to the Federal Bureau of
Investigation. The Illinois State Police shall request that
the Federal Bureau of Investigation conduct a national
criminal history pertaining to the applicant The livescan
vendor may act as the designee for individuals, educational
entities, or health care employers in the collection of
Illinois State Police fees and deposit those fees into the
State Police Services Fund. The Illinois State Police shall
provide information concerning any criminal convictions, now
or hereafter filed, against the individual.
    (c) On October 1, 2007 or as soon thereafter as is
reasonably practical, in the discretion of the Director of
Public Health, and thereafter, an educational entity, other
than a secondary school, conducting a nurse aide training
program shall initiate a fingerprint-based criminal history
records check required by this Act prior to entry of an
individual into the training program.
    (d) On October 1, 2007 or as soon thereafter as is
reasonably practical, in the discretion of the Director of
Public Health, and thereafter, a health care employer who
makes a conditional offer of employment to an applicant for a
position as an employee shall initiate a fingerprint-based
criminal history record check, requested by the Department of
Public Health, on the applicant, if such a background check
has not been previously conducted. Workforce intermediaries
and organizations providing pro bono legal services may
initiate a fingerprint-based criminal history record check if
a conditional offer of employment has not been made and a
background check has not been previously conducted for an
individual who has a disqualifying conviction and is receiving
services from a workforce intermediary or an organization
providing pro bono legal services.
    (e) When initiating a background check requested by the
Department of Public Health, an educational entity, health
care employer, workforce intermediary, or organization that
provides pro bono legal services shall electronically submit
to the Department of Public Health the student's, applicant's,
or employee's social security number, demographics,
disclosure, and authorization information in a format
prescribed by the Department of Public Health within 2 working
days after the authorization is secured. The student,
applicant, or employee shall have his or her fingerprints
collected electronically and transmitted to the Illinois State
Police within 10 working days. The educational entity, health
care employer, workforce intermediary, or organization that
provides pro bono legal services shall transmit all necessary
information and fees to the livescan vendor and Illinois State
Police within 10 working days after receipt of the
authorization. This information and the results of the
criminal history record checks shall be maintained by the
Department of Public Health's Health Care Worker Registry.
    (f) A direct care employer may initiate a
fingerprint-based background check required by this Act for
any of its employees, but may not use this process to initiate
background checks for residents. The results of any
fingerprint-based background check that is initiated with the
Department as the requester shall be entered in the Health
Care Worker Registry.
    (g) As long as the employee or trainee has had a
fingerprint-based criminal history record check required by
this Act and stays active on the Health Care Worker Registry,
no further criminal history record checks are required, as the
Illinois State Police shall notify the Department of Public
Health of any additional convictions associated with the
fingerprints previously submitted. Health care employers shall
check the Health Care Worker Registry before hiring an
employee to determine that the individual has had a
fingerprint-based record check required by this Act and has no
disqualifying convictions or has been granted a waiver
pursuant to Section 40 of this Act. If the individual has not
had such a background check or is not active on the Health Care
Worker Registry, then the health care employer shall initiate
a fingerprint-based record check requested by the Department
of Public Health. If an individual is inactive on the Health
Care Worker Registry, that individual is prohibited from being
hired to work as a certified nursing assistant if, since the
individual's most recent completion of a competency test,
there has been a period of 24 consecutive months during which
the individual has not provided nursing or nursing-related
services for pay. If the individual can provide proof of
having retained his or her certification by not having a
24-consecutive-month break in service for pay, he or she may
be hired as a certified nursing assistant and that employment
information shall be entered into the Health Care Worker
Registry.
    (h) On October 1, 2007 or as soon thereafter as is
reasonably practical, in the discretion of the Director of
Public Health, and thereafter, if the Illinois State Police
notifies the Department of Public Health that an employee has
a new conviction of a disqualifying offense, based upon the
fingerprints that were previously submitted, then (i) the
Health Care Worker Registry shall notify the employee's last
known employer of the offense, (ii) a record of the employee's
disqualifying offense shall be entered on the Health Care
Worker Registry, and (iii) the individual shall no longer be
eligible to work as an employee unless he or she obtains a
waiver pursuant to Section 40 of this Act.
    (i) On October 1, 2007, or as soon thereafter, in the
discretion of the Director of Public Health, as is reasonably
practical, and thereafter, each direct care employer or its
designee shall provide an employment verification for each
employee no less than annually. The direct care employer or
its designee shall log into the Health Care Worker Registry
through a secure login. The health care employer or its
designee shall indicate employment and termination dates
within 30 days after hiring or terminating an employee, as
well as the employment category and type. Failure to comply
with this subsection (i) constitutes a licensing violation. A
fine of up to $500 may be imposed for failure to maintain these
records. This information shall be used by the Department of
Public Health to notify the last known employer of any
disqualifying offenses that are reported by the Illinois State
Police.
    (j) In the event that an applicant or employee has a waiver
for one or more disqualifying offenses pursuant to Section 40
of this Act and he or she is otherwise eligible to work, the
Health Care Worker Registry shall indicate that the applicant
or employee is eligible to work and that additional
information is available on the Health Care Worker Registry.
The Health Care Worker Registry may indicate that the
applicant or employee has received a waiver.
    (k) The student, applicant, or employee shall be notified
of each of the following whenever a fingerprint-based criminal
history records check is required:
        (1) That the educational entity, health care employer,
    or long-term care facility shall initiate a
    fingerprint-based criminal history record check required
    by this Act of the student, applicant, or employee.
        (2) That the student, applicant, or employee has a
    right to obtain a copy of the criminal records report that
    indicates a conviction for a disqualifying offense and
    challenge the accuracy and completeness of the report
    through an established Illinois State Police procedure of
    Access and Review.
        (3) That the applicant, if hired conditionally, may be
    terminated if the criminal records report indicates that
    the applicant has a record of a conviction of any of the
    criminal offenses enumerated in Section 25, unless the
    applicant obtains a waiver pursuant to Section 40 of this
    Act.
        (4) That the applicant, if not hired conditionally,
    shall not be hired if the criminal records report
    indicates that the applicant has a record of a conviction
    of any of the criminal offenses enumerated in Section 25,
    unless the applicant obtains a waiver pursuant to Section
    40 of this Act.
        (5) That the employee shall be terminated if the
    criminal records report indicates that the employee has a
    record of a conviction of any of the criminal offenses
    enumerated in Section 25.
        (6) If, after the employee has originally been
    determined not to have disqualifying offenses, the
    employer is notified that the employee has a new
    conviction(s) of any of the criminal offenses enumerated
    in Section 25, then the employee shall be terminated.
    (l) A health care employer or long-term care facility may
conditionally employ an applicant for up to 3 months pending
the results of a fingerprint-based criminal history record
check requested by the Department of Public Health.
    (m) The Department of Public Health or an entity
responsible for inspecting, licensing, certifying, or
registering the health care employer or long-term care
facility shall be immune from liability for notices given
based on the results of a fingerprint-based criminal history
record check.
    (n) As used in this Section:
    "Workforce intermediaries" means organizations that
function to provide job training and employment services.
Workforce intermediaries include institutions of higher
education, faith-based and community organizations, and
workforce investment boards.
    "Organizations providing pro bono legal services" means
legal services performed without compensation or at a
significantly reduced cost to the recipient that provide
services designed to help individuals overcome statutory
barriers that would prevent them from entering positions in
the healthcare industry.
(Source: P.A. 101-176, eff. 7-31-19; 102-538, eff. 8-20-21.)