Public Act 0872 99TH GENERAL ASSEMBLY

HB4515 Enrolled LRB099 18573 SMS 42952 b

Public Act 099-0872

AN ACT concerning regulation.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Nursing Home Care Act is amended by changing Section 3-206.01 as follows:

(210 ILCS 45/3-206.01) (from Ch. 111 1/2, par. 4153-206.01)

Sec. 3-206.01. Health care worker registry.

(a) The Department shall establish and maintain a Health Care Worker Registry accessible by health care employers, as defined in the Health Care Worker Background Check Act, that includes background check and training information registry of all individuals who (i) have satisfactorily completed the training required by Section 3-206, (ii) have begun a current course of training as set forth in Section 3-206, or (iii) are otherwise acting as a nursing assistant, habilitation aide, home health aide, psychiatric services rehabilitation aide, or child care aide. The registry shall include the individual's name, his or her current address, Social Security number, and the date and location of the training course completed by the individual, and whether the individual has any of the disqualifying convictions listed in Section 25 of the Health Care Worker Background Check Act from the date of the individual's last criminal records check. Any individual placed on the registry is required to inform the Department of any change of address within 30 days. A facility shall not employ an individual as a nursing assistant, habilitation aide, home health aide, psychiatric services rehabilitation aide, or child care aide, or newly hired as an individual who may have access to a resident, a resident's living quarters, or a resident's personal, financial, or medical records, unless the facility has inquired of the Department's health care worker registry as to information in the registry concerning the individual. The facility shall not employ an individual as a nursing assistant, habilitation aide, or child care aide if that individual is not on the registry unless the individual is enrolled in a training program under paragraph (5) of subsection (a) of Section 3-206 of this Act. The Department may also maintain a publicly accessible registry.

(a-5) The registry maintained by the Department exclusive to health care employers, as defined in the Health Care Worker Background Check Act, shall clearly indicate whether an applicant or employee is eligible for employment and shall include the following:

(1) information about the individual, including the individual's name, his or her current address, Social Security number, the date and location of the training course completed by the individual, whether the individual has any of the disqualifying convictions listed in Section 25 of the Health Care Worker Background Check Act from the date of the individual's last criminal record check, whether the individual has a waiver pending under Section 40 of the Health Care Worker Background Check Act, and whether the individual has received a waiver under Section 40 of that Act;

(2) the following language:

"A waiver granted by the Department of Public Health is a determination that the applicant or employee is eligible to work in a health care facility. The Equal Employment Opportunity Commission provides guidance about federal law regarding hiring of individuals with criminal records."; and

(3) a link to Equal Employment Opportunity Commission guidance regarding hiring of individuals with criminal records.

(a-10) After January 1, 2017, the publicly accessible registry maintained by the Department shall report that an individual is ineligible to work if he or she has a disqualifying offense under Section 25 of the Health Care Worker Background Check Act and has not received a waiver under Section 40 of that Act. If an applicant or employee has received a waiver for one or more disqualifying offenses under Section 40 of the Health Care Worker Background Check Act and he or she is otherwise eligible to work, the Department of Public Health shall report on the public registry that the applicant or employee is eligible to work. The Department, however, shall not report information regarding the waiver on the public registry.

(a-15) If the Department finds that a nursing assistant, habilitation aide, home health aide, psychiatric services rehabilitation aide, or child care aide, or an unlicensed individual, has abused or neglected a resident or an individual under his or her care or misappropriated property of a resident or an individual under his or her care, the Department shall notify the individual of this finding by certified mail sent to the address contained in the registry. The notice shall give the individual an opportunity to contest the finding in a hearing before the Department or to submit a written response to the findings in lieu of requesting a hearing. If, after a hearing or if the individual does not request a hearing, the Department finds that the individual abused a resident, neglected a resident, or misappropriated resident property in a facility, the finding shall be included as part of the registry as well as a clear and accurate summary from the individual, if he or she chooses to make such a statement. The Department shall make the following information in the registry available to the public: an individual's full name; the date an individual successfully completed a nurse aide training or competency evaluation; and whether the Department has made a finding that an individual has been guilty of abuse or neglect of a resident or misappropriation of resident property. In the case of inquiries to the registry concerning an individual listed in the registry, any information disclosed concerning such a finding shall also include disclosure of the individual's statement in the registry relating to the finding or a clear and accurate summary of the statement.

(b) The Department shall add to the health care worker registry records of findings as reported by the Inspector General or remove from the health care worker registry records of findings as reported by the Department of Human Services, under subsection (s) of Section 1-17 of the Department of Human Services Act.

(Source: P.A. 99-78, eff. 7-20-15.)

Section 10. The Health Care Worker Background Check Act is amended by changing Sections 25, 33, and 40 and by adding Section 40.1 as follows:

(225 ILCS 46/25)

Sec. 25. Hiring of people with criminal records Persons ineligible to be hired 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 only with a waiver described in Section 40 In the discretion of the Director of Public Health, as soon after January 1, 1996, January 1, 1997, January 1, 2006, or October 1, 2007, as applicable, and as is reasonably practical, no health care employer shall knowingly hire, employ, or retain any individual in a position with duties involving direct care for clients, patients, or residents, and no long-term care facility shall knowingly hire, employ, or retain 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, who has been convicted of committing or attempting to commit one or more of the following offenses: 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, 11-9.5, 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, 12-21, 12-21.6, 12-32, 12-33, 12C-5, 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, 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; or those defined in Sections 401, 401.1, 404, 405, 405.1, 407, or 407.1 of the Illinois Controlled Substances Act, unless the applicant or employee obtains a waiver pursuant to Section 40.

(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 only with a waiver described in Section 40: those In the discretion of the Director of Public Health, as soon after January 1, 2004 or October 1, 2007, as applicable, and as is reasonably practical, no health care employer shall knowingly hire any individual in a position with duties involving direct care for clients, patients, or residents, and no long-term care facility shall knowingly hire 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, who has (i) been convicted of committing or attempting to commit one or more of the 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, unless the applicant or employee obtains a waiver pursuant to Section 40 of this 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 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 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.

(Source: P.A. 96-710, eff. 1-1-10; 96-1551, Article 1, Section 930, eff. 7-1-11; 96-1551, Article 2, Section 995, eff. 7-1-11; 96-1551, Article 10, Section 10-40, eff. 7-1-11; 97-597, eff. 1-1-12; 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)

(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 must 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 local governmental agency. Each individual shall submit his or her fingerprints to the Department of State Police in an electronic format that complies with the form and manner for requesting and furnishing criminal history record information prescribed by the Department of State Police. The fingerprints submitted under this Section shall be checked against the fingerprint records now and hereafter filed in the Department of State Police criminal history record databases. The Department of State Police shall charge a fee for conducting the criminal history records check, which shall not exceed the actual cost of the records check. The livescan vendor may act as the designee for individuals, educational entities, or health care employers in the collection of Department of State Police fees and deposit those fees into the State Police Services Fund. The Department of 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 must initiate a fingerprint-based criminal history records check requested by the Department of Public Health 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 must 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.

(e) When initiating a background check requested by the Department of Public Health, an educational entity or health care employer 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 must have his or her fingerprints collected electronically and transmitted to the Department of State Police within 10 working days. The educational entity or health care employer must transmit all necessary information and fees to the livescan vendor and Department of 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 requested by the Department of Public Health 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 requestor shall be entered in the Health Care Worker Registry.

(g) As long as the employee has had a fingerprint-based criminal history record check requested by the Department of Public Health and stays active on the Health Care Worker Registry, no further criminal history record checks shall be deemed necessary, as the Department of State Police shall notify the Department of Public Health of any additional convictions associated with the fingerprints previously submitted. Health care employers are required to check the Health Care Worker Registry before hiring an employee to determine that the individual has had a fingerprint-based record check requested by the Department of Public Health 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 must 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 nurse aide 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 nurse aide 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 Department of 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 must provide an employment verification for each employee no less than annually. The direct care employer or its designee must log into the Health Care Worker Registry through a secure login. The health care employer or its designee must 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. For health care employers that are not licensed or certified, 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 Department of State Police.

(j) The Department of Public Health shall notify each health care employer or long-term care facility inquiring as to the information on the Health Care Worker Registry if the applicant or employee listed on the registry has a disqualifying offense and is therefore ineligible to work. 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 Department of Public Health shall report that the applicant or employee is eligible to work and that additional information is available on the Health Care Worker Registry. The Department may report that the applicant or employee has received a waiver or has a waiver pursuant to Section 40 of this Act.

(k) The student, applicant, or employee must 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 requested by the Department of Public Health of the student, applicant, or employee pursuant to this Act.

(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 Department of 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.

(Source: P.A. 95-120, eff. 8-13-07.)

(225 ILCS 46/40)

Sec. 40. Waiver.

(a) Any student, applicant, or employee listed on the Health Care Worker Registry may request a waiver of the prohibition against employment by:

(1) completing a waiver application on a form prescribed by the Department of Public Health;

(2) providing a written explanation of each conviction to include (i) what happened, (ii) how many years have passed since the offense, (iii) the individuals involved, (iv) the age of the applicant at the time of the offense, and (v) any other circumstances surrounding the offense; and

(3) providing official documentation showing that all fines have been paid, if applicable and except for in the instance of payment of court-imposed fines or restitution in which the applicant is adhering to a payment schedule, and the date probation or parole was satisfactorily completed, if applicable.

(b) The applicant may, but is not required to, submit employment and character references and any other evidence demonstrating the ability of the applicant or employee to perform the employment responsibilities competently and evidence that the applicant or employee does not pose a threat to the health or safety of residents, patients, or clients.

(c) The Department of Public Health may, at the discretion of the Director of Public Health, grant a waiver to an applicant, student, or employee listed on the registry. The Department of Public Health shall must inform health care employers if a waiver is being sought by entering a record on the Health Care Worker Registry that a waiver is pending and must act upon the waiver request within 30 days of receipt of all necessary information, as defined by rule. The Department of Public Health shall send an applicant, student, or employee written notification of its decision whether to grant a waiver, including listing the specific disqualifying offenses for which the waiver is being granted or denied. The Department shall issue additional copies of this written notification upon the applicant's, student's, or employee's request Except in cases where a rehabilitation waiver is granted, a letter shall be sent to the applicant notifying the applicant that he or she has received an automatic waiver.

(d) An individual shall not be employed from the time that the employer receives a notification from the Department of Public Health based upon the results of a fingerprint-based criminal history records check containing disqualifying conditions until the time that the individual receives a waiver.

(e) The entity responsible for inspecting, licensing, certifying, or registering the health care employer and the Department of Public Health shall be immune from liability for any waivers granted under this Section.

(f) A health care employer is not obligated to employ or offer permanent employment to an applicant, or to retain an employee who is granted a waiver under this Section.

(Source: P.A. 95-120, eff. 8-13-07; 95-545, eff. 8-28-07; 95-876, eff. 8-21-08; 96-565, eff. 8-18-09.)

(225 ILCS 46/40.1 new)

Sec. 40.1. Health Care Worker Registry working group.

(a) The Office of the Governor shall establish a working group regarding the activities under this Act, with the following goals:

(1) to evaluate and monitor the success of health care waivers under Section 40 in creating job opportunity for people with criminal records; and

(2) to identify and recommend changes to the waiver application and implementation process to reduce barriers for applicants or employees.

In order to ensure that the working group is fully informed, the Department of Public Health and the Governor's Office shall provide the working group with any relevant aggregate data currently available that is related to the waiver process and its effectiveness. The working group shall identify any gaps in information currently collected that would inform the working group's efforts and make recommendations to the Governor's Office and the General Assembly about what additional data should be collected to evaluate and monitor the success of the waiver process by July 1, 2017.

(b) The working group shall be comprised of representatives from advocacy and community-based organizations, individuals directly impacted by the waiver process, industry representatives, members of the General Assembly, and representatives from the Department of Public Health and the Office of the Governor. The working group shall meet at least 2 times each year.

Section 99. Effective date. This Act takes effect January 1, 2017.