TITLE 89: SOCIAL SERVICES
CHAPTER III: DEPARTMENT OF CHILDREN AND FAMILY SERVICES
SUBCHAPTER d: LICENSING ADMINISTRATION
PART 385 BACKGROUND CHECKS
SECTION 385.60 CRIMINAL CONVICTIONS AND PENDING CRIMINAL CHARGES
Section 385.60 Criminal Convictions and Pending Criminal Charges
a) Convictions Which Serve as Bar to Licensure/Employment that Allows Access to Children
Persons who have been convicted of certain serious crimes, identified in Appendix A of this Part, shall not receive a license to operate a child care facility or, if such a person has been licensed to operate a child care facility, the licensing entity shall revoke or refuse to renew such license upon learning that the licensee has been convicted of committing or attempting to commit any of the offenses identified below. In addition, no person who has been convicted of committing or attempting to commit any of the offenses listed below shall either be employed in a licensed child care facility in a position that allows access to children or reside in a family home in which a child care facility operates. This includes persons who have been:
1) declared a sexually dangerous person under the Sexually Dangerous Persons Act [725 ILCS 205] or identified as a sex offender in the Illinois Sex Offender Registry operated by the Illinois State Police; or
2) convicted of committing or attempting to commit any of the offenses specified in Appendix A of this Part that are defined by the Criminal Code of 1961 [720 ILCS 5] or any earlier Illinois criminal law or code (See Section 4.2 of the Child Care Act of 1969 [225 ILCS 10/4.2]);or
3) convicted of committing or attempting to commit an offense in another state, the elements of which are similar and bear a substantial relationship to any of the criminal offenses specified in Appendix A of this Part.
b) Special Provisions for Foster Family Homes
In addition to the provisions set forth in subsection (a), no applicant may be licensed by the Department to operate a foster family home, and no person may reside in a foster family home licensed by the Department, who has been convicted of committing or attempting to commit any of the offenses listed in Section 4.2 of the Child Care Act of 1969 [225 ILCS 10/4.2], and Section 5(v-1) of The Children and Family Services Act [20 ILCS 505/5(v-1)], or who is included in the Illinois Sex Offender Registry (unless the offender is a ward of the State of Illinois placed in the foster home by the Department or its contractual agent).
c) Special Provisions for Service Providers
As a condition of a contract or agreement, or as otherwise required under 89 Ill. Adm. Code 357, Purchase of Service, the Department shall require a person who provides services that allow unsupervised access to children to authorize a background check under this Part.
d) Assessment of Criminal Convictions
Except as specified in subsections (a) and (b) of this Section, an individual convicted of a crime will not automatically be prohibited from licensure, renewal of a license, or employment in a child care facility, from residing in a family home in which a child care facility operates, or from obtaining a contract with the Department to provide services which allow access to children as part of their duties. Instead, the following shall be considered:
1) the nature of the crime for which the individual was convicted;
2) the circumstances surrounding the commission of the crime, including the age of the individual, that would demonstrate a low likelihood of repetition;
3) the period of time that has elapsed since the crime was committed;
4) the number of crimes for which the individual was convicted;
5) evidence of rehabilitation such as successful participation in therapy since conviction;
6) commutation of the sentence by the Governor or granting of a pardon;
7) overturn of the conviction upon appeal;
8) character references;
9) the relationship of the crime to the capacity to care for children or to have access to children cared for in a child care facility;
10) Whether the employee/foster parent disclosed whether he or she had a criminal background and the circumstances of the conviction; and
11) The development of a supervisory or monitoring plan that the Department has approved.
e) Assessment of Pending Criminal Charges
When an employer is informed that an employee has a pending charge for a crime listed as a barred offense in subsection (a), the employer shall develop a protective plan addressing unsupervised access to children until the charge has been resolved. An individual against whom criminal charges are pending shall not be automatically prohibited from licensure, renewal of a license, or employment in a child care facility, residing in a family home in which a child care facility operates, or obtaining a contract with the Department to provide services which allow access to children (as limited by 89 Ill. Adm. Code 357, Purchase of Service) because of the pending criminal charges. In those instances, the following shall be considered:
1) the seriousness and nature of the charges which are pending including a determination of whether the charges are among those listed in Appendix A of this Part that serve as a bar to licensure or employment in a position that allows access to children;
2) the circumstances surrounding the incident that led to the criminal charge;
3) the relationship of the charges to the ability to care for children or to have access to children and confidential information in a child care facility;
4) whether the individual has ever been convicted of or charged with crimes of a similar nature; and
5) character references and other information submitted by or on behalf of the appellant or any other person, especially about the suitability of the individual to care for children.
f) Notification of Hiring Decision
Child care facilities shall notify the Department in writing of their decision regarding the employment of a person with a criminal history. Such notice shall be postmarked within 30 days after receipt of the information from the Department about the individual's criminal history. If the facility chooses to retain the employee, it must notify the Department of this decision and specify in the notice the operating hours of the facility, the duties of the employee, and the hours the employee will be working. The decision of the employer is final, subject to review under the personnel policies of its governing body. Such hiring decisions may not be appealed to the Department of Children and Family Services.
(Source: Amended at 33 Ill. Reg. 4117, effective February 27, 2009)