Public Act 094-0665
 
HB2531 Enrolled LRB094 09883 RAS 40141 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 5, 10, 15, 25, 30, and 40 and by
adding Section 70 as follows:
 
    (225 ILCS 46/5)
    Sec. 5. Purpose. The General Assembly finds that it is in
the public interest to protect the most frail and disabled
citizens of the State of Illinois from possible harm through a
criminal background check of certain health care workers and
all employees of licensed and certified long-term care
facilities who have or may have contact with residents or have
access to the living quarters or the financial, medical, or
personal records of residents.
(Source: P.A. 89-197, eff. 7-21-95.)
 
    (225 ILCS 46/10)
    Sec. 10. Applicability. This Act applies to all individuals
employed or retained by a health care employer as home health
care aides, nurse aides, personal care assistants, private duty
nurse aides, day training personnel, or an individual working
in any similar health-related occupation where he or she
provides direct care or has access to long-term care residents
or the living quarters or financial, medical, or personal
records of long-term care residents. This Act also applies to
all employees of licensed or certified long-term care
facilities who have or may have contact with residents or
access to the living quarters or the financial, medical, or
personal records of residents.
(Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)
 
    (225 ILCS 46/15)
    Sec. 15. Definitions. For the purposes of this Act, the
following definitions apply:
    "Applicant" means an individual seeking employment with a
health care employer who has received a bona fide conditional
offer of employment.
    "Conditional offer of employment" means a bona fide offer
of employment by a health care employer to an applicant, which
is contingent upon the receipt of a report from the Department
of State Police indicating that the applicant does not have a
record of conviction of any of the criminal offenses enumerated
in Section 25.
    "Direct care" means the provision of nursing care or
assistance with feeding, dressing, movement, bathing,
toileting, or other personal needs. The entity responsible for
inspecting and licensing, certifying, or registering the
health care employer may, by administrative rule, prescribe
guidelines for interpreting this definition with regard to the
health care employers that it licenses.
    "Health care employer" means:
        (1) the owner or licensee of any of the following:
            (i) a community living facility, as defined in the
        Community Living Facilities Act;
            (ii) a life care facility, as defined in the Life
        Care Facilities Act;
            (iii) a long-term care facility, as defined in the
        Nursing Home Care Act;
            (iv) a home health agency, as defined in the Home
        Health Agency Licensing Act;
            (v) a full hospice, as defined in the Hospice
        Program Licensing Act;
            (vi) a hospital, as defined in the Hospital
        Licensing Act;
            (vii) a community residential alternative, as
        defined in the Community Residential Alternatives
        Licensing Act;
            (viii) a nurse agency, as defined in the Nurse
        Agency Licensing Act;
            (ix) a respite care provider, as defined in the
        Respite Program Act;
            (ix-a) an establishment licensed under the
        Assisted Living and Shared Housing Act;
            (x) a supportive living program, as defined in the
        Illinois Public Aid Code;
            (xi) early childhood intervention programs as
        described in 59 Ill. Adm. Code 121;
            (xii) the University of Illinois Hospital,
        Chicago;
            (xiii) programs funded by the Department on Aging
        through the Community Care Program;
            (xiv) programs certified to participate in the
        Supportive Living Program authorized pursuant to
        Section 5-5.01a of the Illinois Public Aid Code;
            (xv) programs listed by the Emergency Medical
        Services (EMS) Systems Act as Freestanding Emergency
        Centers;
            (xvi) locations licensed under the Alternative
        Health Care Delivery Act;
        (2) a day training program certified by the Department
    of Human Services;
        (3) a community integrated living arrangement operated
    by a community mental health and developmental service
    agency, as defined in the Community-Integrated Living
    Arrangements Licensing and Certification Act; or
        (4) the State Long Term Care Ombudsman Program,
    including any regional long term care ombudsman programs
    under Section 4.04 of the Illinois Act on the Aging, only
    for the purpose of securing background checks.
    "Initiate" means the obtaining of the authorization for a
record check from a student, applicant, or employee. The
educational entity or health care employer or its designee
shall transmit all necessary information and fees to the
Illinois State Police within 10 working days after receipt of
the authorization.
    "Long-term care facility" means a facility licensed by the
State or certified under federal law as a long-term care
facility, a supportive living facility, an assisted living
establishment, or a shared housing establishment or registered
as a board and care home.
(Source: P.A. 92-16, eff. 6-28-01; 93-878, eff. 1-1-05.)
 
    (225 ILCS 46/25)
    Sec. 25. Persons ineligible to be hired by health care
employers and long-term care facilities.
    (a) After January 1, 1996, or January 1, 1997, as
applicable, 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 offenses defined in Sections
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,
10-1, 10-2, 10-3, 10-3.1, 10-4, 10-5, 10-7, 11-6, 11-9.1,
11-19.2, 11-20.1, 12-1, 12-2, 12-3, 12-3.1, 12-3.2, 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, 16-1, 16-1.3, 16A-3, 17-3, 18-1,
18-2, 18-3, 18-4, 18-5, 19-1, 19-3, 19-4, 20-1, 20-1.1, 24-1,
24-1.2, 24-1.5, or 33A-2 of the Criminal Code of 1961; those
provided in Section 4 of the Wrongs to Children Act; those
provided in Section 53 of the Criminal Jurisprudence Act; those
defined in Section 5, 5.1, 5.2, 7, or 9 of the Cannabis Control
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) After January 1, 2004, 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,
16G-15, 16G-20, 18-5, 20-1.2, 24-1.1, 24-1.2-5, 24-1.6,
24-3.2, or 24-3.3 of the Criminal Code of 1961; Section 4, 5,
6, 8, or 17.02 of the Illinois Credit Card and Debit Card Act;
or Section 5.1 of the Wrongs to Children Act; or (ii) violated
Section 10-5 of the Nursing and Advanced Practice Nursing Act.
    A UCIA criminal history record check need not be redone for
health care employees who have been continuously employed by a
health care employer since January 1, 2004, but nothing in this
Section prohibits a health care employer from initiating a
criminal history check for these employees.
    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. 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. 93-224, eff. 7-18-03.)
 
    (225 ILCS 46/30)
    Sec. 30. Non-fingerprint based UCIA criminal records
check.
    (a) Beginning on January 1, 1997, an educational entity,
other than a secondary school, conducting a nurse aide training
program must initiate a UCIA criminal history records check
prior to entry of an individual into the training program. A
nurse aide seeking to be included on the nurse aide registry
shall authorize the Department of Public Health or its designee
that tests nurse aides or the health care employer or its
designee to request a criminal history record check pursuant to
the Uniform Conviction Information Act (UCIA) for each nurse
aide applying for inclusion on the State nurse aide registry.
Any nurse aide not submitting the required authorization and
information for the record check will not be added to the State
nurse aide registry. A nurse aide will not be entered on the
State nurse aide registry if the report from the Department of
State Police indicates that the nurse aide has a record of
conviction of any of the criminal offenses enumerated in
Section 25 unless the nurse aide's identity is validated and it
is determined that the nurse aide does not have a disqualifying
criminal history record based upon a fingerprint-based records
check pursuant to Section 35 or the nurse aide receives a
waiver pursuant to Section 40.
    (b) The Department of Public Health shall notify each
health care employer inquiring as to the information on the
State nurse aide registry of the date of the nurse aide's last
UCIA criminal history record check. If it has been more than
one year since the records check, the health care employer must
initiate or have initiated on his or her behalf a UCIA criminal
history record check for the nurse aide pursuant to this
Section. The health care employer must send a copy of the
results of the record check to the State nurse aide registry
for an individual employed as a nurse aide.
    (c) Beginning January 1, 1996, a health care employer who
makes a conditional offer of employment to an applicant other
than a nurse aide for position with duties that involve direct
care for clients, patients, or residents must initiate or have
initiated on his or her behalf a UCIA criminal history record
check for that applicant.
    (d) No later than January 1, 1997, a health care employer
must initiate or have initiated on his or her behalf a UCIA
criminal history record check for all employees other than
those enumerated in subsections (a), (b), and (c) of this
Section with duties that involve direct care for clients,
patients, or residents. A health care employer having actual
knowledge from a source other than a non-fingerprint check that
an employee has been convicted of committing or attempting to
commit one of the offenses enumerated in Section 25 of this Act
must initiate a fingerprint-based background check within 10
working days of acquiring that knowledge. The employer may
continue to employ that individual in a direct care position,
may reassign that individual to a non-direct care position, or
may suspend the individual until the results of the
fingerprint-based background check are received.
    (d-5) Beginning January 1, 2006, each long-term care
facility operating in the State must initiate, or have
initiated on its behalf, a criminal history record check for
all employees hired on or after January 1, 2006 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.
    (e) The request for a UCIA criminal history record check
must be in the form prescribed by the Department of State
Police.
    (f) The applicant or employee must be notified of the
following whenever a non-fingerprint check is made:
        (i) that the health care employer shall request or have
    requested on his or her behalf a UCIA criminal history
    record check pursuant to this Act;
        (ii) that the applicant or employee has a right to
    obtain a copy of the criminal records report from the
    health care employer, challenge the accuracy and
    completeness of the report, and request a waiver under
    Section 40 of this Act;
        (iii) that the applicant, if hired conditionally, may
    be terminated if the criminal records report indicates that
    the applicant has a record of conviction of any of the
    criminal offenses enumerated in Section 25 unless the
    applicant's identity is validated and it is determined that
    the applicant does not have a disqualifying criminal
    history record based on a fingerprint-based records check
    pursuant to Section 35.
        (iv) that the applicant, if not hired conditionally,
    shall not be hired if the criminal records report indicates
    that the applicant has a record of conviction of any of the
    criminal offenses enumerated in Section 25 unless the
    applicant's record is cleared based on a fingerprint-based
    records check pursuant to Section 35.
        (v) that the employee may be terminated if the criminal
    records report indicates that the employee has a record of
    conviction of any of the criminal offenses enumerated in
    Section 25 unless the employee's record is cleared based on
    a fingerprint-based records check pursuant to Section 35.
    (g) A health care employer may conditionally employ an
applicant to provide direct care for up to 3 months pending the
results of a UCIA criminal history record check.
(Source: P.A. 91-598, eff. 1-1-00.)
 
    (225 ILCS 46/40)
    Sec. 40. Waiver.
    (a) An applicant, employee, or nurse aide may request a
waiver of the prohibition against employment by submitting the
following information to the entity responsible for
inspecting, licensing, certifying, or registering the health
care employer within 5 working days after the receipt of the
criminal records report:
        (1) Information necessary to initiate a
    fingerprint-based UCIA criminal records check in a form and
    manner prescribed by the Department of State Police; and
        (2) The fee for a fingerprint-based UCIA criminal
    records check, which shall not exceed the actual cost of
    the record check.
    (a-5) The entity responsible for inspecting, licensing,
certifying, or registering the health care employer may accept
the results of the fingerprint-based UCIA criminal records
check instead of the items required by paragraphs (1) and (2)
of subsection (a).
    (b) The entity responsible for inspecting, licensing,
certifying, or registering the health care employer may grant a
waiver based upon any mitigating circumstances, which may
include, but need not be limited to:
        (1) The age of the individual at which the crime was
    committed;
        (2) The circumstances surrounding the crime;
        (3) The length of time since the conviction;
        (4) The applicant or employee's criminal history since
    the conviction;
        (5) The applicant or employee's work history;
        (6) The applicant or employee's current employment
    references;
        (7) The applicant or employee's character references;
        (8) Nurse aide registry records; and
        (9) 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 entity responsible for inspecting, licensing,
certifying, or registering a health care employer must inform
the health care employer if a waiver is being sought and must
act upon the waiver request within 30 days of receipt of all
necessary information, as defined by rule.
    (d) An individual shall not be employed in a direct care
position from the time that the employer receives the results
of a non-fingerprint check containing disqualifying conditions
until the time that the individual receives a waiver from the
Department. If the individual challenges the results of the
non-fingerprint check, the employer may continue to employ the
individual in a direct care position if the individual presents
convincing evidence to the employer that the non-fingerprint
check is invalid. If the individual challenges the results of
the non-fingerprint check, his or her identity shall be
validated by a fingerprint-based records check in accordance
with Section 35.
    (e) The entity responsible for inspecting, licensing,
certifying, or registering the health care employer 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. 91-598, eff. 1-1-00.)
 
    (225 ILCS 46/70 new)
    Sec. 70. Centers for Medicare and Medicaid Services (CMMS)
grant.    
    (a) In this Section:
    "Centers for Medicare and Medicaid Services (CMMS) grant"
means the grant awarded to and distributed by the Department of
Public Health to enhance the conduct of criminal history
records checks of certain health care employees. The CMMS grant
is authorized by Section 307 of the federal Medicare
Prescription Drug, Improvement, and Modernization Act of 2003,
which establishes the framework for a program to evaluate
national and state background checks on prospective employees
with direct access to patients of long-term care facilities or
providers.
    "Selected health care employer" means any of the following
selected to participate in the CMMS grant:
        (1) a community living facility as defined in the
    Community Living Facility Act;
        (2) a long-term care facility as defined in the Nursing
    Home Care Act;
        (3) a home health agency as defined in the Home Health
    Agency Licensing Act;
        (4) a full hospice as defined in the Hospice Licensing
    Act;
        (5) an establishment licensed under the Assisted
    Living and Shared Housing Act;
        (6) a supportive living facility as defined in the
    Illinois Public Aid Code;
        (7) a day training program certified by the Department
    of Human Services; or
        (8) a community integrated living arrangement operated
    by a community mental health and developmental service
    agency as defined in the Community Integrated Living
    Arrangements Licensing and Certification Act.
    (b) Selected health care employers shall be phased in to
participate in the CMMS grant between January 1, 2006 and
January 1, 2007, as prescribed by the Department of Public
Health by rule.
    (c) With regards to individuals hired on or after January
1, 2006 who have direct access to residents, patients, or
clients of the selected health care employer, selected health
care employers must comply with Section 25 of this Act.
    "Individuals who have direct access" includes, but is not
limited to, (i) direct care workers as described in subsection
(a) of Section 25; (ii) individuals licensed by the Department
of Financial and Professional Regulation, such as nurses,
social workers, physical therapists, occupational therapists,
and pharmacists; (iii) individuals who provide services on
site, through contract; and (iv) non-direct care workers, such
as those who work in environmental services, food service, and
administration.
    "Individuals who have direct access" does not include
physicians or volunteers.
    The Department of Public Health may further define
"individuals who have direct access" by rule.
    (d) Each applicant seeking employment in a position
described in subsection (c) of this Section with a selected
health care employer shall, as a condition of employment, have
his or her fingerprints submitted 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 by the Department of State Police and the Federal
Bureau of Investigation criminal history record databases now
and hereafter filed. The Department of State Police shall
forward the fingerprints to the Federal Bureau of Investigation
for a national criminal history records check. 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 and shall be deposited into the State
Police Services Fund. The Department of State Police shall
furnish, pursuant to positive identification, records of
Illinois convictions to the Department of Public Health.
    (e) A selected health care employer who makes a conditional
offer of employment to an applicant shall:
        (1) ensure that the applicant has complied with the
    fingerprinting requirements of this Section;
        (2) complete documentation relating to any criminal
    history record, as revealed by the applicant, as prescribed
    by rule by the Department of Public Health;
        (3) complete documentation of the applicant's personal
    identifiers as prescribed by rule by the Department of
    Public Health; and
        (4) provide supervision, as prescribed by rule by the
    licensing agency, if the applicant is hired and allowed to
    work prior to the results of the criminal history records
    check being obtained.
    (f) A selected health care employer having actual knowledge
from a source that an individual with direct access to a
resident, patient, or client has been convicted of committing
or attempting to commit one of the offenses enumerated in
Section 25 of this Act shall contact the licensing agency or
follow other instructions as prescribed by administrative
rule.
    (g) A fingerprint-based criminal history records check
submitted in accordance with subsection (d) of this Section
must be submitted as a fee applicant inquiry in the form and
manner prescribed by the Department of State Police.
    (h) This Section shall be inapplicable upon the conclusion
of the CMMS grant.