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Public Act 101-0176


 

Public Act 0176 101ST GENERAL ASSEMBLY

  
  
  

 


 
Public Act 101-0176
 
SB1965 EnrolledLRB101 10223 JRG 55327 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 15, 33, and 40 as follows:
 
    (225 ILCS 46/15)
    Sec. 15. Definitions. In this Act:
    "Applicant" means an individual enrolling in a training
program, seeking employment, whether paid or on a volunteer
basis, 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 Public Health indicating that the applicant does not have a
record of conviction of any of the criminal offenses enumerated
in Section 25.
    "Department" means the Department of Public Health.
    "Direct care" means the provision of nursing care or
assistance with feeding, dressing, movement, bathing,
toileting, or other personal needs, including home services as
defined in the Home Health, Home Services, and Home Nursing
Agency Licensing Act. 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.
    "Director" means the Director of Public Health.
    "Disqualifying offenses" means those offenses set forth in
Section 25 of this Act.
    "Employee" means any individual hired, employed, or
retained, whether paid or on a volunteer basis, to which this
Act applies.
    "Finding" means the Department's determination of whether
an allegation is verified and substantiated.
    "Fingerprint-based criminal history records check" means a
livescan fingerprint-based criminal history records check
submitted as a fee applicant inquiry in the form and manner
prescribed by the Department of State Police.
    "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;
            (iv) a home health agency, home services agency, or
        home nursing agency as defined in the Home Health, Home
        Services, and Home Nursing Agency Licensing Act;
            (v) a hospice care program or volunteer hospice
        program, as defined in the Hospice Program Licensing
        Act;
            (vi) a hospital, as defined in the Hospital
        Licensing Act;
            (vii) (blank);
            (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 obtaining from a student, applicant, or
employee his or her social security number, demographics, a
disclosure statement, and an authorization for the Department
of Public Health or its designee to request a fingerprint-based
criminal history records check; transmitting this information
electronically to the Department of Public Health; conducting
Internet searches on certain web sites, including without
limitation the Illinois Sex Offender Registry, the Department
of Corrections' Sex Offender Search Engine, the Department of
Corrections' Inmate Search Engine, the Department of
Corrections Wanted Fugitives Search Engine, the National Sex
Offender Public Registry, and the List of Excluded Individuals
and Entities database on the website of the Health and Human
Services Office of Inspector General to determine if the
applicant has been adjudicated a sex offender, has been a
prison inmate, or has committed Medicare or Medicaid fraud, or
conducting similar searches as defined by rule; and having the
student, applicant, or employee's fingerprints collected and
transmitted electronically to the Department of State Police.
    "Livescan vendor" means an entity whose equipment has been
certified by the Department of State Police to collect an
individual's demographics and inkless fingerprints and, in a
manner prescribed by the Department of State Police and the
Department of Public Health, electronically transmit the
fingerprints and required data to the Department of State
Police and a daily file of required data to the Department of
Public Health. The Department of Public Health shall negotiate
a contract with one or more vendors that effectively
demonstrate that the vendor has 2 or more years of experience
transmitting fingerprints electronically to the Department of
State Police and that the vendor can successfully transmit the
required data in a manner prescribed by the Department of
Public Health. Vendor authorization may be further defined by
administrative rule.
    "Long-term care facility" means a facility licensed by the
State or certified under federal law as a long-term care
facility, including without limitation facilities licensed
under the Nursing Home Care Act, the Specialized Mental Health
Rehabilitation Act of 2013, the ID/DD Community Care Act, or
the MC/DD Act, a supportive living facility, an assisted living
establishment, or a shared housing establishment or registered
as a board and care home.
    "Resident" means a person, individual, or patient under the
direct care of a health care employer or who has been provided
goods or services by a health care employer.
(Source: P.A. 99-180, eff. 7-29-15; 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 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 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, or 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 Department of State Police within 10 working
days. The educational entity, or 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 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 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
Department of 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 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 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 Department of 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 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.
    (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. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
 
    (225 ILCS 46/40)
    Sec. 40. Waiver.
    (a) Any student, applicant, enrollee in a training program,
individual receiving services from a workforce intermediary or
organization providing pro bono legal services, 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 Health Care
Worker Registry. The Department of Public Health shall 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.
    (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. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 7/31/2019