HB1728 95TH GENERAL ASSEMBLY

LRB095 09794 RAS 30004 b

95TH GENERAL ASSEMBLY
State of Illinois
2007 and 2008
HB1728

Introduced 2/22/2007, by Rep. Kevin Joyce

SYNOPSIS AS INTRODUCED:

225 ILCS 46/5
225 ILCS 46/10
225 ILCS 46/15
225 ILCS 46/20
225 ILCS 46/25
225 ILCS 46/30

Amends the Health Care Worker Background Check Act. Provides that the Act applied to all employees of licensed or certified long-term care facilities who have or may have access to (instead of contact with) residents. Defines "access to" and makes changes to the definition of "health care employer" and "long-term care facility". Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

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, 20, 25, and 30 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 access to contact with residents or have access to the living quarters or the financial, medical, or personal records of residents.

(Source: P.A. 94-665, eff. 1-1-06.)

(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 access to contact with residents or access to the living quarters or the financial, medical, or personal records of residents.

(Source: P.A. 94-665, eff. 1-1-06.)

(225 ILCS 46/15)

Sec. 15. Definitions. In For the purposes of this Act, the following definitions apply:

"Access to" means having the ability, right, or permission to approach, speak with, or make contact with a client, patient, or resident.

"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 Public Health 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, 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.

"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, home services agency, or home nursing agency as defined in the Home Health, Home Services, and Home Nursing Agency Licensing Act;

(v) a comprehensive 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) 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, including without limitation facilities licensed under the Nursing Home Care Act, a supportive living facility, an assisted living establishment, or a shared housing establishment or registered as a board and care home.

(Source: P.A. 93-878, eff. 1-1-05; 94-379, eff. 1-1-06; 94-570, eff. 8-12-05; 94-665, eff. 1-1-06; revised 8-29-05.)

(225 ILCS 46/20)

Sec. 20. Exceptions. (1) This Act shall not apply to:

(a) an individual who is licensed by the Department of Financial and Professional Regulation or the Department of Public Health under another law of this State;

(b) an individual employed or retained by a health care employer for whom a criminal background check is required by another law of this State; or

(c) a student in a licensed health care field including, but not limited to, a student nurse, a physical therapy student, or a respiratory care student unless he or she is employed by a health care employer in a position with duties involving direct care for clients, patients, or residents.

(2) A UCIA criminal history records check need not be redone by the University of Illinois Hospital, Chicago (U of I) or a program funded by the Department on Aging through the Community Care Program (CCP) if the U of I or the CCP: (i) has done a UCIA check on the individual; (ii) has continuously employed the individual since the UCIA criminal records check was done; and (iii) has taken actions with respect to this Act within 12 months after the effective date of this amendatory Act of the 91st General Assembly.

(Source: P.A. 91-598, eff. 1-1-00.)

(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, January 1, 1997, or the effective date of this amendatory Act of the 94th General Assembly, 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, 11-9.5, 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; 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) 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 access to 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 access to 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 access to 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; 94-556, eff. 9-11-05; 94-665, eff. 1-1-06; 94-1053, eff. 7-24-06.)

(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 on the effective date of this amendatory Act of the 95th General Assembly 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 access to 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 for up to 3 months pending the results of a UCIA criminal history record check.

(Source: P.A. 94-665, eff. 1-1-06.)

Section 99. Effective date. This Act takes effect upon becoming law.