HB4515 EngrossedLRB099 18573 SMS 42952 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Nursing Home Care Act is amended by changing
5Section 3-206.01 as follows:
 
6    (210 ILCS 45/3-206.01)  (from Ch. 111 1/2, par. 4153-206.01)
7    Sec. 3-206.01. Health care worker registry.
8    (a) The Department shall establish and maintain a Health
9Care Worker Registry accessible by health care employers, as
10defined in the Health Care Worker Background Check Act, that
11includes background check and training information registry of
12all individuals who (i) have satisfactorily completed the
13training required by Section 3-206, (ii) have begun a current
14course of training as set forth in Section 3-206, or (iii) are
15otherwise acting as a nursing assistant, habilitation aide,
16home health aide, psychiatric services rehabilitation aide, or
17child care aide. The registry shall include the individual's
18name, his or her current address, Social Security number, and
19the date and location of the training course completed by the
20individual, and whether the individual has any of the
21disqualifying convictions listed in Section 25 of the Health
22Care Worker Background Check Act from the date of the
23individual's last criminal records check. Any individual

 

 

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1placed on the registry is required to inform the Department of
2any change of address within 30 days. A facility shall not
3employ an individual as a nursing assistant, habilitation aide,
4home health aide, psychiatric services rehabilitation aide, or
5child care aide, or newly hired as an individual who may have
6access to a resident, a resident's living quarters, or a
7resident's personal, financial, or medical records, unless the
8facility has inquired of the Department's health care worker
9registry as to information in the registry concerning the
10individual. The facility shall not employ an individual as a
11nursing assistant, habilitation aide, or child care aide if
12that individual is not on the registry unless the individual is
13enrolled in a training program under paragraph (5) of
14subsection (a) of Section 3-206 of this Act. The Department may
15also maintain a publicly accessible registry.
16    (a-5) The registry maintained by the Department exclusive
17to health care employers, as defined in the Health Care Worker
18Background Check Act, shall clearly indicate whether an
19applicant or employee is eligible for employment and shall
20include the following:
21        (1) information about the individual, including the
22    individual's name, his or her current address, Social
23    Security number, the date and location of the training
24    course completed by the individual, whether the individual
25    has any of the disqualifying convictions listed in Section
26    25 of the Health Care Worker Background Check Act from the

 

 

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1    date of the individual's last criminal record check,
2    whether the individual has a waiver pending under Section
3    40 of the Health Care Worker Background Check Act, and
4    whether the individual has received a waiver under Section
5    40 of that Act;
6        (2) the following language:
7            "A waiver granted by the Department of Public
8        Health is a determination that the applicant or
9        employee is eligible to work in a health care facility.
10        The Equal Employment Opportunity Commission provides
11        guidance about federal law regarding hiring of
12        individuals with criminal records."; and
13        (3) a link to Equal Employment Opportunity Commission
14    guidance regarding hiring of individuals with criminal
15    records.
16    (a-10) After June 30, 2016, the publicly accessible
17registry maintained by the Department shall report that an
18individual is ineligible to work if he or she has a
19disqualifying offense under Section 25 of the Health Care
20Worker Background Check Act and has not received a waiver under
21Section 40 of that Act. If an applicant or employee has
22received a waiver for one or more disqualifying offenses under
23Section 40 of the Health Care Worker Background Check Act and
24he or she is otherwise eligible to work, the Department of
25Public Health shall report on the public registry that the
26applicant or employee is eligible to work. The Department,

 

 

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1however, shall not report information regarding the waiver on
2the public registry.
3    (a-15) If the Department finds that a nursing assistant,
4habilitation aide, home health aide, psychiatric services
5rehabilitation aide, or child care aide, or an unlicensed
6individual, has abused or neglected a resident or an individual
7under his or her care or misappropriated property of a resident
8or an individual under his or her care, the Department shall
9notify the individual of this finding by certified mail sent to
10the address contained in the registry. The notice shall give
11the individual an opportunity to contest the finding in a
12hearing before the Department or to submit a written response
13to the findings in lieu of requesting a hearing. If, after a
14hearing or if the individual does not request a hearing, the
15Department finds that the individual abused a resident,
16neglected a resident, or misappropriated resident property in a
17facility, the finding shall be included as part of the registry
18as well as a clear and accurate summary from the individual, if
19he or she chooses to make such a statement. The Department
20shall make the following information in the registry available
21to the public: an individual's full name; the date an
22individual successfully completed a nurse aide training or
23competency evaluation; and whether the Department has made a
24finding that an individual has been guilty of abuse or neglect
25of a resident or misappropriation of resident property. In the
26case of inquiries to the registry concerning an individual

 

 

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1listed in the registry, any information disclosed concerning
2such a finding shall also include disclosure of the
3individual's statement in the registry relating to the finding
4or a clear and accurate summary of the statement.
5    (b) The Department shall add to the health care worker
6registry records of findings as reported by the Inspector
7General or remove from the health care worker registry records
8of findings as reported by the Department of Human Services,
9under subsection (s) of Section 1-17 of the Department of Human
10Services Act.
11(Source: P.A. 99-78, eff. 7-20-15.)
 
12    Section 10. The Health Care Worker Background Check Act is
13amended by changing Sections 25, 33, and 40 and by adding
14Section 40.1 as follows:
 
15    (225 ILCS 46/25)
16    Sec. 25. Hiring of people with criminal records Persons
17ineligible to be hired by health care employers and long-term
18care facilities.
19    (a) A health care employer or long-term care facility may
20hire, employ, or retain any individual in a position involving
21direct care for clients, patients, or residents, or access to
22the living quarters or the financial, medical, or personal
23records of clients, patients, or residents who has been
24convicted of committing or attempting to commit one or more of

 

 

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1the following offenses only with a waiver described in Section
240 In the discretion of the Director of Public Health, as soon
3after January 1, 1996, January 1, 1997, January 1, 2006, or
4October 1, 2007, as applicable, and as is reasonably practical,
5no health care employer shall knowingly hire, employ, or retain
6any individual in a position with duties involving direct care
7for clients, patients, or residents, and no long-term care
8facility shall knowingly hire, employ, or retain any individual
9in a position with duties that involve or may involve contact
10with residents or access to the living quarters or the
11financial, medical, or personal records of residents, who has
12been convicted of committing or attempting to commit one or
13more of the following offenses: those defined in Sections
148-1(b), 8-1.1, 8-1.2, 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.1,
159-3.2, 9-3.3, 9-3.4, 10-1, 10-2, 10-3, 10-3.1, 10-4, 10-5,
1610-7, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-6,
1711-9.1, 11-9.5, 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-1,
1812-2, 12-3.05, 12-3.1, 12-3.2, 12-3.3, 12-4, 12-4.1, 12-4.2,
1912-4.3, 12-4.4, 12-4.5, 12-4.6, 12-4.7, 12-7.4, 12-11, 12-13,
2012-14, 12-14.1, 12-15, 12-16, 12-19, 12-21, 12-21.6, 12-32,
2112-33, 12C-5, 16-1, 16-1.3, 16-25, 16A-3, 17-3, 17-56, 18-1,
2218-2, 18-3, 18-4, 18-5, 19-1, 19-3, 19-4, 19-6, 20-1, 20-1.1,
2324-1, 24-1.2, 24-1.5, or 33A-2, or subdivision (a)(4) of
24Section 11-14.4, or in subsection (a) of Section 12-3 or
25subsection (a) or (b) of Section 12-4.4a, of the Criminal Code
26of 1961 or the Criminal Code of 2012; those provided in Section

 

 

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14 of the Wrongs to Children Act; those provided in Section 53
2of the Criminal Jurisprudence Act; those defined in subsection
3(c), (d), (e), (f), or (g) of Section 5 or Section , 5.1, 5.2,
47, or 9 of the Cannabis Control Act; those defined in the
5Methamphetamine Control and Community Protection Act; or those
6defined in Sections 401, 401.1, 404, 405, 405.1, 407, or 407.1
7of the Illinois Controlled Substances Act, unless the applicant
8or employee obtains a waiver pursuant to Section 40.
9    (a-1) A health care employer or long-term care facility may
10hire, employ, or retain any individual in a position involving
11direct care for clients, patients, or residents, or access to
12the living quarters or the financial, medical, or personal
13records of clients, patients, or residents who has been
14convicted of committing or attempting to commit one or more of
15the following offenses only with a waiver described in Section
1640: those In the discretion of the Director of Public Health,
17as soon after January 1, 2004 or October 1, 2007, as
18applicable, and as is reasonably practical, no health care
19employer shall knowingly hire any individual in a position with
20duties involving direct care for clients, patients, or
21residents, and no long-term care facility shall knowingly hire
22any individual in a position with duties that involve or may
23involve contact with residents or access to the living quarters
24or the financial, medical, or personal records of residents,
25who has (i) been convicted of committing or attempting to
26commit one or more of the offenses defined in Section 12-3.3,

 

 

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112-4.2-5, 16-2, 16-30, 16G-15, 16G-20, 17-33, 17-34, 17-36,
217-44, 18-5, 20-1.2, 24-1.1, 24-1.2-5, 24-1.6, 24-3.2, or
324-3.3, or subsection (b) of Section 17-32, subsection (b) of
4Section 18-1, or subsection (b) of Section 20-1, of the
5Criminal Code of 1961 or the Criminal Code of 2012; Section 4,
65, 6, 8, or 17.02 of the Illinois Credit Card and Debit Card
7Act; or Section 11-9.1A of the Criminal Code of 1961 or the
8Criminal Code of 2012 or Section 5.1 of the Wrongs to Children
9Act; or (ii) violated Section 50-50 of the Nurse Practice Act,
10unless the applicant or employee obtains a waiver pursuant to
11Section 40 of this Act.
12    A health care employer is not required to retain an
13individual in a position with duties involving direct care for
14clients, patients, or residents, and no long-term care facility
15is required to retain an individual in a position with duties
16that involve or may involve contact with residents or access to
17the living quarters or the financial, medical, or personal
18records of residents, who has been convicted of committing or
19attempting to commit one or more of the offenses enumerated in
20this subsection.
21    (b) A health care employer shall not hire, employ, or
22retain any individual in a position with duties involving
23direct care of clients, patients, or residents, and no
24long-term care facility shall knowingly hire, employ, or retain
25any individual in a position with duties that involve or may
26involve contact with residents or access to the living quarters

 

 

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1or the financial, medical, or personal records of residents, if
2the health care employer becomes aware that the individual has
3been convicted in another state of committing or attempting to
4commit an offense that has the same or similar elements as an
5offense listed in subsection (a) or (a-1), as verified by court
6records, records from a state agency, or an FBI criminal
7history record check, unless the applicant or employee obtains
8a waiver pursuant to Section 40 of this Act. This shall not be
9construed to mean that a health care employer has an obligation
10to conduct a criminal history records check in other states in
11which an employee has resided.
12(Source: P.A. 96-710, eff. 1-1-10; 96-1551, Article 1, Section
13930, eff. 7-1-11; 96-1551, Article 2, Section 995, eff. 7-1-11;
1496-1551, Article 10, Section 10-40, eff. 7-1-11; 97-597, eff.
151-1-12; 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1150,
16eff. 1-25-13.)
 
17    (225 ILCS 46/33)
18    Sec. 33. Fingerprint-based criminal history records check.
19    (a) A fingerprint-based criminal history records check is
20not required for health care employees who have been
21continuously employed by a health care employer since October
221, 2007, have met the requirements for criminal history
23background checks prior to October 1, 2007, and have no
24disqualifying convictions or requested and received a waiver of
25those disqualifying convictions. These employees shall be

 

 

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1retained on the Health Care Worker Registry as long as they
2remain active. Nothing in this subsection (a) shall be
3construed to prohibit a health care employer from initiating a
4criminal history records check for these employees. Should
5these employees seek a new position with a different health
6care employer, then a fingerprint-based criminal history
7records check shall be required.
8    (b) On October 1, 2007 or as soon thereafter as is
9reasonably practical, in the discretion of the Director of
10Public Health, and thereafter, any student, applicant, or
11employee who desires to be included on the Department of Public
12Health's Health Care Worker Registry must authorize the
13Department of Public Health or its designee to request a
14fingerprint-based criminal history records check to determine
15if the individual has a conviction for a disqualifying offense.
16This authorization shall allow the Department of Public Health
17to request and receive information and assistance from any
18State or local governmental agency. Each individual shall
19submit his or her fingerprints to the Department of State
20Police in an electronic format that complies with the form and
21manner for requesting and furnishing criminal history record
22information prescribed by the Department of State Police. The
23fingerprints submitted under this Section shall be checked
24against the fingerprint records now and hereafter filed in the
25Department of State Police criminal history record databases.
26The Department of State Police shall charge a fee for

 

 

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1conducting the criminal history records check, which shall not
2exceed the actual cost of the records check. The livescan
3vendor may act as the designee for individuals, educational
4entities, or health care employers in the collection of
5Department of State Police fees and deposit those fees into the
6State Police Services Fund. The Department of State Police
7shall provide information concerning any criminal convictions,
8now or hereafter filed, against the individual.
9    (c) On October 1, 2007 or as soon thereafter as is
10reasonably practical, in the discretion of the Director of
11Public Health, and thereafter, an educational entity, other
12than a secondary school, conducting a nurse aide training
13program must initiate a fingerprint-based criminal history
14records check requested by the Department of Public Health
15prior to entry of an individual into the training program.
16    (d) On October 1, 2007 or as soon thereafter as is
17reasonably practical, in the discretion of the Director of
18Public Health, and thereafter, a health care employer who makes
19a conditional offer of employment to an applicant for a
20position as an employee must initiate a fingerprint-based
21criminal history record check, requested by the Department of
22Public Health, on the applicant, if such a background check has
23not been previously conducted.
24    (e) When initiating a background check requested by the
25Department of Public Health, an educational entity or health
26care employer shall electronically submit to the Department of

 

 

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1Public Health the student's, applicant's, or employee's social
2security number, demographics, disclosure, and authorization
3information in a format prescribed by the Department of Public
4Health within 2 working days after the authorization is
5secured. The student, applicant, or employee must have his or
6her fingerprints collected electronically and transmitted to
7the Department of State Police within 10 working days. The
8educational entity or health care employer must transmit all
9necessary information and fees to the livescan vendor and
10Department of State Police within 10 working days after receipt
11of the authorization. This information and the results of the
12criminal history record checks shall be maintained by the
13Department of Public Health's Health Care Worker Registry.
14    (f) A direct care employer may initiate a fingerprint-based
15background check requested by the Department of Public Health
16for any of its employees, but may not use this process to
17initiate background checks for residents. The results of any
18fingerprint-based background check that is initiated with the
19Department as the requestor shall be entered in the Health Care
20Worker Registry.
21    (g) As long as the employee has had a fingerprint-based
22criminal history record check requested by the Department of
23Public Health and stays active on the Health Care Worker
24Registry, no further criminal history record checks shall be
25deemed necessary, as the Department of State Police shall
26notify the Department of Public Health of any additional

 

 

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1convictions associated with the fingerprints previously
2submitted. Health care employers are required to check the
3Health Care Worker Registry before hiring an employee to
4determine that the individual has had a fingerprint-based
5record check requested by the Department of Public Health and
6has no disqualifying convictions or has been granted a waiver
7pursuant to Section 40 of this Act. If the individual has not
8had such a background check or is not active on the Health Care
9Worker Registry, then the health care employer must initiate a
10fingerprint-based record check requested by the Department of
11Public Health. If an individual is inactive on the Health Care
12Worker Registry, that individual is prohibited from being hired
13to work as a certified nurse aide if, since the individual's
14most recent completion of a competency test, there has been a
15period of 24 consecutive months during which the individual has
16not provided nursing or nursing-related services for pay. If
17the individual can provide proof of having retained his or her
18certification by not having a 24 consecutive month break in
19service for pay, he or she may be hired as a certified nurse
20aide and that employment information shall be entered into the
21Health Care Worker Registry.
22    (h) On October 1, 2007 or as soon thereafter as is
23reasonably practical, in the discretion of the Director of
24Public Health, and thereafter, if the Department of State
25Police notifies the Department of Public Health that an
26employee has a new conviction of a disqualifying offense, based

 

 

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1upon the fingerprints that were previously submitted, then (i)
2the Health Care Worker Registry shall notify the employee's
3last known employer of the offense, (ii) a record of the
4employee's disqualifying offense shall be entered on the Health
5Care Worker Registry, and (iii) the individual shall no longer
6be eligible to work as an employee unless he or she obtains a
7waiver pursuant to Section 40 of this Act.
8    (i) On October 1, 2007, or as soon thereafter, in the
9discretion of the Director of Public Health, as is reasonably
10practical, and thereafter, each direct care employer or its
11designee must provide an employment verification for each
12employee no less than annually. The direct care employer or its
13designee must log into the Health Care Worker Registry through
14a secure login. The health care employer or its designee must
15indicate employment and termination dates within 30 days after
16hiring or terminating an employee, as well as the employment
17category and type. Failure to comply with this subsection (i)
18constitutes a licensing violation. For health care employers
19that are not licensed or certified, a fine of up to $500 may be
20imposed for failure to maintain these records. This information
21shall be used by the Department of Public Health to notify the
22last known employer of any disqualifying offenses that are
23reported by the Department of State Police.
24    (j) The Department of Public Health shall notify each
25health care employer or long-term care facility inquiring as to
26the information on the Health Care Worker Registry if the

 

 

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1applicant or employee listed on the registry has a
2disqualifying offense and is therefore ineligible to work. In
3the event that an applicant or employee has a waiver for one or
4more disqualifying offenses pursuant to Section 40 of this Act
5and he or she is otherwise eligible to work, the Department of
6Public Health shall report that the applicant or employee is
7eligible to work and that additional information is available
8on the Health Care Worker Registry. The Department may report
9that the applicant or employee has received a waiver or has a
10waiver pursuant to Section 40 of this Act.
11    (k) The student, applicant, or employee must be notified of
12each of the following whenever a fingerprint-based criminal
13history records check is required:
14        (1) That the educational entity, health care employer,
15    or long-term care facility shall initiate a
16    fingerprint-based criminal history record check requested
17    by the Department of Public Health of the student,
18    applicant, or employee pursuant to this Act.
19        (2) That the student, applicant, or employee has a
20    right to obtain a copy of the criminal records report that
21    indicates a conviction for a disqualifying offense and
22    challenge the accuracy and completeness of the report
23    through an established Department of State Police
24    procedure of Access and Review.
25        (3) That the applicant, if hired conditionally, may be
26    terminated if the criminal records report indicates that

 

 

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1    the applicant has a record of a conviction of any of the
2    criminal offenses enumerated in Section 25, unless the
3    applicant obtains a waiver pursuant to Section 40 of this
4    Act.
5        (4) That the applicant, if not hired conditionally,
6    shall not be hired if the criminal records report indicates
7    that the applicant has a record of a conviction of any of
8    the criminal offenses enumerated in Section 25, unless the
9    applicant obtains a waiver pursuant to Section 40 of this
10    Act.
11        (5) That the employee shall be terminated if the
12    criminal records report indicates that the employee has a
13    record of a conviction of any of the criminal offenses
14    enumerated in Section 25.
15        (6) If, after the employee has originally been
16    determined not to have disqualifying offenses, the
17    employer is notified that the employee has a new
18    conviction(s) of any of the criminal offenses enumerated in
19    Section 25, then the employee shall be terminated.
20    (l) A health care employer or long-term care facility may
21conditionally employ an applicant for up to 3 months pending
22the results of a fingerprint-based criminal history record
23check requested by the Department of Public Health.
24    (m) The Department of Public Health or an entity
25responsible for inspecting, licensing, certifying, or
26registering the health care employer or long-term care facility

 

 

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1shall be immune from liability for notices given based on the
2results of a fingerprint-based criminal history record check.
3(Source: P.A. 95-120, eff. 8-13-07.)
 
4    (225 ILCS 46/40)
5    Sec. 40. Waiver.
6    (a) Any student, applicant, or employee listed on the
7Health Care Worker Registry may request a waiver of the
8prohibition against employment by:
9        (1) completing a waiver application on a form
10    prescribed by the Department of Public Health;
11        (2) providing a written explanation of each conviction
12    to include (i) what happened, (ii) how many years have
13    passed since the offense, (iii) the individuals involved,
14    (iv) the age of the applicant at the time of the offense,
15    and (v) any other circumstances surrounding the offense;
16    and
17        (3) providing official documentation showing that all
18    fines have been paid, if applicable and except for in the
19    instance of payment of court-imposed fines or restitution
20    in which the applicant is adhering to a payment schedule,
21    and the date probation or parole was satisfactorily
22    completed, if applicable.
23    (b) The applicant may, but is not required to, submit
24employment and character references and any other evidence
25demonstrating the ability of the applicant or employee to

 

 

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1perform the employment responsibilities competently and
2evidence that the applicant or employee does not pose a threat
3to the health or safety of residents, patients, or clients.
4    (c) The Department of Public Health may, at the discretion
5of the Director of Public Health, grant a waiver to an
6applicant, student, or employee listed on the registry. The
7Department of Public Health shall must inform health care
8employers if a waiver is being sought by entering a record on
9the Health Care Worker Registry that a waiver is pending and
10must act upon the waiver request within 30 days of receipt of
11all necessary information, as defined by rule. The Department
12of Public Health shall send an applicant, student, or employee
13written notification of its decision whether to grant a waiver,
14including listing the specific disqualifying offenses for
15which the waiver is being granted or denied. The Department
16shall issue additional copies of this written notification upon
17the applicant's, student's, or employee's request Except in
18cases where a rehabilitation waiver is granted, a letter shall
19be sent to the applicant notifying the applicant that he or she
20has received an automatic waiver.
21    (d) An individual shall not be employed from the time that
22the employer receives a notification from the Department of
23Public Health based upon the results of a fingerprint-based
24criminal history records check containing disqualifying
25conditions until the time that the individual receives a
26waiver.

 

 

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1    (e) The entity responsible for inspecting, licensing,
2certifying, or registering the health care employer and the
3Department of Public Health shall be immune from liability for
4any waivers granted under this Section.
5    (f) A health care employer is not obligated to employ or
6offer permanent employment to an applicant, or to retain an
7employee who is granted a waiver under this Section.
8(Source: P.A. 95-120, eff. 8-13-07; 95-545, eff. 8-28-07;
995-876, eff. 8-21-08; 96-565, eff. 8-18-09.)
 
10    (225 ILCS 46/40.1 new)
11    Sec. 40.1. Health Care Worker Registry working group.
12    (a) The Office of the Governor shall establish a working
13group regarding the activities under this Act, with the
14following goals:
15        (1) to evaluate and monitor the success of health care
16    waivers under Section 40 in creating job opportunity for
17    people with criminal records; and
18        (2) to identify and recommend changes to the waiver
19    application and implementation process to reduce barriers
20    for applicants or employees.
21    In order to ensure that the working group is fully
22informed, the Department of Public Health and the Governor's
23Office shall provide the working group with any relevant
24aggregate data currently available that is related to the
25waiver process and its effectiveness. The working group shall

 

 

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1identify any gaps in information currently collected that would
2inform the working group's efforts and make recommendations to
3the Governor's Office and the General Assembly about what
4additional data should be collected to evaluate and monitor the
5success of the waiver process by July 1, 2017.
6    (b) The working group shall be comprised of representatives
7from advocacy and community-based organizations, individuals
8directly impacted by the waiver process, industry
9representatives, members of the General Assembly, and
10representatives from the Department of Public Health and the
11Office of the Governor. The working group shall meet at least 2
12times each year.
 
13    Section 99. Effective date. This Act takes effect upon
14becoming law.