SB0042ham001 99TH GENERAL ASSEMBLY

Rep. Camille Y. Lilly

Filed: 5/15/2015

09900SB0042ham001 LRB099 03947 MLM 35579 a

AMENDMENT TO SENATE BILL 42

AMENDMENT NO. ______. Amend Senate Bill 42 by replacing everything after the enacting clause with the following:

"Section 5. The Department of Professional Regulation Law of the Civil Administrative Code of Illinois is amended by changing Section 2105-165 as follows:

(20 ILCS 2105/2105-165)

Sec. 2105-165. Health care worker licensure actions; sex crimes.

(a) When a licensed health care worker, as defined in the Health Care Worker Self-Referral Act, (1) has been convicted of a criminal act that requires registration under the Sex Offender Registration Act; (1.5) has been convicted of involuntary sexual servitude of a minor under subsection (c) of Section 10-9 or subsection (b) of Section 10A-10 of the Criminal Code of 1961 or the Criminal Code of 2012; (2) has been convicted of a criminal battery against any patient in the course of patient care or treatment, including any offense based on sexual conduct or sexual penetration; (3) has been convicted of a forcible felony; or (4) is required as a part of a criminal sentence to register under the Sex Offender Registration Act, then, notwithstanding any other provision of law to the contrary, except as provided in this Section, the license of the health care worker shall by operation of law be permanently revoked without a hearing.

(a-1) If a licensed health care worker has been convicted of a forcible felony, other than a forcible felony requiring registration under the Sex Offender Registration Act or involuntary sexual servitude of a minor that is a forcible felony, and the health care worker has had his or her license revoked, the health care worker may petition the Department to restore his or her license so long as the conviction occurred more than 5 years before the date the petition is filed. In determining whether a license shall be restored, the Department shall consider, but is not limited to, the following factors:

(1) the seriousness of the offense;

(2) the presence of multiple offenses;

(3) prior disciplinary history, including actions taken by other agencies in this State or by other states or jurisdictions, hospitals, health care facilities, residency programs, employers, insurance providers, or any of the armed forces of the United States or any state;

(4) the impact of the offense on any injured party;

(5) the vulnerability of any injured party, including, but not limited to, consideration of the injured party's age, disability, or mental illness;

(6) the motive for the offense;

(7) the lack of contrition for the offense;

(8) the lack of cooperation with the Department or other investigative authorities;

(9) the lack of prior disciplinary action by the Department or by other agencies in this State or by other states or jurisdictions, hospitals, health care facilities, residency programs, employers, insurance providers, or any of the armed forces of the United States or any state;

(10) contrition for the offense;

(11) cooperation with the Department or other investigative authorities;

(12) restitution to injured parties;

(13) whether the misconduct was self-reported;

(14) any voluntary remedial actions taken; and

(15) the date of conviction.

(b) No person who has been convicted of any offense listed in subsection (a) or required to register as a sex offender may receive a license as a health care worker in Illinois. The process for petition and review by the Department provided in subsection (a-1) shall also apply to a person whose application for licensure is denied under this Section for a conviction of a forcible felony, other than a forcible felony requiring registration under the Sex Offender Registration Act or involuntary sexual servitude of a minor that is a forcible felony.

(c) Immediately after a licensed health care worker, as defined in the Health Care Worker Self-Referral Act, has been charged with any offense for which the sentence includes registration as a sex offender; involuntary sexual servitude of a minor; a criminal battery against a patient, including any offense based on sexual conduct or sexual penetration, in the course of patient care or treatment; or a forcible felony; then the prosecuting attorney shall provide notice to the Department of the health care worker's name, address, practice address, and license number and the patient's name and a copy of the criminal charges filed. Within 5 business days after receiving notice from the prosecuting attorney of the filing of criminal charges against the health care worker, the Secretary shall issue an administrative order that the health care worker shall immediately practice only with a chaperone during all patient encounters pending the outcome of the criminal proceedings. The chaperone must be a licensed health care worker. The chaperone shall provide written notice to all of the health care worker's patients explaining the Department's order to use a chaperone. Each patient shall sign an acknowledgement that they received the notice. The notice to the patient of criminal charges shall include, in 14-point font, the following statement: "The health care worker is presumed innocent until proven guilty of the charges.". The licensed health care worker shall provide a written plan of compliance with the administrative order that is acceptable to the Department within 5 days after receipt of the administrative order. Failure to comply with the administrative order, failure to file a compliance plan, or failure to follow the compliance plan shall subject the health care worker to temporary suspension of his or her professional license until the completion of the criminal proceedings.

(d) Nothing contained in this Section shall act in any way to waive or modify the confidentiality of information provided by the prosecuting attorney to the extent provided by law. Any information reported or disclosed shall be kept for the confidential use of the Secretary, Department attorneys, the investigative staff, and authorized clerical staff and shall be afforded the same status as is provided information under Part 21 of Article VIII of the Code of Civil Procedure, except that the Department may disclose information and documents to (1) a federal, State, or local law enforcement agency pursuant to a subpoena in an ongoing criminal investigation or (2) an appropriate licensing authority of another state or jurisdiction pursuant to an official request made by that authority. Any information and documents disclosed to a federal, State, or local law enforcement agency may be used by that agency only for the investigation and prosecution of a criminal offense. Any information or documents disclosed by the Department to a professional licensing authority of another state or jurisdiction may only be used by that authority for investigations and disciplinary proceedings with regards to a professional license.

(e) Any licensee whose license was revoked or who received an administrative order under this Section shall have the revocation or administrative order vacated and completely removed from the licensee's records and public view and the revocation or administrative order shall be afforded the same status as is provided information under Part 21 of Article VIII of the Code of Civil Procedure if (1) the charges upon which the revocation or administrative order is based are dropped; (2) the licensee is not convicted of the charges upon which the revocation or administrative order is based; or (3) any conviction for charges upon which the revocation or administrative order was based have been vacated, overturned, or reversed.

(f) Nothing contained in this Section shall prohibit the Department from initiating or maintaining a disciplinary action against a licensee independent from any criminal charges, conviction, or sex offender registration.

(g) The Department may adopt rules necessary to implement this Section.

(Source: P.A. 97-156, eff. 8-20-11; 97-484, eff. 9-21-11; 97-873, eff. 7-31-12.).

Section 10. The Health Care Worker Background Check Act is amended by changing Sections 25, 33, and 40 as follows:

(225 ILCS 46/25)

Sec. 25. Persons ineligible to be hired by health care employers and long-term care facilities.

(a) In the discretion of the Director of Public Health, as soon after January 1, 1996, January 1, 1997, January 1, 2006, or October 1, 2007, as applicable, and as is reasonably practical, 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 following offenses: those defined in Sections 8-1(b), 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, 9-3.4, 10-1, 10-2, 10-3, 10-3.1, 10-4, 10-5, 10-7, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-6, 11-9.1, 11-9.5, 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-1, 12-2, 12-3.05, 12-3.1, 12-3.2, 12-3.3, 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, 12C-5, 16-1, 16-1.3, 16-25, 16A-3, 17-3, 17-56, 18-1, 18-2, 18-3, 18-4, 18-5, 19-1, 19-3, 19-4, 19-6, 20-1, 20-1.1, 24-1, 24-1.2, 24-1.5, or 33A-2, or subdivision (a)(4) of Section 11-14.4, or in subsection (a) of Section 12-3 or subsection (a) or (b) of Section 12-4.4a, of the Criminal Code of 1961 or the Criminal Code of 2012; those provided in Section 4 of the Wrongs to Children Act; those provided in Section 53 of the Criminal Jurisprudence Act; those defined in subsection (c), (d), (e), (f), or (g) of Section 5 or 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) In the discretion of the Director of Public Health, as soon after January 1, 2004 or October 1, 2007, as applicable, and as is reasonably practical, 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, 16-30, 16G-15, 16G-20, 17-33, 17-34, 17-36, 17-44, 18-5, 20-1.2, 24-1.1, 24-1.2-5, 24-1.6, 24-3.2, or 24-3.3, or subsection (b) of Section 17-32, subsection (b) of Section 18-1, or subsection (b) of Section 20-1, of the Criminal Code of 1961 or the Criminal Code of 2012; Section 4, 5, 6, 8, or 17.02 of the Illinois Credit Card and Debit Card Act; or Section 11-9.1A of the Criminal Code of 1961 or the Criminal Code of 2012 or Section 5.1 of the Wrongs to Children Act; or (ii) violated Section 50-50 of the Nurse Practice Act, unless the applicant or employee obtains a waiver pursuant to Section 40 of this Act.

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, unless the applicant or employee obtains a waiver pursuant to Section 40 of this Act. 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. 96-710, eff. 1-1-10; 96-1551, Article 1, Section 930, eff. 7-1-11; 96-1551, Article 2, Section 995, eff. 7-1-11; 96-1551, Article 10, Section 10-40, eff. 7-1-11; 97-597, eff. 1-1-12; 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1150, eff. 1-25-13.)

(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 must 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 local 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 must initiate a fingerprint-based criminal history records check requested by the Department of Public Health 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 must 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.

(e) When initiating a background check requested by the Department of Public Health, an educational entity or health care employer 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 must 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 must 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 requested by the Department of Public Health 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 requestor shall be entered in the Health Care Worker Registry.

(g) As long as the employee has had a fingerprint-based criminal history record check requested by the Department of Public Health and stays active on the Health Care Worker Registry, no further criminal history record checks shall be deemed necessary, 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 are required to check the Health Care Worker Registry before hiring an employee to determine that the individual has had a fingerprint-based record check requested by the Department of Public Health 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 must 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 nurse aide 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 nurse aide 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 must provide an employment verification for each employee no less than annually. The direct care employer or its designee must log into the Health Care Worker Registry through a secure login. The health care employer or its designee must 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. For health care employers that are not licensed or certified, 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) The Department of Public Health shall notify each health care employer or long-term care facility inquiring as to the information on the Health Care Worker Registry if the applicant or employee listed on the registry has a disqualifying offense and is therefore ineligible to work or has a waiver pursuant to Section 40 of this Act. If an applicant or employee has a waiver for one or more disqualifying offenses pursuant to this Section and he or she is otherwise eligible to work, the Department of Public Health shall report that the applicant or employee is eligible to work. The Department shall not report information regarding the waiver, nor shall the Department list the specific disqualifying offenses, if any.

(k) The student, applicant, or employee must 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 requested by the Department of Public Health of the student, applicant, or employee pursuant to this Act.

(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.

(Source: P.A. 95-120, eff. 8-13-07.)

(225 ILCS 46/40)

Sec. 40. Waiver.

(a) Any student, applicant, 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) Upon inquiry of a health care employer and subject to subsection (j) of Section 33 of this Act, the The Department of Public Health shall must inform the inquiring party health care employers if a waiver is being sought by entering a record on the Health Care Worker Registry that a waiver is pending. The Department shall and must act upon the waiver request within 30 days of receipt of all necessary information, as defined by rule. The Department shall send an applicant written notification of its decision whether to grant a waiver, except in cases where a rehabilitation waiver is granted. Except in cases where a rehabilitation waiver is granted, a letter shall be sent to the applicant notifying the applicant that he or she has received an automatic waiver.

(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.

(g) After June 30, 2016, if an applicant or employee has a waiver for one or more disqualifying offenses pursuant to this Section and he or she is otherwise eligible to work, the Department of Public Health shall report that the applicant or employee is eligible to work on the Health Care Worker Registry. The Department shall not publish information regarding the waiver on the Health Care Worker Registry, nor shall the Department list the specific disqualifying offenses, if any.

(Source: P.A. 95-120, eff. 8-13-07; 95-545, eff. 8-28-07; 95-876, eff. 8-21-08; 96-565, eff. 8-18-09.)".