Illinois General Assembly - Full Text of SB1965
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Full Text of SB1965  101st General Assembly

SB1965sam001 101ST GENERAL ASSEMBLY

Sen. Elgie R. Sims, Jr.

Filed: 3/15/2019

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 1965

2    AMENDMENT NO. ______. Amend Senate Bill 1965 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Health Care Worker Background Check Act is
5amended by changing Sections 15, 33, and 40 as follows:
 
6    (225 ILCS 46/15)
7    Sec. 15. Definitions. In this Act:
8    "Applicant" means an individual enrolling in a training
9program, seeking employment, whether paid or on a volunteer
10basis, with a health care employer who has received a bona fide
11conditional offer of employment.
12    "Conditional offer of employment" means a bona fide offer
13of employment by a health care employer to an applicant, which
14is contingent upon the receipt of a report from the Department
15of Public Health indicating that the applicant does not have a
16record of conviction of any of the criminal offenses enumerated

 

 

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1in Section 25.
2    "Department" means the Department of Public Health.
3    "Direct care" means the provision of nursing care or
4assistance with feeding, dressing, movement, bathing,
5toileting, or other personal needs, including home services as
6defined in the Home Health, Home Services, and Home Nursing
7Agency Licensing Act. The entity responsible for inspecting and
8licensing, certifying, or registering the health care employer
9may, by administrative rule, prescribe guidelines for
10interpreting this definition with regard to the health care
11employers that it licenses.
12    "Director" means the Director of Public Health.
13    "Disqualifying offenses" means those offenses set forth in
14Section 25 of this Act.
15    "Employee" means any individual hired, employed, or
16retained, whether paid or on a volunteer basis, to which this
17Act applies.
18    "Finding" means the Department's determination of whether
19an allegation is verified and substantiated.
20    "Fingerprint-based criminal history records check" means a
21livescan fingerprint-based criminal history records check
22submitted as a fee applicant inquiry in the form and manner
23prescribed by the Department of State Police.
24    "Health care employer" means:
25        (1) the owner or licensee of any of the following:
26            (i) a community living facility, as defined in the

 

 

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1        Community Living Facilities Act;
2            (ii) a life care facility, as defined in the Life
3        Care Facilities Act;
4            (iii) a long-term care facility;
5            (iv) a home health agency, home services agency, or
6        home nursing agency as defined in the Home Health, Home
7        Services, and Home Nursing Agency Licensing Act;
8            (v) a hospice care program or volunteer hospice
9        program, as defined in the Hospice Program Licensing
10        Act;
11            (vi) a hospital, as defined in the Hospital
12        Licensing Act;
13            (vii) (blank);
14            (viii) a nurse agency, as defined in the Nurse
15        Agency Licensing Act;
16            (ix) a respite care provider, as defined in the
17        Respite Program Act;
18            (ix-a) an establishment licensed under the
19        Assisted Living and Shared Housing Act;
20            (x) a supportive living program, as defined in the
21        Illinois Public Aid Code;
22            (xi) early childhood intervention programs as
23        described in 59 Ill. Adm. Code 121;
24            (xii) the University of Illinois Hospital,
25        Chicago;
26            (xiii) programs funded by the Department on Aging

 

 

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1        through the Community Care Program;
2            (xiv) programs certified to participate in the
3        Supportive Living Program authorized pursuant to
4        Section 5-5.01a of the Illinois Public Aid Code;
5            (xv) programs listed by the Emergency Medical
6        Services (EMS) Systems Act as Freestanding Emergency
7        Centers;
8            (xvi) locations licensed under the Alternative
9        Health Care Delivery Act;
10        (2) a day training program certified by the Department
11    of Human Services;
12        (3) a community integrated living arrangement operated
13    by a community mental health and developmental service
14    agency, as defined in the Community-Integrated Living
15    Arrangements Licensing and Certification Act; or
16        (4) the State Long Term Care Ombudsman Program,
17    including any regional long term care ombudsman programs
18    under Section 4.04 of the Illinois Act on the Aging, only
19    for the purpose of securing background checks.
20    "Initiate" means obtaining from a student, applicant, or
21employee his or her social security number, demographics, a
22disclosure statement, and an authorization for the Department
23of Public Health or its designee to request a fingerprint-based
24criminal history records check; transmitting this information
25electronically to the Department of Public Health; conducting
26Internet searches on certain web sites, including without

 

 

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1limitation the Illinois Sex Offender Registry, the Department
2of Corrections' Sex Offender Search Engine, the Department of
3Corrections' Inmate Search Engine, the Department of
4Corrections Wanted Fugitives Search Engine, the National Sex
5Offender Public Registry, and the List of Excluded Individuals
6and Entities database on the website of the Health and Human
7Services Office of Inspector General to determine if the
8applicant has been adjudicated a sex offender, has been a
9prison inmate, or has committed Medicare or Medicaid fraud, or
10conducting similar searches as defined by rule; and having the
11student, applicant, or employee's fingerprints collected and
12transmitted electronically to the Department of State Police.
13    "Livescan vendor" means an entity whose equipment has been
14certified by the Department of State Police to collect an
15individual's demographics and inkless fingerprints and, in a
16manner prescribed by the Department of State Police and the
17Department of Public Health, electronically transmit the
18fingerprints and required data to the Department of State
19Police and a daily file of required data to the Department of
20Public Health. The Department of Public Health shall negotiate
21a contract with one or more vendors that effectively
22demonstrate that the vendor has 2 or more years of experience
23transmitting fingerprints electronically to the Department of
24State Police and that the vendor can successfully transmit the
25required data in a manner prescribed by the Department of
26Public Health. Vendor authorization may be further defined by

 

 

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1administrative rule.
2    "Long-term care facility" means a facility licensed by the
3State or certified under federal law as a long-term care
4facility, including without limitation facilities licensed
5under the Nursing Home Care Act, the Specialized Mental Health
6Rehabilitation Act of 2013, the ID/DD Community Care Act, or
7the MC/DD Act, a supportive living facility, an assisted living
8establishment, or a shared housing establishment or registered
9as a board and care home.
10    "Resident" means a person, individual, or patient under the
11direct care of a health care employer or who has been provided
12goods or services by a health care employer.
13(Source: P.A. 99-180, eff. 7-29-15; 100-432, eff. 8-25-17.)
 
14    (225 ILCS 46/33)
15    Sec. 33. Fingerprint-based criminal history records check.
16    (a) A fingerprint-based criminal history records check is
17not required for health care employees who have been
18continuously employed by a health care employer since October
191, 2007, have met the requirements for criminal history
20background checks prior to October 1, 2007, and have no
21disqualifying convictions or requested and received a waiver of
22those disqualifying convictions. These employees shall be
23retained on the Health Care Worker Registry as long as they
24remain active. Nothing in this subsection (a) shall be
25construed to prohibit a health care employer from initiating a

 

 

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1criminal history records check for these employees. Should
2these employees seek a new position with a different health
3care employer, then a fingerprint-based criminal history
4records check shall be required.
5    (b) On October 1, 2007 or as soon thereafter as is
6reasonably practical, in the discretion of the Director of
7Public Health, and thereafter, any student, applicant, or
8employee who desires to be included on the Department of Public
9Health's Health Care Worker Registry shall authorize the
10Department of Public Health or its designee to request a
11fingerprint-based criminal history records check to determine
12if the individual has a conviction for a disqualifying offense.
13This authorization shall allow the Department of Public Health
14to request and receive information and assistance from any
15State or governmental agency. Each individual shall submit his
16or her fingerprints to the Department of State Police in an
17electronic format that complies with the form and manner for
18requesting and furnishing criminal history record information
19prescribed by the Department of State Police. The fingerprints
20submitted under this Section shall be checked against the
21fingerprint records now and hereafter filed in the Department
22of State Police criminal history record databases. The
23Department of State Police shall charge a fee for conducting
24the criminal history records check, which shall not exceed the
25actual cost of the records check. The livescan vendor may act
26as the designee for individuals, educational entities, or

 

 

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1health care employers in the collection of Department of State
2Police fees and deposit those fees into the State Police
3Services Fund. The Department of State Police shall provide
4information concerning any criminal convictions, now or
5hereafter filed, against the individual.
6    (c) On October 1, 2007 or as soon thereafter as is
7reasonably practical, in the discretion of the Director of
8Public Health, and thereafter, an educational entity, other
9than a secondary school, conducting a nurse aide training
10program shall initiate a fingerprint-based criminal history
11records check required by this Act prior to entry of an
12individual into the training program.
13    (d) On October 1, 2007 or as soon thereafter as is
14reasonably practical, in the discretion of the Director of
15Public Health, and thereafter, a health care employer who makes
16a conditional offer of employment to an applicant for a
17position as an employee shall initiate a fingerprint-based
18criminal history record check, requested by the Department of
19Public Health, on the applicant, if such a background check has
20not been previously conducted. Workforce intermediaries and
21organizations providing pro bono legal services may initiate a
22fingerprint-based criminal history record check if a
23conditional offer of employment has not been made and a
24background check has not been previously conducted for an
25individual who has a disqualifying conviction and is receiving
26services from a workforce intermediary or an organization

 

 

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1providing pro bono legal services.
2    (e) When initiating a background check requested by the
3Department of Public Health, an educational entity, or health
4care employer, workforce intermediary, or organization that
5provides pro bono legal services shall electronically submit to
6the Department of Public Health the student's, applicant's, or
7employee's social security number, demographics, disclosure,
8and authorization information in a format prescribed by the
9Department of Public Health within 2 working days after the
10authorization is secured. The student, applicant, or employee
11shall have his or her fingerprints collected electronically and
12transmitted to the Department of State Police within 10 working
13days. The educational entity, or health care employer,
14workforce intermediary, or organization that provides pro bono
15legal services shall transmit all necessary information and
16fees to the livescan vendor and Department of State Police
17within 10 working days after receipt of the authorization. This
18information and the results of the criminal history record
19checks shall be maintained by the Department of Public Health's
20Health Care Worker Registry.
21    (f) A direct care employer may initiate a fingerprint-based
22background check required by this Act for any of its employees,
23but may not use this process to initiate background checks for
24residents. The results of any fingerprint-based background
25check that is initiated with the Department as the requester
26shall be entered in the Health Care Worker Registry.

 

 

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

 

 

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1    (h) On October 1, 2007 or as soon thereafter as is
2reasonably practical, in the discretion of the Director of
3Public Health, and thereafter, if the Department of State
4Police notifies the Department of Public Health that an
5employee has a new conviction of a disqualifying offense, based
6upon the fingerprints that were previously submitted, then (i)
7the Health Care Worker Registry shall notify the employee's
8last known employer of the offense, (ii) a record of the
9employee's disqualifying offense shall be entered on the Health
10Care Worker Registry, and (iii) the individual shall no longer
11be eligible to work as an employee unless he or she obtains a
12waiver pursuant to Section 40 of this Act.
13    (i) On October 1, 2007, or as soon thereafter, in the
14discretion of the Director of Public Health, as is reasonably
15practical, and thereafter, each direct care employer or its
16designee shall provide an employment verification for each
17employee no less than annually. The direct care employer or its
18designee shall log into the Health Care Worker Registry through
19a secure login. The health care employer or its designee shall
20indicate employment and termination dates within 30 days after
21hiring or terminating an employee, as well as the employment
22category and type. Failure to comply with this subsection (i)
23constitutes a licensing violation. A fine of up to $500 may be
24imposed for failure to maintain these records. This information
25shall be used by the Department of Public Health to notify the
26last known employer of any disqualifying offenses that are

 

 

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

 

 

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

 

 

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1    (n) As used in this Section:
2    "Workforce intermediaries" means organizations that
3function to provide job training and employment services.
4Workforce intermediaries include institutions of higher
5education, faith-based and community organizations, and
6workforce investment boards.
7    "Organizations providing pro bono legal services" means
8legal services performed without compensation or at a
9significantly reduced cost to the recipient that provide
10services designed to help individuals overcome statutory
11barriers that would prevent them from entering positions in the
12healthcare industry.
13(Source: P.A. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
 
14    (225 ILCS 46/40)
15    Sec. 40. Waiver.
16    (a) Any student, applicant, enrollee in a training program,
17individual receiving services from a workforce intermediary or
18organization providing pro bono legal services, or employee
19listed on the Health Care Worker Registry may request a waiver
20of the prohibition against employment by:
21        (1) completing a waiver application on a form
22    prescribed by the Department of Public Health;
23        (2) providing a written explanation of each conviction
24    to include (i) what happened, (ii) how many years have
25    passed since the offense, (iii) the individuals involved,

 

 

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1    (iv) the age of the applicant at the time of the offense,
2    and (v) any other circumstances surrounding the offense;
3    and
4        (3) providing official documentation showing that all
5    fines have been paid, if applicable and except for in the
6    instance of payment of court-imposed fines or restitution
7    in which the applicant is adhering to a payment schedule,
8    and the date probation or parole was satisfactorily
9    completed, if applicable.
10    (b) The applicant may, but is not required to, submit
11employment and character references and any other evidence
12demonstrating the ability of the applicant or employee to
13perform the employment responsibilities competently and
14evidence that the applicant or employee does not pose a threat
15to the health or safety of residents, patients, or clients.
16    (c) The Department of Public Health may, at the discretion
17of the Director of Public Health, grant a waiver to an
18applicant, student, or employee listed on the Health Care
19Worker Registry. The Department of Public Health shall act upon
20the waiver request within 30 days of receipt of all necessary
21information, as defined by rule. The Department of Public
22Health shall send an applicant, student, or employee written
23notification of its decision whether to grant a waiver,
24including listing the specific disqualifying offenses for
25which the waiver is being granted or denied. The Department
26shall issue additional copies of this written notification upon

 

 

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1the applicant's, student's, or employee's request.
2    (d) An individual shall not be employed from the time that
3the employer receives a notification from the Department of
4Public Health based upon the results of a fingerprint-based
5criminal history records check containing disqualifying
6conditions until the time that the individual receives a
7waiver.
8    (e) The entity responsible for inspecting, licensing,
9certifying, or registering the health care employer and the
10Department of Public Health shall be immune from liability for
11any waivers granted under this Section.
12    (f) A health care employer is not obligated to employ or
13offer permanent employment to an applicant, or to retain an
14employee who is granted a waiver under this Section.
15(Source: P.A. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
 
16    Section 99. Effective date. This Act takes effect upon
17becoming law.".