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90_HB2680
225 ILCS 46/10
225 ILCS 46/15
225 ILCS 46/25
225 ILCS 46/30
225 ILCS 46/35
225 ILCS 46/40
225 ILCS 46/45
225 ILCS 46/50
225 ILCS 46/55
Amends the Health Care Worker Background Check Act.
Provides that "home care provider" means (1) home health
programs funded by the Department on Aging or the Department
of Human Services; (2) home infusion agencies that are not
fully licensed home care agencies; (3) dialysis companies
that send technicians into patients' homes to monitor home
dialysis services; or (4) durable medical equipment companies
that make deliveries to, set up, and maintain medical
equipment in patients' homes. Provides that home care
providers are subject to the provisions of the Act. Effective
immediately.
LRB9008694MWpc
LRB9008694MWpc
1 AN ACT to amend the Health Care Worker Background Check
2 Act.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Health Care Worker Background Check Act
6 is amended by changing Sections 10, 15, 25, 30, 35, 40, 45,
7 50, and 55 as follows:
8 (225 ILCS 46/10)
9 Sec. 10. Applicability. This Act applies to all
10 individuals employed or retained by a health care employer or
11 home care providers as home health care aides, nurse aides,
12 personal care assistants, private duty nurse aides, day
13 training personnel, or an individual working in any similar
14 health-related occupation where he or she provides direct
15 care.
16 (Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)
17 (225 ILCS 46/15)
18 Sec. 15. Definitions. For the purposes of this Act, the
19 following definitions apply:
20 "Applicant" means an individual seeking employment with a
21 health care employer or home care provider who has received a
22 bona fide conditional offer of employment.
23 "Conditional offer of employment" means a bona fide offer
24 of employment by a health care employer or home care provider
25 to an applicant, which is contingent upon the receipt of a
26 report from the Department of State Police indicating that
27 the applicant does not have a record of conviction of any of
28 the criminal offenses enumerated in Section 25.
29 "Direct care" means the provision of nursing care or
30 assistance with meals, dressing, movement, bathing, or other
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1 personal needs or maintenance, or general supervision and
2 oversight of the physical and mental well-being of an
3 individual who is incapable of managing his or her person
4 whether or not a guardian has been appointed for that
5 individual.
6 "Health care employer" means:
7 (1) the owner or licensee of any of the following:
8 (i) a community living facility, as defined in the
9 Community Living Facilities Act;
10 (ii) a life care facility, as defined in the Life
11 Care Facilities Act;
12 (iii) a long-term care facility, as defined in the
13 Nursing Home Care Act;
14 (iv) a home health agency, as defined in the Home
15 Health Agency Licensing Act;
16 (v) a full hospice, as defined in the Hospice
17 Program Licensing Act;
18 (vi) a hospital, as defined in the Hospital
19 Licensing Act;
20 (vii) a community residential alternative, as
21 defined in the Community Residential Alternatives
22 Licensing Act;
23 (viii) a nurse agency, as defined in the Nurse
24 Agency Licensing Act;
25 (ix) a respite care provider, as defined in the
26 Respite Program Act;
27 (2) a day training program certified by the Department
28 of Human Services; or
29 (3) a community integrated living arrangement operated
30 by a community mental health and developmental service
31 agency, as defined in the Community-Integrated Living
32 Arrangements Licensing and Certification Act.
33 "Home care provider" means:
34 (1) home health programs funded by the Department on
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1 Aging or by the Department of Human Services;
2 (2) home infusion agencies that are not fully licensed
3 home health agencies;
4 (3) dialysis companies that send technicians into
5 patients' homes to monitor home dialysis services; or
6 (4) durable medical equipment companies that make
7 deliveries to, set up, and maintain medical equipment in
8 patients' homes.
9 "Initiate" means the obtaining of the authorization for a
10 record check from a student, applicant, or employee. The
11 educational entity or health care employer or its designee
12 shall transmit all necessary information and fees to the
13 Illinois State Police within 10 working days after receipt of
14 the authorization.
15 (Source: P.A. 89-197, eff. 7-21-95; 89-507, eff. 7-1-97;
16 89-674, eff. 8-14-96; 90-14, eff. 7-1-97.)
17 (225 ILCS 46/25)
18 Sec. 25. Persons ineligible to be hired by health care
19 employers. After the effective date of this amendatory Act
20 of 1998 January 1, 1996, or January 1, 1997, as applicable,
21 no health care employer or home care provider shall knowingly
22 hire, employ, or retain any individual in a position with
23 duties involving direct care for clients, patients, or
24 residents, who has been convicted of committing or attempting
25 to commit one or more of the offenses defined in Sections
26 8-1.1, 8-1.2, 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.1, 9-3.2,
27 9-3.3, 10-1, 10-2, 10-3, 10-3.1, 10-4, 10-5, 10-7, 11-6,
28 11-9.1, 11-19.2, 11-20.1, 12-1, 12-2, 12-3, 12-3.1, 12-3.2,
29 12-4, 12-4.1, 12-4.2, 12-4.3, 12-4.4, 12-4.5, 12-4.6, 12-4.7,
30 12-7.4, 12-11, 12-13, 12-14, 12-14.1, 12-15, 12-16, 12-19,
31 12-21, 12-21.6, 12-32, 12-33, 16-1, 16-1.3, 16A-3, 17-3,
32 18-1, 18-2, 18-3, 18-4, 18-5, 19-1, 19-3, 19-4, 20-1, 20-1.1,
33 24-1, 24-1.2, 24-1.5, or 33A-2 of the Criminal Code of 1961;
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1 those provided in Section 4 of the Wrongs to Children Act;
2 those provided in Section 53 of the Criminal Jurisprudence
3 Act; those defined in Section 5, 5.1, 5.2, 7, or 9 of the
4 Cannabis Control Act; or those defined in Sections 401,
5 401.1, 404, 405, 405.1, 407, or 407.1 of the Illinois
6 Controlled Substances Act, unless the applicant or employee
7 obtains a waiver pursuant to Section 40.
8 (Source: P.A. 89-197, eff. 7-21-95; 89-428, eff. 12-13-95;
9 89-462, eff. 5-29-96; P.A. 90-441, eff. 1-1-98.)
10 (225 ILCS 46/30)
11 Sec. 30. Non-fingerprint based UCIA criminal records
12 check.
13 (a) Beginning on the effective date of this amendatory
14 Act of 1996, an educational entity, other than a secondary
15 school, conducting a nurse aide training program must
16 initiate a UCIA criminal history records check prior to entry
17 of an individual into the training program. A nurse aide
18 seeking to be included on the nurse aide registry shall
19 authorize the Department of Public Health or its designee
20 that tests nurse aides or the health care employer or its
21 designee to request a criminal history record check pursuant
22 to the Uniform Conviction Information Act (UCIA) for each
23 nurse aide applying for inclusion on the State nurse aide
24 registry. Any nurse aide not submitting the required
25 authorization and information for the record check will not
26 be added to the State nurse aide registry. A nurse aide will
27 not be entered on the State nurse aide registry if the report
28 from the Department of State Police indicates that the nurse
29 aide has a record of conviction of any of the criminal
30 offenses enumerated in Section 25 unless the nurse aide's
31 identity is validated and it is determined that the nurse
32 aide does not have a disqualifying criminal history record
33 based upon a fingerprint-based records check pursuant to
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1 Section 35 or the nurse aide receives a waiver pursuant to
2 Section 40.
3 (b) The Department of Public Health shall notify each
4 health care employer or home care provider inquiring as to
5 the information on the State nurse aide registry of the date
6 of the nurse aide's last UCIA criminal history record check.
7 If it has been more than one year since the records check,
8 the health care employer or home care provider must initiate
9 or have initiated on his or her behalf a UCIA criminal
10 history record check for the nurse aide pursuant to this
11 Section. The health care employer must send a copy of the
12 results of the record check to the State nurse aide registry
13 for an individual employed as a nurse aide.
14 (c) Beginning on the effective date of this amendatory
15 Act of 1998 January 1, 1996, a health care employer or home
16 care provider who makes a conditional offer of employment to
17 an applicant other than a nurse aide for position with duties
18 that involve direct care for clients, patients, or residents
19 must initiate or have initiated on his or her behalf a UCIA
20 criminal history record check for that applicant.
21 (d) No later than January 1, 1997, or January 1, 1999,
22 for home care providers, a health care employer or home care
23 provider must initiate or have initiated on his or her behalf
24 a UCIA criminal history record check for all employees other
25 than those enumerated in subsections (a), (b), and (c) of
26 this Section with duties that involve direct care for
27 clients, patients, or residents. A health care employer or
28 home care provider having actual knowledge that an employee
29 has been convicted of committing or attempting to commit one
30 of the offenses enumerated in Section 25 of this Act must
31 initiate a fingerprint-based background check within 10
32 working days of acquiring that knowledge. The employer may
33 continue to employ that individual in a direct care position,
34 may reassign that individual to a non-direct care position,
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1 or may suspend the individual until the results of the
2 fingerprint-based background check are received.
3 (e) The request for a UCIA criminal history record check
4 must be in the form prescribed by the Department of State
5 Police.
6 (f) The applicant or employee must be notified of the
7 following whenever a non-fingerprint check is made:
8 (i) that the health care employer or home care
9 provider shall request or have requested on his or her
10 behalf a UCIA criminal history record check pursuant to
11 this Act;
12 (ii) that the applicant or employee has a right to
13 obtain a copy of the criminal records report, challenge
14 the accuracy and completeness of the report, and request
15 a waiver under Section 40 of this Act;
16 (iii) that the applicant, if hired conditionally,
17 may be terminated if the criminal records report
18 indicates that the applicant has a record of conviction
19 of any of the criminal offenses enumerated in Section 25
20 unless the applicant's identity is validated and it is
21 determined that the applicant does not have a
22 disqualifying criminal history record based on a
23 fingerprint-based records check pursuant to Section 35.
24 (iv) that the applicant, if not hired
25 conditionally, shall not be hired if the criminal records
26 report indicates that the applicant has a record of
27 conviction of any of the criminal offenses enumerated in
28 Section 25 unless the applicant's record is cleared based
29 on a fingerprint-based records check pursuant to Section
30 35.
31 (v) that the employee may be terminated if the
32 criminal records report indicates that the employee has a
33 record of conviction of any of the criminal offenses
34 enumerated in Section 25 unless the employee's record is
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1 cleared based on a fingerprint-based records check
2 pursuant to Section 35.
3 (g) A health care employer or home care provider may
4 conditionally employ an applicant to provide direct care for
5 up to 3 months pending the results of a UCIA criminal history
6 record check.
7 (Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)
8 (225 ILCS 46/35)
9 Sec. 35. Fingerprint-based UCIA criminal records check.
10 An applicant, employee, or nurse aide whose UCIA criminal
11 history record check indicates a conviction for committing or
12 attempting to commit one or more of the offenses enumerated
13 in Section 25 may request that the health care employer or
14 its designee or the home care provider or its designee
15 commence a fingerprint-based UCIA criminal records check by
16 submitting any necessary fees and information in a form and
17 manner prescribed by the Department of State Police within 30
18 days after receipt of the criminal records report. The fee
19 for a fingerprint-based UCIA criminal records check shall not
20 exceed the actual cost of the records check.
21 (Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)
22 (225 ILCS 46/40)
23 Sec. 40. Waiver.
24 (a) An applicant, employee, or nurse aide may request a
25 waiver of the prohibition against employment by submitting
26 the following information to the entity responsible for
27 inspecting, licensing, certifying, or registering the health
28 care employer or home care provider within 5 working days
29 after the receipt of the criminal records report:
30 (1) Information necessary to initiate a
31 fingerprint-based UCIA criminal records check in a form
32 and manner prescribed by the Department of State Police;
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1 and
2 (2) The fee for a fingerprint-based UCIA criminal
3 records check, which shall not exceed the actual cost of
4 the record check.
5 (a-5) The entity responsible for inspecting, licensing,
6 certifying, or registering the health care employer or home
7 care provider may accept the results of the fingerprint-based
8 UCIA criminal records check instead of the items required by
9 paragraphs (1) and (2) of subsection (a).
10 (b) The entity responsible for inspecting, licensing,
11 certifying, or registering the health care employer or home
12 care provider may grant a waiver based upon any mitigating
13 circumstances, which may include, but need not be limited to:
14 (1) The age at which the crime was committed;
15 (2) The circumstances surrounding the crime;
16 (3) The length of time since the conviction;
17 (4) The applicant or employee's criminal history
18 since the conviction;
19 (5) The applicant or employee's work history;
20 (6) The applicant or employee's current employment
21 references;
22 (7) The applicant or employee's character
23 references;
24 (8) Nurse aide registry records; and
25 (9) Other evidence demonstrating the ability of the
26 applicant or employee to perform the employment
27 responsibilities competently and evidence that the
28 applicant or employee does not pose a threat to the
29 health or safety of residents, patients, or clients.
30 (c) The entity responsible for inspecting, licensing,
31 certifying, or registering a health care employer or home
32 care provider must inform the health care employer or home
33 care provider if a waiver is being sought and must act upon
34 the waiver request within 30 days of receipt of all necessary
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1 information, as defined by rule.
2 (d) An individual may not be employed in a direct care
3 position during the pendency of a waiver request.
4 (e) The entity responsible for inspecting, licensing,
5 certifying, or registering the health care employer or home
6 care provider shall be immune from liability for any waivers
7 granted under this Section.
8 (f) A health care employer or home care provider is not
9 obligated to employ or offer permanent employment to an
10 applicant, or to retain an employee who is granted a waiver
11 under this Section.
12 (Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)
13 (225 ILCS 46/45)
14 Sec. 45. Application fees. Except as otherwise provided
15 in this Act, the applicant or employee, other than a nurse
16 aide, may be required to pay all related application and
17 fingerprinting fees including, but not limited to, the
18 amounts established by the UCIA to conduct UCIA criminal
19 history record checks and the amounts established by the
20 Department of State Police to process fingerprint-based UCIA
21 criminal records checks. If a health care employer or home
22 care provider certified to participate in the Medicaid
23 program pays the fees, the fees shall be a direct
24 pass-through on the cost report submitted by the employer to
25 the Medicaid agency.
26 (Source: P.A. 89-197, eff. 7-21-95.)
27 (225 ILCS 46/50)
28 Sec. 50. Health care employer files. The health care
29 employer or home care provider shall retain on file for a
30 period of 5 years records of criminal records requests for
31 all employees. The health care employer or home care
32 provider shall retain the results of the UCIA criminal
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1 history records check and waiver, if appropriate, for the
2 duration of the individual's employment. The files shall be
3 subject to inspection by the agency responsible for
4 inspecting, licensing, or certifying the health care
5 employer. A fine of up to $500 may be imposed by the
6 appropriate agency for failure to maintain these records.
7 (Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)
8 (225 ILCS 46/55)
9 Sec. 55. Immunity from liability. A health care
10 employer or home care provider shall not be liable for the
11 failure to hire or to retain an applicant or employee who has
12 been convicted of committing or attempting to commit one or
13 more of the offenses enumerated in Section 25 of the Act.
14 However, if a health care worker is suspended from employment
15 based on the results of a criminal background check conducted
16 under this Act and the results prompting the suspension are
17 subsequently found to be inaccurate, the health care worker
18 is entitled to recover backpay from his or her health care
19 employer for the suspension period provided that the employer
20 is the cause of the inaccuracy.
21 No health care employer or home care provider shall be
22 chargeable for any benefit charges that result from the
23 payment of unemployment benefits to any claimant when the
24 claimant's separation from that employer occurred because the
25 claimant's criminal background included an offense enumerated
26 in Section 25, or the claimant's separation from that health
27 care employer occurred as a result of the claimant violating
28 a policy that the employer was required to maintain pursuant
29 to the Drug Free Workplace Act.
30 (Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96;
31 90-441, eff. 1-1-98.)
32 Section 99. Effective date. This Act takes effect upon
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1 becoming law.