Public Act 101-0176
 
SB1965 EnrolledLRB101 10223 JRG 55327 b


  
    AN ACT concerning regulation.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  


 
    Section 5. The Health Care Worker Background Check Act is 
amended  by changing Sections 15, 33, and 40 as follows:
 


    (225 ILCS 46/15)




    Sec. 15. Definitions. In this Act:

    "Applicant" means an individual enrolling in a training 
program, seeking employment, whether paid or  on a volunteer 
basis, with a health care
employer who has received a bona fide 
conditional offer of employment.

    "Conditional offer of employment" means a bona fide offer 
of employment by a
health care employer to an applicant, which 
is contingent upon the receipt of a
report from the Department 
of Public Health indicating that the applicant does
not have a 
record of conviction of any of the criminal offenses enumerated 
in
Section 25.

    "Department" means the Department of Public Health. 
    "Direct care" means the provision of nursing care or 
assistance with feeding,
dressing, movement, bathing, 
toileting, or other personal needs, including home services as 
defined in the Home Health, Home Services, and Home Nursing 
Agency Licensing Act.  The entity
responsible for inspecting and 
licensing, certifying, or registering the
health care employer 
may, by administrative rule, prescribe guidelines for

interpreting this definition with regard to the health care 
employers that it
licenses.

    "Director" means the Director of Public Health. 
    "Disqualifying offenses" means those offenses set forth in 
Section 25 of this Act.
    "Employee" means any individual hired, employed, or 
retained, whether paid or  on a volunteer basis, to which this 
Act applies.
    "Finding" means the Department's determination of whether 
an allegation is verified and substantiated. 
    "Fingerprint-based criminal history records check" means a 
livescan fingerprint-based criminal history records check 
submitted as a fee applicant inquiry in the form and manner 
prescribed by the Department of State Police.

    "Health care employer" means:

        (1) the owner or licensee of any of the
following:

            (i) a community living facility, as defined in the 
        Community Living
Facilities Act;

            (ii) a life care facility, as defined in the Life 
        Care Facilities Act;

            (iii) a long-term care facility;

            (iv) a home health agency, home services agency, or 
        home nursing agency as defined in the Home Health, Home 
        Services, and Home Nursing Agency Licensing
Act;

            (v) a hospice care program or volunteer hospice 
        program, as defined in the Hospice Program Licensing 
        Act;

            (vi) a hospital, as defined in the Hospital 
        Licensing Act;

            (vii) (blank);

            (viii) a nurse agency, as defined in the Nurse 
        Agency Licensing Act;

            (ix) a respite care provider, as defined in the 
        Respite Program Act;

            (ix-a) an establishment licensed under the 
        Assisted Living and Shared
Housing Act;

            (x) a supportive living program, as defined in the 
        Illinois Public Aid
Code;

            (xi) early childhood intervention programs as 
        described in 59 Ill. Adm.
Code 121;

            (xii) the University of Illinois Hospital, 
        Chicago;

            (xiii) programs funded by the Department on Aging 
        through the Community
Care Program;

            (xiv) programs certified to participate in the 
        Supportive Living Program
authorized pursuant to 
        Section 5-5.01a of the Illinois Public Aid Code;

            (xv) programs listed by the Emergency Medical 
        Services (EMS) Systems Act
as
Freestanding Emergency 
        Centers;

            (xvi) locations licensed under the Alternative 
        Health Care Delivery
Act;

        (2) a day training program certified by the Department 
    of Human Services;


        (3) a community integrated living arrangement operated 
    by a community
mental health and developmental service 
    agency, as defined in the
Community-Integrated Living 
    Arrangements Licensing and Certification Act; or

        (4) the State Long Term Care Ombudsman Program, 
    including any regional long term care ombudsman programs 
    under Section 4.04 of the Illinois Act on the Aging, only 
    for the purpose of securing background checks.

    "Initiate" means obtaining from
a student, applicant, or 
employee his or her social security number, demographics, a 
disclosure statement, and an authorization for the Department 
of Public Health or its designee to request a fingerprint-based 
criminal history records check; transmitting this information 
electronically to the Department of Public Health; conducting 
Internet searches on  certain web sites, including without 
limitation the  Illinois Sex Offender Registry, the Department 
of Corrections' Sex Offender Search Engine, the Department of 
Corrections' Inmate Search Engine, the Department of 
Corrections Wanted Fugitives Search Engine, the National Sex 
Offender Public Registry, and the List of Excluded Individuals 
and Entities database on the website of the Health and Human 
Services Office of Inspector General to determine if the 
applicant has been adjudicated a sex offender, has been a 
prison inmate, or has committed Medicare or Medicaid fraud, or 
conducting similar searches as defined by rule; and having the 
student, applicant, or employee's fingerprints collected and 
transmitted electronically to the Department of  State Police.

    "Livescan vendor" means an entity whose equipment has been 
certified by the Department of  State Police to collect an 
individual's demographics and inkless fingerprints and, in a 
manner prescribed by the Department of State Police and the 
Department of Public Health, electronically transmit the 
fingerprints and required data to the Department of  State 
Police and a daily file of required data to the Department of 
Public Health.  The Department of Public Health shall negotiate 
a contract with one or more vendors that effectively 
demonstrate that the vendor has 2 or more years of experience 
transmitting fingerprints electronically to the Department of 
State Police and that the vendor can successfully transmit the 
required data in a manner prescribed by the Department of 
Public Health.  Vendor authorization may be further defined by 
administrative rule.

    "Long-term care facility" means a facility licensed by the 
State or certified under federal law as a long-term care 
facility, including without limitation facilities licensed 
under the Nursing Home Care Act, the Specialized Mental Health 
Rehabilitation Act of 2013, the ID/DD Community Care Act, or 
the MC/DD Act, a supportive living facility, an assisted living 
establishment, or a shared housing establishment or registered 
as a board and care home.

    "Resident" means a person, individual, or patient under the 
direct care of a health care employer or who has been provided 
goods or services by a health care employer. 
(Source: P.A. 99-180, eff. 7-29-15; 100-432, eff. 8-25-17.)

 
    (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 shall 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 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 shall initiate a fingerprint-based criminal history 
records check required by this Act 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 shall 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. Workforce intermediaries and 
organizations providing pro bono legal services may initiate a 
fingerprint-based criminal history record check if a 
conditional offer of employment has not been made and a 
background check has not been previously conducted for an 
individual who has a disqualifying conviction and is receiving 
services from a workforce intermediary or an organization 
providing pro bono legal services.
    (e) When initiating a background check requested by the

Department of Public Health, an educational entity, or health 
care employer, workforce intermediary, or organization that 
provides pro bono legal services 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 
shall 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, 
workforce intermediary, or organization that provides pro bono 
legal services shall 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 required by this Act 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 requester 
shall be entered in the Health Care Worker Registry.
    (g) As long as the employee or trainee has had a 
fingerprint-based criminal history record check required by 
this Act and stays active on the Health Care Worker Registry, 
no further criminal history record checks are required, 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 shall 
check the Health Care Worker Registry before hiring an employee 
to determine that the individual has had a fingerprint-based 
record check required by this Act 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 shall 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 nursing assistant 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 nursing 
assistant 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 shall provide an employment verification for each 
employee no less than annually.  The direct care employer or its 
designee shall log into the Health Care Worker Registry through 
a secure login. The health care employer or its designee shall 
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. 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) In the event that an applicant or employee has a waiver 
for one or more disqualifying offenses pursuant to Section 40 
of this Act and he or she is otherwise eligible to work, the 
Health Care Worker Registry shall indicate that the applicant 
or employee is eligible to work and that additional information 
is available on the Health Care Worker Registry. The Health 
Care Worker Registry may indicate that the applicant or 
employee has received a waiver.
    (k) The student, applicant, or employee shall 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 required 
    by this Act of the student, applicant, or employee.
        (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.

    (n) As used in this Section:
    "Workforce intermediaries" means organizations that 
function to provide job training and employment services. 
Workforce intermediaries include institutions of higher 
education, faith-based and community organizations, and 
workforce investment boards.
    "Organizations providing pro bono legal services" means 
legal services performed without compensation or at a 
significantly reduced cost to the recipient that provide 
services designed to help individuals overcome statutory 
barriers that would prevent them from entering positions in the 
healthcare industry. 
(Source: P.A. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
 


    (225 ILCS 46/40)




    Sec. 40. Waiver. 

    (a) Any student, applicant, enrollee in a training program, 
individual receiving services from a workforce intermediary or 
organization providing pro bono legal services, 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) The Department of Public Health may, at the discretion 
of the Director of Public Health, grant a waiver to an 
applicant, student, or employee listed on the Health Care 
Worker Registry. The Department of Public Health shall

 act upon 
the waiver request within 30 days
of
receipt of all necessary 
information, as defined by rule. The Department of Public 
Health shall send an applicant, student, or employee written 
notification of its decision whether to grant a waiver, 
including listing the specific disqualifying offenses for 
which the waiver is being granted or denied. The Department 
shall issue additional copies of this written notification upon 
the applicant's, student's, or employee's request.


    (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.

(Source: P.A. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)

 

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