HB3342ham002 100TH GENERAL ASSEMBLY

Rep. Elgie R. Sims, Jr.

Filed: 3/15/2017

10000HB3342ham002 LRB100 08528 SMS 23381 a

AMENDMENT TO HOUSE BILL 3342

AMENDMENT NO. ______. Amend House Bill 3342 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 Sections 2105-130, 2105-135, 2105-205, and 2105-207 and by adding Section 2105-131 as follows:

(20 ILCS 2105/2105-130)

Sec. 2105-130. Determination of disciplinary sanctions.

(a) Following disciplinary proceedings as authorized in any licensing Act administered by the Department, upon a finding by the Department that a person has committed a violation of the licensing Act with regard to licenses, certificates, or authorities of persons exercising the respective professions, trades, or occupations, the Department may revoke, suspend, refuse to renew, place on probationary status, fine, or take any other disciplinary action as authorized in the licensing Act with regard to those licenses, certificates, or authorities. When making a determination of the appropriate disciplinary sanction to be imposed, the Department shall consider only evidence contained in the record. The Department shall consider any aggravating or mitigating factors contained in the record when determining the appropriate disciplinary sanction to be imposed.

(b) When making a determination of the appropriate disciplinary sanction to be imposed on a licensee, the Department shall consider, but is not limited to, the following aggravating factors contained in the record:

(1) the seriousness of the offenses;

(2) the presence of multiple offenses;

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

(4) the impact of the offenses 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 offenses;

(7) the lack of contrition for the offenses;

(8) financial gain as a result of committing the offenses; and

(9) the lack of cooperation with the Department or other investigative authorities.

(c) When making a determination of the appropriate disciplinary sanction to be imposed on a licensee, the Department shall consider, but is not limited to, the following mitigating factors contained in the record:

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

(2) contrition for the offenses;

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

(4) restitution to injured parties;

(5) whether the misconduct was self-reported; and

(6) any voluntary remedial actions taken.

(Source: P.A. 98-1047, eff. 1-1-15.)

(20 ILCS 2105/2105-131 new)

Sec. 2105-131. Applicants with criminal convictions; notice of denial.

(a) Except as provided in Section 2105-165 of this Act regarding licensing restrictions based on enumerated offenses for health care workers as defined in the Health Care Worker Self-Referral Act and except as provided in any licensing Act administered by the Department in which convictions of certain enumerated offenses are a bar to licensure, the Department, upon a finding that an applicant for a license, certificate, or registration was previously convicted of a felony or misdemeanor that may be grounds for refusing to issue a license or certificate or granting registration, shall consider any mitigating factors and evidence of rehabilitation contained in the applicant's record, including any of the following, to determine whether a prior conviction will impair the ability of the applicant to engage in the practice for which a license, certificate, or registration is sought:

(1) the lack of direct relation of the offense for which the applicant was previously convicted to the duties, functions, and responsibilities of the position for which a license is sought;

(2) unless otherwise specified, whether 5 years since a felony conviction or 3 years since release from confinement for the conviction, whichever is later, have passed without a subsequent conviction;

(3) if the applicant was previously licensed or employed in this State or other states or jurisdictions, the lack of prior misconduct arising from or related to the licensed position or position of employment;

(4) the age of the person at the time of the criminal offense;

(5) successful completion of sentence and, for applicants serving a term of parole or probation, a progress report provided by the applicant's probation or parole officer that documents the applicant's compliance with conditions of supervision;

(6) evidence of the applicant's present fitness and professional character;

(7) evidence of rehabilitation or rehabilitative effort during or after incarceration, or during or after a term of supervision, including, but not limited to, a certificate of good conduct under Section 5-5.5-25 of the Unified Code of Corrections or certificate of relief from disabilities under Section 5-5.5-10 of the Unified Code of Corrections; and

(8) any other mitigating factors that contribute to the person's potential and current ability to perform the job duties.

(b) If the Department refuses to issue a license or certificate or grant registration to an applicant based upon a conviction or convictions, in whole or in part, the Department shall notify the applicant of the denial in writing with the following included in the notice of denial:

(1) a statement about the decision to refuse to grant a license, certificate, or registration;

(2) a list of convictions that the Department determined will impair the applicant's ability to engage in the position for which a license, registration, or certificate is sought;

(3) a list of convictions that formed the sole or partial basis for the refusal to issue a license or certificate or grant registration; and

(4) a summary of the appeal process or the earliest the applicant may reapply for a license, certificate, or registration, whichever is applicable.

(20 ILCS 2105/2105-135)

Sec. 2105-135. Qualification for licensure or registration; good moral character; applicant conviction records.

(a) The practice of professions licensed or registered by the Department is hereby declared to affect the public health, safety, and welfare and to be subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that persons who are licensed or registered to engage in any of the professions licensed or registered by the Department are of good moral character, which shall be a continuing requirement of licensure or registration so as to merit and receive the confidence and trust of the public. Upon a finding by the Department that a person has committed a violation of the disciplinary grounds of any licensing Act administered by the Department with regard to licenses, certificates, or authorities of persons exercising the respective professions, trades, or occupations, the Department is authorized to revoke, suspend, refuse to renew, place on probationary status, fine, or take any other disciplinary action it deems warranted against any licensee or registrant whose conduct violates the continuing requirement of good moral character.

(b) No application for licensure or registration shall be denied by reason of a finding of lack of good moral character when the finding is based solely upon the fact that the applicant has previously been convicted of one or more criminal offenses. When reviewing a prior conviction of an initial applicant for the purpose of determining good moral character, the Department shall consider evidence of rehabilitation and mitigating factors in the applicant's record, including those set forth in subsection (a) of Section 2105-131 of this Act.

(c) The Department shall not require applicants to report the following information and shall not consider the following criminal history records in connection with an application for licensure or registration:

(1) juvenile adjudications of delinquent minors as defined in Section 5-105 of the Juvenile Court Act of 1987 subject to the restrictions set forth in Section 5-130 of that Act;

(2) law enforcement records, court records, and conviction records of an individual who was 17 years old at the time of the offense and before January 1, 2014, unless the nature of the offense required the individual to be tried as an adult;

(3) records of arrest not followed by a charge or conviction;

(4) records of arrest where the charges were dismissed unless related to the practice of the profession; however, applicants shall not be asked to report any arrests, and an arrest not followed by a conviction shall not be the basis of a denial and may be used only to assess an applicant's rehabilitation;

(5) convictions overturned by a higher court; or

(6) convictions or arrests that have been sealed or expunged.

(Source: P.A. 98-1047, eff. 1-1-15.)

(20 ILCS 2105/2105-205) (was 20 ILCS 2105/60.3)

Sec. 2105-205. Publication of disciplinary actions; annual report.

(a) The Department shall publish on its website, at least monthly, final disciplinary actions taken by the Department against a licensee or applicant pursuant to any licensing Act administered by the Department. The specific disciplinary action and the name of the applicant or licensee shall be listed.

(b) No later than May 1 of each year, the Department must prepare, publicly announce, and publish a report of summary statistical information relating to new license, certification, or registration applications during the preceding calendar year. Each report shall show at minimum:

(1) the number of applicants for each new license, certificate, or registration administered by the Department in the previous calendar year;

(2) the number of applicants for a new license, certificate, or registration within the previous calendar year who had any criminal conviction;

(3) the number of applicants for a new license, certificate, or registration in the previous calendar year who were granted a license, registration, or certificate;

(4) the number of applicants for a new license, certificate, or registration within the previous calendar year with a criminal conviction who were granted a license, certificate, or registration in the previous calendar year;

(5) the number of applicants for a new license, certificate, or registration in the previous calendar year who were denied a license, registration, or certificate;

(6) the number of applicants for new license, certificate, or registration in the previous calendar year with a criminal conviction who were denied a license, certificate, or registration in part or in whole because of such conviction;

(7) the number of licenses issued within the previous calendar year to applicants with a criminal conviction; and

(8) the number of licensees or certificate holders who were granted expungement for a record of discipline based on a conviction predating licensure, certification, or registration or a criminal charge, arrest, or conviction that was dismissed, sealed, or expunged or did not arise from the regulated activity, as a share of the total such expungement requests.

(Source: P.A. 99-227, eff. 8-3-15.)

(20 ILCS 2105/2105-207)

Sec. 2105-207. Records of Department actions.

(a) Any licensee subject to a licensing Act administered by the Division of Professional Regulation and who has been subject to disciplinary action by the Department may file an application with the Department on forms provided by the Department, along with the required fee of $175 $200, to have the records classified as confidential, not for public release, and considered expunged for reporting purposes if:

(1) the application is submitted more than 3 7 years after the disciplinary offense or offenses occurred or after restoration of the license, whichever is later;

(2) the licensee has had no incidents of discipline under the licensing Act since the disciplinary offense or offenses identified in the application occurred;

(3) the Department has no pending investigations against the licensee; and

(4) the licensee is not currently in a disciplinary status.

(b) An application to make disciplinary records confidential shall only be considered by the Department for an offense or action relating to:

(1) failure to pay taxes or student loans;

(2) continuing education;

(3) failure to renew a license on time;

(4) failure to obtain or renew a certificate of registration or ancillary license;

(5) advertising; or

(5.1) discipline based on criminal charges or convictions:

(A) that did not arise from the licensed activity and was unrelated to the licensed activity; or

(B) that were dismissed or for which records have been sealed or expunged.

(5.2) past probationary status of a license issued to new applicants on the sole or partial basis of prior convictions; or

(6) any grounds for discipline removed from the licensing Act.

(c) An application shall be submitted to and considered by the Director of the Division of Professional Regulation upon submission of an application and the required non-refundable fee. The Department may establish additional requirements by rule. The Department is not required to report the removal of any disciplinary record to any national database. Nothing in this Section shall prohibit the Department from using a previous discipline for any regulatory purpose or from releasing records of a previous discipline upon request from law enforcement, or other governmental body as permitted by law. Classification of records as confidential shall result in removal of records of discipline from records kept pursuant to Sections 2105-200 and 2105-205 of this Act.

(Source: P.A. 98-816, eff. 8-1-14.)

Section 10. The Criminal Identification Act is amended by changing Section 12 as follows:

20 ILCS 2630/12)

Sec. 12. Entry of order; effect of expungement or sealing records.

(a) Except with respect to law enforcement agencies, the Department of Corrections, State's Attorneys, or other prosecutors, and as provided in Section 13 of this Act, an expunged or sealed record may not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration. Applications for certification, registration, or licensure shall employment must contain specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest. If it is not reasonably feasible to include the language in the application, the entity authorized to grant a license, certification, or registration shall publish on its website instructions specifying that applicants are not obligated to disclose sealed or expunged records of a conviction or arrest. Employers may not ask if an applicant has had records expunged or sealed.

(b) A person whose records have been sealed or expunged is not entitled to remission of any fines, costs, or other money paid as a consequence of the sealing or expungement. This amendatory Act of the 93rd General Assembly does not affect the right of the victim of a crime to prosecute or defend a civil action for damages. Persons engaged in civil litigation involving criminal records that have been sealed may petition the court to open the records for the limited purpose of using them in the course of litigation.

(Source: P.A. 93-211, eff. 1-1-04; 93-1084, eff. 6-1-05.)".