HB3518 100TH GENERAL ASSEMBLY

LRB100 10178 KTG 20359 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
HB3518

Introduced , by Rep. Nick Sauer

SYNOPSIS AS INTRODUCED:

20 ILCS 505/5d
225 ILCS 10/4.2	from Ch. 23, par. 2214.2

Amends the Children and Family Services Act. Provides that no member of the Direct Child Welfare Service Employee License Board may have a pending or indicated report of child abuse or neglect or a pending complaint or criminal conviction of any of the offenses or any conditions set forth in a specified provision of the Child Care Act of 1969. Amends the Child Care Act of 1969. Sets forth non-waivable circumstances under which a person may not receive a license for, have a licensed renewed for, be employed by, or reside in, if an adult person, a child care facility. Provides processes by which an applicant for licensure, a licensee, an employee of a facility licensed by the Department of Children and Family Services, or an adult person residing in a licensed child care facility who was convicted of a felony other than a felony listed in provisions concerning non-waivable circumstances, or has committed other specified offenses, may receive a waiver by the Department or the agency seeking to grant, renew, employ, or issue the license. Contains provisions concerning waiver reviews; appeals of an adverse waiver; Department rules on guidelines for granting a waiver; and other matters. Removes provisions that prohibit a person from receiving a child care facility license or working at a child care facility if the person has been declared a sexually dangerous person or has committed specified offenses.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning State government.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Children and Family Services Act is amended by changing Section 5d as follows:

(20 ILCS 505/5d)

Sec. 5d. The Direct Child Welfare Service Employee License Board.

(a) For purposes of this Section:

(1) "Board" means the Direct Child Welfare Service Employee License Board.

(2) "Director" means the Director of Children and Family Services.

(b) The Direct Child Welfare Service Employee License Board is created within the Department of Children and Family Services and shall consist of 9 members appointed by the Director. The Director shall annually designate a chairperson and vice-chairperson of the Board. The membership of the Board must be composed as follows: (i) 5 licensed professionals from the field of human services with a human services degree or equivalent course work as required by rule of the Department and who are in good standing within their profession, at least 2 of which must be employed in the private not-for-profit sector and at least one of which in the public sector; (ii) 2 faculty members of an accredited university who have child welfare experience and are in good standing within their profession and (iii) 2 members of the general public who are not licensed under this Act or a similar rule and will represent consumer interests.

In making the first appointments, the Director shall appoint 3 members to serve for a term of one year, 3 members to serve for a term of 2 years, and 3 members to serve for a term of 3 years, or until their successors are appointed and qualified. Their successors shall be appointed to serve 3-year terms, or until their successors are appointed and qualified. Appointments to fill unexpired vacancies shall be made in the same manner as original appointments. No member may be reappointed if a reappointment would cause that member to serve on the Board for longer than 6 consecutive years. Board membership must have reasonable representation from different geographic areas of Illinois, and all members must be residents of this State.

The Director may terminate the appointment of any member for good cause, including but not limited to (i) unjustified absences from Board meetings or other failure to meet Board responsibilities, (ii) failure to recuse himself or herself when required by subsection (c) of this Section or Department rule, or (iii) failure to maintain the professional position required by Department rule. No member of the Board may have a pending or indicated report of child abuse or neglect or a pending complaint or criminal conviction of any of the offenses or any conditions set forth in subsection paragraph (b) of Section 4.2 of the Child Care Act of 1969.

The members of the Board shall receive no compensation for the performance of their duties as members, but each member shall be reimbursed for his or her reasonable and necessary expenses incurred in attending the meetings of the Board.

(c) The Board shall make recommendations to the Director regarding licensure rules. Board members must recuse themselves from sitting on any matter involving an employee of a child welfare agency at which the Board member is an employee or contractual employee. The Board shall make a final determination concerning revocation, suspension, or reinstatement of an employee's direct child welfare service license after a hearing conducted under the Department's rules. Upon notification of the manner of the vote to all the members, votes on a final determination may be cast in person, by telephonic or electronic means, or by mail at the discretion of the chairperson. A simple majority of the members appointed and serving is required when Board members vote by mail or by telephonic or electronic means. A majority of the currently appointed and serving Board members constitutes a quorum. A majority of a quorum is required when a recommendation is voted on during a Board meeting. A vacancy in the membership of the Board shall not impair the right of a quorum to perform all the duties of the Board. Board members are not personally liable in any action based upon a disciplinary proceeding or otherwise for any action taken in good faith as a member of the Board.

(d) The Director may assign Department employees to provide staffing services to the Board. The Department must promulgate any rules necessary to implement and administer the requirements of this Section.

(Source: P.A. 92-471, eff. 8-22-01; 92-651, eff. 7-11-02.)

Section 10. The Child Care Act of 1969 is amended by changing Section 4.2 as follows:

(225 ILCS 10/4.2) (from Ch. 23, par. 2214.2)

Sec. 4.2. Criminal convictions or conditions barring licensure; waiver.

(a) No applicant may receive a license from the Department and no person may be employed by a licensed child care facility who refuses to authorize an investigation as required by Section 4.1.

(b) Non-waivable circumstances. No new applicant and, on the date of licensure renewal, no person licensed on the effective date of this amendatory Act of the 100th General Assembly may operate or receive a license from the Department to operate and no person may be employed by and no adult person may reside in a child care facility licensed by the Department, including a foster family home, if that person has a criminal conviction or conditions or a pending criminal complaint that would result in a condition or conviction as set forth in any of the following:

(1) was convicted of any felony offense within 5 years of application for license or employment;

(2) was convicted of a Class X felony;

(3) was convicted of a felony, including child pornography, in which the victim was a child under the age of 18;

(4) is currently on the Illinois State Police Sex Offender Registry or the National Sex Offender Public Website for an offense committed as an adult or was an adult when named as a perpetrator or has a conviction as an adult that would have been subject to the Sex Offender Registration Act;

(5) is currently in the Murderer and Violent Offender Against Youth Database as created in subsection (a) of Section 85 of the Murderer and Violent Offender Against Youth Registration Act;

(6) was adjudicated not guilty of an offense by reason of insanity;

(7) was convicted of felony kidnapping, aggravated kidnaping, arson, rape, sexual assault, spousal abuse, domestic battery, aggravated domestic battery, or homicide;

(8) for foster home applicants, was convicted of any other felony involving violence, not including physical assault or battery; or

(9) for applicants other than foster home applicants, was convicted of any other felony involving violence or was convicted of or has a pending complaint or charges for a violent misdemeanor as an adult committed against a child, including child abuse, child endangerment, or sexual assault, or was convicted of or has a pending complaint or charges for a misdemeanor involving child pornography.

(c) Waivable circumstances; authority to waive.

(1) No new applicant and, on the date of licensure renewal, no person licensed on the effective date of this amendatory Act of the 100th General Assembly, may operate or receive a license from the Department to operate and no person may be employed by and no adult person may reside in a child care facility licensed by the Department, including a foster family home, if that person has a criminal conviction or a pending criminal complaint or charges that would result in a conviction, for an offense other than an offense listed in subsection (b) above, unless waived pursuant to this subsection (c) and subsection (d).

(2) All cases where an applicant for licensure, a licensee, an employee of a facility licensed by the Department, or an adult person residing in a child care facility licensed by the Department, including a foster family home, was convicted of any felony other than a felony listed in subsection (b) of this Section must be reviewed and waived by the Director of the Department or his or her designee.

(3) All cases where an applicant for licensure, a licensee, an employee of a facility licensed by the Department, or an adult person residing in a child care facility licensed by the Department, including a foster family home, committed a sex offense as a minor and is on the Illinois State Police Sex Offender Registry must be reviewed and waived by the Director of the Department or his or her designee.

(4) All cases where an applicant for licensure, a licensee, an employee of a facility licensed by the Department, or an adult person residing in a child care facility licensed by the Department, including a foster family home, was convicted of any misdemeanor or has a pending criminal complaint that could result in a misdemeanor conviction must be reviewed by the agency seeking to grant, renew, employ, or issue the license. The agency shall recommend whether the conviction should be waived. This subsection does not apply to non-waivable misdemeanors listed in paragraph (9) of subsection (b) of this Section. The recommendation of the agency shall be reviewed by the Director of the Department or his or her designee for compliance with this subsection (c) and subsection (d) of this Section, and a final determination regarding waiver shall be made by the Director of the Department.

(d) Provisions applicable to all waivers.

(1) All waiver reviews shall be in writing and based on the guidelines set forth in this subsection (d). The rationale for the decision shall be in writing and maintained in the applicant's file.

(2) A person or entity who holds a license issued by the Department of Children and Family Services, including a foster family home license or a person currently employed by a facility licensed by the Department, may appeal an adverse waiver determination pursuant to subsection (c) and this subsection (d) of this Section. All other determinations under this Section are appealable only on the basis that the individual is not the person named in the criminal history report.

(3) The Department shall adopt rules governing guidelines for granting a waiver, which shall include, but not be limited to, consideration of the following factors, and any consideration must include access and review of underlying criminal conviction documents:

(A) the nature of the offense, including the age of the offender when the offense was committed, the relationship between the offender and the victim, the physical or emotional harm caused to the victim, and whether the offense involved a minor, a person adjudicated to be a person with a disability under the Probate Act of 1975, or a person 60 years of age or older;

(B) the evidence of rehabilitation, including the length of time that has passed since the offense was committed; whether the individual completed any sentence of incarceration and, if so, when; the circumstances surrounding the commission of the offense; any circumstances that would demonstrate a low or high likelihood of recidivism; the number of offenses for which the individual was convicted; employment references; evidence of participation in therapy or services aimed at rehabilitation; academic transcripts; other information that speaks to the individual's character;

(C) the relationship between the criminal offense and the license or employment sought, including capacity to care for children or have access to children; the specific duties and responsibilities related to the license or employment sought and the bearing, if any, the offense has on his or her fitness to perform these duties and responsibilities;

(D) the disclosure of the conviction, including whether the applicant for licensure, licensee, employee of a facility licensed by the Department, or adult person residing in a child care facility licensed by the Department, including a foster family home, disclosed whether he or she had a criminal background and the circumstances of the conviction; and

(E) the existence of a supervisory or monitoring plan that the Department has approved.

(e) If any felony criminal offense or complaint is pending, the Director cannot issue a waiver until the complaint has been resolved.

(b) In addition to the other provisions of this Section, no applicant may receive a license from the Department and no person may be employed by a child care facility licensed by the Department who has been declared a sexually dangerous person under "An Act in relation to sexually dangerous persons, and providing for their commitment, detention and supervision", approved July 6, 1938, as amended, or convicted of committing or attempting to commit any of the following offenses stipulated under the Criminal Code of 1961 or the Criminal Code of 2012:

(1) murder;

(1.1) solicitation of murder;

(1.2) solicitation of murder for hire;

(1.3) intentional homicide of an unborn child;

(1.4) voluntary manslaughter of an unborn child;

(1.5) involuntary manslaughter;

(1.6) reckless homicide;

(1.7) concealment of a homicidal death;

(1.8) involuntary manslaughter of an unborn child;

(1.9) reckless homicide of an unborn child;

(1.10) drug-induced homicide;

(2) a sex offense under Article 11, except offenses described in Sections 11-7, 11-8, 11-12, 11-13, 11-35, 11-40, and 11-45;

(3) kidnapping;

(3.1) aggravated unlawful restraint;

(3.2) forcible detention;

(3.3) harboring a runaway;

(3.4) aiding and abetting child abduction;

(4) aggravated kidnapping;

(5) child abduction;

(6) aggravated battery of a child as described in Section 12-4.3 or subdivision (b)(1) of Section 12-3.05;

(7) criminal sexual assault;

(8) aggravated criminal sexual assault;

(8.1) predatory criminal sexual assault of a child;

(9) criminal sexual abuse;

(10) aggravated sexual abuse;

(11) heinous battery as described in Section 12-4.1 or subdivision (a)(2) of Section 12-3.05;

(12) aggravated battery with a firearm as described in Section 12-4.2 or subdivision (e)(1), (e)(2), (e)(3), or (e)(4) of Section 12-3.05;

(13) tampering with food, drugs, or cosmetics;

(14) drug induced infliction of great bodily harm as described in Section 12-4.7 or subdivision (g)(1) of Section 12-3.05;

(15) hate crime;

(16) stalking;

(17) aggravated stalking;

(18) threatening public officials;

(19) home invasion;

(20) vehicular invasion;

(21) criminal transmission of HIV;

(22) criminal abuse or neglect of an elderly person or person with a disability as described in Section 12-21 or subsection (e) of Section 12-4.4a;

(23) child abandonment;

(24) endangering the life or health of a child;

(25) ritual mutilation;

(26) ritualized abuse of a child;

(27) an offense in any other jurisdiction the elements of which are similar and bear a substantial relationship to any of the foregoing offenses.

(b-1) In addition to the other provisions of this Section, beginning January 1, 2004, no new applicant and, on the date of licensure renewal, no current licensee may operate or receive a license from the Department to operate, no person may be employed by, and no adult person may reside in a child care facility licensed by the Department who has been convicted of committing or attempting to commit any of the following offenses or an offense in any other jurisdiction the elements of which are similar and bear a substantial relationship to any of the following offenses:

(I) BODILY HARM

(1) Felony aggravated assault.

(2) Vehicular endangerment.

(3) Felony domestic battery.

(4) Aggravated battery.

(5) Heinous battery.

(6) Aggravated battery with a firearm.

(7) Aggravated battery of an unborn child.

(8) Aggravated battery of a senior citizen.

(9) Intimidation.

(10) Compelling organization membership of persons.

(11) Abuse and criminal neglect of a long term care facility resident.

(12) Felony violation of an order of protection.

(II) OFFENSES AFFECTING PUBLIC HEALTH, SAFETY, AND DECENCY

(1) Felony unlawful use of weapons.

(2) Aggravated discharge of a firearm.

(3) Reckless discharge of a firearm.

(4) Unlawful use of metal piercing bullets.

(5) Unlawful sale or delivery of firearms on the premises of any school.

(6) Disarming a police officer.

(7) Obstructing justice.

(8) Concealing or aiding a fugitive.

(9) Armed violence.

(10) Felony contributing to the criminal delinquency of a juvenile.

(III) DRUG OFFENSES

(1) Possession of more than 30 grams of cannabis.

(2) Manufacture of more than 10 grams of cannabis.

(3) Cannabis trafficking.

(4) Delivery of cannabis on school grounds.

(5) Unauthorized production of more than 5 cannabis sativa plants.

(6) Calculated criminal cannabis conspiracy.

(7) Unauthorized manufacture or delivery of controlled substances.

(8) Controlled substance trafficking.

(9) Manufacture, distribution, or advertisement of look-alike substances.

(10) Calculated criminal drug conspiracy.

(11) Street gang criminal drug conspiracy.

(12) Permitting unlawful use of a building.

(13) Delivery of controlled, counterfeit, or look-alike substances to persons under age 18, or at truck stops, rest stops, or safety rest areas, or on school property.

(14) Using, engaging, or employing persons under 18 to deliver controlled, counterfeit, or look-alike substances.

(15) Delivery of controlled substances.

(16) Sale or delivery of drug paraphernalia.

(17) Felony possession, sale, or exchange of instruments adapted for use of a controlled substance, methamphetamine, or cannabis by subcutaneous injection.

(18) Felony possession of a controlled substance.

(19) Any violation of the Methamphetamine Control and Community Protection Act.

(b-1.5) In addition to any other provision of this Section, for applicants with access to confidential financial information or who submit documentation to support billing, no applicant whose initial application was considered after the effective date of this amendatory Act of the 97th General Assembly may receive a license from the Department or a child care facility licensed by the Department who has been convicted of committing or attempting to commit any of the following felony offenses:

(1) financial institution fraud under Section 17-10.6 of the Criminal Code of 1961 or the Criminal Code of 2012;

(2) identity theft under Section 16-30 of the Criminal Code of 1961 or the Criminal Code of 2012;

(3) financial exploitation of an elderly person or a person with a disability under Section 17-56 of the Criminal Code of 1961 or the Criminal Code of 2012;

(4) computer tampering under Section 17-51 of the Criminal Code of 1961 or the Criminal Code of 2012;

(5) aggravated computer tampering under Section 17-52 of the Criminal Code of 1961 or the Criminal Code of 2012;

(6) computer fraud under Section 17-50 of the Criminal Code of 1961 or the Criminal Code of 2012;

(7) deceptive practices under Section 17-1 of the Criminal Code of 1961 or the Criminal Code of 2012;

(8) forgery under Section 17-3 of the Criminal Code of 1961 or the Criminal Code of 2012;

(9) State benefits fraud under Section 17-6 of the Criminal Code of 1961 or the Criminal Code of 2012;

(10) mail fraud and wire fraud under Section 17-24 of the Criminal Code of 1961 or the Criminal Code of 2012;

(11) theft under paragraphs (1.1) through (11) of subsection (b) of Section 16-1 of the Criminal Code of 1961 or the Criminal Code of 2012.

(b-2) Notwithstanding subsection (b-1), the Department may make an exception and, for child care facilities other than foster family homes, issue a new child care facility license to or renew the existing child care facility license of an applicant, a person employed by a child care facility, or an applicant who has an adult residing in a home child care facility who was convicted of an offense described in subsection (b-1), provided that all of the following requirements are met:

(1) The relevant criminal offense occurred more than 5 years prior to the date of application or renewal, except for drug offenses. The relevant drug offense must have occurred more than 10 years prior to the date of application or renewal, unless the applicant passed a drug test, arranged and paid for by the child care facility, no less than 5 years after the offense.

(2) The Department must conduct a background check and assess all convictions and recommendations of the child care facility to determine if hiring or licensing the applicant is in accordance with Department administrative rules and procedures.

(3) The applicant meets all other requirements and qualifications to be licensed as the pertinent type of child care facility under this Act and the Department's administrative rules.

(c) In addition to the other provisions of this Section, no applicant may receive a license from the Department to operate a foster family home, and no adult person may reside in a foster family home licensed by the Department, who has been convicted of committing or attempting to commit any of the following offenses stipulated under the Criminal Code of 1961, the Criminal Code of 2012, the Cannabis Control Act, the Methamphetamine Control and Community Protection Act, and the Illinois Controlled Substances Act:

(I) OFFENSES DIRECTED AGAINST THE PERSON

(A) KIDNAPPING AND RELATED OFFENSES

(1) Unlawful restraint.

(B) BODILY HARM

(2) Felony aggravated assault.

(3) Vehicular endangerment.

(4) Felony domestic battery.

(5) Aggravated battery.

(6) Heinous battery.

(7) Aggravated battery with a firearm.

(8) Aggravated battery of an unborn child.

(9) Aggravated battery of a senior citizen.

(10) Intimidation.

(11) Compelling organization membership of persons.

(12) Abuse and criminal neglect of a long term care facility resident.

(13) Felony violation of an order of protection.

(II) OFFENSES DIRECTED AGAINST PROPERTY

(14) Felony theft.

(15) Robbery.

(16) Armed robbery.

(17) Aggravated robbery.

(18) Vehicular hijacking.

(19) Aggravated vehicular hijacking.

(20) Burglary.

(21) Possession of burglary tools.

(22) Residential burglary.

(23) Criminal fortification of a residence or building.

(24) Arson.

(25) Aggravated arson.

(26) Possession of explosive or explosive incendiary devices.

(III) OFFENSES AFFECTING PUBLIC HEALTH, SAFETY, AND DECENCY

(27) Felony unlawful use of weapons.

(28) Aggravated discharge of a firearm.

(29) Reckless discharge of a firearm.

(30) Unlawful use of metal piercing bullets.

(31) Unlawful sale or delivery of firearms on the premises of any school.

(32) Disarming a police officer.

(33) Obstructing justice.

(34) Concealing or aiding a fugitive.

(35) Armed violence.

(36) Felony contributing to the criminal delinquency of a juvenile.

(IV) DRUG OFFENSES

(37) Possession of more than 30 grams of cannabis.

(38) Manufacture of more than 10 grams of cannabis.

(39) Cannabis trafficking.

(40) Delivery of cannabis on school grounds.

(41) Unauthorized production of more than 5 cannabis sativa plants.

(42) Calculated criminal cannabis conspiracy.

(43) Unauthorized manufacture or delivery of controlled substances.

(44) Controlled substance trafficking.

(45) Manufacture, distribution, or advertisement of look-alike substances.

(46) Calculated criminal drug conspiracy.

(46.5) Streetgang criminal drug conspiracy.

(47) Permitting unlawful use of a building.

(48) Delivery of controlled, counterfeit, or look-alike substances to persons under age 18, or at truck stops, rest stops, or safety rest areas, or on school property.

(49) Using, engaging, or employing persons under 18 to deliver controlled, counterfeit, or look-alike substances.

(50) Delivery of controlled substances.

(51) Sale or delivery of drug paraphernalia.

(52) Felony possession, sale, or exchange of instruments adapted for use of a controlled substance, methamphetamine, or cannabis by subcutaneous injection.

(53) Any violation of the Methamphetamine Control and Community Protection Act.

(d) Notwithstanding subsection (c), the Department may make an exception and issue a new foster family home license or may renew an existing foster family home license of an applicant who was convicted of an offense described in subsection (c), provided all of the following requirements are met:

(1) The relevant criminal offense or offenses occurred more than 10 years prior to the date of application or renewal.

(2) The applicant had previously disclosed the conviction or convictions to the Department for purposes of a background check.

(3) After the disclosure, the Department either placed a child in the home or the foster family home license was issued.

(4) During the background check, the Department had assessed and waived the conviction in compliance with the existing statutes and rules in effect at the time of the hire or licensure.

(5) The applicant meets all other requirements and qualifications to be licensed as a foster family home under this Act and the Department's administrative rules.

(6) The applicant has a history of providing a safe, stable home environment and appears able to continue to provide a safe, stable home environment.

(e) In evaluating the exception pursuant to subsections (b-2) and (d), the Department must carefully review any relevant documents to determine whether the applicant, despite the disqualifying convictions, poses a substantial risk to State resources or clients. In making such a determination, the following guidelines shall be used:

(1) the age of the applicant when the offense was committed;

(2) the circumstances surrounding the offense;

(3) the length of time since the conviction;

(4) the specific duties and responsibilities necessarily related to the license being applied for and the bearing, if any, that the applicant's conviction history may have on his or her fitness to perform these duties and responsibilities;

(5) the applicant's employment references;

(6) the applicant's character references and any certificates of achievement;

(7) an academic transcript showing educational attainment since the disqualifying conviction;

(8) a Certificate of Relief from Disabilities or Certificate of Good Conduct; and

(9) anything else that speaks to the applicant's character.

(Source: P.A. 99-143, eff. 7-27-15.)