HB3061 EnrolledLRB101 06170 JRG 51192 b

1    AN ACT concerning regulation.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
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
17in Section 25.
18    "Department" means the Department of Public Health.
19    "Direct care" means the provision of nursing care or
20assistance with feeding, dressing, movement, bathing,
21toileting, or other personal needs, including home services as
22defined in the Home Health, Home Services, and Home Nursing
23Agency Licensing Act. The entity responsible for inspecting and

 

 

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

 

 

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1            (v) a hospice care program or volunteer hospice
2        program, as defined in the Hospice Program Licensing
3        Act;
4            (vi) a hospital, as defined in the Hospital
5        Licensing Act;
6            (vii) (blank);
7            (viii) a nurse agency, as defined in the Nurse
8        Agency Licensing Act;
9            (ix) a respite care provider, as defined in the
10        Respite Program Act;
11            (ix-a) an establishment licensed under the
12        Assisted Living and Shared Housing Act;
13            (x) a supportive living program, as defined in the
14        Illinois Public Aid Code;
15            (xi) early childhood intervention programs as
16        described in 59 Ill. Adm. Code 121;
17            (xii) the University of Illinois Hospital,
18        Chicago;
19            (xiii) programs funded by the Department on Aging
20        through the Community Care Program;
21            (xiv) programs certified to participate in the
22        Supportive Living Program authorized pursuant to
23        Section 5-5.01a of the Illinois Public Aid Code;
24            (xv) programs listed by the Emergency Medical
25        Services (EMS) Systems Act as Freestanding Emergency
26        Centers;

 

 

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1            (xvi) locations licensed under the Alternative
2        Health Care Delivery Act;
3        (2) a day training program certified by the Department
4    of Human Services;
5        (3) a community integrated living arrangement operated
6    by a community mental health and developmental service
7    agency, as defined in the Community-Integrated Living
8    Arrangements Licensing and Certification Act; or
9        (4) the State Long Term Care Ombudsman Program,
10    including any regional long term care ombudsman programs
11    under Section 4.04 of the Illinois Act on the Aging, only
12    for the purpose of securing background checks.
13    "Initiate" means obtaining from a student, applicant, or
14employee his or her social security number, demographics, a
15disclosure statement, and an authorization for the Department
16of Public Health or its designee to request a fingerprint-based
17criminal history records check; transmitting this information
18electronically to the Department of Public Health; conducting
19Internet searches on certain web sites, including without
20limitation the Illinois Sex Offender Registry, the Department
21of Corrections' Sex Offender Search Engine, the Department of
22Corrections' Inmate Search Engine, the Department of
23Corrections Wanted Fugitives Search Engine, the National Sex
24Offender Public Registry, and the List of Excluded Individuals
25and Entities database on the website of the Health and Human
26Services Office of Inspector General to determine if the

 

 

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1applicant has been adjudicated a sex offender, has been a
2prison inmate, or has committed Medicare or Medicaid fraud, or
3conducting similar searches as defined by rule; and having the
4student, applicant, or employee's fingerprints collected and
5transmitted electronically to the Department of State Police.
6    "Livescan vendor" means an entity whose equipment has been
7certified by the Department of State Police to collect an
8individual's demographics and inkless fingerprints and, in a
9manner prescribed by the Department of State Police and the
10Department of Public Health, electronically transmit the
11fingerprints and required data to the Department of State
12Police and a daily file of required data to the Department of
13Public Health. The Department of Public Health shall negotiate
14a contract with one or more vendors that effectively
15demonstrate that the vendor has 2 or more years of experience
16transmitting fingerprints electronically to the Department of
17State Police and that the vendor can successfully transmit the
18required data in a manner prescribed by the Department of
19Public Health. Vendor authorization may be further defined by
20administrative rule.
21    "Long-term care facility" means a facility licensed by the
22State or certified under federal law as a long-term care
23facility, including without limitation facilities licensed
24under the Nursing Home Care Act, the Specialized Mental Health
25Rehabilitation Act of 2013, the ID/DD Community Care Act, or
26the MC/DD Act, a supportive living facility, an assisted living

 

 

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1establishment, or a shared housing establishment or registered
2as a board and care home.
3    "Resident" means a person, individual, or patient under the
4direct care of a health care employer or who has been provided
5goods or services by a health care employer.
6(Source: P.A. 99-180, eff. 7-29-15; 100-432, eff. 8-25-17.)
 
7    (225 ILCS 46/33)
8    Sec. 33. Fingerprint-based criminal history records check.
9    (a) A fingerprint-based criminal history records check is
10not required for health care employees who have been
11continuously employed by a health care employer since October
121, 2007, have met the requirements for criminal history
13background checks prior to October 1, 2007, and have no
14disqualifying convictions or requested and received a waiver of
15those disqualifying convictions. These employees shall be
16retained on the Health Care Worker Registry as long as they
17remain active. Nothing in this subsection (a) shall be
18construed to prohibit a health care employer from initiating a
19criminal history records check for these employees. Should
20these employees seek a new position with a different health
21care employer, then a fingerprint-based criminal history
22records check shall be required.
23    (b) On October 1, 2007 or as soon thereafter as is
24reasonably practical, in the discretion of the Director of
25Public Health, and thereafter, any student, applicant, or

 

 

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

 

 

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1Public Health, and thereafter, an educational entity, other
2than a secondary school, conducting a nurse aide training
3program shall initiate a fingerprint-based criminal history
4records check required by this Act prior to entry of an
5individual into the training program.
6    (d) On October 1, 2007 or as soon thereafter as is
7reasonably practical, in the discretion of the Director of
8Public Health, and thereafter, a health care employer who makes
9a conditional offer of employment to an applicant for a
10position as an employee shall initiate a fingerprint-based
11criminal history record check, requested by the Department of
12Public Health, on the applicant, if such a background check has
13not been previously conducted. Workforce intermediaries and
14organizations providing pro bono legal services may initiate a
15fingerprint-based criminal history record check if a
16conditional offer of employment has not been made and a
17background check has not been previously conducted for an
18individual who has a disqualifying conviction and is receiving
19services from a workforce intermediary or an organization
20providing pro bono legal services.
21    (e) When initiating a background check requested by the
22Department of Public Health, an educational entity, or health
23care employer, workforce intermediary, or organization that
24provides pro bono legal services shall electronically submit to
25the Department of Public Health the student's, applicant's, or
26employee's social security number, demographics, disclosure,

 

 

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1and authorization information in a format prescribed by the
2Department of Public Health within 2 working days after the
3authorization is secured. The student, applicant, or employee
4shall have his or her fingerprints collected electronically and
5transmitted to the Department of State Police within 10 working
6days. The educational entity, or health care employer,
7workforce intermediary, or organization that provides pro bono
8legal services shall transmit all necessary information and
9fees to the livescan vendor and Department of State Police
10within 10 working days after receipt of the authorization. This
11information and the results of the criminal history record
12checks shall be maintained by the Department of Public Health's
13Health Care Worker Registry.
14    (f) A direct care employer may initiate a fingerprint-based
15background check required by this Act for any of its employees,
16but may not use this process to initiate background checks for
17residents. The results of any fingerprint-based background
18check that is initiated with the Department as the requester
19shall be entered in the Health Care Worker Registry.
20    (g) As long as the employee or trainee has had a
21fingerprint-based criminal history record check required by
22this Act and stays active on the Health Care Worker Registry,
23no further criminal history record checks are required, as the
24Department of State Police shall notify the Department of
25Public Health of any additional convictions associated with the
26fingerprints previously submitted. Health care employers shall

 

 

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1check the Health Care Worker Registry before hiring an employee
2to determine that the individual has had a fingerprint-based
3record check required by this Act and has no disqualifying
4convictions or has been granted a waiver pursuant to Section 40
5of this Act. If the individual has not had such a background
6check or is not active on the Health Care Worker Registry, then
7the health care employer shall initiate a fingerprint-based
8record check requested by the Department of Public Health. If
9an individual is inactive on the Health Care Worker Registry,
10that individual is prohibited from being hired to work as a
11certified nursing assistant if, since the individual's most
12recent completion of a competency test, there has been a period
13of 24 consecutive months during which the individual has not
14provided nursing or nursing-related services for pay. If the
15individual can provide proof of having retained his or her
16certification by not having a 24-consecutive-month break in
17service for pay, he or she may be hired as a certified nursing
18assistant and that employment information shall be entered into
19the Health Care Worker Registry.
20    (h) On October 1, 2007 or as soon thereafter as is
21reasonably practical, in the discretion of the Director of
22Public Health, and thereafter, if the Department of State
23Police notifies the Department of Public Health that an
24employee has a new conviction of a disqualifying offense, based
25upon the fingerprints that were previously submitted, then (i)
26the Health Care Worker Registry shall notify the employee's

 

 

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

 

 

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1Care Worker Registry may indicate that the applicant or
2employee has received a waiver.
3    (k) The student, applicant, or employee shall be notified
4of each of the following whenever a fingerprint-based criminal
5history records check is required:
6        (1) That the educational entity, health care employer,
7    or long-term care facility shall initiate a
8    fingerprint-based criminal history record check required
9    by this Act of the student, applicant, or employee.
10        (2) That the student, applicant, or employee has a
11    right to obtain a copy of the criminal records report that
12    indicates a conviction for a disqualifying offense and
13    challenge the accuracy and completeness of the report
14    through an established Department of State Police
15    procedure of Access and Review.
16        (3) That the applicant, if hired conditionally, may be
17    terminated if the criminal records report indicates that
18    the applicant has a record of a conviction of any of the
19    criminal offenses enumerated in Section 25, unless the
20    applicant obtains a waiver pursuant to Section 40 of this
21    Act.
22        (4) That the applicant, if not hired conditionally,
23    shall not be hired if the criminal records report indicates
24    that the applicant has a record of a conviction of any of
25    the criminal offenses enumerated in Section 25, unless the
26    applicant obtains a waiver pursuant to Section 40 of this

 

 

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1    Act.
2        (5) That the employee shall be terminated if the
3    criminal records report indicates that the employee has a
4    record of a conviction of any of the criminal offenses
5    enumerated in Section 25.
6        (6) If, after the employee has originally been
7    determined not to have disqualifying offenses, the
8    employer is notified that the employee has a new
9    conviction(s) of any of the criminal offenses enumerated in
10    Section 25, then the employee shall be terminated.
11    (l) A health care employer or long-term care facility may
12conditionally employ an applicant for up to 3 months pending
13the results of a fingerprint-based criminal history record
14check requested by the Department of Public Health.
15    (m) The Department of Public Health or an entity
16responsible for inspecting, licensing, certifying, or
17registering the health care employer or long-term care facility
18shall be immune from liability for notices given based on the
19results of a fingerprint-based criminal history record check.
20    (n) As used in this Section:
21    "Workforce intermediaries" means organizations that
22function to provide job training and employment services.
23Workforce intermediaries include institutions of higher
24education, faith-based and community organizations, and
25workforce investment boards.
26    "Organizations providing pro bono legal services" means

 

 

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1legal services performed without compensation or at a
2significantly reduced cost to the recipient that provide
3services designed to help individuals overcome statutory
4barriers that would prevent them from entering positions in the
5healthcare industry.
6(Source: P.A. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
 
7    (225 ILCS 46/40)
8    Sec. 40. Waiver.
9    (a) Any student, applicant, enrollee in a training program,
10individual receiving services from a workforce intermediary or
11organization providing pro bono legal services, or employee
12listed on the Health Care Worker Registry may request a waiver
13of the prohibition against employment by:
14        (1) completing a waiver application on a form
15    prescribed by the Department of Public Health;
16        (2) providing a written explanation of each conviction
17    to include (i) what happened, (ii) how many years have
18    passed since the offense, (iii) the individuals involved,
19    (iv) the age of the applicant at the time of the offense,
20    and (v) any other circumstances surrounding the offense;
21    and
22        (3) providing official documentation showing that all
23    fines have been paid, if applicable and except for in the
24    instance of payment of court-imposed fines or restitution
25    in which the applicant is adhering to a payment schedule,

 

 

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1    and the date probation or parole was satisfactorily
2    completed, if applicable.
3    (b) The applicant may, but is not required to, submit
4employment and character references and any other evidence
5demonstrating the ability of the applicant or employee to
6perform the employment responsibilities competently and
7evidence that the applicant or employee does not pose a threat
8to the health or safety of residents, patients, or clients.
9    (c) The Department of Public Health may, at the discretion
10of the Director of Public Health, grant a waiver to an
11applicant, student, or employee listed on the Health Care
12Worker Registry. The Department of Public Health shall act upon
13the waiver request within 30 days of receipt of all necessary
14information, as defined by rule. The Department of Public
15Health shall send an applicant, student, or employee written
16notification of its decision whether to grant a waiver,
17including listing the specific disqualifying offenses for
18which the waiver is being granted or denied. The Department
19shall issue additional copies of this written notification upon
20the applicant's, student's, or employee's request.
21    (d) An individual shall not be employed from the time that
22the employer receives a notification from the Department of
23Public Health based upon the results of a fingerprint-based
24criminal history records check containing disqualifying
25conditions until the time that the individual receives a
26waiver.

 

 

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1    (e) The entity responsible for inspecting, licensing,
2certifying, or registering the health care employer and the
3Department of Public Health shall be immune from liability for
4any waivers granted under this Section.
5    (f) A health care employer is not obligated to employ or
6offer permanent employment to an applicant, or to retain an
7employee who is granted a waiver under this Section.
8(Source: P.A. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
 
9    Section 99. Effective date. This Act takes effect upon
10becoming law.