Judiciary II - Criminal Law Committee
Filed: 3/20/2007
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1 | AMENDMENT TO HOUSE BILL 1728
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2 | AMENDMENT NO. ______. Amend House Bill 1728 by replacing | ||||||
3 | everything after the enacting clause with the following:
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4 | "Section 5. The Health Care Worker Background Check Act is | ||||||
5 | amended by changing Sections 15, 20, 25, 40, 45, 50, 55, and 60 | ||||||
6 | and by adding Section 33 as follows:
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7 | (225 ILCS 46/15)
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8 | Sec. 15. Definitions. In
For the purposes of this Act , the | ||||||
9 | following
definitions apply :
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10 | "Applicant" means an individual seeking employment with a | ||||||
11 | health care
employer who has received a bona fide conditional | ||||||
12 | offer of employment.
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13 | "Conditional offer of employment" means a bona fide offer | ||||||
14 | of employment by a
health care employer to an applicant, which | ||||||
15 | is contingent upon the receipt of a
report from the Department | ||||||
16 | of Public Health
State Police indicating that the applicant |
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1 | does
not have a record of conviction of any of the criminal | ||||||
2 | offenses enumerated in
Section 25.
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3 | "Direct care" means the provision of nursing care or | ||||||
4 | assistance with feeding,
dressing, movement, bathing, | ||||||
5 | toileting, or other personal needs, including home services as | ||||||
6 | defined in the Home Health, Home Services, and Home Nursing | ||||||
7 | Agency Licensing Act. The entity
responsible for inspecting and | ||||||
8 | licensing, certifying, or registering the
health care employer | ||||||
9 | may, by administrative rule, prescribe guidelines for
| ||||||
10 | interpreting this definition with regard to the health care | ||||||
11 | employers that it
licenses.
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12 | "Disqualifying offenses" means those offenses set forth in | ||||||
13 | Section 25 of this Act. | ||||||
14 | "Employee" means any individual hired, employed, or | ||||||
15 | retained to which this Act applies. | ||||||
16 | "Fingerprint-based criminal history records check" means a | ||||||
17 | livescan fingerprint-based criminal history records check | ||||||
18 | submitted as a fee applicant inquiry in the form and manner | ||||||
19 | prescribed by the Department of State Police.
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20 | "Health care employer" means:
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21 | (1) the owner or licensee of any of the
following:
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22 | (i) a community living facility, as defined in the | ||||||
23 | Community Living
Facilities Act;
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24 | (ii) a life care facility, as defined in the Life | ||||||
25 | Care Facilities Act;
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26 | (iii) a long-term care facility , as defined in the |
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1 | Nursing Home Care Act ;
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2 | (iv) a home health agency, home services agency, or | ||||||
3 | home nursing agency as defined in the Home Health, Home | ||||||
4 | Services, and Home Nursing Agency Licensing
Act;
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5 | (v) a comprehensive hospice care program or | ||||||
6 | volunteer hospice program, as defined in the Hospice | ||||||
7 | Program Licensing Act;
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8 | (vi) a hospital, as defined in the Hospital | ||||||
9 | Licensing Act;
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10 | (vii) (blank);
a community residential | ||||||
11 | alternative, as defined in the Community
Residential | ||||||
12 | Alternatives Licensing Act;
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13 | (viii) a nurse agency, as defined in the Nurse | ||||||
14 | Agency Licensing Act;
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15 | (ix) a respite care provider, as defined in the | ||||||
16 | Respite Program Act;
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17 | (ix-a) an establishment licensed under the | ||||||
18 | Assisted Living and Shared
Housing Act;
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19 | (x) a supportive living program, as defined in the | ||||||
20 | Illinois Public Aid
Code;
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21 | (xi) early childhood intervention programs as | ||||||
22 | described in 59 Ill. Adm.
Code 121;
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23 | (xii) the University of Illinois Hospital, | ||||||
24 | Chicago;
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25 | (xiii) programs funded by the Department on Aging | ||||||
26 | through the Community
Care Program;
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1 | (xiv) programs certified to participate in the | ||||||
2 | Supportive Living Program
authorized pursuant to | ||||||
3 | Section 5-5.01a of the Illinois Public Aid Code;
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4 | (xv) programs listed by the Emergency Medical | ||||||
5 | Services (EMS) Systems Act
as
Freestanding Emergency | ||||||
6 | Centers;
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7 | (xvi) locations licensed under the Alternative | ||||||
8 | Health Care Delivery
Act;
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9 | (2) a day training program certified by the Department | ||||||
10 | of Human Services;
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11 | (3) a community integrated living arrangement operated | ||||||
12 | by a community
mental health and developmental service | ||||||
13 | agency, as defined in the
Community-Integrated Living | ||||||
14 | Arrangements Licensing and Certification Act; or
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15 | (4) the State Long Term Care Ombudsman Program, | ||||||
16 | including any regional long term care ombudsman programs | ||||||
17 | under Section 4.04 of the Illinois Act on the Aging, only | ||||||
18 | for the purpose of securing background checks.
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19 | "Initiate" means the obtaining of the authorization for a | ||||||
20 | record check from
a student, applicant, or employee his or her | ||||||
21 | social security number, demographics, a disclosure statement, | ||||||
22 | and an authorization for the Department of Public Health or its | ||||||
23 | designee to request a fingerprint-based criminal history | ||||||
24 | records check; transmitting this information electronically to | ||||||
25 | the Department of Public Health; conducting Internet searches | ||||||
26 | on certain web sites, including without limitation the Illinois |
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1 | Sex Offender Registry, the Department of Corrections' Sex | ||||||
2 | Offender Search Engine, the Department of Corrections' Inmate | ||||||
3 | Search Engine, the Department of Corrections Wanted Fugitives | ||||||
4 | Search Engine, the National Sex Offender Public Registry, and | ||||||
5 | the website of the Health and Human Services Office of | ||||||
6 | Inspector General to determine if the applicant has been | ||||||
7 | adjudicated a sex offender, has been a prison inmate, or has | ||||||
8 | committed Medicare or Medicaid fraud, or conducting similar | ||||||
9 | searches as defined by rule; and having the student, applicant, | ||||||
10 | or employee's fingerprints collected and transmitted | ||||||
11 | electronically to the Department of State Police . The | ||||||
12 | educational entity or health care
employer or its designee | ||||||
13 | shall transmit all necessary information and fees
to the | ||||||
14 | Illinois State Police within 10 working days after receipt of | ||||||
15 | the
authorization.
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16 | "Livescan vendor" means an entity that has been certified | ||||||
17 | by the Department of State Police and the Department of Public | ||||||
18 | Health to collect an individual's demographics and inkless | ||||||
19 | fingerprints and, in a manner prescribed by the Department of | ||||||
20 | State Police and the Department of Public Health, | ||||||
21 | electronically transmit the fingerprints and required data to | ||||||
22 | the Illinois State Police and a daily file of required data to | ||||||
23 | the Department of Public Health. The Department of Public | ||||||
24 | Health shall certify a vendor that effectively demonstrates | ||||||
25 | that the vendor has 2 or more years of experience transmitting | ||||||
26 | fingerprints electronically to the Department of State Police |
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1 | and that the vendor can successfully transmit the required data | ||||||
2 | in a manner prescribed by the Department of Public Health. | ||||||
3 | Vendor certification may be further defined by administrative | ||||||
4 | rule.
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5 | "Long-term care facility" means a facility licensed by the | ||||||
6 | State or certified under federal law as a long-term care | ||||||
7 | facility, including without limitation facilities licensed | ||||||
8 | under the Nursing Home Care Act, a supportive living facility, | ||||||
9 | an assisted living establishment, or a shared housing | ||||||
10 | establishment or registered as a board and care home.
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11 | (Source: P.A. 93-878, eff. 1-1-05; 94-379, eff. 1-1-06; 94-570, | ||||||
12 | eff. 8-12-05; 94-665, eff. 1-1-06; revised 8-29-05.)
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13 | (225 ILCS 46/20)
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14 | Sec. 20. Exceptions. (1) This Act shall not apply to:
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15 | (1)
(a) an individual who is licensed by the Department | ||||||
16 | of Financial and Professional
Regulation or the Department | ||||||
17 | of Public Health under another law of this State;
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18 | (2)
(b) an individual employed or retained by a health | ||||||
19 | care employer for whom
a
criminal background check is | ||||||
20 | required by another law of this State; or
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21 | (3)
(c) a student in a licensed health care field | ||||||
22 | including, but not limited
to, a student nurse, a physical | ||||||
23 | therapy student, or a respiratory care student
unless he or | ||||||
24 | she is (i) employed by a health care employer
in a position | ||||||
25 | with duties involving direct care for clients, patients, or
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1 | residents or (ii) employed by a long-term care facility in | ||||||
2 | a position that involves or may involve contact with | ||||||
3 | residents or access to the living quarters or the | ||||||
4 | financial, medical, or personal records of residents .
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5 | (2) A UCIA criminal history records check need not be | ||||||
6 | redone by the
University of Illinois Hospital, Chicago (U of I) | ||||||
7 | or a program funded by the
Department on Aging through the | ||||||
8 | Community Care Program (CCP) if the U of I or
the CCP: (i) has | ||||||
9 | done a UCIA check on the individual; (ii) has continuously
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10 | employed the individual since the UCIA criminal records check | ||||||
11 | was done; and
(iii) has taken actions with respect to this Act | ||||||
12 | within 12 months after the
effective date of this amendatory | ||||||
13 | Act of the 91st General Assembly.
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14 | (Source: P.A. 91-598, eff. 1-1-00.)
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15 | (225 ILCS 46/25)
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16 | Sec. 25. Persons ineligible to be hired by health care | ||||||
17 | employers and long-term care facilities.
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18 | (a) In the discretion of the Director of Public Health, as | ||||||
19 | soon after
After January 1, 1996, January 1, 1997, January 1, | ||||||
20 | 2006, or October 1, 2007
or the effective date of this | ||||||
21 | amendatory Act of the 94th General Assembly , as applicable, and | ||||||
22 | as is reasonably practical, no
health care employer shall | ||||||
23 | knowingly hire, employ, or retain any
individual in a position | ||||||
24 | with duties involving direct care for clients,
patients, or | ||||||
25 | residents, and no long-term care facility shall knowingly hire, |
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1 | employ, or retain any individual in a position with duties that | ||||||
2 | involve or may involve
contact with residents or access to the | ||||||
3 | living quarters or the financial, medical, or personal records | ||||||
4 | of residents, who has been convicted of committing or | ||||||
5 | attempting to
commit one or more of the offenses defined in | ||||||
6 | Sections 8-1.1, 8-1.2, 9-1,
9-1.2, 9-2, 9-2.1, 9-3, 9-3.1, | ||||||
7 | 9-3.2, 9-3.3, 10-1, 10-2, 10-3, 10-3.1, 10-4,
10-5, 10-7, 11-6, | ||||||
8 | 11-9.1, 11-9.5, 11-19.2, 11-20.1, 12-1, 12-2, 12-3, 12-3.1,
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9 | 12-3.2, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-4.4, 12-4.5, 12-4.6, | ||||||
10 | 12-4.7, 12-7.4,
12-11, 12-13, 12-14, 12-14.1, 12-15, 12-16, | ||||||
11 | 12-19, 12-21, 12-21.6, 12-32,
12-33, 16-1, 16-1.3,
16A-3, 17-3, | ||||||
12 | 18-1, 18-2, 18-3, 18-4, 18-5, 19-1, 19-3, 19-4, 20-1, 20-1.1,
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13 | 24-1, 24-1.2, 24-1.5, or 33A-2 of the Criminal Code of 1961; | ||||||
14 | those provided in
Section 4 of the Wrongs to Children Act; | ||||||
15 | those provided in Section 53 of the
Criminal Jurisprudence Act; | ||||||
16 | those defined in Section 5, 5.1, 5.2, 7, or 9 of
the Cannabis | ||||||
17 | Control Act; those defined in the Methamphetamine Control and | ||||||
18 | Community Protection Act; or those defined in Sections 401, | ||||||
19 | 401.1, 404, 405,
405.1, 407, or 407.1 of the Illinois | ||||||
20 | Controlled Substances Act, unless the
applicant or employee | ||||||
21 | obtains a waiver pursuant to Section 40.
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22 | (a-1) In the discretion of the Director of Public Health, | ||||||
23 | as soon after
After January 1, 2004 or October 1, 2007, as | ||||||
24 | applicable, and as is reasonably practical , no health care | ||||||
25 | employer shall knowingly hire
any individual in a position with | ||||||
26 | duties involving direct care for clients,
patients, or |
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1 | residents, and no long-term care facility shall knowingly hire | ||||||
2 | any individual in a position with duties that involve or may | ||||||
3 | involve
contact with residents or access to the living quarters | ||||||
4 | or the financial, medical, or personal records of residents, | ||||||
5 | who has (i) been convicted of committing or attempting
to | ||||||
6 | commit one or more of the offenses defined in Section 12-3.3, | ||||||
7 | 12-4.2-5,
16-2, 16G-15, 16G-20, 18-5, 20-1.2, 24-1.1, | ||||||
8 | 24-1.2-5, 24-1.6, 24-3.2, or 24-3.3
of the Criminal Code of | ||||||
9 | 1961; Section 4, 5, 6, 8, or 17.02 of the Illinois
Credit Card | ||||||
10 | and Debit Card Act; or Section 5.1 of the Wrongs to Children | ||||||
11 | Act;
or (ii) violated Section 10-5 of the Nursing and Advanced | ||||||
12 | Practice Nursing Act , unless the applicant or employee obtains | ||||||
13 | a waiver pursuant to Section 40 of this Act .
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14 | A UCIA criminal history record check need not be redone for | ||||||
15 | health care
employees who have been continuously employed by a | ||||||
16 | health care employer since
January 1, 2004, but nothing in this | ||||||
17 | Section prohibits a health care employer
from initiating a | ||||||
18 | criminal history check for these employees.
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19 | A health care employer is not required to retain an | ||||||
20 | individual in a position
with duties involving direct care for | ||||||
21 | clients, patients, or residents, and no long-term care facility | ||||||
22 | is required to retain an individual in a position with duties | ||||||
23 | that involve or may involve
contact with residents or access to | ||||||
24 | the living quarters or the financial, medical, or personal | ||||||
25 | records of residents, who has
been convicted of committing or | ||||||
26 | attempting to commit one or more of
the offenses enumerated in |
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1 | this subsection.
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2 | (b) A health care employer shall not hire, employ, or | ||||||
3 | retain any
individual in a position with duties involving | ||||||
4 | direct care of clients,
patients, or residents, and no | ||||||
5 | long-term care facility shall knowingly hire, employ, or retain | ||||||
6 | any individual in a position with duties that involve or may | ||||||
7 | involve
contact with residents or access to the living quarters | ||||||
8 | or the financial, medical, or personal records of residents, if | ||||||
9 | the health care employer becomes aware that the
individual has | ||||||
10 | been convicted in another state of committing or attempting to
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11 | commit an offense that has the same or similar elements as an | ||||||
12 | offense listed in
subsection (a) or (a-1), as verified by court | ||||||
13 | records, records from a state
agency, or an FBI criminal | ||||||
14 | history record check , unless the applicant or employee obtains | ||||||
15 | a waiver pursuant to Section 40 of this Act . This shall not be | ||||||
16 | construed to
mean that a health care employer has an obligation | ||||||
17 | to conduct a criminal
history records check in other states in | ||||||
18 | which an employee has resided.
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19 | (Source: P.A. 93-224, eff. 7-18-03; 94-556, eff. 9-11-05; | ||||||
20 | 94-665, eff. 1-1-06; 94-1053, eff. 7-24-06.)
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21 | (225 ILCS 46/33 new) | ||||||
22 | Sec. 33. Fingerprint-based criminal history records check. | ||||||
23 | (a) On October 1, 2007 or as soon thereafter as is | ||||||
24 | reasonably practical, in the discretion of the Director of | ||||||
25 | Public Health, and thereafter, any student,
applicant, or |
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1 | employee who desires to be included on the Department of Public | ||||||
2 | Health's Health Care Worker Registry must authorize the | ||||||
3 | Department of Public Health or its designee to request a | ||||||
4 | fingerprint-based criminal history records check to determine | ||||||
5 | if the individual has a conviction for a disqualifying offense. | ||||||
6 | This authorization shall allow the Department of Public Health | ||||||
7 | to request and receive information and assistance from any | ||||||
8 | State or local governmental agency. Each individual shall | ||||||
9 | submit his or her fingerprints to the Department of State | ||||||
10 | Police in an electronic format that complies with the form and | ||||||
11 | manner for requesting and furnishing criminal history record | ||||||
12 | information prescribed by the Department of State Police. The | ||||||
13 | fingerprints submitted under this Section shall be checked | ||||||
14 | against the fingerprint records now and hereafter filed in the | ||||||
15 | Department of State Police criminal history record databases. | ||||||
16 | The Department of State Police shall charge a fee for | ||||||
17 | conducting the criminal history records check, which shall not | ||||||
18 | exceed the actual cost of the records check. The livescan | ||||||
19 | vendor may act as the designee for individuals, educational | ||||||
20 | entities, or health care employers in the collection of | ||||||
21 | Department of State Police fees and deposit those fees into the | ||||||
22 | State Police Services Fund. The Department of State Police | ||||||
23 | shall provide information concerning any criminal convictions, | ||||||
24 | now or hereafter filed, against the individual. The Department | ||||||
25 | of Public Health may require the individual, educational | ||||||
26 | entity, or healthcare employer to pay a separate fingerprinting |
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1 | fee to a livescan vendor for collecting the fingerprints and | ||||||
2 | electronically transmitting them to the Department of State | ||||||
3 | Police. | ||||||
4 | (b) On October 1, 2007 or as soon thereafter as is | ||||||
5 | reasonably practical, in the discretion of the Director of | ||||||
6 | Public Health, and thereafter, an educational
entity, other | ||||||
7 | than a secondary school, conducting a nurse aide training | ||||||
8 | program must initiate a fingerprint-based criminal history | ||||||
9 | records check requested by the Department of Public Health | ||||||
10 | prior to entry of an individual into the training program. | ||||||
11 | (c) On October 1, 2007 or as soon thereafter as is | ||||||
12 | reasonably practical, in the discretion of the Director of | ||||||
13 | Public Health, and thereafter, a health care
employer who makes | ||||||
14 | a conditional offer of employment to an applicant for a | ||||||
15 | position as an employee must initiate a fingerprint-based | ||||||
16 | criminal history record check, requested by the Department of | ||||||
17 | Public Health, on the applicant, if such a background check has | ||||||
18 | not been previously conducted. | ||||||
19 | (d) When initiating a background check requested by the
| ||||||
20 | Department of Public Health, an educational entity or health | ||||||
21 | care employer shall electronically submit to the Department of | ||||||
22 | Public Health the student's, applicant's, or employee's social | ||||||
23 | security number, demographics, disclosure, and authorization | ||||||
24 | information in a format prescribed by the Department of Public | ||||||
25 | Health within 2 working days after the authorization is | ||||||
26 | secured. The student, applicant, or employee must have his or |
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1 | her fingerprints collected electronically and transmitted to | ||||||
2 | the Department of State Police within 10 working days. The | ||||||
3 | educational entity or health care employer must transmit all | ||||||
4 | necessary information and fees to the livescan vendor and | ||||||
5 | Department of State Police within 10 working days after receipt | ||||||
6 | of the authorization. This information and the results of the | ||||||
7 | criminal history record checks shall be maintained by the | ||||||
8 | Department of Public Health's Health Care Worker Registry. | ||||||
9 | (e) Any employee who met
the background check requirements | ||||||
10 | of this Act prior to October 1, 2007, and who has been | ||||||
11 | continuously employed by a health care employer since October | ||||||
12 | 1, 2007, must have a fingerprint-based criminal history record | ||||||
13 | check requested by the Department of Public Health initiated by | ||||||
14 | October 1, 2010. | ||||||
15 | (e-5) A direct care employer may initiate a | ||||||
16 | fingerprint-based background check requested by the Department | ||||||
17 | of Public Health for any of its employees, but may not use this | ||||||
18 | process to initiate background checks for residents. The | ||||||
19 | results of any fingerprint-based background check that is | ||||||
20 | initiated with the Department as the requestor shall be entered | ||||||
21 | in the Health Care Worker Registry. | ||||||
22 | (f) As long as the employee has had a fingerprint-based | ||||||
23 | criminal history record check requested by the Department of | ||||||
24 | Public Health and stays active on the Health Care Worker | ||||||
25 | Registry, no further criminal history record checks shall be | ||||||
26 | deemed necessary, as the Department of State Police shall |
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| |||||||
1 | notify the Department of Public Health of any additional | ||||||
2 | convictions associated with the fingerprints previously | ||||||
3 | submitted. Health care employers are required to check the | ||||||
4 | Health Care Worker Registry before hiring an employee to | ||||||
5 | determine that the individual has had a fingerprint-based | ||||||
6 | record check requested by the Department of Public Health and | ||||||
7 | has no disqualifying convictions or has been granted a waiver | ||||||
8 | pursuant to Section 40 of this Act. If the individual has not | ||||||
9 | had such a background check or is not active on the Health Care | ||||||
10 | Worker Registry, then the health care employer must initiate a | ||||||
11 | fingerprint-based record check requested by the Department of | ||||||
12 | Public Health. | ||||||
13 | (g) On October 1, 2007 or as soon thereafter as is | ||||||
14 | reasonably practical, in the discretion of the Director of | ||||||
15 | Public Health, and thereafter, if the Department of
State | ||||||
16 | Police notifies the Department of Public Health that an | ||||||
17 | employee has a new conviction of a disqualifying offense, based | ||||||
18 | upon the fingerprints that were previously submitted, the | ||||||
19 | Health Care Worker Registry shall notify the last known | ||||||
20 | employer of the offense, enter a record that the worker has a | ||||||
21 | disqualifying offense on the Health Care Worker Registry. The | ||||||
22 | individual shall no longer be eligible to work as an employee | ||||||
23 | unless the individual obtains a waiver pursuant to Section 40 | ||||||
24 | of this Act. | ||||||
25 | (h) On October 1, 2007 or as soon thereafter as is | ||||||
26 | reasonably practical, in the discretion of the Director of |
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| |||||||
1 | Public Health, and thereafter, if the Department of State | ||||||
2 | Police notifies the Department of Public Health that an | ||||||
3 | employee has a new conviction of a disqualifying offense, based | ||||||
4 | upon the fingerprints that were previously submitted, then (i) | ||||||
5 | the Health Care Worker Registry shall notify the employee's | ||||||
6 | last known employer of the offense, (ii) a record of the | ||||||
7 | employee's disqualifying offense shall be entered on the Health | ||||||
8 | Care Worker Registry, and (iii) the individual shall no longer | ||||||
9 | be eligible to work as an employee unless he or she obtains a | ||||||
10 | waiver pursuant to Section 40 of this Act. | ||||||
11 | (i) The Department of Public Health shall notify each
| ||||||
12 | health care employer or long-term care facility inquiring as to | ||||||
13 | the information on the Health Care Worker Registry if the | ||||||
14 | applicant or employee listed on the registry has a | ||||||
15 | disqualifying offense and is therefore ineligible to work or | ||||||
16 | has a waiver pursuant to Section 40 of this Act. | ||||||
17 | (j) The student, applicant, or employee must be notified
of | ||||||
18 | each the following whenever a fingerprint-based criminal | ||||||
19 | history records check is required: | ||||||
20 | (1) That the educational entity, health care
employer, | ||||||
21 | or long-term care facility shall initiate a | ||||||
22 | fingerprint-based criminal history record check requested | ||||||
23 | by the Department of Public Health of the student, | ||||||
24 | applicant, or employee pursuant to this Act. | ||||||
25 | (2) That the student, applicant, or employee has a
| ||||||
26 | right to obtain a copy of the criminal records report that |
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1 | indicates a conviction for a disqualifying offense and | ||||||
2 | challenge the accuracy and completeness of the report | ||||||
3 | through an established Department of State Police | ||||||
4 | procedure of Access and Review. | ||||||
5 | (3) That the applicant, if hired conditionally, may
be | ||||||
6 | terminated if the criminal records report indicates that | ||||||
7 | the applicant has a record of a conviction of any of the | ||||||
8 | criminal offenses enumerated in Section 25, unless the | ||||||
9 | applicant obtains a waiver pursuant to Section 40 of this | ||||||
10 | Act. | ||||||
11 | (4) That the applicant, if not hired conditionally,
| ||||||
12 | shall not be hired if the criminal records report indicates | ||||||
13 | that the applicant has a record of a conviction of any of | ||||||
14 | the criminal offenses enumerated in Section 25, unless the | ||||||
15 | applicant obtains a waiver pursuant to Section 40 of this | ||||||
16 | Act. | ||||||
17 | (5) That the employee shall be terminated if the
| ||||||
18 | criminal records report indicates that the employee has a | ||||||
19 | record of a conviction of any of the criminal offenses | ||||||
20 | enumerated in Section 25. | ||||||
21 | (6) If, after the employee has originally been | ||||||
22 | determined not to have disqualifying offenses, the | ||||||
23 | employer is notified that the employee has a new | ||||||
24 | conviction(s) of any of the criminal offenses enumerated in | ||||||
25 | Section 25, then the employee shall be terminated. | ||||||
26 | (k) A health care employer or long-term care facility may
|
| |||||||
| |||||||
1 | conditionally employ an applicant for up to 3 months pending | ||||||
2 | the results of a fingerprint-based criminal history record | ||||||
3 | check requested by the Department of Public Health. | ||||||
4 | (l) The Department of Public Health or an entity
| ||||||
5 | responsible for inspecting, licensing, certifying, or | ||||||
6 | registering the health care employer or long-term care facility | ||||||
7 | shall be immune from liability for notices given based on the | ||||||
8 | results of a fingerprint-based criminal history record check.
| ||||||
9 | (225 ILCS 46/40)
| ||||||
10 | Sec. 40. Waiver.
| ||||||
11 | (a) Any student, applicant, or employee listed on the | ||||||
12 | Health Care Worker Registry
An applicant, employee, or nurse | ||||||
13 | aide may request a waiver of the
prohibition against
employment | ||||||
14 | by submitting the following information to the entity | ||||||
15 | responsible
for inspecting, licensing, certifying, or | ||||||
16 | registering the health care employer
within 5 working days | ||||||
17 | after the receipt of the criminal records
report :
| ||||||
18 | (1) completing a waiver application on a form | ||||||
19 | prescribed by the Department of Public Health;
Information | ||||||
20 | necessary to initiate a fingerprint-based UCIA
criminal | ||||||
21 | records check in a form and manner prescribed by the
| ||||||
22 | Department of State Police; and
| ||||||
23 | (2) providing a written explanation of each conviction | ||||||
24 | to include (i) what happened, (ii) how many years have | ||||||
25 | passed since the offense, (iii) the individuals involved, |
| |||||||
| |||||||
1 | (iv) the age of the applicant at the time of the offense, | ||||||
2 | and (v) any other circumstances surrounding the offense; | ||||||
3 | and | ||||||
4 | (3) providing official documentation showing that all | ||||||
5 | fines have been paid, if applicable, and the date probation | ||||||
6 | or parole was satisfactorily completed, if applicable.
The | ||||||
7 | fee for a fingerprint-based UCIA criminal records
check, | ||||||
8 | which shall not exceed the actual cost of the record check.
| ||||||
9 | (a-5) The entity responsible for inspecting, licensing, | ||||||
10 | certifying, or
registering the health care employer may accept | ||||||
11 | the results of the
fingerprint-based UCIA criminal records | ||||||
12 | check instead of the items required by
paragraphs (1) and (2) | ||||||
13 | of subsection (a).
| ||||||
14 | (b) The applicant may, but is not required to, submit | ||||||
15 | employment and character references and any other evidence | ||||||
16 | demonstrating the ability of the applicant or employee
to | ||||||
17 | perform the employment responsibilities competently and | ||||||
18 | evidence that the
applicant or employee does not pose a threat | ||||||
19 | to the health or safety of
residents, patients, or clients.
The | ||||||
20 | entity responsible for inspecting, licensing, certifying, or
| ||||||
21 | registering the health care employer may grant a waiver based | ||||||
22 | upon any
mitigating circumstances, which may include, but need | ||||||
23 | not be limited to:
| ||||||
24 | (1) The age of the individual at which the crime was | ||||||
25 | committed;
| ||||||
26 | (2) The circumstances surrounding the crime;
|
| |||||||
| |||||||
1 | (3) The length of time since the conviction;
| ||||||
2 | (4) The applicant or employee's criminal history since | ||||||
3 | the conviction;
| ||||||
4 | (5) The applicant or employee's work history;
| ||||||
5 | (6) The applicant or employee's current employment | ||||||
6 | references;
| ||||||
7 | (7) The applicant or employee's character references;
| ||||||
8 | (8) Nurse aide registry records; and
| ||||||
9 | (9) Other evidence demonstrating the ability of the | ||||||
10 | applicant or employee
to perform the employment | ||||||
11 | responsibilities competently and evidence that the
| ||||||
12 | applicant or employee does not pose a threat to the health | ||||||
13 | or safety of
residents, patients, or clients.
| ||||||
14 | (c) The Department of Public Health
entity responsible for | ||||||
15 | inspecting, licensing, certifying, or
registering a health | ||||||
16 | care employer must inform the health care employer
must inform | ||||||
17 | health care employers if a waiver is being sought by entering a | ||||||
18 | record on the Health Care Worker Registry that a waiver is | ||||||
19 | pending and must act upon the waiver request within 30 days
of
| ||||||
20 | receipt of all necessary information, as defined by rule.
| ||||||
21 | (d) An individual shall not be employed from the
time that | ||||||
22 | the employer receives a notification from the Department of | ||||||
23 | Public Health based upon the results of a fingerprint-based | ||||||
24 | criminal history records
non-fingerprint check
containing | ||||||
25 | disqualifying conditions until the time that the individual | ||||||
26 | receives
a waiver from the Department. If the individual |
| |||||||
| |||||||
1 | challenges the
results of the
non-fingerprint check, the | ||||||
2 | employer may continue to employ the individual if the | ||||||
3 | individual presents convincing evidence to the
employer that | ||||||
4 | the non-fingerprint check is invalid. If the individual
| ||||||
5 | challenges the results of the non-fingerprint check, his or her | ||||||
6 | identity shall
be validated by a fingerprint-based records | ||||||
7 | check in accordance with Section
35 .
| ||||||
8 | (e) The entity responsible for inspecting, licensing,
| ||||||
9 | certifying, or
registering the health care employer and the | ||||||
10 | Department of Public Health shall be immune from liability for | ||||||
11 | any
waivers granted under this Section.
| ||||||
12 | (f) A health care employer is not obligated to employ or | ||||||
13 | offer
permanent
employment to an applicant, or to retain an | ||||||
14 | employee who is granted a waiver
under this Section.
| ||||||
15 | (Source: P.A. 94-665, eff. 1-1-06.)
| ||||||
16 | (225 ILCS 46/45)
| ||||||
17 | Sec. 45. Application fees. Except as otherwise provided in | ||||||
18 | this Act, the
student, applicant , or
employee, other than a | ||||||
19 | nurse aide, may be required to pay all related
application and | ||||||
20 | fingerprinting fees
including, but not limited to, the amounts | ||||||
21 | established by the UCIA to conduct
UCIA criminal history record | ||||||
22 | checks and the
amounts
established by the Department of State | ||||||
23 | Police
to process fingerprint-based UCIA criminal history
| ||||||
24 | records checks and the livescan vendor fees . If a
health care | ||||||
25 | employer certified to participate in the Medicaid program pays |
| |||||||
| |||||||
1 | the
fees, the fees shall be
a direct pass-through on the cost | ||||||
2 | report submitted by the employer to the
Medicaid agency.
| ||||||
3 | (Source: P.A. 89-197, eff. 7-21-95.)
| ||||||
4 | (225 ILCS 46/50)
| ||||||
5 | Sec. 50. Health care employer files. The health care | ||||||
6 | employer shall
retain on file for a period of
5 years records | ||||||
7 | of criminal records requests for all employees. The health
care | ||||||
8 | employer shall retain a copy of the disclosure and | ||||||
9 | authorization forms, a copy of the livescan request form, all | ||||||
10 | notifications resulting from the results of the UCIA
| ||||||
11 | fingerprint-based criminal history records check and waiver, | ||||||
12 | if appropriate, for the duration of
the individual's | ||||||
13 | employment. The files shall be
subject to inspection by the | ||||||
14 | agency
responsible for inspecting, licensing, or certifying | ||||||
15 | the health care employer.
A fine of up to $500 may be imposed | ||||||
16 | by the appropriate agency for failure to
maintain these | ||||||
17 | records. The Department of Public Health must keep an | ||||||
18 | electronic record of criminal history background checks for an | ||||||
19 | individual for as long as the individual remains active on the | ||||||
20 | Health Care Worker Registry.
| ||||||
21 | (Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)
| ||||||
22 | (225 ILCS 46/55)
| ||||||
23 | Sec. 55. Immunity from liability. A health care employer | ||||||
24 | shall not be
liable for the failure to hire or to retain an |
| |||||||
| |||||||
1 | applicant or employee
who has
been convicted of committing or | ||||||
2 | attempting to commit one or more of the
offenses enumerated in | ||||||
3 | subsection (a) of Section 25 of this
Act.
However, if an | ||||||
4 | employee
a health care worker is suspended from employment | ||||||
5 | based on the
results of a criminal background check conducted | ||||||
6 | under this Act and the results
prompting the suspension are | ||||||
7 | subsequently found to be inaccurate, the employee
health
care | ||||||
8 | worker is entitled to recover backpay from his or her health | ||||||
9 | care employer
for the suspension period provided that the | ||||||
10 | employer is the cause of the
inaccuracy. The Department of | ||||||
11 | Public Health is not liable for any hiring decisions, | ||||||
12 | suspensions, or terminations.
| ||||||
13 | No health care employer shall be chargeable for any benefit | ||||||
14 | charges that
result from the payment of unemployment benefits | ||||||
15 | to any claimant when the
claimant's separation from that | ||||||
16 | employer occurred because the claimant's
criminal background | ||||||
17 | included an offense enumerated in subsection (a) of
Section 25, | ||||||
18 | or the
claimant's separation from that health care
employer
| ||||||
19 | occurred as a result of the claimant violating a policy that | ||||||
20 | the employer was
required to maintain pursuant to the Drug Free | ||||||
21 | Workplace Act.
| ||||||
22 | (Source: P.A. 90-441, eff.
1-1-98; 91-598, eff. 1-1-00.)
| ||||||
23 | (225 ILCS 46/60)
| ||||||
24 | Sec. 60. Offense.
| ||||||
25 | (a) Any person whose profession is job counseling who
|
| |||||||
| |||||||
1 | knowingly counsels any person who has been convicted of | ||||||
2 | committing or
attempting to commit any of the offenses | ||||||
3 | enumerated in subsection (a) of
Section 25 to apply for
a | ||||||
4 | position with duties involving direct
contact with a client, | ||||||
5 | patient, or
resident of a health care employer or a position | ||||||
6 | with duties that involve or may involve contact with residents | ||||||
7 | or access to the living quarters or the financial, medical, or | ||||||
8 | personal records of residents of a long-term care facility
| ||||||
9 | shall be guilty of a Class A misdemeanor
unless a waiver is | ||||||
10 | granted pursuant to Section 40 of this Act.
| ||||||
11 | (b) Subsection (a) does not apply to an individual | ||||||
12 | performing official
duties in connection with the | ||||||
13 | administration of the State employment service
described in | ||||||
14 | Section 1705 of the Unemployment Insurance Act.
| ||||||
15 | (Source: P.A. 91-598, eff. 1-1-00.)
| ||||||
16 | (225 ILCS 46/25.1 rep.)
| ||||||
17 | (225 ILCS 46/30 rep.)
| ||||||
18 | (225 ILCS 46/35 rep.)
| ||||||
19 | Section 10. The Health Care Worker Background Check Act is | ||||||
20 | amended by repealing Sections 25.1, 30, and 35.
| ||||||
21 | Section 99. Effective date. This Act takes effect upon | ||||||
22 | becoming law.".
|