HB1728ham001 95TH GENERAL ASSEMBLY

Judiciary II - Criminal Law Committee

Filed: 3/20/2007

09500HB1728ham001 LRB095 09794 RAS 33783 a

AMENDMENT TO HOUSE BILL 1728

AMENDMENT NO. ______. Amend House Bill 1728 by replacing everything after the enacting clause with the following:

"Section 5. The Health Care Worker Background Check Act is amended by changing Sections 15, 20, 25, 40, 45, 50, 55, and 60 and by adding Section 33 as follows:

(225 ILCS 46/15)

Sec. 15. Definitions. In For the purposes of this Act, the following definitions apply:

"Applicant" means an individual seeking employment with a health care employer who has received a bona fide conditional offer of employment.

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

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

"Disqualifying offenses" means those offenses set forth in Section 25 of this Act.

"Employee" means any individual hired, employed, or retained to which this Act applies.

"Fingerprint-based criminal history records check" means a livescan fingerprint-based criminal history records check submitted as a fee applicant inquiry in the form and manner prescribed by the Department of State Police.

"Health care employer" means:

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

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

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

(iii) a long-term care facility, as defined in the Nursing Home Care Act;

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

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

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

(vii) (blank); a community residential alternative, as defined in the Community Residential Alternatives Licensing Act;

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

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

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

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

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

(xii) the University of Illinois Hospital, Chicago;

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

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

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

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

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

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

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

"Initiate" means the obtaining of the authorization for a record check from a student, applicant, or employee his or her social security number, demographics, a disclosure statement, and an authorization for the Department of Public Health or its designee to request a fingerprint-based criminal history records check; transmitting this information electronically to the Department of Public Health; conducting Internet searches on certain web sites, including without limitation the Illinois Sex Offender Registry, the Department of Corrections' Sex Offender Search Engine, the Department of Corrections' Inmate Search Engine, the Department of Corrections Wanted Fugitives Search Engine, the National Sex Offender Public Registry, and the website of the Health and Human Services Office of Inspector General to determine if the applicant has been adjudicated a sex offender, has been a prison inmate, or has committed Medicare or Medicaid fraud, or conducting similar searches as defined by rule; and having the student, applicant, or employee's fingerprints collected and transmitted electronically to the Department of State Police. The educational entity or health care employer or its designee shall transmit all necessary information and fees to the Illinois State Police within 10 working days after receipt of the authorization.

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

"Long-term care facility" means a facility licensed by the State or certified under federal law as a long-term care facility, including without limitation facilities licensed under the Nursing Home Care Act, a supportive living facility, an assisted living establishment, or a shared housing establishment or registered as a board and care home.

(Source: P.A. 93-878, eff. 1-1-05; 94-379, eff. 1-1-06; 94-570, eff. 8-12-05; 94-665, eff. 1-1-06; revised 8-29-05.)

(225 ILCS 46/20)

Sec. 20. Exceptions. (1) This Act shall not apply to:

(1) (a) an individual who is licensed by the Department of Financial and Professional Regulation or the Department of Public Health under another law of this State;

(2) (b) an individual employed or retained by a health care employer for whom a criminal background check is required by another law of this State; or

(3) (c) a student in a licensed health care field including, but not limited to, a student nurse, a physical therapy student, or a respiratory care student unless he or she is (i) employed by a health care employer in a position with duties involving direct care for clients, patients, or residents or (ii) employed by a long-term care facility in a position that involves or may involve contact with residents or access to the living quarters or the financial, medical, or personal records of residents.

(2) A UCIA criminal history records check need not be redone by the University of Illinois Hospital, Chicago (U of I) or a program funded by the Department on Aging through the Community Care Program (CCP) if the U of I or the CCP: (i) has done a UCIA check on the individual; (ii) has continuously employed the individual since the UCIA criminal records check was done; and (iii) has taken actions with respect to this Act within 12 months after the effective date of this amendatory Act of the 91st General Assembly.

(Source: P.A. 91-598, eff. 1-1-00.)

(225 ILCS 46/25)

Sec. 25. Persons ineligible to be hired by health care employers and long-term care facilities.

(a) In the discretion of the Director of Public Health, as soon after After January 1, 1996, January 1, 1997, January 1, 2006, or October 1, 2007 or the effective date of this amendatory Act of the 94th General Assembly, as applicable, and as is reasonably practical, no health care employer shall knowingly hire, employ, or retain any individual in a position with duties involving direct care for clients, patients, or residents, and no long-term care facility shall knowingly hire, employ, or retain any individual in a position with duties that involve or may involve contact with residents or access to the living quarters or the financial, medical, or personal records of residents, who has been convicted of committing or attempting to commit one or more of the offenses defined in Sections 8-1.1, 8-1.2, 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.1, 9-3.2, 9-3.3, 10-1, 10-2, 10-3, 10-3.1, 10-4, 10-5, 10-7, 11-6, 11-9.1, 11-9.5, 11-19.2, 11-20.1, 12-1, 12-2, 12-3, 12-3.1, 12-3.2, 12-4, 12-4.1, 12-4.2, 12-4.3, 12-4.4, 12-4.5, 12-4.6, 12-4.7, 12-7.4, 12-11, 12-13, 12-14, 12-14.1, 12-15, 12-16, 12-19, 12-21, 12-21.6, 12-32, 12-33, 16-1, 16-1.3, 16A-3, 17-3, 18-1, 18-2, 18-3, 18-4, 18-5, 19-1, 19-3, 19-4, 20-1, 20-1.1, 24-1, 24-1.2, 24-1.5, or 33A-2 of the Criminal Code of 1961; those provided in Section 4 of the Wrongs to Children Act; those provided in Section 53 of the Criminal Jurisprudence Act; those defined in Section 5, 5.1, 5.2, 7, or 9 of the Cannabis Control Act; those defined in the Methamphetamine Control and Community Protection Act; or those defined in Sections 401, 401.1, 404, 405, 405.1, 407, or 407.1 of the Illinois Controlled Substances Act, unless the applicant or employee obtains a waiver pursuant to Section 40.

(a-1) In the discretion of the Director of Public Health, as soon after After January 1, 2004 or October 1, 2007, as applicable, and as is reasonably practical, no health care employer shall knowingly hire any individual in a position with duties involving direct care for clients, patients, or residents, and no long-term care facility shall knowingly hire any individual in a position with duties that involve or may involve contact with residents or access to the living quarters or the financial, medical, or personal records of residents, who has (i) been convicted of committing or attempting to commit one or more of the offenses defined in Section 12-3.3, 12-4.2-5, 16-2, 16G-15, 16G-20, 18-5, 20-1.2, 24-1.1, 24-1.2-5, 24-1.6, 24-3.2, or 24-3.3 of the Criminal Code of 1961; Section 4, 5, 6, 8, or 17.02 of the Illinois Credit Card and Debit Card Act; or Section 5.1 of the Wrongs to Children Act; or (ii) violated Section 10-5 of the Nursing and Advanced Practice Nursing Act, unless the applicant or employee obtains a waiver pursuant to Section 40 of this Act.

A UCIA criminal history record check need not be redone for health care employees who have been continuously employed by a health care employer since January 1, 2004, but nothing in this Section prohibits a health care employer from initiating a criminal history check for these employees.

A health care employer is not required to retain an individual in a position with duties involving direct care for clients, patients, or residents, and no long-term care facility is required to retain an individual in a position with duties that involve or may involve contact with residents or access to the living quarters or the financial, medical, or personal records of residents, who has been convicted of committing or attempting to commit one or more of the offenses enumerated in this subsection.

(b) A health care employer shall not hire, employ, or retain any individual in a position with duties involving direct care of clients, patients, or residents, and no long-term care facility shall knowingly hire, employ, or retain any individual in a position with duties that involve or may involve contact with residents or access to the living quarters or the financial, medical, or personal records of residents, if the health care employer becomes aware that the individual has been convicted in another state of committing or attempting to commit an offense that has the same or similar elements as an offense listed in subsection (a) or (a-1), as verified by court records, records from a state agency, or an FBI criminal history record check, unless the applicant or employee obtains a waiver pursuant to Section 40 of this Act. This shall not be construed to mean that a health care employer has an obligation to conduct a criminal history records check in other states in which an employee has resided.

(Source: P.A. 93-224, eff. 7-18-03; 94-556, eff. 9-11-05; 94-665, eff. 1-1-06; 94-1053, eff. 7-24-06.)

(225 ILCS 46/33 new)

Sec. 33. Fingerprint-based criminal history records check.

(a) On October 1, 2007 or as soon thereafter as is reasonably practical, in the discretion of the Director of Public Health, and thereafter, any student, applicant, or employee who desires to be included on the Department of Public Health's Health Care Worker Registry must authorize the Department of Public Health or its designee to request a fingerprint-based criminal history records check to determine if the individual has a conviction for a disqualifying offense. This authorization shall allow the Department of Public Health to request and receive information and assistance from any State or local governmental agency. Each individual shall submit his or her fingerprints to the Department of State Police in an electronic format that complies with the form and manner for requesting and furnishing criminal history record information prescribed by the Department of State Police. The fingerprints submitted under this Section shall be checked against the fingerprint records now and hereafter filed in the Department of State Police criminal history record databases. The Department of State Police shall charge a fee for conducting the criminal history records check, which shall not exceed the actual cost of the records check. The livescan vendor may act as the designee for individuals, educational entities, or health care employers in the collection of Department of State Police fees and deposit those fees into the State Police Services Fund. The Department of State Police shall provide information concerning any criminal convictions, now or hereafter filed, against the individual. The Department of Public Health may require the individual, educational entity, or healthcare employer to pay a separate fingerprinting fee to a livescan vendor for collecting the fingerprints and electronically transmitting them to the Department of State Police.

(b) On October 1, 2007 or as soon thereafter as is reasonably practical, in the discretion of the Director of Public Health, and thereafter, an educational entity, other than a secondary school, conducting a nurse aide training program must initiate a fingerprint-based criminal history records check requested by the Department of Public Health prior to entry of an individual into the training program.

(c) On October 1, 2007 or as soon thereafter as is reasonably practical, in the discretion of the Director of Public Health, and thereafter, a health care employer who makes a conditional offer of employment to an applicant for a position as an employee must initiate a fingerprint-based criminal history record check, requested by the Department of Public Health, on the applicant, if such a background check has not been previously conducted.

(d) When initiating a background check requested by the Department of Public Health, an educational entity or health care employer shall electronically submit to the Department of Public Health the student's, applicant's, or employee's social security number, demographics, disclosure, and authorization information in a format prescribed by the Department of Public Health within 2 working days after the authorization is secured. The student, applicant, or employee must have his or her fingerprints collected electronically and transmitted to the Department of State Police within 10 working days. The educational entity or health care employer must transmit all necessary information and fees to the livescan vendor and Department of State Police within 10 working days after receipt of the authorization. This information and the results of the criminal history record checks shall be maintained by the Department of Public Health's Health Care Worker Registry.

(e) Any employee who met the background check requirements of this Act prior to October 1, 2007, and who has been continuously employed by a health care employer since October 1, 2007, must have a fingerprint-based criminal history record check requested by the Department of Public Health initiated by October 1, 2010.

(e-5) A direct care employer may initiate a fingerprint-based background check requested by the Department of Public Health for any of its employees, but may not use this process to initiate background checks for residents. The results of any fingerprint-based background check that is initiated with the Department as the requestor shall be entered in the Health Care Worker Registry.

(f) As long as the employee has had a fingerprint-based criminal history record check requested by the Department of Public Health and stays active on the Health Care Worker Registry, no further criminal history record checks shall be deemed necessary, as the Department of State Police shall notify the Department of Public Health of any additional convictions associated with the fingerprints previously submitted. Health care employers are required to check the Health Care Worker Registry before hiring an employee to determine that the individual has had a fingerprint-based record check requested by the Department of Public Health and has no disqualifying convictions or has been granted a waiver pursuant to Section 40 of this Act. If the individual has not had such a background check or is not active on the Health Care Worker Registry, then the health care employer must initiate a fingerprint-based record check requested by the Department of Public Health.

(g) On October 1, 2007 or as soon thereafter as is reasonably practical, in the discretion of the Director of Public Health, and thereafter, if the Department of State Police notifies the Department of Public Health that an employee has a new conviction of a disqualifying offense, based upon the fingerprints that were previously submitted, the Health Care Worker Registry shall notify the last known employer of the offense, enter a record that the worker has a disqualifying offense on the Health Care Worker Registry. The individual shall no longer be eligible to work as an employee unless the individual obtains a waiver pursuant to Section 40 of this Act.

(h) On October 1, 2007 or as soon thereafter as is reasonably practical, in the discretion of the Director of Public Health, and thereafter, if the Department of State Police notifies the Department of Public Health that an employee has a new conviction of a disqualifying offense, based upon the fingerprints that were previously submitted, then (i) the Health Care Worker Registry shall notify the employee's last known employer of the offense, (ii) a record of the employee's disqualifying offense shall be entered on the Health Care Worker Registry, and (iii) the individual shall no longer be eligible to work as an employee unless he or she obtains a waiver pursuant to Section 40 of this Act.

(i) The Department of Public Health shall notify each health care employer or long-term care facility inquiring as to the information on the Health Care Worker Registry if the applicant or employee listed on the registry has a disqualifying offense and is therefore ineligible to work or has a waiver pursuant to Section 40 of this Act.

(j) The student, applicant, or employee must be notified of each the following whenever a fingerprint-based criminal history records check is required:

(1) That the educational entity, health care employer, or long-term care facility shall initiate a fingerprint-based criminal history record check requested by the Department of Public Health of the student, applicant, or employee pursuant to this Act.

(2) That the student, applicant, or employee has a right to obtain a copy of the criminal records report that indicates a conviction for a disqualifying offense and challenge the accuracy and completeness of the report through an established Department of State Police procedure of Access and Review.

(3) That the applicant, if hired conditionally, may be terminated if the criminal records report indicates that the applicant has a record of a conviction of any of the criminal offenses enumerated in Section 25, unless the applicant obtains a waiver pursuant to Section 40 of this Act.

(4) That the applicant, if not hired conditionally, shall not be hired if the criminal records report indicates that the applicant has a record of a conviction of any of the criminal offenses enumerated in Section 25, unless the applicant obtains a waiver pursuant to Section 40 of this Act.

(5) That the employee shall be terminated if the criminal records report indicates that the employee has a record of a conviction of any of the criminal offenses enumerated in Section 25.

(6) If, after the employee has originally been determined not to have disqualifying offenses, the employer is notified that the employee has a new conviction(s) of any of the criminal offenses enumerated in Section 25, then the employee shall be terminated.

(k) A health care employer or long-term care facility may conditionally employ an applicant for up to 3 months pending the results of a fingerprint-based criminal history record check requested by the Department of Public Health.

(l) The Department of Public Health or an entity responsible for inspecting, licensing, certifying, or registering the health care employer or long-term care facility shall be immune from liability for notices given based on the results of a fingerprint-based criminal history record check.

(225 ILCS 46/40)

Sec. 40. Waiver.

(a) Any student, applicant, or employee listed on the Health Care Worker Registry An applicant, employee, or nurse aide may request a waiver of the prohibition against employment by submitting the following information to the entity responsible for inspecting, licensing, certifying, or registering the health care employer within 5 working days after the receipt of the criminal records report:

(1) completing a waiver application on a form prescribed by the Department of Public Health; Information necessary to initiate a fingerprint-based UCIA criminal records check in a form and manner prescribed by the Department of State Police; and

(2) providing a written explanation of each conviction to include (i) what happened, (ii) how many years have passed since the offense, (iii) the individuals involved, (iv) the age of the applicant at the time of the offense, and (v) any other circumstances surrounding the offense; and

(3) providing official documentation showing that all fines have been paid, if applicable, and the date probation or parole was satisfactorily completed, if applicable. The fee for a fingerprint-based UCIA criminal records check, which shall not exceed the actual cost of the record check.

(a-5) The entity responsible for inspecting, licensing, certifying, or registering the health care employer may accept the results of the fingerprint-based UCIA criminal records check instead of the items required by paragraphs (1) and (2) of subsection (a).

(b) The applicant may, but is not required to, submit employment and character references and any other evidence demonstrating the ability of the applicant or employee to perform the employment responsibilities competently and evidence that the applicant or employee does not pose a threat to the health or safety of residents, patients, or clients. The entity responsible for inspecting, licensing, certifying, or registering the health care employer may grant a waiver based upon any mitigating circumstances, which may include, but need not be limited to:

(1) The age of the individual at which the crime was committed;

(2) The circumstances surrounding the crime;

(3) The length of time since the conviction;

(4) The applicant or employee's criminal history since the conviction;

(5) The applicant or employee's work history;

(6) The applicant or employee's current employment references;

(7) The applicant or employee's character references;

(8) Nurse aide registry records; and

(9) Other evidence demonstrating the ability of the applicant or employee to perform the employment responsibilities competently and evidence that the applicant or employee does not pose a threat to the health or safety of residents, patients, or clients.

(c) The Department of Public Health entity responsible for inspecting, licensing, certifying, or registering a health care employer must inform the health care employer must inform health care employers if a waiver is being sought by entering a record on the Health Care Worker Registry that a waiver is pending and must act upon the waiver request within 30 days of receipt of all necessary information, as defined by rule.

(d) An individual shall not be employed from the time that the employer receives a notification from the Department of Public Health based upon the results of a fingerprint-based criminal history records non-fingerprint check containing disqualifying conditions until the time that the individual receives a waiver from the Department. If the individual challenges the results of the non-fingerprint check, the employer may continue to employ the individual if the individual presents convincing evidence to the employer that the non-fingerprint check is invalid. If the individual challenges the results of the non-fingerprint check, his or her identity shall be validated by a fingerprint-based records check in accordance with Section 35.

(e) The entity responsible for inspecting, licensing, certifying, or registering the health care employer and the Department of Public Health shall be immune from liability for any waivers granted under this Section.

(f) A health care employer is not obligated to employ or offer permanent employment to an applicant, or to retain an employee who is granted a waiver under this Section.

(Source: P.A. 94-665, eff. 1-1-06.)

(225 ILCS 46/45)

Sec. 45. Application fees. Except as otherwise provided in this Act, the student, applicant, or employee, other than a nurse aide, may be required to pay all related application and fingerprinting fees including, but not limited to, the amounts established by the UCIA to conduct UCIA criminal history record checks and the amounts established by the Department of State Police to process fingerprint-based UCIA criminal history records checks and the livescan vendor fees. If a health care employer certified to participate in the Medicaid program pays the fees, the fees shall be a direct pass-through on the cost report submitted by the employer to the Medicaid agency.

(Source: P.A. 89-197, eff. 7-21-95.)

(225 ILCS 46/50)

Sec. 50. Health care employer files. The health care employer shall retain on file for a period of 5 years records of criminal records requests for all employees. The health care employer shall retain a copy of the disclosure and authorization forms, a copy of the livescan request form, all notifications resulting from the results of the UCIA fingerprint-based criminal history records check and waiver, if appropriate, for the duration of the individual's employment. The files shall be subject to inspection by the agency responsible for inspecting, licensing, or certifying the health care employer. A fine of up to $500 may be imposed by the appropriate agency for failure to maintain these records. The Department of Public Health must keep an electronic record of criminal history background checks for an individual for as long as the individual remains active on the Health Care Worker Registry.

(Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)

(225 ILCS 46/55)

Sec. 55. Immunity from liability. A health care employer shall not be liable for the failure to hire or to retain an applicant or employee who has been convicted of committing or attempting to commit one or more of the offenses enumerated in subsection (a) of Section 25 of this Act. However, if an employee a health care worker is suspended from employment based on the results of a criminal background check conducted under this Act and the results prompting the suspension are subsequently found to be inaccurate, the employee health care worker is entitled to recover backpay from his or her health care employer for the suspension period provided that the employer is the cause of the inaccuracy. The Department of Public Health is not liable for any hiring decisions, suspensions, or terminations.

No health care employer shall be chargeable for any benefit charges that result from the payment of unemployment benefits to any claimant when the claimant's separation from that employer occurred because the claimant's criminal background included an offense enumerated in subsection (a) of Section 25, or the claimant's separation from that health care employer occurred as a result of the claimant violating a policy that the employer was required to maintain pursuant to the Drug Free Workplace Act.

(Source: P.A. 90-441, eff. 1-1-98; 91-598, eff. 1-1-00.)

(225 ILCS 46/60)

Sec. 60. Offense.

(a) Any person whose profession is job counseling who knowingly counsels any person who has been convicted of committing or attempting to commit any of the offenses enumerated in subsection (a) of Section 25 to apply for a position with duties involving direct contact with a client, patient, or resident of a health care employer or a position with duties that involve or may involve contact with residents or access to the living quarters or the financial, medical, or personal records of residents of a long-term care facility shall be guilty of a Class A misdemeanor unless a waiver is granted pursuant to Section 40 of this Act.

(b) Subsection (a) does not apply to an individual performing official duties in connection with the administration of the State employment service described in Section 1705 of the Unemployment Insurance Act.

(Source: P.A. 91-598, eff. 1-1-00.)

(225 ILCS 46/25.1 rep.)

(225 ILCS 46/30 rep.)

(225 ILCS 46/35 rep.)

Section 10. The Health Care Worker Background Check Act is amended by repealing Sections 25.1, 30, and 35.

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