Sen. Don Harmon

Filed: 3/30/2016

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 3027

2    AMENDMENT NO. ______. Amend Senate Bill 3027 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Nursing Home Care Act is amended by
5changing Section 3-206.01 as follows:
 
6    (210 ILCS 45/3-206.01)  (from Ch. 111 1/2, par.
7      4153-206.01)
8    Sec. 3-206.01. Health care worker registry.
9    (a) The Department shall establish and maintain a Health
10Care Worker Registry accessible by health care employers, as
11defined in the Health Care Worker Background Check Act, that
12includes background check and training information registry of
13all individuals who (i) have satisfactorily completed the
14training required by Section 3-206, (ii) have begun a current
15course of training as set forth in Section 3-206, or (iii) are
16otherwise acting as a nursing assistant, habilitation aide,

 

 

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1home health aide, psychiatric services rehabilitation aide, or
2child care aide. The registry shall include the individual's
3name, his or her current address, Social Security number, and
4the date and location of the training course completed by the
5individual, and whether the individual has any of the
6disqualifying convictions listed in Section 25 of the Health
7Care Worker Background Check Act from the date of the
8individual's last criminal records check. Any individual
9placed on the registry is required to inform the Department of
10any change of address within 30 days. A facility shall not
11employ an individual as a nursing assistant, habilitation aide,
12home health aide, psychiatric services rehabilitation aide, or
13child care aide, or newly hired as an individual who may have
14access to a resident, a resident's living quarters, or a
15resident's personal, financial, or medical records, unless the
16facility has inquired of the Department's health care worker
17registry as to information in the registry concerning the
18individual. The facility shall not employ an individual as a
19nursing assistant, habilitation aide, or child care aide if
20that individual is not on the registry unless the individual is
21enrolled in a training program under paragraph (5) of
22subsection (a) of Section 3-206 of this Act. The Department may
23also maintain a publicly accessible registry.
24    (a-5) The registry maintained by the Department exclusive
25to health care employers, as defined in the Health Care Worker
26Background Check Act, shall clearly indicate whether an

 

 

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1applicant or employee is eligible for employment and shall
2include the following:
3        (1) information about the individual, including the
4    individual's name, his or her current address, Social
5    Security number, the date and location of the training
6    course completed by the individual, whether the individual
7    has any of the disqualifying convictions listed in Section
8    25 of the Health Care Worker Background Check Act from the
9    date of the individual's last criminal record check,
10    whether the individual has a waiver pending under Section
11    40 of the Health Care Worker Background Check Act, and
12    whether the individual has received a waiver under Section
13    40 of that Act;
14        (2) the following language:
15            "A waiver granted by the Department of Public
16        Health is a determination that the applicant or
17        employee is eligible to work in a health care facility.
18        The Equal Employment Opportunity Commission provides
19        guidance about federal law regarding hiring of
20        individuals with criminal records."; and
21        (3) a link to Equal Employment Opportunity Commission
22    guidance regarding hiring of individuals with criminal
23    records.
24    (a-10) After June 30, 2016, the publicly accessible
25registry maintained by the Department shall report that an
26individual is ineligible to work if he or she has a

 

 

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1disqualifying offense under Section 25 of the Health Care
2Worker Background Check Act and has not received a waiver under
3Section 40 of that Act. If an applicant or employee has
4received a waiver for one or more disqualifying offenses under
5Section 40 of the Health Care Worker Background Check Act and
6he or she is otherwise eligible to work, the Department of
7Public Health shall report on the public registry that the
8applicant or employee is eligible to work. The Department,
9however, shall not report information regarding the waiver on
10the public registry.
11    (a-15) If the Department finds that a nursing assistant,
12habilitation aide, home health aide, psychiatric services
13rehabilitation aide, or child care aide, or an unlicensed
14individual, has abused or neglected a resident or an individual
15under his or her care or misappropriated property of a resident
16or an individual under his or her care, the Department shall
17notify the individual of this finding by certified mail sent to
18the address contained in the registry. The notice shall give
19the individual an opportunity to contest the finding in a
20hearing before the Department or to submit a written response
21to the findings in lieu of requesting a hearing. If, after a
22hearing or if the individual does not request a hearing, the
23Department finds that the individual abused a resident,
24neglected a resident, or misappropriated resident property in a
25facility, the finding shall be included as part of the registry
26as well as a clear and accurate summary from the individual, if

 

 

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1he or she chooses to make such a statement. The Department
2shall make the following information in the registry available
3to the public: an individual's full name; the date an
4individual successfully completed a nurse aide training or
5competency evaluation; and whether the Department has made a
6finding that an individual has been guilty of abuse or neglect
7of a resident or misappropriation of resident property. In the
8case of inquiries to the registry concerning an individual
9listed in the registry, any information disclosed concerning
10such a finding shall also include disclosure of the
11individual's statement in the registry relating to the finding
12or a clear and accurate summary of the statement.
13    (b) The Department shall add to the health care worker
14registry records of findings as reported by the Inspector
15General or remove from the health care worker registry records
16of findings as reported by the Department of Human Services,
17under subsection (s) of Section 1-17 of the Department of Human
18Services Act.
19(Source: P.A. 99-78, eff. 7-20-15.)
 
20    Section 10. The Health Care Worker Background Check Act is
21amended by changing Sections 25, 33, and 40 and by adding
22Section 40.1 as follows:
 
23    (225 ILCS 46/25)
24    Sec. 25. Hiring of people with criminal records Persons

 

 

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1ineligible to be hired by health care employers and long-term
2care facilities.
3    (a) A health care employer or long-term care facility may
4hire, employ, or retain any individual in a position involving
5direct care for clients, patients, or residents, or access to
6the living quarters or the financial, medical, or personal
7records of clients, patients, or residents who has been
8convicted of committing or attempting to commit one or more of
9the following offenses only with a waiver described in Section
1040 In the discretion of the Director of Public Health, as soon
11after January 1, 1996, January 1, 1997, January 1, 2006, or
12October 1, 2007, as applicable, and as is reasonably practical,
13no health care employer shall knowingly hire, employ, or retain
14any individual in a position with duties involving direct care
15for clients, patients, or residents, and no long-term care
16facility shall knowingly hire, employ, or retain any individual
17in a position with duties that involve or may involve contact
18with residents or access to the living quarters or the
19financial, medical, or personal records of residents, who has
20been convicted of committing or attempting to commit one or
21more of the following offenses: those defined in Sections
228-1(b), 8-1.1, 8-1.2, 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.1,
239-3.2, 9-3.3, 9-3.4, 10-1, 10-2, 10-3, 10-3.1, 10-4, 10-5,
2410-7, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-6,
2511-9.1, 11-9.5, 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-1,
2612-2, 12-3.05, 12-3.1, 12-3.2, 12-3.3, 12-4, 12-4.1, 12-4.2,

 

 

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112-4.3, 12-4.4, 12-4.5, 12-4.6, 12-4.7, 12-7.4, 12-11, 12-13,
212-14, 12-14.1, 12-15, 12-16, 12-19, 12-21, 12-21.6, 12-32,
312-33, 12C-5, 16-1, 16-1.3, 16-25, 16A-3, 17-3, 17-56, 18-1,
418-2, 18-3, 18-4, 18-5, 19-1, 19-3, 19-4, 19-6, 20-1, 20-1.1,
524-1, 24-1.2, 24-1.5, or 33A-2, or subdivision (a)(4) of
6Section 11-14.4, or in subsection (a) of Section 12-3 or
7subsection (a) or (b) of Section 12-4.4a, of the Criminal Code
8of 1961 or the Criminal Code of 2012; those provided in Section
94 of the Wrongs to Children Act; those provided in Section 53
10of the Criminal Jurisprudence Act; those defined in subsection
11(c), (d), (e), (f), or (g) of Section 5 or Section , 5.1, 5.2,
127, or 9 of the Cannabis Control Act; those defined in the
13Methamphetamine Control and Community Protection Act; or those
14defined in Sections 401, 401.1, 404, 405, 405.1, 407, or 407.1
15of the Illinois Controlled Substances Act, unless the applicant
16or employee obtains a waiver pursuant to Section 40.
17    (a-1) A health care employer or long-term care facility may
18hire, employ, or retain any individual in a position involving
19direct care for clients, patients, or residents, or access to
20the living quarters or the financial, medical, or personal
21records of clients, patients, or residents who has been
22convicted of committing or attempting to commit one or more of
23the following offenses only with a waiver described in Section
2440: those In the discretion of the Director of Public Health,
25as soon after January 1, 2004 or October 1, 2007, as
26applicable, and as is reasonably practical, no health care

 

 

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1employer shall knowingly hire any individual in a position with
2duties involving direct care for clients, patients, or
3residents, and no long-term care facility shall knowingly hire
4any individual in a position with duties that involve or may
5involve contact with residents or access to the living quarters
6or the financial, medical, or personal records of residents,
7who has (i) been convicted of committing or attempting to
8commit one or more of the offenses defined in Section 12-3.3,
912-4.2-5, 16-2, 16-30, 16G-15, 16G-20, 17-33, 17-34, 17-36,
1017-44, 18-5, 20-1.2, 24-1.1, 24-1.2-5, 24-1.6, 24-3.2, or
1124-3.3, or subsection (b) of Section 17-32, subsection (b) of
12Section 18-1, or subsection (b) of Section 20-1, of the
13Criminal Code of 1961 or the Criminal Code of 2012; Section 4,
145, 6, 8, or 17.02 of the Illinois Credit Card and Debit Card
15Act; or Section 11-9.1A of the Criminal Code of 1961 or the
16Criminal Code of 2012 or Section 5.1 of the Wrongs to Children
17Act; or (ii) violated Section 50-50 of the Nurse Practice Act,
18unless the applicant or employee obtains a waiver pursuant to
19Section 40 of this Act.
20    A health care employer is not required to retain an
21individual in a position with duties involving direct care for
22clients, patients, or residents, and no long-term care facility
23is required to retain an individual in a position with duties
24that involve or may involve contact with residents or access to
25the living quarters or the financial, medical, or personal
26records of residents, who has been convicted of committing or

 

 

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1attempting to commit one or more of the offenses enumerated in
2this subsection.
3    (b) A health care employer shall not hire, employ, or
4retain any individual in a position with duties involving
5direct care of clients, patients, or residents, and no
6long-term care facility shall knowingly hire, employ, or retain
7any individual in a position with duties that involve or may
8involve contact with residents or access to the living quarters
9or the financial, medical, or personal records of residents, if
10the health care employer becomes aware that the individual has
11been convicted in another state of committing or attempting to
12commit an offense that has the same or similar elements as an
13offense listed in subsection (a) or (a-1), as verified by court
14records, records from a state agency, or an FBI criminal
15history record check, unless the applicant or employee obtains
16a waiver pursuant to Section 40 of this Act. This shall not be
17construed to mean that a health care employer has an obligation
18to conduct a criminal history records check in other states in
19which an employee has resided.
20(Source: P.A. 96-710, eff. 1-1-10; 96-1551, Article 1, Section
21930, eff. 7-1-11; 96-1551, Article 2, Section 995, eff. 7-1-11;
2296-1551, Article 10, Section 10-40, eff. 7-1-11; 97-597, eff.
231-1-12; 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1150,
24eff. 1-25-13.)
 
25    (225 ILCS 46/33)

 

 

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1    Sec. 33. Fingerprint-based criminal history records check.
2    (a) A fingerprint-based criminal history records check is
3not required for health care employees who have been
4continuously employed by a health care employer since October
51, 2007, have met the requirements for criminal history
6background checks prior to October 1, 2007, and have no
7disqualifying convictions or requested and received a waiver of
8those disqualifying convictions. These employees shall be
9retained on the Health Care Worker Registry as long as they
10remain active. Nothing in this subsection (a) shall be
11construed to prohibit a health care employer from initiating a
12criminal history records check for these employees. Should
13these employees seek a new position with a different health
14care employer, then a fingerprint-based criminal history
15records check shall be required.
16    (b) On October 1, 2007 or as soon thereafter as is
17reasonably practical, in the discretion of the Director of
18Public Health, and thereafter, any student, applicant, or
19employee who desires to be included on the Department of Public
20Health's Health Care Worker Registry must authorize the
21Department of Public Health or its designee to request a
22fingerprint-based criminal history records check to determine
23if the individual has a conviction for a disqualifying offense.
24This authorization shall allow the Department of Public Health
25to request and receive information and assistance from any
26State or local governmental agency. Each individual shall

 

 

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1submit his or her fingerprints to the Department of State
2Police in an electronic format that complies with the form and
3manner for requesting and furnishing criminal history record
4information prescribed by the Department of State Police. The
5fingerprints submitted under this Section shall be checked
6against the fingerprint records now and hereafter filed in the
7Department of State Police criminal history record databases.
8The Department of State Police shall charge a fee for
9conducting the criminal history records check, which shall not
10exceed the actual cost of the records check. The livescan
11vendor may act as the designee for individuals, educational
12entities, or health care employers in the collection of
13Department of State Police fees and deposit those fees into the
14State Police Services Fund. The Department of State Police
15shall provide information concerning any criminal convictions,
16now or hereafter filed, against the individual.
17    (c) On October 1, 2007 or as soon thereafter as is
18reasonably practical, in the discretion of the Director of
19Public Health, and thereafter, an educational entity, other
20than a secondary school, conducting a nurse aide training
21program must initiate a fingerprint-based criminal history
22records check requested by the Department of Public Health
23prior to entry of an individual into the training program.
24    (d) On October 1, 2007 or as soon thereafter as is
25reasonably practical, in the discretion of the Director of
26Public Health, and thereafter, a health care employer who makes

 

 

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1a conditional offer of employment to an applicant for a
2position as an employee must initiate a fingerprint-based
3criminal history record check, requested by the Department of
4Public Health, on the applicant, if such a background check has
5not been previously conducted.
6    (e) When initiating a background check requested by the
7Department of Public Health, an educational entity or health
8care employer shall electronically submit to the Department of
9Public Health the student's, applicant's, or employee's social
10security number, demographics, disclosure, and authorization
11information in a format prescribed by the Department of Public
12Health within 2 working days after the authorization is
13secured. The student, applicant, or employee must have his or
14her fingerprints collected electronically and transmitted to
15the Department of State Police within 10 working days. The
16educational entity or health care employer must transmit all
17necessary information and fees to the livescan vendor and
18Department of State Police within 10 working days after receipt
19of the authorization. This information and the results of the
20criminal history record checks shall be maintained by the
21Department of Public Health's Health Care Worker Registry.
22    (f) A direct care employer may initiate a fingerprint-based
23background check requested by the Department of Public Health
24for any of its employees, but may not use this process to
25initiate background checks for residents. The results of any
26fingerprint-based background check that is initiated with the

 

 

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1Department as the requestor shall be entered in the Health Care
2Worker Registry.
3    (g) As long as the employee has had a fingerprint-based
4criminal history record check requested by the Department of
5Public Health and stays active on the Health Care Worker
6Registry, no further criminal history record checks shall be
7deemed necessary, as the Department of State Police shall
8notify the Department of Public Health of any additional
9convictions associated with the fingerprints previously
10submitted. Health care employers are required to check the
11Health Care Worker Registry before hiring an employee to
12determine that the individual has had a fingerprint-based
13record check requested by the Department of Public Health and
14has no disqualifying convictions or has been granted a waiver
15pursuant to Section 40 of this Act. If the individual has not
16had such a background check or is not active on the Health Care
17Worker Registry, then the health care employer must initiate a
18fingerprint-based record check requested by the Department of
19Public Health. If an individual is inactive on the Health Care
20Worker Registry, that individual is prohibited from being hired
21to work as a certified nurse aide if, since the individual's
22most recent completion of a competency test, there has been a
23period of 24 consecutive months during which the individual has
24not provided nursing or nursing-related services for pay. If
25the individual can provide proof of having retained his or her
26certification by not having a 24 consecutive month break in

 

 

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1service for pay, he or she may be hired as a certified nurse
2aide and that employment information shall be entered into the
3Health Care Worker Registry.
4    (h) On October 1, 2007 or as soon thereafter as is
5reasonably practical, in the discretion of the Director of
6Public Health, and thereafter, if the Department of State
7Police notifies the Department of Public Health that an
8employee has a new conviction of a disqualifying offense, based
9upon the fingerprints that were previously submitted, then (i)
10the Health Care Worker Registry shall notify the employee's
11last known employer of the offense, (ii) a record of the
12employee's disqualifying offense shall be entered on the Health
13Care Worker Registry, and (iii) the individual shall no longer
14be eligible to work as an employee unless he or she obtains a
15waiver pursuant to Section 40 of this Act.
16    (i) On October 1, 2007, or as soon thereafter, in the
17discretion of the Director of Public Health, as is reasonably
18practical, and thereafter, each direct care employer or its
19designee must provide an employment verification for each
20employee no less than annually. The direct care employer or its
21designee must log into the Health Care Worker Registry through
22a secure login. The health care employer or its designee must
23indicate employment and termination dates within 30 days after
24hiring or terminating an employee, as well as the employment
25category and type. Failure to comply with this subsection (i)
26constitutes a licensing violation. For health care employers

 

 

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1that are not licensed or certified, a fine of up to $500 may be
2imposed for failure to maintain these records. This information
3shall be used by the Department of Public Health to notify the
4last known employer of any disqualifying offenses that are
5reported by the Department of State Police.
6    (j) The Department of Public Health shall notify each
7health care employer or long-term care facility inquiring as to
8the information on the Health Care Worker Registry if the
9applicant or employee listed on the registry has a
10disqualifying offense and is therefore ineligible to work. In
11the event that an applicant or employee has a waiver for one or
12more disqualifying offenses pursuant to Section 40 of this Act
13and he or she is otherwise eligible to work, the Department of
14Public Health shall report that the applicant or employee is
15eligible to work and that additional information is available
16on the Health Care Worker Registry. The Department may report
17that the applicant or employee has received a waiver or has a
18waiver pursuant to Section 40 of this Act.
19    (k) The student, applicant, or employee must be notified of
20each of the following whenever a fingerprint-based criminal
21history records check is required:
22        (1) That the educational entity, health care employer,
23    or long-term care facility shall initiate a
24    fingerprint-based criminal history record check requested
25    by the Department of Public Health of the student,
26    applicant, or employee pursuant to this Act.

 

 

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1        (2) That the student, applicant, or employee has a
2    right to obtain a copy of the criminal records report that
3    indicates a conviction for a disqualifying offense and
4    challenge the accuracy and completeness of the report
5    through an established Department of State Police
6    procedure of Access and Review.
7        (3) That the applicant, if hired conditionally, may be
8    terminated if the criminal records report indicates that
9    the applicant has a record of a conviction of any of the
10    criminal offenses enumerated in Section 25, unless the
11    applicant obtains a waiver pursuant to Section 40 of this
12    Act.
13        (4) That the applicant, if not hired conditionally,
14    shall not be hired if the criminal records report indicates
15    that the applicant has a record of a conviction of any of
16    the criminal offenses enumerated in Section 25, unless the
17    applicant obtains a waiver pursuant to Section 40 of this
18    Act.
19        (5) That the employee shall be terminated if the
20    criminal records report indicates that the employee has a
21    record of a conviction of any of the criminal offenses
22    enumerated in Section 25.
23        (6) If, after the employee has originally been
24    determined not to have disqualifying offenses, the
25    employer is notified that the employee has a new
26    conviction(s) of any of the criminal offenses enumerated in

 

 

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1    Section 25, then the employee shall be terminated.
2    (l) A health care employer or long-term care facility may
3conditionally employ an applicant for up to 3 months pending
4the results of a fingerprint-based criminal history record
5check requested by the Department of Public Health.
6    (m) The Department of Public Health or an entity
7responsible for inspecting, licensing, certifying, or
8registering the health care employer or long-term care facility
9shall be immune from liability for notices given based on the
10results of a fingerprint-based criminal history record check.
11(Source: P.A. 95-120, eff. 8-13-07.)
 
12    (225 ILCS 46/40)
13    Sec. 40. Waiver.
14    (a) Any student, applicant, or employee listed on the
15Health Care Worker Registry may request a waiver of the
16prohibition against employment by:
17        (1) completing a waiver application on a form
18    prescribed by the Department of Public Health;
19        (2) providing a written explanation of each conviction
20    to include (i) what happened, (ii) how many years have
21    passed since the offense, (iii) the individuals involved,
22    (iv) the age of the applicant at the time of the offense,
23    and (v) any other circumstances surrounding the offense;
24    and
25        (3) providing official documentation showing that all

 

 

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1    fines have been paid, if applicable and except for in the
2    instance of payment of court-imposed fines or restitution
3    in which the applicant is adhering to a payment schedule,
4    and the date probation or parole was satisfactorily
5    completed, if applicable.
6    (b) The applicant may, but is not required to, submit
7employment and character references and any other evidence
8demonstrating the ability of the applicant or employee to
9perform the employment responsibilities competently and
10evidence that the applicant or employee does not pose a threat
11to the health or safety of residents, patients, or clients.
12    (c) The Department of Public Health may, at the discretion
13of the Director of Public Health, grant a waiver to an
14applicant, student, or employee listed on the registry. The
15Department of Public Health shall must inform health care
16employers if a waiver is being sought by entering a record on
17the Health Care Worker Registry that a waiver is pending and
18must act upon the waiver request within 30 days of receipt of
19all necessary information, as defined by rule. The Department
20of Public Health shall send an applicant, student, or employee
21written notification of its decision whether to grant a waiver
22Except in cases where a rehabilitation waiver is granted, a
23letter shall be sent to the applicant notifying the applicant
24that he or she has received an automatic waiver.
25    (d) An individual shall not be employed from the time that
26the employer receives a notification from the Department of

 

 

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1Public Health based upon the results of a fingerprint-based
2criminal history records check containing disqualifying
3conditions until the time that the individual receives a
4waiver.
5    (e) The entity responsible for inspecting, licensing,
6certifying, or registering the health care employer and the
7Department of Public Health shall be immune from liability for
8any waivers granted under this Section.
9    (f) A health care employer is not obligated to employ or
10offer permanent employment to an applicant, or to retain an
11employee who is granted a waiver under this Section.
12(Source: P.A. 95-120, eff. 8-13-07; 95-545, eff. 8-28-07;
1395-876, eff. 8-21-08; 96-565, eff. 8-18-09.)
 
14    (225 ILCS 46/40.1 new)
15    Sec. 40.1. Health Care Worker Registry working group.
16    (a) The Office of the Governor shall establish a working
17group regarding the activities under this Act, with the
18following goals:
19        (1) to evaluate and monitor the success of health care
20    waivers under Section 40 in creating job opportunity for
21    people with criminal records; and
22        (2) to identify and recommend changes to the waiver
23    application and implementation process to reduce barriers
24    for applicants or employees.
25    In order to ensure that the working group is fully

 

 

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1informed, the Department of Public Health and the Governor's
2Office shall provide the working group with any relevant
3aggregate data currently available that is related to the
4waiver process and its effectiveness. The working group shall
5identify any gaps in information currently collected that would
6inform the working group's efforts and make recommendations to
7the Governor's Office and the General Assembly about what
8additional data should be collected to evaluate and monitor the
9success of the waiver process by July 1, 2017.
10    (b) The working group shall be comprised of representatives
11from advocacy and community-based organizations, individuals
12directly impacted by the waiver process, industry
13representatives, members of the General Assembly, and
14representatives from the Department of Public Health and the
15Office of the Governor. The working group shall meet at least 2
16times each year.
 
17    Section 99. Effective date. This Act takes effect upon
18becoming law.".