Full Text of HB2531 94th General Assembly
HB2531enr 94TH GENERAL ASSEMBLY
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HB2531 Enrolled |
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| AN ACT concerning regulation.
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| Be it enacted by the People of the State of Illinois,
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| represented in the General Assembly:
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| Section 5. The Health Care Worker Background Check Act is | 5 |
| amended by changing Sections 5, 10, 15, 25, 30, and 40 and by | 6 |
| adding Section 70 as follows:
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| (225 ILCS 46/5)
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| Sec. 5. Purpose. The General Assembly finds that it is in | 9 |
| the public
interest to protect the most frail and disabled | 10 |
| citizens of the State of
Illinois from possible harm
through a | 11 |
| criminal background check of certain health care workers and | 12 |
| all employees of licensed and certified long-term care | 13 |
| facilities who have or may have contact with residents or have | 14 |
| access to the living quarters or the financial, medical, or | 15 |
| personal records of residents .
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| (Source: P.A. 89-197, eff. 7-21-95.)
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| (225 ILCS 46/10)
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| Sec. 10. Applicability. This Act applies to all individuals | 19 |
| employed or
retained by a health care employer as home health | 20 |
| care aides, nurse aides,
personal care assistants, private duty | 21 |
| nurse aides, day
training personnel, or an individual working | 22 |
| in any similar health-related
occupation where he or she | 23 |
| provides direct care or has access to long-term care residents | 24 |
| or the living quarters or financial, medical, or personal | 25 |
| records of long-term care residents. This Act also applies to | 26 |
| all employees of licensed or certified long-term care | 27 |
| facilities who have or may have contact with residents or | 28 |
| access to the living quarters or the financial, medical, or | 29 |
| personal records of residents .
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| (Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)
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| (225 ILCS 46/15)
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| Sec. 15. Definitions. For the purposes of this Act, the | 3 |
| following
definitions apply:
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| "Applicant" means an individual seeking employment with a | 5 |
| health care
employer who has received a bona fide conditional | 6 |
| offer of employment.
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| "Conditional offer of employment" means a bona fide offer | 8 |
| of employment by a
health care employer to an applicant, which | 9 |
| is contingent upon the receipt of a
report from the Department | 10 |
| of State Police indicating that the applicant does
not have a | 11 |
| record of conviction of any of the criminal offenses enumerated | 12 |
| in
Section 25.
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| "Direct care" means the provision of nursing care or | 14 |
| assistance with feeding,
dressing, movement, bathing, | 15 |
| toileting, or other personal needs. The entity
responsible for | 16 |
| inspecting and licensing, certifying, or registering the
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| health care employer may, by administrative rule, prescribe | 18 |
| guidelines for
interpreting this definition with regard to the | 19 |
| health care employers that it
licenses.
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| "Health care employer" means:
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| (1) the owner or licensee of any of the
following:
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| (i) a community living facility, as defined in the | 23 |
| Community Living
Facilities Act;
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| (ii) a life care facility, as defined in the Life | 25 |
| Care Facilities Act;
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| (iii) a long-term care facility, as defined in the | 27 |
| Nursing Home Care Act;
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| (iv) a home health agency, as defined in the Home | 29 |
| Health Agency Licensing
Act;
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| (v) a full hospice, as defined in the Hospice | 31 |
| Program Licensing Act;
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| (vi) a hospital, as defined in the Hospital | 33 |
| Licensing Act;
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| (vii) a community residential alternative, as | 35 |
| defined in the Community
Residential Alternatives | 36 |
| Licensing Act;
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| (viii) a nurse agency, as defined in the Nurse | 2 |
| Agency Licensing Act;
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| (ix) a respite care provider, as defined in the | 4 |
| Respite Program Act;
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| (ix-a) an establishment licensed under the | 6 |
| Assisted Living and Shared
Housing Act;
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| (x) a supportive living program, as defined in the | 8 |
| Illinois Public Aid
Code;
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| (xi) early childhood intervention programs as | 10 |
| described in 59 Ill. Adm.
Code 121;
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| (xii) the University of Illinois Hospital, | 12 |
| Chicago;
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| (xiii) programs funded by the Department on Aging | 14 |
| through the Community
Care Program;
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| (xiv) programs certified to participate in the | 16 |
| Supportive Living Program
authorized pursuant to | 17 |
| Section 5-5.01a of the Illinois Public Aid Code;
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| (xv) programs listed by the Emergency Medical | 19 |
| Services (EMS) Systems Act
as
Freestanding Emergency | 20 |
| Centers;
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| (xvi) locations licensed under the Alternative | 22 |
| Health Care Delivery
Act;
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| (2) a day training program certified by the Department | 24 |
| of Human Services;
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| (3) a community integrated living arrangement operated | 26 |
| by a community
mental health and developmental service | 27 |
| agency, as defined in the
Community-Integrated Living | 28 |
| Arrangements Licensing and Certification Act; or
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| (4) the State Long Term Care Ombudsman Program, | 30 |
| including any regional long term care ombudsman programs | 31 |
| under Section 4.04 of the Illinois Act on the Aging, only | 32 |
| for the purpose of securing background checks.
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| "Initiate" means the obtaining of the authorization for a | 34 |
| record check from
a student, applicant, or employee. The | 35 |
| educational entity or health care
employer or its designee | 36 |
| shall transmit all necessary information and fees
to the |
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| Illinois State Police within 10 working days after receipt of | 2 |
| the
authorization.
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| "Long-term care facility" means a facility licensed by the | 4 |
| State or certified under federal law as a long-term care | 5 |
| facility, a supportive living facility, an assisted living | 6 |
| establishment, or a shared housing establishment or registered | 7 |
| as a board and care home.
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| (Source: P.A. 92-16, eff. 6-28-01; 93-878, eff. 1-1-05.)
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| (225 ILCS 46/25)
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| Sec. 25. Persons ineligible to be hired by health care | 11 |
| employers and long-term care facilities .
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| (a) After January 1, 1996, or January 1, 1997, as | 13 |
| applicable, no
health care employer shall knowingly hire, | 14 |
| employ, or retain any
individual in a position with duties | 15 |
| involving direct care for clients,
patients, or residents, and | 16 |
| no long-term care facility shall knowingly hire, employ, or | 17 |
| retain any individual in a position with duties that involve or | 18 |
| may involve contact with residents or access to the living | 19 |
| quarters or the financial, medical, or personal records of | 20 |
| residents, who has been convicted of committing or attempting | 21 |
| to
commit one or more of the offenses defined in Sections | 22 |
| 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, | 23 |
| 10-1, 10-2, 10-3, 10-3.1, 10-4,
10-5, 10-7, 11-6, 11-9.1, | 24 |
| 11-19.2, 11-20.1, 12-1, 12-2, 12-3, 12-3.1,
12-3.2, 12-4, | 25 |
| 12-4.1, 12-4.2, 12-4.3, 12-4.4, 12-4.5, 12-4.6, 12-4.7, | 26 |
| 12-7.4,
12-11, 12-13, 12-14, 12-14.1, 12-15, 12-16, 12-19, | 27 |
| 12-21, 12-21.6, 12-32,
12-33, 16-1, 16-1.3,
16A-3, 17-3, 18-1, | 28 |
| 18-2, 18-3, 18-4, 18-5, 19-1, 19-3, 19-4, 20-1, 20-1.1,
24-1, | 29 |
| 24-1.2, 24-1.5, or 33A-2 of the Criminal Code of 1961; those | 30 |
| provided in
Section 4 of the Wrongs to Children Act; those | 31 |
| provided in Section 53 of the
Criminal Jurisprudence Act; those | 32 |
| defined in Section 5, 5.1, 5.2, 7, or 9 of
the Cannabis Control | 33 |
| Act; or those defined in Sections 401, 401.1, 404, 405,
405.1, | 34 |
| 407, or 407.1 of the Illinois Controlled Substances Act, unless | 35 |
| the
applicant or employee obtains a waiver pursuant to Section |
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| 40.
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| (a-1) After January 1, 2004, no health care employer shall | 3 |
| knowingly hire
any individual in a position with duties | 4 |
| involving direct care for clients,
patients, or residents , and | 5 |
| no long-term care facility shall knowingly hire any individual | 6 |
| in a position with duties that involve or may involve contact | 7 |
| with residents or access to the living quarters or the | 8 |
| financial, medical, or personal records of residents, who has | 9 |
| (i) been convicted of committing or attempting
to commit one or | 10 |
| more of the offenses defined in Section 12-3.3, 12-4.2-5,
16-2, | 11 |
| 16G-15, 16G-20, 18-5, 20-1.2, 24-1.1, 24-1.2-5, 24-1.6, | 12 |
| 24-3.2, or 24-3.3
of the Criminal Code of 1961; Section 4, 5, | 13 |
| 6, 8, or 17.02 of the Illinois
Credit Card and Debit Card Act; | 14 |
| or Section 5.1 of the Wrongs to Children Act;
or (ii) violated | 15 |
| Section 10-5 of the Nursing and Advanced Practice Nursing Act.
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| A UCIA criminal history record check need not be redone for | 17 |
| health care
employees who have been continuously employed by a | 18 |
| health care employer since
January 1, 2004, but nothing in this | 19 |
| Section prohibits a health care employer
from initiating a | 20 |
| criminal history check for these employees.
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| A health care employer is not required to retain an | 22 |
| individual in a position
with duties involving direct care for | 23 |
| clients, patients, or residents , and no long-term care facility | 24 |
| is required to retain an individual in a position with duties | 25 |
| that involve or may involve contact with residents or access to | 26 |
| the living quarters or the financial, medical, or personal | 27 |
| records of residents, who has
been convicted of committing or | 28 |
| attempting to commit one or more of
the offenses enumerated in | 29 |
| this subsection.
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| (b) A health care employer shall not hire, employ, or | 31 |
| retain any
individual in a position with duties involving | 32 |
| direct care of clients,
patients, or residents , and no | 33 |
| long-term care facility shall knowingly hire, employ, or retain | 34 |
| any individual in a position with duties that involve or may | 35 |
| involve contact with residents or access to the living quarters | 36 |
| or the financial, medical, or personal records of residents, if |
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| the health care employer becomes aware that the
individual has | 2 |
| been convicted in another state of committing or attempting to
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| commit an offense that has the same or similar elements as an | 4 |
| offense listed in
subsection (a) or (a-1), as verified by court | 5 |
| records, records from a state
agency, or an FBI criminal | 6 |
| history record check. This shall not be construed to
mean that | 7 |
| a health care employer has an obligation to conduct a criminal
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| history records check in other states in which an employee has | 9 |
| resided.
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| (Source: P.A. 93-224, eff. 7-18-03.)
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| (225 ILCS 46/30)
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| Sec. 30. Non-fingerprint based UCIA criminal records | 13 |
| check.
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| (a) Beginning on January 1, 1997,
an educational entity, | 15 |
| other than a secondary school, conducting a nurse aide
training | 16 |
| program must initiate
a UCIA criminal history records
check | 17 |
| prior to entry of an individual into the training program. A | 18 |
| nurse aide
seeking to be included on the nurse aide registry | 19 |
| shall authorize
the Department of Public Health
or its
designee | 20 |
| that tests nurse aides or the health care employer or its | 21 |
| designee
to
request a criminal history record check pursuant to | 22 |
| the Uniform Conviction
Information Act (UCIA) for each nurse | 23 |
| aide applying for inclusion on the State
nurse
aide registry. | 24 |
| Any nurse aide not
submitting the required authorization and
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| information for the record check will not be added to the State | 26 |
| nurse
aide registry. A nurse aide will not be entered on the | 27 |
| State nurse aide
registry if the report from the Department of | 28 |
| State Police indicates that the
nurse aide has a record of | 29 |
| conviction of any of the criminal offenses
enumerated in | 30 |
| Section 25 unless the nurse aide's identity is validated and
it | 31 |
| is
determined that the nurse aide does
not have a disqualifying | 32 |
| criminal history record
based upon a
fingerprint-based records | 33 |
| check pursuant to Section 35 or the
nurse aide receives a | 34 |
| waiver pursuant to Section 40.
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| (b) The Department of Public Health shall notify each |
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| health care
employer inquiring as
to the information on the | 2 |
| State nurse aide registry of the date of the nurse
aide's last | 3 |
| UCIA criminal history record check. If it has been more than | 4 |
| one
year since the records check, the health care employer must | 5 |
| initiate or have
initiated on his or her behalf a UCIA
criminal | 6 |
| history record check for the nurse
aide pursuant to this | 7 |
| Section. The health care employer must send a copy of
the | 8 |
| results of the record check to the State nurse aide registry | 9 |
| for
an individual employed as a nurse aide.
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| (c) Beginning January 1, 1996, a health care employer who | 11 |
| makes a
conditional offer of employment to an applicant other | 12 |
| than a nurse
aide for position with duties that involve direct | 13 |
| care for clients, patients,
or residents must initiate or have | 14 |
| initiated on his or her behalf a UCIA
criminal history record | 15 |
| check for that
applicant.
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| (d) No later than January 1, 1997, a health care employer | 17 |
| must initiate or
have initiated on his or her behalf a
UCIA | 18 |
| criminal history record check for all
employees other than | 19 |
| those enumerated in subsections (a), (b), and (c) of this
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| Section with duties that involve direct care for clients, | 21 |
| patients, or
residents.
A health care employer having actual | 22 |
| knowledge from a source other than a
non-fingerprint check that | 23 |
| an employee has been
convicted of committing or attempting to | 24 |
| commit one of the offenses enumerated
in Section 25 of this Act | 25 |
| must initiate a fingerprint-based background check
within 10
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| working days of acquiring that knowledge. The employer may | 27 |
| continue to
employ
that individual in a direct
care position, | 28 |
| may reassign that individual to a non-direct care position, or
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| may suspend the individual until the results of the | 30 |
| fingerprint-based
background check are received.
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| (d-5) Beginning January 1, 2006, each long-term care | 32 |
| facility operating in the State must initiate, or
have | 33 |
| initiated on its behalf, a
criminal history record check for | 34 |
| all
employees hired on or after January 1, 2006 with duties | 35 |
| that involve or may involve contact with residents or access to | 36 |
| the living quarters or the financial, medical, or personal |
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| records of residents.
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| (e) The request for a UCIA criminal history record check | 3 |
| must be in the form
prescribed by the Department of State
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| Police.
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| (f) The applicant or employee must be notified of the | 6 |
| following whenever a
non-fingerprint check is made:
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| (i) that the health care employer shall request or have | 8 |
| requested on his
or her behalf a UCIA criminal history
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| record check pursuant to this Act;
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| (ii) that the applicant or employee has a right to | 11 |
| obtain a copy of the
criminal records report from the | 12 |
| health care employer, challenge the
accuracy and | 13 |
| completeness of the report,
and request a waiver under | 14 |
| Section 40 of this Act;
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| (iii) that the applicant, if hired conditionally, may | 16 |
| be terminated if the
criminal records report indicates that | 17 |
| the applicant has a record of conviction
of any of the | 18 |
| criminal offenses enumerated in Section 25 unless the | 19 |
| applicant's
identity is validated and it
is determined that | 20 |
| the applicant does
not have a
disqualifying criminal | 21 |
| history record
based on a fingerprint-based records check | 22 |
| pursuant to
Section 35.
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| (iv) that the applicant, if not hired conditionally, | 24 |
| shall not be hired if
the criminal records report indicates | 25 |
| that the applicant has a record of
conviction of any of the | 26 |
| criminal offenses enumerated in Section 25 unless the
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| applicant's record is cleared based on a fingerprint-based | 28 |
| records check
pursuant to Section 35.
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| (v) that the employee may be terminated if the criminal | 30 |
| records report
indicates that the employee has a record of | 31 |
| conviction of any of the criminal
offenses enumerated in | 32 |
| Section 25 unless the employee's
record is cleared
based on | 33 |
| a fingerprint-based records check pursuant to Section 35.
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| (g) A health care employer may conditionally employ an | 35 |
| applicant to provide
direct care
for
up to 3 months pending the | 36 |
| results of a UCIA criminal history record check.
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| (Source: P.A. 91-598, eff. 1-1-00.)
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| (225 ILCS 46/40)
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| Sec. 40. Waiver.
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| (a) An applicant, employee, or nurse aide may request a | 5 |
| waiver of the
prohibition against
employment by submitting the | 6 |
| following information to the entity responsible
for | 7 |
| inspecting, licensing, certifying, or registering the health | 8 |
| care employer
within 5 working days after the receipt of the | 9 |
| criminal records
report:
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| (1) Information necessary to initiate a | 11 |
| fingerprint-based UCIA
criminal records check in a form and | 12 |
| manner prescribed by the
Department of State Police; and
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| (2) The fee for a fingerprint-based UCIA criminal | 14 |
| records
check, which shall not exceed the actual cost of | 15 |
| the record check.
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| (a-5) The entity responsible for inspecting, licensing, | 17 |
| certifying, or
registering the health care employer may accept | 18 |
| the results of the
fingerprint-based UCIA criminal records | 19 |
| check instead of the items required by
paragraphs (1) and (2) | 20 |
| of subsection (a).
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| (b) The entity responsible for inspecting, licensing, | 22 |
| certifying, or
registering the health care employer may grant a | 23 |
| waiver based upon any
mitigating circumstances, which may | 24 |
| include, but need not be limited to:
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| (1) The age of the individual at which the crime was | 26 |
| committed;
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| (2) The circumstances surrounding the crime;
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| (3) The length of time since the conviction;
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| (4) The applicant or employee's criminal history since | 30 |
| the conviction;
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| (5) The applicant or employee's work history;
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| (6) The applicant or employee's current employment | 33 |
| references;
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| (7) The applicant or employee's character references;
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| (8) Nurse aide registry records; and
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| (9) Other evidence demonstrating the ability of the | 2 |
| applicant or employee
to perform the employment | 3 |
| responsibilities competently and evidence that the
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| applicant or employee does not pose a threat to the health | 5 |
| or safety of
residents, patients, or clients.
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| (c) The entity responsible for inspecting, licensing, | 7 |
| certifying, or
registering a health care employer must inform | 8 |
| the health care employer
if a waiver is being sought and must | 9 |
| act upon the waiver request within 30 days
of
receipt of all | 10 |
| necessary information, as defined by rule.
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| (d) An individual shall not be employed in a direct care | 12 |
| position from the
time that the employer receives the results | 13 |
| of a non-fingerprint check
containing disqualifying conditions | 14 |
| until the time that the individual receives
a waiver from the | 15 |
| Department. If the individual challenges the
results of the
| 16 |
| non-fingerprint check, the employer may continue to employ the | 17 |
| individual in a
direct care position if the individual presents | 18 |
| convincing evidence to the
employer that the non-fingerprint | 19 |
| check is invalid. If the individual
challenges the results of | 20 |
| the non-fingerprint check, his or her identity shall
be | 21 |
| validated by a fingerprint-based records check in accordance | 22 |
| with Section
35.
| 23 |
| (e) The entity responsible for inspecting, licensing,
| 24 |
| certifying, or
registering the health care employer shall be | 25 |
| immune from liability for any
waivers granted under this | 26 |
| Section.
| 27 |
| (f) A health care employer is not obligated to employ or | 28 |
| offer
permanent
employment to an applicant, or to retain an | 29 |
| employee who is granted a waiver
under this Section.
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| (Source: P.A. 91-598, eff. 1-1-00.)
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| (225 ILCS 46/70 new) | 32 |
| Sec. 70. Centers for Medicare and Medicaid Services (CMMS) | 33 |
| grant. | 34 |
| (a) In this Section:
| 35 |
| "Centers for Medicare and Medicaid Services (CMMS) grant" |
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| means the grant awarded to and distributed by the Department of | 2 |
| Public Health to enhance the conduct of criminal history | 3 |
| records checks of certain health care employees. The CMMS grant | 4 |
| is authorized by Section 307 of the federal Medicare | 5 |
| Prescription Drug, Improvement, and Modernization Act of 2003, | 6 |
| which establishes the framework for a program to evaluate | 7 |
| national and state background checks on prospective employees | 8 |
| with direct access to patients of long-term care facilities or | 9 |
| providers. | 10 |
| "Selected health care employer" means any of the following | 11 |
| selected to participate in the CMMS grant: | 12 |
| (1) a community living facility as defined in the | 13 |
| Community Living Facility Act; | 14 |
| (2) a long-term care facility as defined in the Nursing | 15 |
| Home Care Act; | 16 |
| (3) a home health agency as defined in the Home Health | 17 |
| Agency Licensing Act; | 18 |
| (4) a full hospice as defined in the Hospice Licensing | 19 |
| Act; | 20 |
| (5) an establishment licensed under the Assisted | 21 |
| Living and Shared Housing Act; | 22 |
| (6) a supportive living facility as defined in the | 23 |
| Illinois Public Aid Code; | 24 |
| (7) a day training program certified by the Department | 25 |
| of Human Services; or | 26 |
| (8) a community integrated living arrangement operated | 27 |
| by a community mental health and developmental service | 28 |
| agency as defined in the Community Integrated Living | 29 |
| Arrangements Licensing and Certification Act.
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| (b) Selected health care employers shall be phased in to | 31 |
| participate in the CMMS grant between January 1, 2006 and | 32 |
| January 1, 2007, as prescribed by the Department of Public | 33 |
| Health by rule. | 34 |
| (c) With regards to individuals hired on or after January | 35 |
| 1, 2006 who have direct access to residents, patients, or | 36 |
| clients of the selected health care employer, selected health |
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LRB094 09883 RAS 40141 b |
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| care employers must comply with Section 25 of this Act. | 2 |
| "Individuals who have direct access" includes, but is not | 3 |
| limited to, (i) direct care workers as described in subsection | 4 |
| (a) of Section 25; (ii) individuals licensed by the Department | 5 |
| of Financial and Professional Regulation, such as nurses, | 6 |
| social workers, physical therapists, occupational therapists, | 7 |
| and pharmacists; (iii) individuals who provide services on | 8 |
| site, through contract; and (iv) non-direct care workers, such | 9 |
| as those who work in environmental services, food service, and | 10 |
| administration. | 11 |
| "Individuals who have direct access" does not include | 12 |
| physicians or volunteers. | 13 |
| The Department of Public Health may further define | 14 |
| "individuals who have direct access" by rule.
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| (d) Each applicant seeking employment in a position | 16 |
| described in subsection (c) of this Section with a selected | 17 |
| health care employer shall, as a condition of employment, have | 18 |
| his or her fingerprints submitted to the Department of State | 19 |
| Police in an electronic format that complies with the form and | 20 |
| manner for requesting and furnishing criminal history record | 21 |
| information by the Department of State Police and the Federal | 22 |
| Bureau of Investigation criminal history record databases now | 23 |
| and hereafter filed. The Department of State Police shall | 24 |
| forward the fingerprints to the Federal Bureau of Investigation | 25 |
| for a national criminal history records check. The Department | 26 |
| of State Police shall charge a fee for conducting the criminal | 27 |
| history records check, which shall not exceed the actual cost | 28 |
| of the records check and shall be deposited into the State | 29 |
| Police Services Fund. The Department of State Police shall | 30 |
| furnish, pursuant to positive identification, records of | 31 |
| Illinois convictions to the Department of Public Health. | 32 |
| (e) A selected health care employer who makes a conditional | 33 |
| offer of employment to an applicant shall: | 34 |
| (1) ensure that the applicant has complied with the | 35 |
| fingerprinting requirements of this Section; | 36 |
| (2) complete documentation relating to any criminal |
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HB2531 Enrolled |
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LRB094 09883 RAS 40141 b |
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| 1 |
| history record, as revealed by the applicant, as prescribed | 2 |
| by rule by the Department of Public Health; | 3 |
| (3) complete documentation of the applicant's personal | 4 |
| identifiers as prescribed by rule by the Department of | 5 |
| Public Health; and | 6 |
| (4) provide supervision, as prescribed by rule by the | 7 |
| licensing agency, if the applicant is hired and allowed to | 8 |
| work prior to the results of the criminal history records | 9 |
| check being obtained. | 10 |
| (f) A selected health care employer having actual knowledge | 11 |
| from a source that an individual with direct access to a | 12 |
| resident, patient, or client has been convicted of committing | 13 |
| or attempting to commit one of the offenses enumerated in | 14 |
| Section 25 of this Act shall contact the licensing agency or | 15 |
| follow other instructions as prescribed by administrative | 16 |
| rule. | 17 |
| (g) A fingerprint-based criminal history records check | 18 |
| submitted in accordance with subsection (d) of this Section | 19 |
| must be submitted as a fee applicant inquiry in the form and | 20 |
| manner prescribed by the Department of State Police.
| 21 |
| (h) This Section shall be inapplicable upon the conclusion | 22 |
| of the CMMS grant.
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