Public Act 095-0545
 
SB1368 Enrolled LRB095 04137 DRJ 26714 b

    AN ACT concerning State government.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Department of Human Services Act is amended
by adding Section 1-17 as follows:
 
    (20 ILCS 1305/1-17 new)
    Sec. 1-17. Inspector General.
    (a) Appointment; powers and duties. The Governor shall
appoint, and the Senate shall confirm, an Inspector General.
The Inspector General shall be appointed for a term of 4 years
and shall function within the Department of Human Services and
report to the Secretary of Human Services and the Governor. The
Inspector General shall function independently within the
Department of Human Services with respect to the operations of
the office, including the performance of investigations and
issuance of findings and recommendations. The appropriation
for the Office of Inspector General shall be separate from the
overall appropriation for the Department of Human Services. The
Inspector General shall investigate reports of suspected abuse
or neglect (as those terms are defined by the Department of
Human Services) of patients or residents in any mental health
or developmental disabilities facility operated by the
Department of Human Services and shall have authority to
investigate and take immediate action on reports of abuse or
neglect of recipients, whether patients or residents, in any
mental health or developmental disabilities facility or
program that is licensed or certified by the Department of
Human Services (as successor to the Department of Mental Health
and Developmental Disabilities) or that is funded by the
Department of Human Services (as successor to the Department of
Mental Health and Developmental Disabilities) and is not
licensed or certified by any agency of the State. The Inspector
General shall also have the authority to investigate alleged or
suspected cases of abuse, neglect, and exploitation of adults
with disabilities living in domestic settings in the community
pursuant to the Abuse of Adults with Disabilities Intervention
Act (20 ILCS 2435/). At the specific, written request of an
agency of the State other than the Department of Human Services
(as successor to the Department of Mental Health and
Developmental Disabilities), the Inspector General may
cooperate in investigating reports of abuse and neglect of
persons with mental illness or persons with developmental
disabilities. The Inspector General shall have no supervision
over or involvement in routine, programmatic, licensure, or
certification operations of the Department of Human Services or
any of its funded agencies.
    The Inspector General shall promulgate rules establishing
minimum requirements for reporting allegations of abuse and
neglect and initiating, conducting, and completing
investigations. The promulgated rules shall clearly set forth
that in instances where 2 or more State agencies could
investigate an allegation of abuse or neglect, the Inspector
General shall not conduct an investigation that is redundant to
an investigation conducted by another State agency. The rules
shall establish criteria for determining, based upon the nature
of the allegation, the appropriate method of investigation,
which may include, but need not be limited to, site visits,
telephone contacts, or requests for written responses from
agencies. The rules shall also clarify how the Office of the
Inspector General shall interact with the licensing unit of the
Department of Human Services in investigations of allegations
of abuse or neglect. Any allegations or investigations of
reports made pursuant to this Act shall remain confidential
until a final report is completed. The resident or patient who
allegedly was abused or neglected and his or her legal guardian
shall be informed by the facility or agency of the report of
alleged abuse or neglect. Final reports regarding
unsubstantiated or unfounded allegations shall remain
confidential, except that final reports may be disclosed
pursuant to Section 6 of the Abused and Neglected Long Term
Care Facility Residents Reporting Act.
    For purposes of this Section, "required reporter" means a
person who suspects, witnesses, or is informed of an allegation
of abuse and neglect at a State-operated facility or a
community agency and who is either: (i) a person employed at a
State-operated facility or a community agency on or off site
who is providing or monitoring services to an individual or
individuals or is providing services to the State-operated
facility or the community agency; or (ii) any person or
contractual agent of the Department of Human Services involved
in providing, monitoring, or administering mental health or
developmental services, including, but not limited to, payroll
personnel, contractors, subcontractors, and volunteers. A
required reporter shall report the allegation of abuse or
neglect, or cause a report to be made, to the Office of the
Inspector General (OIG) Hotline no later than 4 hours after the
initial discovery of the incident of alleged abuse or neglect.
A required reporter as defined in this paragraph who willfully
fails to comply with the reporting requirement is guilty of a
Class A misdemeanor.
    For purposes of this Section, "State-operated facility"
means a mental health facility or a developmental disability
facility as defined in Sections 1-114 and 1-107 of the Mental
Health and Developmental Disabilities Code.
    For purposes of this Section, "community agency" or
"agency" means any community entity or program providing mental
health or developmental disabilities services that is
licensed, certified, or funded by the Department of Human
Services and is not licensed or certified by an other human
services agency of the State (for example, the Department of
Public Health, the Department of Children and Family Services,
or the Department of Healthcare and Family Services).
    When the Office of the Inspector General has substantiated
a case of abuse or neglect, the Inspector General shall include
in the final report any mitigating or aggravating circumstances
that were identified during the investigation. Upon
determination that a report of neglect is substantiated, the
Inspector General shall then determine whether such neglect
rises to the level of egregious neglect.
    (b) Department of State Police. The Inspector General
shall, within 24 hours after determining that a reported
allegation of suspected abuse or neglect indicates that any
possible criminal act has been committed or that special
expertise is required in the investigation, immediately notify
the Department of State Police or the appropriate law
enforcement entity. The Department of State Police shall
investigate any report from a State-operated facility
indicating a possible murder, rape, or other felony. All
investigations conducted by the Inspector General shall be
conducted in a manner designed to ensure the preservation of
evidence for possible use in a criminal prosecution.
    (b-5) Preliminary report of investigation; facility or
agency response. The Inspector General shall make a
determination to accept or reject a preliminary report of the
investigation of alleged abuse or neglect based on established
investigative procedures. Notice of the Inspector General's
determination must be given to the person who claims to be the
victim of the abuse or neglect, to the person or persons
alleged to have been responsible for abuse or neglect, and to
the facility or agency. The facility or agency or the person or
persons alleged to have been responsible for the abuse or
neglect and the person who claims to be the victim of the abuse
or neglect may request clarification or reconsideration based
on additional information. For cases where the allegation of
abuse or neglect is substantiated, the Inspector General shall
require the facility or agency to submit a written response.
The written response from a facility or agency shall address in
a concise and reasoned manner the actions that the agency or
facility will take or has taken to protect the resident or
patient from abuse or neglect, prevent reoccurrences, and
eliminate problems identified and shall include implementation
and completion dates for all such action.
    (c) Inspector General's report; facility's or agency's
implementation reports. The Inspector General shall, within 10
calendar days after the transmittal date of a completed
investigation where abuse or neglect is substantiated or
administrative action is recommended, provide a complete
report on the case to the Secretary of Human Services and to
the agency in which the abuse or neglect is alleged to have
happened. The complete report shall include a written response
from the agency or facility operated by the State to the
Inspector General that addresses in a concise and reasoned
manner the actions that the agency or facility will take or has
taken to protect the resident or patient from abuse or neglect,
prevent reoccurrences, and eliminate problems identified and
shall include implementation and completion dates for all such
action. The Secretary of Human Services shall accept or reject
the response and establish how the Department will determine
whether the facility or program followed the approved response.
The Secretary may require Department personnel to visit the
facility or agency for training, technical assistance,
programmatic, licensure, or certification purposes.
Administrative action, including sanctions, may be applied
should the Secretary reject the response or should the facility
or agency fail to follow the approved response. Within 30 days
after the Secretary has approved a response, the facility or
agency making the response shall provide an implementation
report to the Inspector General on the status of the corrective
action implemented. Within 60 days after the Secretary has
approved the response, the facility or agency shall send notice
of the completion of the corrective action or shall send an
updated implementation report. The facility or agency shall
continue sending updated implementation reports every 60 days
until the facility or agency sends a notice of the completion
of the corrective action. The Inspector General shall review
any implementation plan that takes more than 120 days. The
Inspector General shall monitor compliance through a random
review of completed corrective actions. This monitoring may
include, but need not be limited to, site visits, telephone
contacts, or requests for written documentation from the
facility or agency to determine whether the facility or agency
is in compliance with the approved response. The facility or
agency shall inform the resident or patient and the legal
guardian whether the reported allegation was substantiated,
unsubstantiated, or unfounded. There shall be an appeals
process for any person or agency that is subject to any action
based on a recommendation or recommendations.
    (d) Sanctions. The Inspector General may recommend to the
Departments of Public Health and Human Services sanctions to be
imposed against mental health and developmental disabilities
facilities under the jurisdiction of the Department of Human
Services for the protection of residents, including
appointment of on-site monitors or receivers, transfer or
relocation of residents, and closure of units. The Inspector
General may seek the assistance of the Attorney General or any
of the several State's Attorneys in imposing such sanctions.
Whenever the Inspector General issues any recommendations to
the Secretary of Human Services, the Secretary shall provide a
written response.
    (e) Training programs. The Inspector General shall
establish and conduct periodic training programs for
Department of Human Services employees and community agency
employees concerning the prevention and reporting of neglect
and abuse.
    (f) Access to facilities. The Inspector General shall at
all times be granted access to any mental health or
developmental disabilities facility operated by the Department
of Human Services, shall establish and conduct unannounced site
visits to those facilities at least once annually, and shall be
granted access, for the purpose of investigating a report of
abuse or neglect, to the records of the Department of Human
Services and to any facility or program funded by the
Department of Human Services that is subject under the
provisions of this Section to investigation by the Inspector
General for a report of abuse or neglect.
    (g) Other investigations. Nothing in this Section shall
limit investigations by the Department of Human Services that
may otherwise be required by law or that may be necessary in
that Department's capacity as the central administrative
authority responsible for the operation of State mental health
and developmental disability facilities.
    (g-5) Health care worker registry. After notice and an
opportunity for a hearing that is separate and distinct from
the Office of the Inspector General's appeals process as
implemented under subsection (c) of this Section, the Inspector
General shall report to the Department of Public Health's
health care worker registry under Section 3-206.01 of the
Nursing Home Care Act the identity of individuals against whom
there has been a substantiated finding of physical or sexual
abuse or egregious neglect of a service recipient.
    Nothing in this subsection shall diminish or impair the
rights of a person who is a member of a collective bargaining
unit pursuant to the Illinois Public Labor Relations Act or
pursuant to any federal labor statute. An individual who is a
member of a collective bargaining unit as described above shall
not be reported to the Department of Public Health's health
care worker registry until the exhaustion of that individual's
grievance and arbitration rights, or until 3 months after the
initiation of the grievance process, whichever occurs first,
provided that the Department of Human Services' hearing under
this subsection regarding the reporting of an individual to the
Department of Public Health's health care worker registry has
concluded. Notwithstanding anything hereinafter or previously
provided, if an action taken by an employer against an
individual as a result of the circumstances that led to a
finding of physical or sexual abuse or egregious neglect is
later overturned under a grievance or arbitration procedure
provided for in Section 8 of the Illinois Public Labor
Relations Act or under a collective bargaining agreement, the
report must be removed from the registry.
    The Department of Human Services shall promulgate or amend
rules as necessary or appropriate to establish procedures for
reporting to the registry, including the definition of
egregious neglect, procedures for notice to the individual and
victim, appeal and hearing procedures, and petition for removal
of the report from the registry. The portion of the rules
pertaining to hearings shall provide that, at the hearing, both
parties may present written and oral evidence. The Department
shall be required to establish by a preponderance of the
evidence that the Office of the Inspector General's finding of
physical or sexual abuse or egregious neglect warrants
reporting to the Department of Public Health's health care
worker registry under Section 3-206.01 of the Nursing Home Care
Act.
    Notice to the individual shall include a clear and concise
statement of the grounds on which the report to the registry is
based and notice of the opportunity for a hearing to contest
the report. The Department of Human Services shall provide the
notice by certified mail to the last known address of the
individual. The notice shall give the individual an opportunity
to contest the report in a hearing before the Department of
Human Services or to submit a written response to the findings
instead of requesting a hearing. If the individual does not
request a hearing or if after notice and a hearing the
Department of Human Services finds that the report is valid,
the finding shall be included as part of the registry, as well
as a brief statement from the reported individual if he or she
chooses to make a statement. The Department of Public Health
shall make available to the public information reported to the
registry. In a case of inquiries concerning an individual
listed in the registry, any information disclosed concerning a
finding of abuse or neglect shall also include disclosure of
the individual's brief statement in the registry relating to
the reported finding or include a clear and accurate summary of
the statement.
    At any time after the report of the registry, an individual
may petition the Department of Human Services for removal from
the registry of the finding against him or her. Upon receipt of
such a petition, the Department of Human Services shall conduct
an investigation and hearing on the petition. Upon completion
of the investigation and hearing, the Department of Human
Services shall report the removal of the finding to the
registry unless the Department of Human Services determines
that removal is not in the public interest.
    (h) Quality Care Board. There is created, within the Office
of the Inspector General, a Quality Care Board to be composed
of 7 members appointed by the Governor with the advice and
consent of the Senate. One of the members shall be designated
as chairman by the Governor. Of the initial appointments made
by the Governor, 4 Board members shall each be appointed for a
term of 4 years and 3 members shall each be appointed for a
term of 2 years. Upon the expiration of each member's term, a
successor shall be appointed for a term of 4 years. In the case
of a vacancy in the office of any member, the Governor shall
appoint a successor for the remainder of the unexpired term.
    Members appointed by the Governor shall be qualified by
professional knowledge or experience in the area of law,
investigatory techniques, or in the area of care of the
mentally ill or developmentally disabled. Two members
appointed by the Governor shall be persons with a disability or
a parent of a person with a disability. Members shall serve
without compensation, but shall be reimbursed for expenses
incurred in connection with the performance of their duties as
members.
    The Board shall meet quarterly, and may hold other meetings
on the call of the chairman. Four members shall constitute a
quorum. The Board may adopt rules and regulations it deems
necessary to govern its own procedures.
    (i) Scope and function of the Quality Care Board. The Board
shall monitor and oversee the operations, policies, and
procedures of the Inspector General to assure the prompt and
thorough investigation of allegations of neglect and abuse. In
fulfilling these responsibilities, the Board may do the
following:
        (1) Provide independent, expert consultation to the
    Inspector General on policies and protocols for
    investigations of alleged neglect and abuse.
        (2) Review existing regulations relating to the
    operation of facilities under the control of the Department
    of Human Services.
        (3) Advise the Inspector General as to the content of
    training activities authorized under this Section.
        (4) Recommend policies concerning methods for
    improving the intergovernmental relationships between the
    Office of the Inspector General and other State or federal
    agencies.
    (j) Investigators. The Inspector General shall establish a
comprehensive program to ensure that every person employed or
newly hired to conduct investigations shall receive training on
an on-going basis concerning investigative techniques,
communication skills, and the appropriate means of contact with
persons admitted or committed to the mental health or
developmental disabilities facilities under the jurisdiction
of the Department of Human Services.
    (k) Subpoenas; testimony; penalty. The Inspector General
shall have the power to subpoena witnesses and compel the
production of books and papers pertinent to an investigation
authorized by this Act, provided that the power to subpoena or
to compel the production of books and papers shall not extend
to the person or documents of a labor organization or its
representatives insofar as the person or documents of a labor
organization relate to the function of representing an employee
subject to investigation under this Act. Mental health records
of patients shall be confidential as provided under the Mental
Health and Developmental Disabilities Confidentiality Act. Any
person who fails to appear in response to a subpoena or to
answer any question or produce any books or papers pertinent to
an investigation under this Act, except as otherwise provided
in this Section, or who knowingly gives false testimony in
relation to an investigation under this Act is guilty of a
Class A misdemeanor.
    (l) Annual report. The Inspector General shall provide to
the General Assembly and the Governor, no later than January 1
of each year, a summary of reports and investigations made
under this Act for the prior fiscal year with respect to
residents of institutions under the jurisdiction of the
Department of Human Services. The report shall detail the
imposition of sanctions and the final disposition of those
recommendations. The summaries shall not contain any
confidential or identifying information concerning the
subjects of the reports and investigations. The report shall
also include a trend analysis of the number of reported
allegations and their disposition, for each facility and
Department-wide, for the most recent 3-year time period and a
statement, for each facility, of the staffing-to-patient
ratios. The ratios shall include only the number of direct care
staff. The report shall also include detailed recommended
administrative actions and matters for consideration by the
General Assembly.
    (m) Program audit. The Auditor General shall conduct a
biennial program audit of the Office of the Inspector General
in relation to the Inspector General's compliance with this
Act. The audit shall specifically include the Inspector
General's effectiveness in investigating reports of alleged
neglect or abuse of residents in any facility operated by the
Department of Human Services and in making recommendations for
sanctions to the Departments of Human Services and Public
Health. The Auditor General shall conduct the program audit
according to the provisions of the Illinois State Auditing Act
and shall report its findings to the General Assembly no later
than January 1 of each odd-numbered year.
 
    Section 7. The Mental Health and Developmental
Disabilities Administrative Act is amended by changing Section
7.3 as follows:
 
    (20 ILCS 1705/7.3)
    Sec. 7.3. Health care worker Nurse aide registry; finding
of abuse or neglect. The Department shall require that no
facility, service agency, or support agency providing mental
health or developmental disability services that is licensed,
certified, operated, or funded by the Department shall employ a
person, in any capacity, who is identified by the health care
worker nurse aide registry as having been subject of a
substantiated finding of abuse or neglect of a service
recipient. Any owner or operator of a community agency who is
identified by the health care worker nurse aide registry as
having been the subject of a substantiated finding of abuse or
neglect of a service recipient is prohibited from any
involvement in any capacity with the provision of Department
funded mental health or developmental disability services. The
Department shall establish and maintain the rules that are
necessary or appropriate to effectuate the intent of this
Section. The provisions of this Section shall not apply to any
facility, service agency, or support agency licensed or
certified by a State agency other than the Department, unless
operated by the Department of Human Services.
(Source: P.A. 94-934, eff. 6-26-06.)
 
    Section 10. The Abused and Neglected Long Term Care
Facility Residents Reporting Act is amended by changing Section
6 as follows:
 
    (210 ILCS 30/6)  (from Ch. 111 1/2, par. 4166)
    Sec. 6. All reports of suspected abuse or neglect made
under this Act shall be made immediately by telephone to the
Department's central register established under Section 14 on
the single, State-wide, toll-free telephone number established
under Section 13, or in person or by telephone through the
nearest Department office. No long term care facility
administrator, agent or employee, or any other person, shall
screen reports or otherwise withhold any reports from the
Department, and no long term care facility, department of State
government, or other agency shall establish any rules,
criteria, standards or guidelines to the contrary. Every long
term care facility, department of State government and other
agency whose employees are required to make or cause to be made
reports under Section 4 shall notify its employees of the
provisions of that Section and of this Section, and provide to
the Department documentation that such notification has been
given. The Department of Human Services shall train all of its
mental health and developmental disabilities employees in the
detection and reporting of suspected abuse and neglect of
residents. Reports made to the central register through the
State-wide, toll-free telephone number shall be transmitted to
appropriate Department offices and municipal health
departments that have responsibility for licensing long term
care facilities under the Nursing Home Care Act. All reports
received through offices of the Department shall be forwarded
to the central register, in a manner and form described by the
Department. The Department shall be capable of receiving
reports of suspected abuse and neglect 24 hours a day, 7 days a
week. Reports shall also be made in writing deposited in the
U.S. mail, postage prepaid, within 24 hours after having
reasonable cause to believe that the condition of the resident
resulted from abuse or neglect. Such reports may in addition be
made to the local law enforcement agency in the same manner.
However, in the event a report is made to the local law
enforcement agency, the reporter also shall immediately so
inform the Department. The Department shall initiate an
investigation of each report of resident abuse and neglect
under this Act, whether oral or written, as provided for in
Section 3-702 of the Nursing Home Care Act, except that reports
of abuse which indicate that a resident's life or safety is in
imminent danger shall be investigated within 24 hours of such
report. The Department may delegate to law enforcement
officials or other public agencies the duty to perform such
investigation.
    With respect to investigations of reports of suspected
abuse or neglect of residents of mental health and
developmental disabilities institutions under the jurisdiction
of the Department of Human Services, the Department shall
transmit copies of such reports to the Department of State
Police, the Department of Human Services, and the Inspector
General appointed under Section 1-17 of the Department of Human
Services Act 6.2. If the Department receives a report of
suspected abuse or neglect of a recipient of services as
defined in Section 1-123 of the Mental Health and Developmental
Disabilities Code, the Department shall transmit copies of such
report to the Inspector General and the Directors of the
Guardianship and Advocacy Commission and the agency designated
by the Governor pursuant to the Protection and Advocacy for
Developmentally Disabled Persons Act. When requested by the
Director of the Guardianship and Advocacy Commission, the
agency designated by the Governor pursuant to the Protection
and Advocacy for Developmentally Disabled Persons Act, or the
Department of Financial and Professional Regulation, the
Department, the Department of Human Services and the Department
of State Police shall make available a copy of the final
investigative report regarding investigations conducted by
their respective agencies on incidents of suspected abuse or
neglect of residents of mental health and developmental
disabilities institutions or individuals receiving services at
community agencies under the jurisdiction of the Department of
Human Services. Such final investigative report shall not
contain witness statements, investigation notes, draft
summaries, results of lie detector tests, investigative files
or other raw data which was used to compile the final
investigative report. Specifically, the final investigative
report of the Department of State Police shall mean the
Director's final transmittal letter. The Department of Human
Services shall also make available a copy of the results of
disciplinary proceedings of employees involved in incidents of
abuse or neglect to the Directors. All identifiable information
in reports provided shall not be further disclosed except as
provided by the Mental Health and Developmental Disabilities
Confidentiality Act. Nothing in this Section is intended to
limit or construe the power or authority granted to the agency
designated by the Governor pursuant to the Protection and
Advocacy for Developmentally Disabled Persons Act, pursuant to
any other State or federal statute.
    With respect to investigations of reported resident abuse
or neglect, the Department shall effect with appropriate law
enforcement agencies formal agreements concerning methods and
procedures for the conduct of investigations into the criminal
histories of any administrator, staff assistant or employee of
the nursing home or other person responsible for the residents
care, as well as for other residents in the nursing home who
may be in a position to abuse, neglect or exploit the patient.
Pursuant to the formal agreements entered into with appropriate
law enforcement agencies, the Department may request
information with respect to whether the person or persons set
forth in this paragraph have ever been charged with a crime and
if so, the disposition of those charges. Unless the criminal
histories of the subjects involved crimes of violence or
resident abuse or neglect, the Department shall be entitled
only to information limited in scope to charges and their
dispositions. In cases where prior crimes of violence or
resident abuse or neglect are involved, a more detailed report
can be made available to authorized representatives of the
Department, pursuant to the agreements entered into with
appropriate law enforcement agencies. Any criminal charges and
their disposition information obtained by the Department shall
be confidential and may not be transmitted outside the
Department, except as required herein, to authorized
representatives or delegates of the Department, and may not be
transmitted to anyone within the Department who is not duly
authorized to handle resident abuse or neglect investigations.
    The Department shall effect formal agreements with
appropriate law enforcement agencies in the various counties
and communities to encourage cooperation and coordination in
the handling of resident abuse or neglect cases pursuant to
this Act. The Department shall adopt and implement methods and
procedures to promote statewide uniformity in the handling of
reports of abuse and neglect under this Act, and those methods
and procedures shall be adhered to by personnel of the
Department involved in such investigations and reporting. The
Department shall also make information required by this Act
available to authorized personnel within the Department, as
well as its authorized representatives.
    The Department shall keep a continuing record of all
reports made pursuant to this Act, including indications of the
final determination of any investigation and the final
disposition of all reports.
    The Department shall report annually to the General
Assembly on the incidence of abuse and neglect of long term
care facility residents, with special attention to residents
who are mentally disabled. The report shall include but not be
limited to data on the number and source of reports of
suspected abuse or neglect filed under this Act, the nature of
any injuries to residents, the final determination of
investigations, the type and number of cases where abuse or
neglect is determined to exist, and the final disposition of
cases.
(Source: P.A. 94-852, eff. 6-13-06.)
 
    (210 ILCS 30/6.2 rep.)
    (210 ILCS 30/6.3 rep.)
    (210 ILCS 30/6.4 rep.)
    (210 ILCS 30/6.5 rep.)
    (210 ILCS 30/6.6 rep.)
    (210 ILCS 30/6.7 rep.)
    (210 ILCS 30/6.8 rep.)
    Section 15. The Abused and Neglected Long Term Care
Facility Residents Reporting Act is amended by repealing
Sections 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, and 6.8.
 
    Section 20. The Nursing Home Care Act is amended by
changing Section 3-206.01 as follows:
 
    (210 ILCS 45/3-206.01)  (from Ch. 111 1/2, par. 4153-206.01)
    Sec. 3-206.01. Health care worker Nurse aide registry.
    (a) The Department shall establish and maintain a registry
of all individuals who have satisfactorily completed the
training required by Section 3-206. The registry shall include
the name of the nursing assistant, habilitation aide, or child
care aide, his or her current address, Social Security number,
and the date and location of the training course completed by
the individual, and the date of the individual's last criminal
records check. Any individual placed on the registry is
required to inform the Department of any change of address
within 30 days. A facility shall not employ an individual as a
nursing assistant, habilitation aide, or child care aide unless
the facility has inquired of the Department as to information
in the registry concerning the individual and shall not employ
anyone not on the registry unless the individual is enrolled in
a training program under paragraph (5) of subsection (a) of
Section 3-206 of this Act.
    If the Department finds that a nursing assistant,
habilitation aide, or child care aide has abused a resident,
neglected a resident, or misappropriated resident property in a
facility, the Department shall notify the individual of this
finding by certified mail sent to the address contained in the
registry. The notice shall give the individual an opportunity
to contest the finding in a hearing before the Department or to
submit a written response to the findings in lieu of requesting
a hearing. If, after a hearing or if the individual does not
request a hearing, the Department finds that the individual
abused a resident, neglected a resident, or misappropriated
resident property in a facility, the finding shall be included
as part of the registry as well as a brief statement from the
individual, if he or she chooses to make such a statement. The
Department shall make information in the registry available to
the public. In the case of inquiries to the registry concerning
an individual listed in the registry, any information disclosed
concerning such a finding shall also include disclosure of any
statement in the registry relating to the finding or a clear
and accurate summary of the statement.
    (b) The Department shall add to the health care worker
nurse aide registry records of findings as reported by the
Inspector General or remove from the health care worker nurse
aide registry records of findings as reported by the Department
of Human Services, under subsection (g-5) of Section 1-17 of
the Department of Human Services Act Section 6.2 of the Abused
and Neglected Long Term Care Facility Residents Reporting Act.
(Source: P.A. 91-598, eff. 1-1-00; 92-473, eff. 1-1-02; 92-651,
eff. 7-11-02.)
 
    Section 25. The Health Care Worker Background Check Act is
amended by changing Sections 30 and 40 as follows:
 
    (225 ILCS 46/30)
    Sec. 30. Non-fingerprint based UCIA criminal records
check.
    (a) Beginning on January 1, 1997, an educational entity,
other than a secondary school, conducting a nurse aide training
program must initiate a UCIA criminal history records check
prior to entry of an individual into the training program. A
nurse aide seeking to be included on the health care worker
nurse aide registry shall authorize the Department of Public
Health or its designee that tests nurse aides or the health
care employer or its designee to request a criminal history
record check pursuant to the Uniform Conviction Information Act
(UCIA) for each nurse aide applying for inclusion on the State
health care worker nurse aide registry. Any nurse aide not
submitting the required authorization and information for the
record check will not be added to the State health care worker
nurse aide registry. A nurse aide will not be entered on the
State health care worker nurse aide registry if the report from
the Department of State Police indicates that the nurse aide
has a record of conviction of any of the criminal offenses
enumerated in Section 25 unless the nurse aide's identity is
validated and it is determined that the nurse aide does not
have a disqualifying criminal history record based upon a
fingerprint-based records check pursuant to Section 35 or the
nurse aide receives a waiver pursuant to Section 40.
    (b) The Department of Public Health shall notify each
health care employer inquiring as to the information on the
State health care worker nurse aide registry of the date of the
nurse aide's last UCIA criminal history record check. If it has
been more than one year since the records check, the health
care employer must initiate or have initiated on his or her
behalf a UCIA criminal history record check for the nurse aide
pursuant to this Section. The health care employer must send a
copy of the results of the record check to the State health
care worker nurse aide registry for an individual employed as a
nurse aide.
    (c) Beginning January 1, 1996, a health care employer who
makes a conditional offer of employment to an applicant other
than a nurse aide for position with duties that involve direct
care for clients, patients, or residents must initiate or have
initiated on his or her behalf a UCIA criminal history record
check for that applicant.
    (d) No later than January 1, 1997, a health care employer
must initiate or have initiated on his or her behalf a UCIA
criminal history record check for all employees other than
those enumerated in subsections (a), (b), and (c) of this
Section with duties that involve direct care for clients,
patients, or residents. A health care employer having actual
knowledge from a source other than a non-fingerprint check that
an employee has been convicted of committing or attempting to
commit one of the offenses enumerated in Section 25 of this Act
must initiate a fingerprint-based background check within 10
working days of acquiring that knowledge. The employer may
continue to employ that individual in a direct care position,
may reassign that individual to a non-direct care position, or
may suspend the individual until the results of the
fingerprint-based background check are received.
    (d-5) Beginning January 1, 2006, each long-term care
facility operating in the State must initiate, or have
initiated on its behalf, a criminal history record check for
all employees hired on or after January 1, 2006 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.
    (e) The request for a UCIA criminal history record check
must be in the form prescribed by the Department of State
Police.
    (f) The applicant or employee must be notified of the
following whenever a non-fingerprint check is made:
        (i) that the health care employer shall request or have
    requested on his or her behalf a UCIA criminal history
    record check pursuant to this Act;
        (ii) that the applicant or employee has a right to
    obtain a copy of the criminal records report from the
    health care employer, challenge the accuracy and
    completeness of the report, and request a waiver under
    Section 40 of this Act;
        (iii) that the applicant, if hired conditionally, may
    be terminated if the criminal records report indicates that
    the applicant has a record of conviction of any of the
    criminal offenses enumerated in Section 25 unless the
    applicant's identity is validated and it is determined that
    the applicant does not have a disqualifying criminal
    history record based on a fingerprint-based records check
    pursuant to Section 35.
        (iv) that the applicant, if not hired conditionally,
    shall not be hired if the criminal records report indicates
    that the applicant has a record of conviction of any of the
    criminal offenses enumerated in Section 25 unless the
    applicant's record is cleared based on a fingerprint-based
    records check pursuant to Section 35.
        (v) that the employee may be terminated if the criminal
    records report indicates that the employee has a record of
    conviction of any of the criminal offenses enumerated in
    Section 25 unless the employee's record is cleared based on
    a fingerprint-based records check pursuant to Section 35.
    (g) A health care employer may conditionally employ an
applicant for up to 3 months pending the results of a UCIA
criminal history record check.
(Source: P.A. 94-665, eff. 1-1-06.)
 
    (225 ILCS 46/40)
    Sec. 40. Waiver.
    (a) 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) 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) 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 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) Health care worker 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 entity responsible for inspecting, licensing,
certifying, or registering a health care employer must inform
the health care employer if a waiver is being sought 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 the results of a 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 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.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 8/28/2007