Section 385.50  Child Abuse or Child Neglect

 

a)         Indicated Reports of Child Abuse/Neglect

An individual who is a household member and identified as a perpetrator of child abuse/neglect in a single child protection investigation that does not rise to the level of a presumption of unsuitability can be assessed and recommended for waiver at the supervisory level.  An individual who is a household member and identified as a perpetrator of child abuse/neglect in child protection reports that create a presumption of unsuitability (a single indicated report resulting in 20 or 50 year retention or two indicated reports each with a five year retention period) shall require a waiver through the Director or designee in order to be cleared.

 

b)         Assessment of Indicated Reports

 

1)         A household member, employee, applicant for employment, volunteer or  non-licensed contractual provider indicated as a perpetrator in a child protection investigation that does not rise to the level of a presumption of  unsuitability shall be assessed in order to determine a recommendation to grant or deny a waiver for licensure or employment.  The assessment shall include the Department or POS licensing staff obtaining a written consent and reviewing the child protection records, as well as the following details:

 

A)        the nature of the abuse or neglect with which the individual was identified, including whether the abuse or neglect resulted in serious injury or death to a child or children;

 

B)        the circumstances surrounding the commission of the abuse or neglect, including the age of the perpetrator and the children, that  would demonstrate unlikelihood of repetition;

 

C)        the amount of time that has elapsed since the abuse or neglect occurred and whether prior incidents of child abuse or child neglect have been indicated against the individual;

 

D)        whether the abuse or neglect involved single or multiple child victims;

 

E)        the relationship of the incident of child abuse or neglect to the individual's current or conditional job responsibilities within the child care facility;

 

F)         whether the individual has been convicted of a criminal offense which might have bearing on the individual's ability to function in a child care facility as licensee or employee;

 

G)        evidence of rehabilitation such as employment, education, participation in therapy since the indicated incident of abuse or neglect; and

 

H)        three positive character references.

 

2)         When a household member, employee, applicant for employment, volunteer or non-licensed contractual provider has been indicated as a perpetrator in a child protection investigation that equates to a presumption of unsuitability, the licensing entity or employer may request a review of the denial and request a waiver of the presumption of unsuitability.  Requests for a waiver of presumption of unsuitability shall be in writing and postmarked within 30 days after notice is received by the licensing entity or employer.  The Department or Purchase of Service Agency shall review the child protection reports that led to the indicated findings that equate to a presumption of unsuitability, before making a decision in requesting a waiver for a presumption of unsuitability.

 

3)         The Director of the Department or the Director's designee shall review any materials submitted on the individual's behalf and may waive the presumption that the individual is unsuitable for licensure or employment.  When the Director or designee determines there is good cause for waiving the presumption of unsuitability, the hiring or licensing decision shall be made in accordance with the totality of the requirements of this Part and the applicable licensing standards.

 

c)         Notification of Hiring Decision

A child care facility shall notify the Department in writing of its decision regarding the employment of a person, or retention of an employee, who has been indicated as a perpetrator of child abuse/neglect.  The decision of the employer is final.  Employment decisions may not be appealed to the Department.

 

(Source:  Amended at 45 Ill. Reg. 12963, effective September 28, 2021)

 

Section 385.60  Criminal Convictions and Pending Criminal Charges

 

a)         Convictions that are Bars to Licensure/Employment

 

1)         Persons convicted of crimes or convicted of attempting to commit crimes identified in Section 4.2(b) of the Child Care Act shall not receive a license to operate a child care facility or gain employment in a licensed child care facility. 

 

2)         When a licensee is convicted of crimes that are non-waivable bars to licensure, or convicted of attempting to commit these crimes, action shall be taken by the supervising licensing entity:

 

A)        to begin the revocation process or the process to refuse to renew the license; or

 

B)        to refuse to issue a full license, subsequent to a permit.

 

3)         When an employee in a licensed child care facility is convicted of non-waivable bars to employment or is convicted of attempting to commit one of these crimes, the facility can no longer employ that person and remain in compliance with the Child Care Act.  This includes persons who have been:

 

A)        declared a sexually dangerous person under the Sexually Dangerous Persons Act [725 ILCS 205] or identified as a sex offender in the Illinois Sex Offender Registry operated by the Illinois State Police;

 

B)        convicted of committing or attempting to commit any of the offenses specified in this Part that are defined by the Criminal Code of 2012 [720 ILCS 5] or any earlier Illinois criminal law or code (see Section 4.2 of the Child Care Act); or

 

C)        convicted of committing or attempting to commit an offense in another state, the elements of which are similar to, and bear a substantial relationship to, any of the criminal offenses specified in Section 4.2(b) of the Child Care Act. 

 

b)         Special Provisions for Foster Family Homes

In addition to the provisions set forth in subsection (a), no applicant may be licensed by the Department to operate a foster family home, and no person may reside in a foster family home licensed by the Department, who has been convicted of committing or attempting to commit any of the offenses listed in Section 4.2 of the Child Care Act, and Section 5(v-1) of the Children and Family Services Act [20 ILCS 505], or who is included in the Illinois or National Sex Offender Registry (unless the offender is a ward of the State of Illinois placed in the foster home by the Department or its contractual agent).

 

c)         Assessment of Criminal Convictions

Except as specified in subsections (a) and (b), an individual convicted of a crime will not automatically be prohibited from licensure, renewal of a license, or employment in a child care facility, from residing in a family home in which a child care facility operates.  The following shall be considered:

 

1)         the nature of the crime for which the individual was convicted;

 

2)         the circumstances surrounding the commission of the crime, including the age of the individual, that would demonstrate a low likelihood of repetition;

 

3)         the period of time that has elapsed since the crime was committed;

 

4)         the number of crimes for which the individual was convicted;

 

5)         evidence of rehabilitation such as successful participation in therapy since conviction;

 

6)         commutation of the sentence by the Governor or granting of a pardon;

 

7)         overturn of the conviction upon appeal;

 

8)         three character references;

 

9)         the relationship of the crime to the capacity to care for children or to have access to children cared for in a child care facility;

 

10)         whether the employee/foster parent disclosed a criminal background and the circumstances of the conviction and, if not, why; and

 

11)         the development of a supervisory or monitoring plan that the Department has approved.

 

d)         Assessment of Pending Criminal Charges

 

1)         When an employer receives notice that an employee has a pending charge for a crime listed as a barring offense, the employer shall immediately inform the employee and take action to develop a protective plan to ensure the employee does not have unsupervised access to children.  The employer shall request a written consent from the employee to allow the employer to have full access to current pending charges.  The employee shall have responsibility to gain disposition on pending charges that would be a bar, if convicted, before a decision is made related to employment.

 

2)         When the supervising agency of a licensed facility receives notice that a licensee or household member has a pending charge for a crime listed as a barring offense, the supervising agency shall take steps necessary to develop a protective plan to ensure the safety, health and welfare of children served.  The licensee shall be responsible to see disposition is received on pending charges that would be a bar to licensure, if convicted.

 

3)         For pending charges that are not bars to employment or licensure, the following areas shall be assessed in determining whether disposition is needed, before action is taken on employment or a license:

 

A)        the seriousness and nature of the charges that are pending, including a determination of whether the charges are among those listed in Section 4.2(b), (b-1), (b-1.5), or (c) of the Child Care Act that serve as a bar to licensure or employment in a position that allows access to children;

 

B)        the circumstances surrounding the incident that led to the criminal charge;

 

C)        the relationship of the charges to the ability to care for children or to have access to children and confidential information in a child care facility;

 

D)        whether the individual has ever been convicted of or charged with crimes of a similar nature; and

 

E)        three positive character references and other information submitted by or on behalf of the appellant or any other person, especially about the suitability of the individual to care for children.

 

e)         Notification of Hiring Decision

A child care facility shall notify the Department in writing of its decision to employ a person, or retain an employee, with a criminal history.  The decision of the employer is final.  Employment decisions may not be appealed to the Department.

 

(Source:  Amended at 45 Ill. Reg. 12963, effective September 28, 2021)

 

Section 385.70  Disposition of Background Checks

 

a)         Notice of Findings

When the subject of the background check is the director, administrator or other chief executive officer of the facility, the Department will notify in writing the presiding officer of the governing body of the results of the check, and the presiding officer shall take those actions required by this Part.  In the case of a group home or a child care facility that operates in a family home, the Department will notify in writing the supervising agency for the facility of the results of the check.

 

b)         Child Care Facility Decision Regarding Employment

It shall be the responsibility of the governing body or operator of the facility to determine whether to hire or continue the employment of a conditional employee or to reassign the individual in question to a position that does not allow access to children, to provide the individual an opportunity for a review in accordance with the facility's personnel policies, and to notify the Department in writing of its employment decision within 30 days after receipt of the information from the Department.  The decision of the employer is final, subject to review under the personnel policies of its governing body.  These hiring decisions may not be appealed to the Department.

 

c)         Request for Subsequent Background Check

The employer of a person who has been relieved of child-related duties pursuant to this Part may request another background check if the circumstances leading to the relieving of child care duties have changed.  A change of circumstances may include, but is not limited to:

 

1)         pending criminal charges have been dismissed or have resulted in an acquittal or conviction for a lesser charge;

 

2)         a conviction is reversed on appeal;

 

3)         the indicated finding of abuse or neglect is expunged, amended to another allegation, or amended to "unfounded";

 

4)         a pending child protection investigation of abuse or neglect is "unfounded"; or

 

5)         the records of the circuit court or local or State Police, if relied upon to reach the decision, have been amended.

 

d)         Delinquent Child Support

If a license applicant has been denied, or the Department has refused to renew, a license because the applicant is more than 30 days delinquent in child support, the applicant may reapply after submitting proof that the child support has been paid in full or that a payment schedule has been arranged with the Department of Healthcare and Family Services (Title IV-D support cases) or the court of jurisdiction (all other child support cases).

 

(Source:  Amended at 45 Ill. Reg. 12963, effective September 28, 2021)

 

Section 385.80  Appeal of Decision to Deny License or Permit Based on Background Check Information

 

a)         Notice of Decision to Deny Licensure Based Upon Background History

 

1)         When an application for licensure is denied due to criminal background history or identification as an indicated perpetrator of abuse/neglect, the supervising agency shall send notice to the applicants for licensure of the denial, including the reason for denial.  The initial notice of denial shall provide the applicant the opportunity to request a review of the decision by Central Office of Licensing Review Committee.  When there is a request for a review of the decision, the Central Office shall send a notice of decision that the request was granted or denied.  When the request for review of the decision is denied, the notice shall provide an opportunity for the applicant to appeal the decision to the DCFS Administrative Hearings Unit for its review and determination.

 

2)         When there is no request for a review of the decision by the Central Office of Licensing Review Committee, the assigned licensing unit shall send a second and final notice of denial, which provides an opportunity for the applicant to appeal to the Administrative Hearings Unit for review and determination.

 

b)         What May Be Appealed Under This Part

A license applicant may appeal:

 

1)         the denial of an initial license based upon a background check conducted in accordance with this Part; or

 

2)         the denial of a permit based upon a background check conducted in accordance with this Part.

 

c)         What May Not Be Appealed Under This Part

The DCFS Chief Administrative Law Judge will decide whether an issue is appropriate for a fair hearing under subsection (b). Issues inappropriate for a fair hearing under this Part include, but are not limited to:

 

1)         a decision based upon a background check conducted pursuant to this Part that revealed that the license applicant has a criminal conviction that bars licensure or employment or residence in a licensed child care facility pursuant to Section 4(a) and (b) of the Child Care Act, unless the licensing applicant can establish that an exception, as provided in Section 4(b)(2) of the Act, may exist (see Appendix A); or

 

2)         a decision based upon a background check conducted pursuant to this Part that revealed that the license applicant has a criminal conviction that bars licensure of or residence in a foster family home pursuant to Section 4(c) of the Child Care Act, unless the licensing applicant can establish that an exception, as provided in Section 4(d) of the Act, may exist.

 

d)         Appeal Request

 

1)         An individual requesting an opportunity for an appeal pursuant to subsection (b) shall submit the request, in writing, to the:

 

Administrative Hearings Unit

Department of Children and Family Services

406 E. Monroe St., Station #15

Springfield, Illinois 62701

 

2)         All such requests must be postmarked within 10 days after the date of written notice of the denial of an application for license or permit.

 

e)         Review of File

 

1)         After the Administrative Hearings Unit has received the individual's request for an appeal, the Administrator of the Unit shall notify the Department that the individual has filed an appeal and the Department will send to the Administrator a copy of the notice of denial of the application for a license or permit.  The notice of denial shall be prima facie evidence that the Department had a basis for refusing to issue the license or permit.

 

2)         The Administrator shall ask both the Department and the individual to submit any documents, records, statements, or other materials pertinent to the Department's denial of the application for licensure to create an appeal file.  The Administrator shall further advise the Department and the individual of the intent to examine the appeal file, including all materials submitted for the appeal file, to determine whether a genuine issue of material fact exists.  Within 10 business days after the date of the Administrator's request for materials, both the Department representative and the individual shall submit to the Administrative Hearings Unit any and all documents, records, statements, materials, or evidence to establish that the Department's decision to deny the license because of the background check was either correct or incorrect.

 

3)         At least 10 business days after the Administrator's request for materials, the Administrator shall examine the entire appeal file, including all materials submitted by both parties, and shall determine if a genuine issue of material fact exists.

 

4)         If the Administrator determines that no genuine issue of material fact exists, the Administrator shall dismiss the appeal.  The letter dismissing the appeal shall be the final administrative decision of the Department.

 

f)         The Appeal Process

The individual shall be notified, in writing, of the date, time and location of the appeal hearing.  The individual may be represented by counsel and may present evidence and/or witnesses.  The individual shall be required to produce evidence that the person identified in the background report is not the individual in question or that the background check report is inaccurate.  If the issue is delinquency in the payment of child support, the individual shall provide evidence that the child support has been paid in full or that a payment schedule has been arranged with the Department of Healthcare and Family Services (Title IV-D cases) or a court of jurisdiction (all other child support cases).  Evidence to be considered shall be limited to:

 

1)         When the appeal involves an indicated CANTS/SACWIS report, written statements from the administrator of the child protection division for the Department that the individual named in the report is not the individual in question or that the record has been expunged or amended; or

 

2)         When the appeal involves a criminal history record, evidence shall be limited to written statements from a law enforcement agency or clerk of the court:  that the subject of the criminal history record provided to the Department is not the individual in question, was never convicted of the crimes as alleged in the criminal history record, or was granted a full pardon by the Governor indicating that the person did not commit the crime; the crime was amended or expunged; or the information in the criminal history record concerning the existence of the conviction was erroneous; or

 

3)         When the appeal involves delinquent child support, written statements from the Department of Healthcare and Family Services or the clerk of the court, as applicable, that child support has been paid in full or a payment schedule arranged or that the payment record was incorrect.

 

g)         Final Administrative Decision

The administrative law judge conducting the appeal must conclude that, when all the evidence presented pursuant to this Part and the applicable licensing standards are considered, there is clear and convincing evidence that the individual is not the person named in the indicated report/criminal history record or that the individual is suitable for service that allows access to children.  If the appeal is addressing the issue of delinquent child support, the individual must submit proof that the record was in error or that he or she has paid the delinquency or made arrangements for payment of delinquent child support.  The final administrative decision is made by the Director and, subject to review by a court of competent jurisdiction.

 

h)         Record of Appeal

A written record shall be made of any reviews conducted pursuant to this Section, and that record shall contain copies of all documents relied upon in making the determination of fitness or unfitness for licensure.

 

(Source:  Amended at 45 Ill. Reg. 12963, effective September 28, 2021)

 

Section 385.90  Records to be Maintained by the Child Care Facility

 

a)         The governing body or operator of a child care facility shall maintain a copy of the authorization for background checks required by Sections 385.40 and 385.50 as part of the personnel records of the facility for a period of five years from the date of termination of the employment of the employee.

 

b)         The background check record of any conclusions or recommendations resulting from the review of the findings of that check by the governing body or operator of the child care facility shall be maintained for five years after termination of the employment in a separate, confidential file apart from other personnel records.  Access to those records shall be permitted for the following:

 

1)         the subject of an individual record;

 

2)         the governing body or operator of the child care facility;

 

3)         Department licensing staff;

 

4)         Department staff authorized, in writing, by the Director to conduct background checks pursuant to this Part;

 

5)         persons who are authorized, in writing, by the governing body or operator of the child care facility and whose duties are related to the background checks or its findings;

 

6)         Department representatives who have the Director's written authorization specifying the statutory authority or administrative rules under which the access is granted; and

 

7)         other persons who are lawfully entitled to the information (e.g., persons with a valid subpoena, law enforcement personnel, or the attorneys of the individual in question).

 

(Source:  Amended at 45 Ill. Reg. 12963, effective September 28, 2021)

 

Section 385.100  Confidentiality of Background Check Information

 

Any employee of the Department of Children and Family Services, the Illinois State Police, or a child care facility receiving confidential information under this Section who gives or causes to be given any confidential information concerning any criminal convictions or child abuse or neglect information of a child care facility applicant, or child care facility employee, shall be guilty of a Class A misdemeanor unless release of such information is authorized by Sections 4.1 and 4.3 of the Child Care Act of 1969 [225 ILCS 10/4.1 and 4.3].

 

(Source:  Added at 21 Ill. Reg. 4444, effective April 1, 1997)

 

Section 385.110  Severability of This Part

 

If any court of competent jurisdiction finds that any rule, clause, phrase, or provision of this Part is unconstitutional or invalid for any reason whatsoever, this finding shall not affect the validity of the remaining portions of this Part.

 

(Source:  Section 385.110 renumbered from Section 385.100 at 21 Ill. Reg. 4444, effective April 1, 1997)

Section 385.APPENDIX A   Criminal Convictions Preventing Licensure, Employment, Residence in a Family Home in Which a Child Care Facility Operates, or Placement with Relatives

 

No applicant may receive a license from the Department, and no person may be employed by a child care facility licensed by the Department, who has been declared a sexually dangerous person under the Sexually Dangerous Persons Act [725 ILCS 205, Art. 105] or convicted of committing or attempting to commit any of the following offenses stipulated under the Criminal Code of 1961 or the Criminal Code of 2012:

 

Lifetime Bars (Non-Waivable)

 

(1)        murder;

(1.1)     solicitation of murder;

(1.2)     solicitation of murder for hire;

(1.3)     intentional homicide of an unborn child;

(1.4)     voluntary manslaughter of an unborn child;

(1.5)     involuntary manslaughter;

(1.6)     reckless homicide;

(1.7)     concealment of a homicidal death;

(1.8)     involuntary manslaughter of an unborn child;

(1.9)     reckless homicide of an unborn child;

(1.10)   drug-induced homicide;

(2)        a sex offense under Article 11, except offenses described in Sections 11-7, 11-8, 11-12, 11-13, 11-35, 11-40, and 11-45;

(3)        kidnapping;

(3.1)     aggravated unlawful restraint;

(3.2)     forcible detention;

(3.3)     harboring a runaway;

(3.4)     aiding and abetting child abduction;

(4)        aggravated kidnapping;

(5)        child abduction;

(6)        aggravated battery of a child as described in Section 12-4.3 or 12-3.05(b)(1);

(7)        criminal sexual assault;

(8)        aggravated criminal sexual assault;

(8.1)     predatory criminal sexual assault of a child;

(9)        criminal sexual abuse;

(10)      aggravated sexual abuse;

(11)      heinous battery as described in Section 12-4.1 or Section 12-3.05(a)(2);

(12)      aggravated battery with a firearm as described in Section 12-4.2 or Section 12-3.05(e)(1), (e)(2), (e)(3), or (e)(4);

(13)      tampering with food, drugs, or cosmetics;

(14)      drug induced infliction of great bodily harm as described in Section 12-4.7 or Section 12-3.05(g)(1);

(15)      hate crime;

(16)      stalking;

(17)      aggravated stalking;

(18)      threatening public officials;

(19)      home invasion;

(20)      vehicular invasion;

(21)      criminal transmission of HIV;

(22)      criminal abuse or neglect of an elderly person or person with a disability as described in Section 12-21 or Section 12-4.4a(e);

(23)      child abandonment;

(24)      endangering the life or health of a child;

(25)      ritual mutilation;

(26)      ritualized abuse of a child;

(27)      an offense in any other jurisdiction the elements of which are similar and bear a substantial relationship to any of the offenses listed in this section. [225 ILCS 10/4.2(b)]

 

Financial-type Crimes

 

Effective July 19, 2019, for applicants with access to confidential financial information or who submit documentation to support billing, the Department may, in its discretion, deny or refuse to renew a license to an applicant who has been convicted of committing or attempting to commit any of the following felony offenses:

 

(1)        financial institution fraud under Section 17-10.6 of the Criminal Code of 1961 or the Criminal Code of 2012;

(2)        identity theft under Section 16-30 of the Criminal Code of 1961 or the Criminal Code of 2012;

(3)        financial exploitation of an elderly person or a person with a disability under Section 17-56 of the Criminal Code of 1961 or the Criminal Code of 2012;

(4)        computer tampering under Section 17-51 of the Criminal Code of 1961 or the Criminal Code of 2012;

(5)        aggravated computer tampering under Section 17-52 of the Criminal Code of 1961 or the Criminal Code of 2012;

(6)        computer fraud under Section 17-50 of the Criminal Code of 1961 or the Criminal Code of 2012;

(7)        deceptive practices under Section 17-1 of the Criminal Code of 1961 or the Criminal Code of 2012;

(8)        forgery under Section 17-3 of the Criminal Code of 1961 or the Criminal Code of 2012;

(9)        State benefits fraud under Section 17-6 of the Criminal Code of 1961 or the Criminal Code of 2012;

(10)      mail fraud and wire fraud under Section 17-24 of the Criminal Code of 1961 or the Criminal Code of 2012;

(11)      theft under Section 16-1(b)(1.1) through (11) of the Criminal Code of 1961 or the Criminal Code of 2012.  [225 ILCS 10/4.2(b-1.5)]

 

Waivable Bars (Not Including Foster Homes)

 

No new applicant and, on the date of licensure renewal, no current licensee may operate or receive a license to operate, no person may be employed by, and no adult person may reside in a child care facility licensed by the Department who has been convicted of committing or attempting to commit any of the following offenses or an offense in any other jurisdiction the elements of which are similar and bear a substantial relationship to any of the following offenses (unless waived as provided in this section):

 

(I) BODILY HARM

 

(1)        Felony aggravated assault;

(2)        Vehicular endangerment;

(3)        Felony domestic battery;

(4)        Aggravated battery;

(5)        Heinous battery;

(6)        Aggravated battery with a firearm;

(7)        Aggravated battery of an unborn child;

(8)        Aggravated battery of a senior citizen;

(9)        Intimidation;

(10)      Compelling organization membership of persons;

(11)      Abuse and criminal neglect of a long term care facility resident;

(12)      Felony violation of an order of protection.

 

(II) OFFENSES AFFECTING PUBLIC HEALTH, SAFETY, AND DECENCY

 

(1)        Felony unlawful use of weapons;

(2)        Aggravated discharge of a firearm;

(3)        Reckless discharge of a firearm;

(4)        Unlawful use of metal piercing bullets;

(5)        Unlawful sale or delivery of firearms on the premises of any school;

(6)        Disarming a police officer;

(7)        Obstructing justice;

(8)        Concealing or aiding a fugitive;

(9)        Armed violence;

(10)      Felony contributing to the criminal delinquency of a juvenile.

 

(III) DRUG OFFENSES

 

(1)        Possession of more than 30 grams of cannabis;

(2)        Manufacture of more than 10 grams of cannabis;

(3)        Cannabis trafficking;

(4)        Delivery of cannabis on school grounds;

(5)        Unauthorized production of more than 5 cannabis sativa plants;

(6)        Calculated criminal cannabis conspiracy;

(7)        Unauthorized manufacture or delivery of controlled substances;

(8)        Controlled substance trafficking;

(9)        Manufacture, distribution, or advertisement of look-alike substances;

(10)      Calculated criminal drug conspiracy;

(11)      Street gang criminal drug conspiracy;

(12)      Permitting unlawful use of a building;

(13)      Delivery of controlled, counterfeit, or look-alike substances to persons under age 18, or at truck stops, rest stops, or safety rest areas, or on school property;

(14)      Using, engaging, or employing persons under 18 to deliver controlled, counterfeit, or look-alike substances;

(15)      Delivery of controlled substances;

(16)      Sale or delivery of drug paraphernalia;

(17)      Felony possession, sale, or exchange of instruments adapted for use of a controlled substance, methamphetamine, or cannabis by subcutaneous injection;

(18)      Any violation of the Methamphetamine Control and Community Protection Act [720 ILCS 646]. [225 ILCS 10/4.2(b-1)]

 

For the offenses described in Waivable Bars (Not Including Foster Homes), the Department may make an exception and, for child care facilities other than foster family homes, issue a new child care facility license to, or renew the existing child care facility license of, an applicant, a person employed by a child care facility, or an applicant who has an adult residing in a home child care facility, provided that all of the following requirements are met:

 

(1)        The relevant offense occurred more than 5 years prior to the date of application or renewal, except for drug offenses.  The relevant drug offense must have occurred more than 10 years prior to the date of the application or renewal, unless the applicant passed a drug test, arranged and paid for by the child care facility, no less than 5 years after the offense;

(2)        The Department conducts a background check and assesses all convictions and recommendations of the child care facility to determine if hiring or licensing the applicant is in accordance with Department administrative rules and procedures; and

(3)        The applicant meets all other requirements and qualifications for licensure.  [225 ILCS 10/4.2(b-2)]

 

In evaluating whether to grant the exception, the Department must carefully review any relevant documents to determine whether the applicant, despite the disqualifying convictions, poses a substantial risk to State resources or clients. In making this determination, the following guidelines shall be used:

 

(1)        the age of the applicant when the offense was committed;

(2)        the circumstances surrounding the offense;

(3)        the length of time since the conviction;

(4)        the specific duties and responsibilities necessarily related to the license being applied for and the bearing, if any, that the applicant's conviction history may have on his or her fitness to perform these duties and responsibilities;

(5)       the applicant's employment references;

(6)       the applicant's character references and any certificates of achievement;

(7)       an academic transcript showing educational attainment since the disqualifying conviction;

(8)       a Certificate of Relief from Disabilities or Certificate of Good Conduct; and

(9)       anything else that speaks to the applicant's character. [225 ILCS 10/4.2(e)]

 

Additional Foster Home Restrictions

 

No applicant may receive a license from the Department to operate a foster family home, and no adult person may reside in a foster family home licensed by the Department, who has been convicted of committing or attempting to commit any of the following offenses stipulated under the Criminal Code of 1961, the Criminal Code of 2012, the Cannabis Control Act [720 ILCS 550], the Methamphetamine Control and Community Protection Act, and the Illinois Controlled Substances Act [725 ILCS 70]:

 

(I) OFFENSES DIRECTED AGAINST THE PERSON

 

(A)       KIDNAPPING AND RELATED OFFENSES

 

(1)        Unlawful restraint.

 

(B)       BODILY HARM

 

(2)        Felony aggravated assault;

(3)        Vehicular endangerment;

(4)        Felony domestic battery;

(5)        Aggravated battery;

(6)        Heinous battery;

(7)        Aggravated battery with a firearm;

(8)        Aggravated battery of an unborn child;

(9)        Aggravated battery of a senior citizen;

(10)      Intimidation;

(11)      Compelling organization membership of persons;

(12)      Abuse and criminal neglect of a long term care facility resident;

(13)      Felony violation of an order of protection.

 

(II) OFFENSES DIRECTED AGAINST PROPERTY

 

(14)      Felony theft;

(15)      Robbery;

(16)      Armed robbery;

(17)      Aggravated robbery;

(18)      Vehicular hijacking;

(19)      Aggravated vehicular hijacking;

(20)      Burglary;

(21)      Possession of burglary tools;

(22)      Residential burglary;

(23)      Criminal fortification of a residence or building;

(24)      Arson;

(25)      Aggravated arson;

(26)      Possession of explosive or explosive incendiary devices.

 

(III) OFFENSES AFFECTING PUBLIC HEALTH, SAFETY, AND DECENCY

 

(27)      Felony unlawful use of weapons;

(28)      Aggravated discharge of a firearm;

(29)      Reckless discharge of a firearm;

(30)      Unlawful use of metal piercing bullets;

(31)      Unlawful sale or delivery of firearms on the premises of any school;

(32)      Disarming a police officer;

(33)      Obstructing justice;

(34)      Concealing or aiding a fugitive;

(35)      Armed violence;

(36)      Felony contributing to the criminal delinquency of a juvenile.

 

(IV) DRUG OFFENSES

 

(37)      Possession of more than 30 grams of cannabis;

(38)      Manufacture of more than 10 grams of cannabis;

(39)      Cannabis trafficking;

(40)      Delivery of cannabis on school grounds;

(41)      Unauthorized production of more than 5 cannabis sativa plants;

(42)      Calculated criminal cannabis conspiracy;

(43)      Unauthorized manufacture or delivery of controlled substances;

(44)      Controlled substance trafficking;

(45)      Manufacture, distribution, or advertisement of look-alike substances;

(46)      Calculated criminal drug conspiracy;

(46.5)   Street gang criminal drug conspiracy;

(47)      Permitting unlawful use of a building;

(48)      Delivery of controlled, counterfeit, or look-alike substances to persons under age 18, or at truck stops, rest stops, or safety rest areas, or on school property;

(49)      Using, engaging, or employing persons under 18 to deliver controlled, counterfeit, or look-alike substances;

(50)      Delivery of controlled substances;

(51)      Sale or delivery of drug paraphernalia;

(52)      Felony possession, sale, or exchange of instruments adapted for use of a controlled substance, methamphetamine, or cannabis by subcutaneous injection;

(53)      Any violation of the Methamphetamine Control and Community Protection Act.

 

Waiver Conditions for Foster Homes

 

The Department may make an exception and issue a new foster family home license or may renew an existing foster family home license of an applicant who was convicted of an offense described in the section titled Additional Foster Home Restrictions, provided all of the following requirements are met:

 

(1)        The relevant criminal offense or offenses occurred more than 10 years prior to the date of application or renewal;

(2)        The applicant had previously disclosed the conviction or convictions to the Department for purposes of a background check;

(3)        After the disclosure, the Department either placed a child in the home or the foster family home license was issued;

(4)        During the background check, the Department had assessed and waived the conviction in compliance with the existing statutes and rules in effect at the time of the hire or licensure;

(5)        The applicant meets all other requirements and qualifications to be licensed as a foster family home under this Act and the Department's administrative rules;

(6)        The applicant has a history of providing a safe, stable home environment and appears able to continue to provide a safe, stable home environment.  [225 ILCS 10/4.2(d)]

 

In evaluating whether to grant the exception, the Department must carefully review any relevant documents to determine whether the applicant, despite the disqualifying convictions, poses a substantial risk to State resources or clients. In making this determination, the following guidelines shall be used:

 

(1)        the age of the applicant when the offense was committed;

(2)        the circumstances surrounding the offense;

(3)        the length of time since the conviction;

(4)        the specific duties and responsibilities necessarily related to the license being applied for and the bearing, if any, that the applicant's conviction history may have on his or her fitness to perform these duties and responsibilities;

(5)        the applicant's employment references;

(6)        the applicant's character references and any certificates of achievement;

(7)        an academic transcript showing educational attainment since the disqualifying conviction;

(8)        a Certificate of Relief from Disabilities or Certificate of Good Conduct; and

(9)        anything else that speaks to the applicant's character. [225 ILCS 10/4.2(e)]

 

(Source:  Amended at 45 Ill. Reg. 12963, effective September 28, 2021)

Section 385.APPENDIX B   Matrix of Persons Subject to Background Checks Under Part 385 (Repealed)

 

(Source:  Repealed at 45 Ill. Reg. 12963, effective September 28, 2021)