HB2968ham001 100TH GENERAL ASSEMBLY

Rep. Michael J. Zalewski

Filed: 3/22/2017

10000HB2968ham001 LRB100 10388 SMS 23924 a

AMENDMENT TO HOUSE BILL 2968

AMENDMENT NO. ______. Amend House Bill 2968 by replacing everything after the enacting clause with the following:

"Section 5. The Clinical Social Work and Social Work Practice Act is amended by changing Section 19 and by adding Section 9B as follows:

(225 ILCS 20/9B new)

Sec. 9B. Applicant convictions.

(a) The Department and the Board shall not require applicants to report information about the following and shall not consider the following criminal history records in connection with an application for licensure:

(1) Juvenile adjudications of delinquent minors as defined in Section 5-105 of the Juvenile Court Act of 1987, subject to the restrictions set forth in Section 5-130 of the Juvenile Court Act of 1987.

(2) Law enforcement records, court records, and conviction records of an individual who was 17 years old at the time of the offense and before January 1, 2014, unless the nature of the offense required the individual to be tried as an adult.

(3) Records of arrest not followed by a charge or conviction.

(4) Records of arrest where charges were dismissed unless related to the practice of the profession. However, applicants shall not be asked to report any arrests, and an arrest not followed by a conviction shall not be the basis of a denial and may be used only to assess an applicant's rehabilitation.

(5) Convictions overturned by a higher court.

(6) Convictions or arrests that have been sealed or expunged.

(b) Except as provided in Section 2105-165 of the Department of Professional Regulation Law, the Department, upon a finding that an applicant for a license was previously convicted of any felony or misdemeanor directly related to the practice of the profession, shall consider any mitigating factors and evidence of rehabilitation contained in such applicant's record, including any of the following factors and evidence, to determine whether a prior conviction will impair the ability of the applicant to engage in the position for which a license is sought:

(1) the lack of direct relation of the offense for which the applicant was previously convicted to the duties, functions, and responsibilities of the position for which a license is sought;

(2) whether 5 years since a felony conviction or 3 years since release from confinement for the conviction, whichever is later, have passed without a subsequent conviction;

(3) if the applicant was previously licensed or employed in this State or other state or jurisdictions, then the lack of prior misconduct arising from or related to the licensed position or position of employment;

(4) the age of the person at the time of the criminal offense;

(5) successful completion of sentence and, for applicants serving a term of parole or probation, a progress report provided by the applicant's probation or parole officer that documents the applicant's compliance with conditions of supervision;

(6) evidence of the applicant's present fitness and professional character;

(7) evidence of rehabilitation or rehabilitative effort during or after incarceration, or during or after a term of supervision, including, but not limited to, a certificate of good conduct under Section 5-5.5-25 of the Unified Code of Corrections or a certificate of relief from disabilities under Section 5-5.5-10 of the Unified Code of Corrections; and

(8) any other mitigating factors that contribute to the person's potential and current ability to perform the duties and responsibilities of the position for which a license or employment is sought.

(c) If the Department refuses to grant a license to an applicant based, in whole or in part, upon a conviction or convictions, then the Department shall notify the applicant of the denial in writing with the following included in the notice of denial:

(1) a statement about the decision to refuse to issue a license;

(2) a list of the convictions that the Department determined will impair the applicant's ability to engage in the position for which a license is sought;

(3) a list of the convictions that form the sole or partial basis for the refusal to issue a license; and

(4) a summary of the appeal process or the earliest the applicant may reapply for a license, whichever is applicable.

(d) No later than May 1 of each year, the Department must prepare, publicly announce, and publish a report of summary statistical information relating to new license applications during the preceding calendar year. Each report shall show, at a minimum:

(1) the number of applicants for a new license under this Act within the previous calendar year;

(2) the number of applicants for a new license under this Act within the previous calendar year who had any criminal conviction;

(3) the number of applicants for a new license under this Act in the previous calendar year who were granted a license;

(4) the number of applicants for a new license with a criminal conviction who were granted a license under this Act within the previous calendar year;

(5) the number of applicants for a new license under this Act within the previous calendar year who were denied a license;

(6) the number of applicants for a new license with a criminal conviction who were denied a license under this Act in the previous calendar year in part or in whole because of a prior conviction; and

(7) the number of licenses issued on probation under this Act in the previous calendar year to applicants with a criminal conviction.

(225 ILCS 20/19) (from Ch. 111, par. 6369)

(Section scheduled to be repealed on January 1, 2018)

Sec. 19. Grounds for disciplinary action.

(1) The Department may refuse to issue, refuse to renew, suspend, or revoke any license, or may place on probation, censure, reprimand, or take other disciplinary or non-disciplinary action deemed appropriate by the Department, including the imposition of fines not to exceed $10,000 for each violation, with regard to any license issued under the provisions of this Act for any one or a combination of the following reasons:

(a) material misstatements of fact in furnishing information to the Department or to any other State agency or in furnishing information to any insurance company with respect to a claim on behalf of a licensee or a patient;

(b) violations or negligent or intentional disregard of this Act, or any of the rules promulgated hereunder;

(c) for licensees, conviction of or entry of a plea of guilty or nolo contendere to any crime that is a felony under the laws of the United States or any state or territory thereof or that is a misdemeanor, of which an essential element is dishonesty, or any crime that is directly related to the practice of the clinical social work or social work professions; provisions set forth in Section 9B shall apply for applicants;

(d) making any misrepresentation for the purpose of obtaining licenses, or violating any provision of this Act or any of the rules promulgated hereunder;

(e) professional incompetence;

(f) malpractice;

(g) aiding or assisting another person in violating any provision of this Act or any rules;

(h) failing to provide information within 30 days in response to a written request made by the Department;

(i) engaging in dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud or harm the public as defined by the rules of the Department, or violating the rules of professional conduct adopted by the Board and published by the Department;

(j) habitual or excessive use or addiction to alcohol, narcotics, stimulants, or any other chemical agent or drug that results in a clinical social worker's or social worker's inability to practice with reasonable judgment, skill, or safety;

(k) discipline by another jurisdiction, if at least one of the grounds for the discipline is the same or substantially equivalent to those set forth in this Section;

(l) directly or indirectly giving to or receiving from any person, firm, corporation, partnership, or association any fee, commission, rebate or other form of compensation for any professional service not actually rendered. Nothing in this paragraph (l) affects any bona fide independent contractor or employment arrangements among health care professionals, health facilities, health care providers, or other entities, except as otherwise prohibited by law. Any employment arrangements may include provisions for compensation, health insurance, pension, or other employment benefits for the provision of services within the scope of the licensee's practice under this Act. Nothing in this paragraph (l) shall be construed to require an employment arrangement to receive professional fees for services rendered;

(m) a finding by the Board that the licensee, after having the license placed on probationary status, has violated the terms of probation;

(n) abandonment, without cause, of a client;

(o) wilfully filing false reports relating to a licensee's practice, including but not limited to false records filed with Federal or State agencies or departments;

(p) wilfully failing to report an instance of suspected child abuse or neglect as required by the Abused and Neglected Child Reporting Act;

(q) being named as a perpetrator in an indicated report by the Department of Children and Family Services under the Abused and Neglected Child Reporting Act, and upon proof by clear and convincing evidence that the licensee has caused a child to be or failed to take reasonable steps to prevent a child from being an abused child or neglected child as defined in the Abused and Neglected Child Reporting Act;

(r) physical illness, mental illness, or any other impairment or disability, including, but not limited to, deterioration through the aging process, or loss of motor skills that results in the inability to practice the profession with reasonable judgment, skill or safety;

(s) solicitation of professional services by using false or misleading advertising; or

(t) violation of the Health Care Worker Self-Referral Act.

(2) (Blank).

(3) The determination by a court that a licensee is subject to involuntary admission or judicial admission as provided in the Mental Health and Developmental Disabilities Code, will result in an automatic suspension of his license. Such suspension will end upon a finding by a court that the licensee is no longer subject to involuntary admission or judicial admission and issues an order so finding and discharging the patient, and upon the recommendation of the Board to the Secretary that the licensee be allowed to resume professional practice.

(4) The Department may refuse to issue or renew or may suspend the license of a person who (i) fails to file a return, pay the tax, penalty, or interest shown in a filed return, or pay any final assessment of tax, penalty, or interest, as required by any tax Act administered by the Department of Revenue, until the requirements of the tax Act are satisfied or (ii) has failed to pay any court-ordered child support as determined by a court order or by referral from the Department of Healthcare and Family Services.

(5) In enforcing this Section, the Board upon a showing of a possible violation may compel a person licensed to practice under this Act, or who has applied for licensure or certification pursuant to this Act, to submit to a mental or physical examination, or both, as required by and at the expense of the Department. The examining physicians shall be those specifically designated by the Board. The Board or the Department may order the examining physician to present testimony concerning this mental or physical examination of the licensee or applicant. No information shall be excluded by reason of any common law or statutory privilege relating to communications between the licensee or applicant and the examining physician. The person to be examined may have, at his or her own expense, another physician of his or her choice present during all aspects of the examination. Failure of any person to submit to a mental or physical examination, when directed, shall be grounds for suspension of a license until the person submits to the examination if the Board finds, after notice and hearing, that the refusal to submit to the examination was without reasonable cause.

If the Board finds a person unable to practice because of the reasons set forth in this Section, the Board may require that person to submit to care, counseling, or treatment by physicians approved or designated by the Board, as a condition, term, or restriction for continued, reinstated, or renewed licensure to practice; or, in lieu of care, counseling or treatment, the Board may recommend to the Department to file a complaint to immediately suspend, revoke or otherwise discipline the license of the person. Any person whose license was granted, continued, reinstated, renewed, disciplined or supervised subject to such terms, conditions or restrictions, and who fails to comply with such terms, conditions, or restrictions, shall be referred to the Secretary for a determination as to whether the person shall have his or her license suspended immediately, pending a hearing by the Board.

In instances in which the Secretary immediately suspends a person's license under this Section, a hearing on that person's license must be convened by the Board within 30 days after the suspension and completed without appreciable delay. The Board shall have the authority to review the subject person's record of treatment and counseling regarding the impairment, to the extent permitted by applicable federal statutes and regulations safeguarding the confidentiality of medical records.

A person licensed under this Act and affected under this Section shall be afforded an opportunity to demonstrate to the Board that he or she can resume practice in compliance with acceptable and prevailing standards under the provisions of his or her license.

(Source: P.A. 98-756, eff. 7-16-14.)

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