SB1688 100TH GENERAL ASSEMBLY

LRB100 08713 SMS 18849 b

100TH GENERAL ASSEMBLY
State of Illinois
2017 and 2018
SB1688

Introduced 2/9/2017, by Sen. Kwame Raoul

SYNOPSIS AS INTRODUCED:

See Index

Amends the Department of Professional Regulation Law of the Civil Administrative Code of Illinois. Requires the Department of Financial and Professional Regulation to consider certain mitigating factors and evidence of rehabilitation for certain applicants of licenses, certificates, and registrations. Requires the Department, upon denial of a license, certificate, or registration, to provide the applicant certain information concerning the denial. Provides that no application for licensure or registration shall be denied by reason of a finding of lack of good moral character when the finding is based solely upon the fact that the applicant has one or more previous convictions. Provides that the Department shall not require applicants to report certain criminal history information and the Department shall not consider the information. Provides that on May 1 of each year, the Department shall prepare, publicly announce, and publish certain statistical information. Amends the Criminal Identification Act. Includes applications for license, certification, and registration that must contain specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest and entities authorized to grant professional licenses, certifications, and registrations that may not ask if an applicant has had records expunged or sealed. Provides that certain sealed or impounded felony records shall not be disseminated in connection with an application for a professional or business license, except specified health care worker licenses. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

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 Professional Regulation Law of the Civil Administrative Code of Illinois is amended by changing Sections 2105-130, 2105-131, 2105-135, 2105-205, and 2105-207 as follows:

(20 ILCS 2105/2105-130)

Sec. 2105-130. Determination of disciplinary sanctions.

(a) Following disciplinary proceedings as authorized in any licensing Act administered by the Department, upon a finding by the Department that a person has committed a violation of the licensing Act with regard to licenses, certificates, or authorities of persons exercising the respective professions, trades, or occupations, the Department may revoke, suspend, refuse to renew, place on probationary status, fine, or take any other disciplinary action as authorized in the licensing Act with regard to those licenses, certificates, or authorities. When making a determination of the appropriate disciplinary sanction to be imposed, the Department shall consider only evidence contained in the record. The Department shall consider any aggravating or mitigating factors contained in the record when determining the appropriate disciplinary sanction to be imposed.

(b) When making a determination of the appropriate disciplinary sanction to be imposed on a licensee, the Department shall consider, but is not limited to, the following aggravating factors contained in the record:

(1) the seriousness of the offenses;

(2) the presence of multiple offenses;

(3) prior disciplinary history, including actions taken by other agencies in this State, by other states or jurisdictions, hospitals, health care facilities, residency programs, employers, or professional liability insurance companies or by any of the armed forces of the United States or any state;

(4) the impact of the offenses on any injured party;

(5) the vulnerability of any injured party, including, but not limited to, consideration of the injured party's age, disability, or mental illness;

(6) the motive for the offenses;

(7) the lack of contrition for the offenses;

(8) financial gain as a result of committing the offenses; and

(9) the lack of cooperation with the Department or other investigative authorities.

(c) When making a determination of the appropriate disciplinary sanction to be imposed on a licensee, the Department shall consider, but is not limited to, the following mitigating factors contained in the record:

(1) the lack of prior disciplinary action by the Department or by other agencies in this State, by other states or jurisdictions, hospitals, health care facilities, residency programs, employers, insurance providers, or by any of the armed forces of the United States or any state;

(2) contrition for the offenses;

(3) cooperation with the Department or other investigative authorities;

(4) restitution to injured parties;

(5) whether the misconduct was self-reported; and

(6) any voluntary remedial actions taken.

(Source: P.A. 98-1047, eff. 1-1-15.)

(20 ILCS 2105/2105-131 new)

Sec. 2105-131. Applicants with criminal convictions; notice of denial.

(a) Except as provided in Section 2105-130 of this Act regarding licensing restrictions based on enumerated offenses for health care workers as defined in the Health Care Worker Self-Referral Act, the Department, upon a finding that an applicant for a license, certificate, or registration was previously convicted of a felony or misdemeanor that may be grounds for refusing to issue a license or certificate or granting registration, shall consider any mitigating factors and evidence of rehabilitation contained in the applicant's record, including any of the following, in determining whether to grant a license, certificate, or registration:

(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 in sought;

(2) unless otherwise specified, 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 states or jurisdictions, 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 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 job duties.

(b) It is the affirmative obligation of the Department to demonstrate that a prior conviction would impair the ability of the applicant to engage in a practice requiring registration, licensure, or certification by the Department. If the Department refuses to issue a license or certificate or grant registration to an applicant, 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 grant a license, certificate, or registration;

(2) a list of the conviction items that formed the sole or partial basis for the refusal to issue a license;

(3) a list of the mitigating evidence presented by the applicant;

(4) reasons for refusing to issue a license specific to the evidence presented in mitigation of conviction items that formed the partial or sole basis for the Department's decision; and

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

(20 ILCS 2105/2105-135)

Sec. 2105-135. Qualification for licensure or registration; good moral character; applicant conviction records.

(a) The practice of professions licensed or registered by the Department is hereby declared to affect the public health, safety, and welfare and to be subject to regulation and control in the public interest. It is further declared to be a matter of public interest and concern that persons who are licensed or registered to engage in any of the professions licensed or registered by the Department are of good moral character, which shall be a continuing requirement of licensure or registration so as to merit and receive the confidence and trust of the public. Upon a finding by the Department that a person has committed a violation of the disciplinary grounds of any licensing Act administered by the Department with regard to licenses, certificates, or authorities of persons exercising the respective professions, trades, or occupations, the Department is authorized to revoke, suspend, refuse to renew, place on probationary status, fine, or take any other disciplinary action it deems warranted against any licensee or registrant whose conduct violates the continuing requirement of good moral character.

(b) No application for licensure or registration shall be denied by reason of a finding of lack of good moral character when the finding is based solely upon the fact that the applicant has previously been convicted of one or more criminal offenses. When reviewing a prior conviction of an initial applicant for the purpose of determining good moral character, the Department shall consider evidence of rehabilitation and mitigating factors in the applicant's record, including those set forth in subsection (a) of Section 2105-131 of this Act.

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

(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 that Act;

(2) law enforcement, court, and conviction records of an individual who was 17 years old at the time of the offense and before January 1, 2014, unless the offense required automatic transfer to adult court;

(3) records of arrest not followed by a conviction 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;

(4) convictions overturned by a higher court; or

(5) convictions or arrests that have been sealed or expunged.

(Source: P.A. 98-1047, eff. 1-1-15.)

(20 ILCS 2105/2105-205) (was 20 ILCS 2105/60.3)

Sec. 2105-205. Publication of disciplinary actions; annual report.

(a) The Department shall publish on its website, at least monthly, final disciplinary actions taken by the Department against a licensee or applicant pursuant to any licensing Act administered by the Department. The specific disciplinary action and the name of the applicant or licensee shall be listed.

(b) 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 and renewal license, certification, or registration applications during the preceding calendar year. Each report shall show at minimum:

(1) the number of applicants for each new or renewal license, certificate, or registration administered by the Department in the previous calendar year;

(2) the number of applicants for a new or renewal license, certificate, or registration within the previous calendar year who had any criminal conviction;

(3) the number of applicants for a new or renewal license, certificate, or registration in the previous calendar year who were granted a license, registration, or certificate;

(4) the number of applicants for a new or renewal license, certificate, or registration within the previous calendar year with a criminal conviction who were granted a license, certificate, or registration in the previous calendar year;

(5) the number of applicants for a new or renewal license, certificate, or registration in the previous calendar year who were denied a license, registration, or certificate;

(6) the number of applicants for new or renewal license, certificate, or registration in the previous calendar year with a criminal conviction who were denied a license, certificate, or registration in part or in whole because of such conviction;

(7) the number of probationary licenses issued without monitoring within the previous calendar year to applicants with a criminal conviction;

(8) the number of probationary licenses issued with monitoring within the previous calendar year to applicants with a criminal conviction; and

(9) the number of licensees, certificate holders, or permittees who were granted expungement for a record of discipline based on a conviction predating licensure, certification, or registration or a criminal charge, arrest, or conviction that was dismissed, sealed, or expunged or did not arise from the regulated activity, as a share of the total such expungement requests.

(Source: P.A. 99-227, eff. 8-3-15.)

(20 ILCS 2105/2105-207)

Sec. 2105-207. Records of Department actions.

(a) Any licensee subject to a licensing Act administered by the Division of Professional Regulation and who has been subject to disciplinary action by the Department may file an application with the Department on forms provided by the Department, along with the required fee of $200, to have the records classified as confidential, not for public release, and considered expunged for reporting purposes if:

(1) the application is submitted more than 3 7 years after the disciplinary offense or offenses occurred;

(2) the licensee has had no incidents of discipline under the licensing Act since the disciplinary offense or offenses identified in the application occurred;

(3) the Department has no pending investigations against the licensee; and

(4) the licensee is not currently in a disciplinary status.

(b) An application to make disciplinary records confidential shall only be considered by the Department for an offense or action relating to:

(1) failure to pay taxes or student loans;

(2) continuing education;

(3) failure to renew a license on time;

(4) failure to obtain or renew a certificate of registration or ancillary license;

(5) advertising; or

(5.1) discipline based on criminal charges or convictions:

(A) that did not arise from the licensed activity and was unrelated to the licensed activity; or

(B) for which the records have been sealed, expunged, or dismissed;

(5.2) a probationary license issued to new applicants on the sole or partial basis of prior convictions; or

(6) any grounds for discipline removed from the licensing Act.

(c) An application shall be submitted to and considered by the Director of the Division of Professional Regulation upon submission of an application and the required non-refundable fee. The Department may establish additional requirements by rule. The Department is not required to report the removal of any disciplinary record to any national database. Nothing in this Section shall prohibit the Department from using a previous discipline for any regulatory purpose or from releasing records of a previous discipline upon request from law enforcement, or other governmental body as permitted by law. Classification of records as confidential shall result in removal of records of discipline from records kept pursuant to Sections 2105-200 and 2105-205 of this Act.

(Source: P.A. 98-816, eff. 8-1-14.)

Section 10. The Criminal Identification Act is amended by changing Sections 12 and 13 as follows:

20 ILCS 2630/12)

Sec. 12. Entry of order; effect of expungement or sealing records.

(a) Except with respect to law enforcement agencies, the Department of Corrections, State's Attorneys, or other prosecutors, and as provided in Section 13 of this Act, an expunged or sealed record may not be considered by any private or public entity in employment matters, certification, licensing, revocation of certification or licensure, or registration. Applications for employment, certification, registration, or licensure must contain specific language which states that the applicant is not obligated to disclose sealed or expunged records of conviction or arrest. Employers and entities authorized to grant a professional license, certification, or registration may not ask if an applicant has had records expunged or sealed.

(b) A person whose records have been sealed or expunged is not entitled to remission of any fines, costs, or other money paid as a consequence of the sealing or expungement. This amendatory Act of the 93rd General Assembly does not affect the right of the victim of a crime to prosecute or defend a civil action for damages. Persons engaged in civil litigation involving criminal records that have been sealed may petition the court to open the records for the limited purpose of using them in the course of litigation.

(Source: P.A. 93-211, eff. 1-1-04; 93-1084, eff. 6-1-05.)

(20 ILCS 2630/13)

Sec. 13. Retention and release of sealed records.

(a) The Department of State Police shall retain records sealed under subsection (c) or (e-5) of Section 5.2 or impounded under subparagraph (B) or (B-5) of paragraph (9) of subsection (d) of Section 5.2 and shall release them only as authorized by this Act. Felony records sealed under subsection (c) or (e-5) of Section 5.2 or impounded under subparagraph (B) or (B-5) of paragraph (9) of subsection (d) of Section 5.2 shall be used and disseminated by the Department only as otherwise specifically required or authorized by a federal or State law, rule, or regulation that requires inquiry into and release of criminal records, including, but not limited to, subsection (A) of Section 3 of this Act, except those records shall not be used or disseminated in connection with an application for a professional or business license, registration, or certification not involving a licensed health care worker as defined in the Health Care Worker Self-Referral Act. However, all requests for records that have been expunged, sealed, and impounded and the use of those records are subject to the provisions of Section 2-103 of the Illinois Human Rights Act. Upon conviction for any offense, the Department of Corrections shall have access to all sealed records of the Department pertaining to that individual.

(b) Notwithstanding the foregoing, all sealed or impounded records are subject to inspection and use by the court and inspection and use by law enforcement agencies and State's Attorneys or other prosecutors in carrying out the duties of their offices.

(c) The sealed or impounded records maintained under subsection (a) are exempt from disclosure under the Freedom of Information Act.

(d) The Department of State Police shall commence the sealing of records of felony arrests and felony convictions pursuant to the provisions of subsection (c) of Section 5.2 of this Act no later than one year from the date that funds have been made available for purposes of establishing the technologies necessary to implement the changes made by this amendatory Act of the 93rd General Assembly.

(Source: P.A. 97-1026, eff. 1-1-13; 97-1120, eff. 1-1-13; 98-399, eff. 8-16-13; 98-463, eff. 8-16-13.)

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