HB6979 93RD GENERAL ASSEMBLY

LRB093 19938 AMC 45682 b

93RD GENERAL ASSEMBLY
State of Illinois
2003 and 2004
HB6979

Introduced 02/09/04, by Kathleen A. Ryg

SYNOPSIS AS INTRODUCED:

225 ILCS 46/30
225 ILCS 46/40
225 ILCS 46/45
225 ILCS 46/50
225 ILCS 46/35 rep.

Amends the Health Care Worker Background Check Act. Provides that Uniform Conviction Information Act criminal history records checks and searches of the Federal Bureau of Investigation criminal history records database must be initiated for persons entering a nurse aid training program, persons seeking to be included on the nurse aide registry, and employees of health care workers with duties that involve direct care for clients, patients, or residents. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

AN ACT concerning health care workers.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Health Care Worker Background Check Act is amended by changing Sections 30, 40, 45, and 50 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 and have a search of the Federal Bureau of Investigation criminal history records database conducted prior to entry of an individual into the training program. A nurse aide seeking to be included on the 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 the a criminal history record check pursuant to this Section the Uniform Conviction Information Act (UCIA) for each nurse aide applying for inclusion on the State nurse aide registry. Any nurse aide not submitting the required authorization and information for the record check will not be added to the State nurse aide registry. A nurse aide will not be entered on the State nurse aide registry if the results of the record check indicate 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 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 and have a search of the Federal Bureau of Investigation criminal history records database conducted 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 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 and have a search of the Federal Bureau of Investigation criminal history records database conducted 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 and have a search of the Federal Bureau of Investigation criminal history records database conducted 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.

(e) The criminal history records check shall be undertaken after the fingerprinting of an applicant in the form and manner prescribed by the Department of State Police. The investigation shall consist of a criminal history records check performed by the Department of State Police and the Federal Bureau of Investigation, or some other entity that has the ability to check the applicant's fingerprints against the fingerprint records now and hereafter filed in the Department of State Police and Federal Bureau of Investigation criminal history records databases. 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 criminal history records 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 and have a search of the Federal Bureau of Investigation criminal history records database conducted 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 to provide direct care for up to 3 months pending the results of a UCIA criminal history record check under this Section.

(h) An employer need not initiate an additional criminal background check for an employee if the employer initiated a criminal background history records check for the employee within one year before the effective date of this amendatory Act of the 93rd General Assembly. Any person newly employed on or after the effective date of this amendatory Act of the 93rd General Assembly must receive a background check as required by this Section.

(Source: P.A. 91-598, eff. 1-1-00.)

(225 ILCS 46/40)

Sec. 40. Waiver.

(a) (Blank). 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) (Blank). 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) 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 in a direct care position from the time that the employer receives the results of a criminal history records 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 in a direct care position 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. 91-598, eff. 1-1-00.)

(225 ILCS 46/45)

Sec. 45. Application fees. Except as otherwise provided in this Act, the applicant or employee, other than a nurse aide, may be required to pay all related application and fingerprinting fees including, but not limited to, the amounts required established by the UCIA to conduct UCIA criminal history record checks and the amounts established by the Department of State Police to process the fingerprint-based UCIA criminal records checks required by this Act. If a health care employer certified to participate in the Medicaid program pays the fees, the fees shall be a direct pass-through on the cost report submitted by the employer to the Medicaid agency.

(Source: P.A. 89-197, eff. 7-21-95.)

(225 ILCS 46/50)

Sec. 50. Health care employer files. The health care employer shall retain on file for a period of 5 years records of criminal records requests for all employees. The health care employer shall retain the results of the UCIA criminal history records check and waiver, if appropriate, for the duration of the individual's employment. The files shall be subject to inspection by the agency responsible for inspecting, licensing, or certifying the health care employer. A fine of up to $500 may be imposed by the appropriate agency for failure to maintain these records.

(Source: P.A. 89-197, eff. 7-21-95; 89-674, eff. 8-14-96.)

(225 ILCS 46/35 rep.)

Section 10. The Health Care Worker Background Check Act is amended by repealing Section 35.

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