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Public Act 101-0176 | ||||
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AN ACT concerning regulation.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Health Care Worker Background Check Act is | ||||
amended by changing Sections 15, 33, and 40 as follows:
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(225 ILCS 46/15)
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Sec. 15. Definitions. In this Act:
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"Applicant" means an individual enrolling in a training | ||||
program, seeking employment, whether paid or on a volunteer | ||||
basis, with a health care
employer who has received a bona fide | ||||
conditional offer of employment.
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"Conditional offer of employment" means a bona fide offer | ||||
of employment by a
health care employer to an applicant, which | ||||
is contingent upon the receipt of a
report from the Department | ||||
of Public Health indicating that the applicant does
not have a | ||||
record of conviction of any of the criminal offenses enumerated | ||||
in
Section 25.
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"Department" means the Department of Public Health. | ||||
"Direct care" means the provision of nursing care or | ||||
assistance with feeding,
dressing, movement, bathing, | ||||
toileting, or other personal needs, including home services as | ||||
defined in the Home Health, Home Services, and Home Nursing | ||||
Agency Licensing Act. The entity
responsible for inspecting and |
licensing, certifying, or registering the
health care employer | ||
may, by administrative rule, prescribe guidelines for
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interpreting this definition with regard to the health care | ||
employers that it
licenses.
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"Director" means the Director of Public Health. | ||
"Disqualifying offenses" means those offenses set forth in | ||
Section 25 of this Act. | ||
"Employee" means any individual hired, employed, or | ||
retained, whether paid or on a volunteer basis, to which this | ||
Act applies. | ||
"Finding" means the Department's determination of whether | ||
an allegation is verified and substantiated. | ||
"Fingerprint-based criminal history records check" means a | ||
livescan fingerprint-based criminal history records check | ||
submitted as a fee applicant inquiry in the form and manner | ||
prescribed by the Department of State Police.
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"Health care employer" means:
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(1) the owner or licensee of any of the
following:
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(i) a community living facility, as defined in the | ||
Community Living
Facilities Act;
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(ii) a life care facility, as defined in the Life | ||
Care Facilities Act;
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(iii) a long-term care facility;
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(iv) a home health agency, home services agency, or | ||
home nursing agency as defined in the Home Health, Home | ||
Services, and Home Nursing Agency Licensing
Act;
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(v) a hospice care program or volunteer hospice | ||
program, as defined in the Hospice Program Licensing | ||
Act;
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(vi) a hospital, as defined in the Hospital | ||
Licensing Act;
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(vii) (blank);
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(viii) a nurse agency, as defined in the Nurse | ||
Agency Licensing Act;
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(ix) a respite care provider, as defined in the | ||
Respite Program Act;
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(ix-a) an establishment licensed under the | ||
Assisted Living and Shared
Housing Act;
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(x) a supportive living program, as defined in the | ||
Illinois Public Aid
Code;
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(xi) early childhood intervention programs as | ||
described in 59 Ill. Adm.
Code 121;
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(xii) the University of Illinois Hospital, | ||
Chicago;
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(xiii) programs funded by the Department on Aging | ||
through the Community
Care Program;
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(xiv) programs certified to participate in the | ||
Supportive Living Program
authorized pursuant to | ||
Section 5-5.01a of the Illinois Public Aid Code;
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(xv) programs listed by the Emergency Medical | ||
Services (EMS) Systems Act
as
Freestanding Emergency | ||
Centers;
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(xvi) locations licensed under the Alternative | ||
Health Care Delivery
Act;
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(2) a day training program certified by the Department | ||
of Human Services;
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(3) a community integrated living arrangement operated | ||
by a community
mental health and developmental service | ||
agency, as defined in the
Community-Integrated Living | ||
Arrangements Licensing and Certification Act; or
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(4) the State Long Term Care Ombudsman Program, | ||
including any regional long term care ombudsman programs | ||
under Section 4.04 of the Illinois Act on the Aging, only | ||
for the purpose of securing background checks.
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"Initiate" means obtaining from
a student, applicant, or | ||
employee his or her social security number, demographics, a | ||
disclosure statement, and an authorization for the Department | ||
of Public Health or its designee to request a fingerprint-based | ||
criminal history records check; transmitting this information | ||
electronically to the Department of Public Health; conducting | ||
Internet searches on certain web sites, including without | ||
limitation the Illinois Sex Offender Registry, the Department | ||
of Corrections' Sex Offender Search Engine, the Department of | ||
Corrections' Inmate Search Engine, the Department of | ||
Corrections Wanted Fugitives Search Engine, the National Sex | ||
Offender Public Registry, and the List of Excluded Individuals | ||
and Entities database on the website of the Health and Human | ||
Services Office of Inspector General to determine if the |
applicant has been adjudicated a sex offender, has been a | ||
prison inmate, or has committed Medicare or Medicaid fraud, or | ||
conducting similar searches as defined by rule; and having the | ||
student, applicant, or employee's fingerprints collected and | ||
transmitted electronically to the Department of State Police.
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"Livescan vendor" means an entity whose equipment has been | ||
certified by the Department of State Police to collect an | ||
individual's demographics and inkless fingerprints and, in a | ||
manner prescribed by the Department of State Police and the | ||
Department of Public Health, electronically transmit the | ||
fingerprints and required data to the Department of State | ||
Police and a daily file of required data to the Department of | ||
Public Health. The Department of Public Health shall negotiate | ||
a contract with one or more vendors that effectively | ||
demonstrate that the vendor has 2 or more years of experience | ||
transmitting fingerprints electronically to the Department of | ||
State Police and that the vendor can successfully transmit the | ||
required data in a manner prescribed by the Department of | ||
Public Health. Vendor authorization may be further defined by | ||
administrative rule.
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"Long-term care facility" means a facility licensed by the | ||
State or certified under federal law as a long-term care | ||
facility, including without limitation facilities licensed | ||
under the Nursing Home Care Act, the Specialized Mental Health | ||
Rehabilitation Act of 2013, the ID/DD Community Care Act, or | ||
the MC/DD Act, a supportive living facility, an assisted living |
establishment, or a shared housing establishment or registered | ||
as a board and care home.
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"Resident" means a person, individual, or patient under the | ||
direct care of a health care employer or who has been provided | ||
goods or services by a health care employer. | ||
(Source: P.A. 99-180, eff. 7-29-15; 100-432, eff. 8-25-17.)
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(225 ILCS 46/33) | ||
Sec. 33. Fingerprint-based criminal history records check. | ||
(a) A fingerprint-based criminal history records check is | ||
not required for health care employees who have been | ||
continuously employed by a health care employer since October | ||
1, 2007, have met the requirements for criminal history | ||
background checks prior to October 1, 2007, and have no | ||
disqualifying convictions or requested and received a waiver of | ||
those disqualifying convictions. These employees shall be | ||
retained on the Health Care Worker Registry as long as they | ||
remain active. Nothing in this subsection (a) shall be | ||
construed to prohibit a health care employer from initiating a | ||
criminal history records check for these employees. Should | ||
these employees seek a new position with a different health | ||
care employer, then a fingerprint-based criminal history | ||
records check shall be required.
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(b) On October 1, 2007 or as soon thereafter as is | ||
reasonably practical, in the discretion of the Director of | ||
Public Health, and thereafter, any student,
applicant, or |
employee who desires to be included on the Department of Public | ||
Health's Health Care Worker Registry shall authorize the | ||
Department of Public Health or its designee to request a | ||
fingerprint-based criminal history records check to determine | ||
if the individual has a conviction for a disqualifying offense. | ||
This authorization shall allow the Department of Public Health | ||
to request and receive information and assistance from any | ||
State or governmental agency. Each individual shall submit his | ||
or her fingerprints to the Department of State Police in an | ||
electronic format that complies with the form and manner for | ||
requesting and furnishing criminal history record information | ||
prescribed by the Department of State Police. The fingerprints | ||
submitted under this Section shall be checked against the | ||
fingerprint records now and hereafter filed in the Department | ||
of State Police criminal history record databases. The | ||
Department of State Police shall charge a fee for conducting | ||
the criminal history records check, which shall not exceed the | ||
actual cost of the records check. The livescan vendor may act | ||
as the designee for individuals, educational entities, or | ||
health care employers in the collection of Department of State | ||
Police fees and deposit those fees into the State Police | ||
Services Fund. The Department of State Police shall provide | ||
information concerning any criminal convictions, now or | ||
hereafter filed, against the individual. | ||
(c) On October 1, 2007 or as soon thereafter as is | ||
reasonably practical, in the discretion of the Director of |
Public Health, and thereafter, an educational
entity, other | ||
than a secondary school, conducting a nurse aide training | ||
program shall initiate a fingerprint-based criminal history | ||
records check required by this Act prior to entry of an | ||
individual into the training program. | ||
(d) On October 1, 2007 or as soon thereafter as is | ||
reasonably practical, in the discretion of the Director of | ||
Public Health, and thereafter, a health care
employer who makes | ||
a conditional offer of employment to an applicant for a | ||
position as an employee shall initiate a fingerprint-based | ||
criminal history record check, requested by the Department of | ||
Public Health, on the applicant, if such a background check has | ||
not been previously conducted. Workforce intermediaries and | ||
organizations providing pro bono legal services may initiate a | ||
fingerprint-based criminal history record check if a | ||
conditional offer of employment has not been made and a | ||
background check has not been previously conducted for an | ||
individual who has a disqualifying conviction and is receiving | ||
services from a workforce intermediary or an organization | ||
providing pro bono legal services. | ||
(e) When initiating a background check requested by the
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Department of Public Health, an educational entity , or health | ||
care employer , workforce intermediary, or organization that | ||
provides pro bono legal services shall electronically submit to | ||
the Department of Public Health the student's, applicant's, or | ||
employee's social security number, demographics, disclosure, |
and authorization information in a format prescribed by the | ||
Department of Public Health within 2 working days after the | ||
authorization is secured. The student, applicant, or employee | ||
shall have his or her fingerprints collected electronically and | ||
transmitted to the Department of State Police within 10 working | ||
days. The educational entity , or health care employer , | ||
workforce intermediary, or organization that provides pro bono | ||
legal services shall transmit all necessary information and | ||
fees to the livescan vendor and Department of State Police | ||
within 10 working days after receipt of the authorization. This | ||
information and the results of the criminal history record | ||
checks shall be maintained by the Department of Public Health's | ||
Health Care Worker Registry. | ||
(f) A direct care employer may initiate a fingerprint-based | ||
background check required by this Act for any of its employees, | ||
but may not use this process to initiate background checks for | ||
residents. The results of any fingerprint-based background | ||
check that is initiated with the Department as the requester | ||
shall be entered in the Health Care Worker Registry. | ||
(g) As long as the employee or trainee has had a | ||
fingerprint-based criminal history record check required by | ||
this Act and stays active on the Health Care Worker Registry, | ||
no further criminal history record checks are required, as the | ||
Department of State Police shall notify the Department of | ||
Public Health of any additional convictions associated with the | ||
fingerprints previously submitted. Health care employers shall |
check the Health Care Worker Registry before hiring an employee | ||
to determine that the individual has had a fingerprint-based | ||
record check required by this Act and has no disqualifying | ||
convictions or has been granted a waiver pursuant to Section 40 | ||
of this Act. If the individual has not had such a background | ||
check or is not active on the Health Care Worker Registry, then | ||
the health care employer shall initiate a fingerprint-based | ||
record check requested by the Department of Public Health. If | ||
an individual is inactive on the Health Care Worker Registry, | ||
that individual is prohibited from being hired to work as a | ||
certified nursing assistant if, since the individual's most | ||
recent completion of a competency test, there has been a period | ||
of 24 consecutive months during which the individual has not | ||
provided nursing or nursing-related services for pay. If the | ||
individual can provide proof of having retained his or her | ||
certification by not having a 24-consecutive-month break in | ||
service for pay, he or she may be hired as a certified nursing | ||
assistant and that employment information shall be entered into | ||
the Health Care Worker Registry. | ||
(h) On October 1, 2007 or as soon thereafter as is | ||
reasonably practical, in the discretion of the Director of | ||
Public Health, and thereafter, if the Department of State | ||
Police notifies the Department of Public Health that an | ||
employee has a new conviction of a disqualifying offense, based | ||
upon the fingerprints that were previously submitted, then (i) | ||
the Health Care Worker Registry shall notify the employee's |
last known employer of the offense, (ii) a record of the | ||
employee's disqualifying offense shall be entered on the Health | ||
Care Worker Registry, and (iii) the individual shall no longer | ||
be eligible to work as an employee unless he or she obtains a | ||
waiver pursuant to Section 40 of this Act. | ||
(i) On October 1, 2007, or as soon thereafter, in the | ||
discretion of the Director of Public Health, as is reasonably | ||
practical, and thereafter, each direct care employer or its | ||
designee shall provide an employment verification for each | ||
employee no less than annually. The direct care employer or its | ||
designee shall log into the Health Care Worker Registry through | ||
a secure login. The health care employer or its designee shall | ||
indicate employment and termination dates within 30 days after | ||
hiring or terminating an employee, as well as the employment | ||
category and type. Failure to comply with this subsection (i) | ||
constitutes a licensing violation. A fine of up to $500 may be | ||
imposed for failure to maintain these records. This information | ||
shall be used by the Department of Public Health to notify the | ||
last known employer of any disqualifying offenses that are | ||
reported by the Department of State Police.
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(j) In the event that an applicant or employee has a waiver | ||
for one or more disqualifying offenses pursuant to Section 40 | ||
of this Act and he or she is otherwise eligible to work, the | ||
Health Care Worker Registry shall indicate that the applicant | ||
or employee is eligible to work and that additional information | ||
is available on the Health Care Worker Registry. The Health |
Care Worker Registry may indicate that the applicant or | ||
employee has received a waiver. | ||
(k) The student, applicant, or employee shall be notified
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of each of the following whenever a fingerprint-based criminal | ||
history records check is required: | ||
(1) That the educational entity, health care
employer, | ||
or long-term care facility shall initiate a | ||
fingerprint-based criminal history record check required | ||
by this Act of the student, applicant, or employee. | ||
(2) That the student, applicant, or employee has a
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right to obtain a copy of the criminal records report that | ||
indicates a conviction for a disqualifying offense and | ||
challenge the accuracy and completeness of the report | ||
through an established Department of State Police | ||
procedure of Access and Review. | ||
(3) That the applicant, if hired conditionally, may
be | ||
terminated if the criminal records report indicates that | ||
the applicant has a record of a conviction of any of the | ||
criminal offenses enumerated in Section 25, unless the | ||
applicant obtains a waiver pursuant to Section 40 of this | ||
Act. | ||
(4) That the applicant, if not hired conditionally,
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shall not be hired if the criminal records report indicates | ||
that the applicant has a record of a conviction of any of | ||
the criminal offenses enumerated in Section 25, unless the | ||
applicant obtains a waiver pursuant to Section 40 of this |
Act. | ||
(5) That the employee shall be terminated if the
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criminal records report indicates that the employee has a | ||
record of a conviction of any of the criminal offenses | ||
enumerated in Section 25. | ||
(6) If, after the employee has originally been | ||
determined not to have disqualifying offenses, the | ||
employer is notified that the employee has a new | ||
conviction(s) of any of the criminal offenses enumerated in | ||
Section 25, then the employee shall be terminated. | ||
(l) A health care employer or long-term care facility may
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conditionally employ an applicant for up to 3 months pending | ||
the results of a fingerprint-based criminal history record | ||
check requested by the Department of Public Health. | ||
(m) The Department of Public Health or an entity
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responsible for inspecting, licensing, certifying, or | ||
registering the health care employer or long-term care facility | ||
shall be immune from liability for notices given based on the | ||
results of a fingerprint-based criminal history record check.
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(n) As used in this Section: | ||
"Workforce intermediaries" means organizations that | ||
function to provide job training and employment services. | ||
Workforce intermediaries include institutions of higher | ||
education, faith-based and community organizations, and | ||
workforce investment boards. | ||
"Organizations providing pro bono legal services" means |
legal services performed without compensation or at a | ||
significantly reduced cost to the recipient that provide | ||
services designed to help individuals overcome statutory | ||
barriers that would prevent them from entering positions in the | ||
healthcare industry. | ||
(Source: P.A. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
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(225 ILCS 46/40)
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Sec. 40. Waiver.
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(a) Any student, applicant, enrollee in a training program, | ||
individual receiving services from a workforce intermediary or | ||
organization providing pro bono legal services, or employee | ||
listed on the Health Care Worker Registry may request a waiver | ||
of the
prohibition against
employment by:
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(1) completing a waiver application on a form | ||
prescribed by the Department of Public Health;
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(2) providing a written explanation of each conviction | ||
to include (i) what happened, (ii) how many years have | ||
passed since the offense, (iii) the individuals involved, | ||
(iv) the age of the applicant at the time of the offense, | ||
and (v) any other circumstances surrounding the offense; | ||
and | ||
(3) providing official documentation showing that all | ||
fines have been paid, if applicable and except for in the | ||
instance of payment of court-imposed fines or restitution | ||
in which the applicant is adhering to a payment schedule, |
and the date probation or parole was satisfactorily | ||
completed, if applicable.
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(b) The applicant may, but is not required to, submit | ||
employment and character references and any 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.
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(c) The Department of Public Health may, at the discretion | ||
of the Director of Public Health, grant a waiver to an | ||
applicant, student, or employee listed on the Health Care | ||
Worker Registry. The Department of Public Health shall
act upon | ||
the waiver request within 30 days
of
receipt of all necessary | ||
information, as defined by rule. The Department of Public | ||
Health shall send an applicant, student, or employee written | ||
notification of its decision whether to grant a waiver, | ||
including listing the specific disqualifying offenses for | ||
which the waiver is being granted or denied. The Department | ||
shall issue additional copies of this written notification upon | ||
the applicant's, student's, or employee's request.
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(d) An individual shall not be employed from the
time that | ||
the employer receives a notification from the Department of | ||
Public Health based upon the results of a fingerprint-based | ||
criminal history records check
containing disqualifying | ||
conditions until the time that the individual receives
a | ||
waiver.
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(e) The entity responsible for inspecting, licensing,
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certifying, or
registering the health care employer and the | ||
Department of Public Health shall be immune from liability for | ||
any
waivers granted under this Section.
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(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.
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(Source: P.A. 99-872, eff. 1-1-17; 100-432, eff. 8-25-17.)
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Section 99. Effective date. This Act takes effect upon | ||
becoming law.
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