Public Act 099-0872
 
HB4515 EnrolledLRB099 18573 SMS 42952 b

    AN ACT concerning regulation.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Nursing Home Care Act is amended by changing
Section 3-206.01 as follows:
 
    (210 ILCS 45/3-206.01)  (from Ch. 111 1/2, par. 4153-206.01)
    Sec. 3-206.01. Health care worker registry.
    (a) The Department shall establish and maintain a Health
Care Worker Registry accessible by health care employers, as
defined in the Health Care Worker Background Check Act, that
includes background check and training information registry of
all individuals who (i) have satisfactorily completed the
training required by Section 3-206, (ii) have begun a current
course of training as set forth in Section 3-206, or (iii) are
otherwise acting as a nursing assistant, habilitation aide,
home health aide, psychiatric services rehabilitation aide, or
child care aide. The registry shall include the individual's
name, his or her current address, Social Security number, and
the date and location of the training course completed by the
individual, and whether the individual has any of the
disqualifying convictions listed in Section 25 of the Health
Care Worker Background Check Act from the date of the
individual's last criminal records check. Any individual
placed on the registry is required to inform the Department of
any change of address within 30 days. A facility shall not
employ an individual as a nursing assistant, habilitation aide,
home health aide, psychiatric services rehabilitation aide, or
child care aide, or newly hired as an individual who may have
access to a resident, a resident's living quarters, or a
resident's personal, financial, or medical records, unless the
facility has inquired of the Department's health care worker
registry as to information in the registry concerning the
individual. The facility shall not employ an individual as a
nursing assistant, habilitation aide, or child care aide if
that individual is not on the registry unless the individual is
enrolled in a training program under paragraph (5) of
subsection (a) of Section 3-206 of this Act. The Department may
also maintain a publicly accessible registry.
    (a-5) The registry maintained by the Department exclusive
to health care employers, as defined in the Health Care Worker
Background Check Act, shall clearly indicate whether an
applicant or employee is eligible for employment and shall
include the following:
        (1) information about the individual, including the
    individual's name, his or her current address, Social
    Security number, the date and location of the training
    course completed by the individual, whether the individual
    has any of the disqualifying convictions listed in Section
    25 of the Health Care Worker Background Check Act from the
    date of the individual's last criminal record check,
    whether the individual has a waiver pending under Section
    40 of the Health Care Worker Background Check Act, and
    whether the individual has received a waiver under Section
    40 of that Act;
        (2) the following language:
            "A waiver granted by the Department of Public
        Health is a determination that the applicant or
        employee is eligible to work in a health care facility.
        The Equal Employment Opportunity Commission provides
        guidance about federal law regarding hiring of
        individuals with criminal records."; and
        (3) a link to Equal Employment Opportunity Commission
    guidance regarding hiring of individuals with criminal
    records.
    (a-10) After January 1, 2017, the publicly accessible
registry maintained by the Department shall report that an
individual is ineligible to work if he or she has a
disqualifying offense under Section 25 of the Health Care
Worker Background Check Act and has not received a waiver under
Section 40 of that Act. If an applicant or employee has
received a waiver for one or more disqualifying offenses under
Section 40 of the Health Care Worker Background Check Act and
he or she is otherwise eligible to work, the Department of
Public Health shall report on the public registry that the
applicant or employee is eligible to work. The Department,
however, shall not report information regarding the waiver on
the public registry.
    (a-15) If the Department finds that a nursing assistant,
habilitation aide, home health aide, psychiatric services
rehabilitation aide, or child care aide, or an unlicensed
individual, has abused or neglected a resident or an individual
under his or her care or misappropriated property of a resident
or an individual under his or her care, the Department shall
notify the individual of this finding by certified mail sent to
the address contained in the registry. The notice shall give
the individual an opportunity to contest the finding in a
hearing before the Department or to submit a written response
to the findings in lieu of requesting a hearing. If, after a
hearing or if the individual does not request a hearing, the
Department finds that the individual abused a resident,
neglected a resident, or misappropriated resident property in a
facility, the finding shall be included as part of the registry
as well as a clear and accurate summary from the individual, if
he or she chooses to make such a statement. The Department
shall make the following information in the registry available
to the public: an individual's full name; the date an
individual successfully completed a nurse aide training or
competency evaluation; and whether the Department has made a
finding that an individual has been guilty of abuse or neglect
of a resident or misappropriation of resident property. In the
case of inquiries to the registry concerning an individual
listed in the registry, any information disclosed concerning
such a finding shall also include disclosure of the
individual's statement in the registry relating to the finding
or a clear and accurate summary of the statement.
    (b) The Department shall add to the health care worker
registry records of findings as reported by the Inspector
General or remove from the health care worker registry records
of findings as reported by the Department of Human Services,
under subsection (s) of Section 1-17 of the Department of Human
Services Act.
(Source: P.A. 99-78, eff. 7-20-15.)
 
    Section 10. The Health Care Worker Background Check Act is
amended by changing Sections 25, 33, and 40 and by adding
Section 40.1 as follows:
 
    (225 ILCS 46/25)
    Sec. 25. Hiring of people with criminal records Persons
ineligible to be hired by health care employers and long-term
care facilities.
    (a) A health care employer or long-term care facility may
hire, employ, or retain any individual in a position involving
direct care for clients, patients, or residents, or access to
the living quarters or the financial, medical, or personal
records of clients, patients, or residents who has been
convicted of committing or attempting to commit one or more of
the following offenses only with a waiver described in Section
40 In the discretion of the Director of Public Health, as soon
after January 1, 1996, January 1, 1997, January 1, 2006, or
October 1, 2007, as applicable, and as is reasonably practical,
no health care employer shall knowingly hire, employ, or retain
any individual in a position with duties involving direct care
for clients, patients, or residents, and no long-term care
facility shall knowingly hire, employ, or retain any individual
in a position with duties that involve or may involve contact
with residents or access to the living quarters or the
financial, medical, or personal records of residents, who has
been convicted of committing or attempting to commit one or
more of the following offenses: those defined in Sections
8-1(b), 8-1.1, 8-1.2, 9-1, 9-1.2, 9-2, 9-2.1, 9-3, 9-3.1,
9-3.2, 9-3.3, 9-3.4, 10-1, 10-2, 10-3, 10-3.1, 10-4, 10-5,
10-7, 11-1.20, 11-1.30, 11-1.40, 11-1.50, 11-1.60, 11-6,
11-9.1, 11-9.5, 11-19.2, 11-20.1, 11-20.1B, 11-20.3, 12-1,
12-2, 12-3.05, 12-3.1, 12-3.2, 12-3.3, 12-4, 12-4.1, 12-4.2,
12-4.3, 12-4.4, 12-4.5, 12-4.6, 12-4.7, 12-7.4, 12-11, 12-13,
12-14, 12-14.1, 12-15, 12-16, 12-19, 12-21, 12-21.6, 12-32,
12-33, 12C-5, 16-1, 16-1.3, 16-25, 16A-3, 17-3, 17-56, 18-1,
18-2, 18-3, 18-4, 18-5, 19-1, 19-3, 19-4, 19-6, 20-1, 20-1.1,
24-1, 24-1.2, 24-1.5, or 33A-2, or subdivision (a)(4) of
Section 11-14.4, or in subsection (a) of Section 12-3 or
subsection (a) or (b) of Section 12-4.4a, of the Criminal Code
of 1961 or the Criminal Code of 2012; those provided in Section
4 of the Wrongs to Children Act; those provided in Section 53
of the Criminal Jurisprudence Act; those defined in subsection
(c), (d), (e), (f), or (g) of Section 5 or Section , 5.1, 5.2,
7, or 9 of the Cannabis Control Act; those defined in the
Methamphetamine Control and Community Protection Act; or those
defined in Sections 401, 401.1, 404, 405, 405.1, 407, or 407.1
of the Illinois Controlled Substances Act, unless the applicant
or employee obtains a waiver pursuant to Section 40.
    (a-1) A health care employer or long-term care facility may
hire, employ, or retain any individual in a position involving
direct care for clients, patients, or residents, or access to
the living quarters or the financial, medical, or personal
records of clients, patients, or residents who has been
convicted of committing or attempting to commit one or more of
the following offenses only with a waiver described in Section
40: those In the discretion of the Director of Public Health,
as soon after January 1, 2004 or October 1, 2007, as
applicable, and as is reasonably practical, no health care
employer shall knowingly hire any individual in a position with
duties involving direct care for clients, patients, or
residents, and no long-term care facility shall knowingly hire
any individual in a position with duties that involve or may
involve contact with residents or access to the living quarters
or the financial, medical, or personal records of residents,
who has (i) been convicted of committing or attempting to
commit one or more of the offenses defined in Section 12-3.3,
12-4.2-5, 16-2, 16-30, 16G-15, 16G-20, 17-33, 17-34, 17-36,
17-44, 18-5, 20-1.2, 24-1.1, 24-1.2-5, 24-1.6, 24-3.2, or
24-3.3, or subsection (b) of Section 17-32, subsection (b) of
Section 18-1, or subsection (b) of Section 20-1, of the
Criminal Code of 1961 or the Criminal Code of 2012; Section 4,
5, 6, 8, or 17.02 of the Illinois Credit Card and Debit Card
Act; or Section 11-9.1A of the Criminal Code of 1961 or the
Criminal Code of 2012 or Section 5.1 of the Wrongs to Children
Act; or (ii) violated Section 50-50 of the Nurse Practice Act,
unless the applicant or employee obtains a waiver pursuant to
Section 40 of this Act.
    A health care employer is not required to retain an
individual in a position with duties involving direct care for
clients, patients, or residents, and no long-term care facility
is required to retain an individual in a position with duties
that involve or may involve contact with residents or access to
the living quarters or the financial, medical, or personal
records of residents, who has been convicted of committing or
attempting to commit one or more of the offenses enumerated in
this subsection.
    (b) A health care employer shall not hire, employ, or
retain any individual in a position with duties involving
direct care of clients, patients, or residents, and no
long-term care facility shall knowingly hire, employ, or retain
any individual in a position with duties that involve or may
involve contact with residents or access to the living quarters
or the financial, medical, or personal records of residents, if
the health care employer becomes aware that the individual has
been convicted in another state of committing or attempting to
commit an offense that has the same or similar elements as an
offense listed in subsection (a) or (a-1), as verified by court
records, records from a state agency, or an FBI criminal
history record check, unless the applicant or employee obtains
a waiver pursuant to Section 40 of this Act. This shall not be
construed to mean that a health care employer has an obligation
to conduct a criminal history records check in other states in
which an employee has resided.
(Source: P.A. 96-710, eff. 1-1-10; 96-1551, Article 1, Section
930, eff. 7-1-11; 96-1551, Article 2, Section 995, eff. 7-1-11;
96-1551, Article 10, Section 10-40, eff. 7-1-11; 97-597, eff.
1-1-12; 97-1108, eff. 1-1-13; 97-1109, eff. 1-1-13; 97-1150,
eff. 1-25-13.)
 
    (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.
    (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 must 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 local 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 must initiate a fingerprint-based criminal history
records check requested by the Department of Public Health
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 must 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.
    (e) When initiating a background check requested by the
Department of Public Health, an educational entity or health
care employer 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 must 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 must 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 requested by the Department of Public Health
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 requestor shall be entered in the Health Care
Worker Registry.
    (g) As long as the employee has had a fingerprint-based
criminal history record check requested by the Department of
Public Health and stays active on the Health Care Worker
Registry, no further criminal history record checks shall be
deemed necessary, 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 are required to check the
Health Care Worker Registry before hiring an employee to
determine that the individual has had a fingerprint-based
record check requested by the Department of Public Health 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 must 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 nurse aide 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 nurse
aide 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 must provide an employment verification for each
employee no less than annually. The direct care employer or its
designee must log into the Health Care Worker Registry through
a secure login. The health care employer or its designee must
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. For health care employers
that are not licensed or certified, 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.
    (j) The Department of Public Health shall notify each
health care employer or long-term care facility inquiring as to
the information on the Health Care Worker Registry if the
applicant or employee listed on the registry has a
disqualifying offense and is therefore ineligible to work. 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 Department of
Public Health shall report that the applicant or employee is
eligible to work and that additional information is available
on the Health Care Worker Registry. The Department may report
that the applicant or employee has received a waiver or has a
waiver pursuant to Section 40 of this Act.
    (k) The student, applicant, or employee must be notified 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 requested
    by the Department of Public Health of the student,
    applicant, or employee pursuant to this Act.
        (2) That the student, applicant, or employee has a
    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,
    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
    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
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
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.
(Source: P.A. 95-120, eff. 8-13-07.)
 
    (225 ILCS 46/40)
    Sec. 40. Waiver.
    (a) Any student, applicant, or employee listed on the
Health Care Worker Registry may request a waiver of the
prohibition against employment by:
        (1) completing a waiver application on a form
    prescribed by the Department of Public Health;
        (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.
    (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.
    (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 registry. The
Department of Public Health shall must inform health care
employers if a waiver is being sought by entering a record on
the Health Care Worker Registry that a waiver is pending and
must 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 Except in
cases where a rehabilitation waiver is granted, a letter shall
be sent to the applicant notifying the applicant that he or she
has received an automatic waiver.
    (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.
    (e) The entity responsible for inspecting, licensing,
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.
    (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. 95-120, eff. 8-13-07; 95-545, eff. 8-28-07;
95-876, eff. 8-21-08; 96-565, eff. 8-18-09.)
 
    (225 ILCS 46/40.1 new)
    Sec. 40.1. Health Care Worker Registry working group.
    (a) The Office of the Governor shall establish a working
group regarding the activities under this Act, with the
following goals:
        (1) to evaluate and monitor the success of health care
    waivers under Section 40 in creating job opportunity for
    people with criminal records; and
        (2) to identify and recommend changes to the waiver
    application and implementation process to reduce barriers
    for applicants or employees.
    In order to ensure that the working group is fully
informed, the Department of Public Health and the Governor's
Office shall provide the working group with any relevant
aggregate data currently available that is related to the
waiver process and its effectiveness. The working group shall
identify any gaps in information currently collected that would
inform the working group's efforts and make recommendations to
the Governor's Office and the General Assembly about what
additional data should be collected to evaluate and monitor the
success of the waiver process by July 1, 2017.
    (b) The working group shall be comprised of representatives
from advocacy and community-based organizations, individuals
directly impacted by the waiver process, industry
representatives, members of the General Assembly, and
representatives from the Department of Public Health and the
Office of the Governor. The working group shall meet at least 2
times each year.
 
    Section 99. Effective date. This Act takes effect January
1, 2017.