Current through Register Vol. 48, No. 12, March 22, 2024
a) Hiring of direct
care employees
A provider shall not knowingly hire or retain any person
after January 1, 1998 in a full-time, part-time or contractual direct care
position if that person has been convicted of committing or attempting to
commit one or more of the following offenses unless the applicant or employee
obtains a waiver pursuant to subsections (i) through (l) of this Section
(Section 25 of the Health Care Worker Background Check Act [225
ILCS 46/25 ]):
1) Murder, homicide, manslaughter or
concealment of a homicidal death (Sections 9-1 through 9-3.3 of the Criminal
Code of 1961 [720 ILCS 5/9-1 through 9 -3.3]);
2) Solicitation of murder and solicitation of
murder for hire (Sections 8-1.1 and 8-1.2 of the Criminal Code of 1961
[720 ILCS
5/8-1.1 and 8-1.2]);
3) Kidnaping or child abduction (Sections
10-1, 10-2, 10-5 and 10-7 of the Criminal Code of 1961 [720 ILCS 5/10-1, 10 -2,
10-5 and 10-7]);
4) Unlawful
restraint or forcible detention (Sections 10-3, 10-3.1 and 10-4 of the Criminal
Code of 1961 [720 ILCS 5/10-3, 10 -3.1 and 10-4]);
5) Assault, battery or infliction of great
bodily harm (Sections 12-1, 12-2, 12-3, 12-3.1, 12-3.2, 12-4, 12-4.2, 12-4.3,
12-4.4, 12-6 and 12-7 of the Criminal Code of 1961 [720 ILCS 5/12-1, 12 -2,
12-3, 12-3.1, 12-3.2, 12-4, 12-4.2, 12-4.3, 12-4.4, 12-6 and 12-7]);
6) Sexual assault or abuse (Sections 12-13,
12-14, 12-15 and 12-16 of the Criminal Code of 1961 [720 ILCS 5/12-13, 12 -14,
12-15 and 12-16]);
7) Indecent
solicitation of a child (Section 11-6 of the Criminal Code of 1961
[720 ILCS
5/11-6 ]);
8) Predatory criminal sexual assault of a
child (Section 12-14.1 of the Criminal Code of 1961 [720
ILCS 5/12-14.1]);
9) Sexual exploitation of a child (Section
11-9.1 of the Criminal Code of 1961 [720 ILCS
5/11-9.1]);
10) Exploitation of a child (Section 11-19.2
of the Criminal Code of 1961 [720 ILCS
5/11-19.2]);
11) Child pornography (Section 11-20.1 of the
Criminal Code of 1961 [720 ILCS
5/11-20.1]);
12) Endangering the life or health of a child
(Section 12-21.6 of the Criminal Code of 1961 [720 ILCS
5/12-21.6]);
13) Cruelty to children (Section 53 of the
Criminal Jurisprudence Act [720 ILCS 115/53 ], repealed by P.A. 89-234,
effective January 1, 1996);
14)
Abuse or gross neglect of a long-term care facility resident (Section 12-19 of
the Criminal Code of 1961 [720 ILCS
5/12-19 ]);
15) Criminal neglect of an elderly or
disabled person (Section 12-21 of the Criminal Code of 1961 [720 ILCS
5/12-21]);
16) Theft, financial
exploitation of an elderly or disabled person, robbery or burglary (Sections
16-1, 16-1.3, 16A-3, 18-1, 18-2, 19-1 and 19-3 of the Criminal Code of 1961
[720 ILCS 5/16-1, 16 -1.3, 16A-3, 18-1, 18-2, 19-1 and 19-3]);
17) Aggravated robbery (Section 18-5 of the
Criminal Code of 1961 [720 ILCS
5/18-5 ]);
18) Criminal trespass (Section 19-4 of the
Criminal Code of 1961 [720 ILCS
5/19-4 ]);
19) Home invasion (Section 12-11 of Criminal
Code of 1961 [720 ILCS
5/12-11 ]);
20) Arson (Sections 20-1 and 20-1.1 of the
Criminal Code of 1961 [720 ILCS 5/20-1 and 20 -1.1]);
21) Unlawful use of weapons or aggravated
discharge of a firearm (Sections 24-1 and 24-1.2 of the Criminal Code of 1961
[720 ILCS 5/24-1 and 24 -1.2]);
22)
Armed violence (Article 33A of the Criminal Code of 1961 [720 ILCS 5 /Art.
33A]);
23) Heinous battery (Section
12-4.1 of the Criminal Code of 1961 [720
ILCS 5/12-4.1]);
24) Tampering with food, drugs or cosmetics
(Section 12-4.5 of the Criminal Code of 1961 [720
ILCS 5/12-4.5]);
25) Aggravated stalking (Section 12-7.4 of
the Criminal Code of 1961 [720
ILCS 5/12-7.4]);
26) Ritual mutilation and ritualized abuse of
a child (Sections 12-32 and 12-33 of the Criminal Code of 1961 [720 ILCS
5/12-32 and 12 -33]);
27) Forgery
(Section 17-3 of the Criminal Code of 1961 [720 ILCS
5/17-3 ]);
28) Vehicular hijacking and aggravated
vehicular hijacking (Sections 18-3 and 18-4 of the Criminal Code of 1961 [720
ILCS 5/18-3 and 18 -4]);
29)
Manufacture, delivery or trafficking of cannabis (Sections 5, 5.1 and 9 of the
Cannabis Control Act [720 ILCS 550/5, 5.1 and 9]); and
30) Delivery of cannabis on school grounds
(Section 5.2 of the Cannabis Control Act [720 ILCS
550/5.2 ]);
31) Delivery of cannabis by a person at least
18 years of age to a person under 18 who is at least three years his or her
junior (Section 7 of the Cannabis Control Act [720 ILCS
550/7 ]); and
32) Manufacture, delivery or trafficking of
controlled substances (Sections 401,
401.1, 404,
405,
405.1, 407 and
407.1 of the
Illinois Controlled Substances Act [720 ILCS 570/401, 401.1, 404, 405, 405.1,
407 and 407.1]).
b)
Definitions
For the purposes of this Section, the following terms are
defined:
"Applicant." A person seeking employment with a provider who
has received a bona fide conditional offer of employment. (Section 15 of the
Health Care Worker Background Check Act [225 ILCS 46/15
])
"Conditional offer of employment." A bona fide offer of
employment by a provider to an applicant, which is contingent on the receipt of
a report from the Department of State Police indicating that the applicant does
not have a record of conviction of any of the criminal offenses enumerated in
subsections (a)(1) through (32) of this Section. (Section 15 of the Health Care
Worker Background Check Act [225 ILCS
46/15 ])
"Direct care." The provision of nursing assistancewith meals,
dressing, movement, bathing, or other personal needs of maintenance, or general
supervision and oversight of the physical and mental well-being of an
individual who is incapable of maintaining a private, independent residence or
whois incapable of managing his or her person whether or not a guardian has
been appointed for that individual. (Section 15 of the Health Care Worker
Background Check Act [225 ILCS 46/15])
"Initiate." The obtaining of the authorization for a record
check from a student, applicant, or employee. The provider shall transmit all
necessary information and fees to the Illinois State Police within 10 working
days after receipt of the authorization. (Section 15 or the Health Care Worker
Background Check Act [225 ILCS 46/15 ])
"Nurse Aide Registry." The registry of nurse aides kept by
the Department of Public Health pursuant to Section 3-206.01 of the Nursing
Home Care Act [210 ILCS
45/3-206.01 ].
"UCIA" The Uniform Conviction Information Act [20 ILCS 2635
].
c) Nurse Aide Registry
For all applicants for nurse aide positions, the provider
shall check the Nurse Aide Registry to determine the date of the applicant's
last UCIA criminal history record check. If it has been more than one year
since the records check, the provider must initiate or have initiated on its
behalf a UCIA criminal history record check for the nurse aide. (Section 30(b)
of the Health Care Worker Background Check Act [225 ILCS
46/30(b) ])
d) Conditional offers
Effective January 1, 1996, if the provider makes a
conditional offer of employment to an applicant other than a nurse aide who is
not exempt under subsection (m) of this Section for a direct care position, the
provider shall initiate or have initiated on its behalf a UCIA criminal history
record check except as provided for in subsection (e)(2) of this Section.
(Section 30(c) of the Health Care Worker Background Check Act [225 ILCS
46/30(c) ])
e) Initiation of UCIA criminal history record
check
1) By January 1, 1997 the provider must
initiate a UCIA criminal history record check for all direct care employees who
were hired before January 1, 1996, who have not already had a UCIA criminal
history record check and who are not exempt in accordance with subsection (m)
of this Section. (Section 30 of the Health Care Worker Background Check Act
[225 ILCS 46/30
])
2) If the agency initiated a
criminal background check on an employee hired after January 1, 1996 and before
January 1, 1998, the agency does not need to initiate an additional criminal
history record check to determine if the employee has a record of conviction of
any of the offenses enumerated in subsections (a)(2), (7), (9) through (13),
(17), (22) through (28), (30) and (31) of this Section. (Section 25.1 of the
Health Care Worker Background Check Act [225 ILCS 46/25.1
])
f) Request for UCIA
criminal history record check
The provider shall request the UCIA criminal history record
check in accordance with the requirements of the Department of State Police.
(See 20 Ill. Adm. Code 1265.) The provider shall notify the applicant or
employee of the following whenever a non-fingerprint UCIA Criminal History
Record search is made. (Section 30 of the Health Care Worker Background Check
Act [225 ILCS 46/30
]):
1) That the provider shall request
or have requested on its behalf a UCIA criminal history record check pursuant
to the Health Care Worker Background Check Act;
2) That the applicant or employee has a right
to obtain a copy of the criminal records report, challenge the accuracy and
completeness of the report and request a waiver in accordance with subsection
(j)(1) of this Section;
3) 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 subsections (a)(1) through (32) of this Section
unless the applicant's identity is validated and it is determined that the
applicant or employee does not have a disqualifying criminal history record
based on a fingerprint-based records check pursuant to subsection (h) of this
Section or the employee receives a waiver pursuant to subsection (j)(1) of this
Section;
4) That the applicant or
employee cannot work in a direct care position while a waiver request is
pending;
5) 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 subsections (a)(1) through (32) of this Section unless
the applicant's record is cleared based on a fingerprint-based record check
pursuant to subsection (h) of this Section or the employee receives a waiver
pursuant to subsection (j)(1) of this Section;
6) 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 subsections (a)(1) through (32)
of this Section unless the record is cleared based on a fingerprint-based
records check pursuant to subsection (h) of this Section or the employee
receives a waiver pursuant to subsection (j)(1) of this Section.
g) Conditional employment
The provider may conditionally employ an applicant to provide
direct care for up to three months pending the results of a UCIA criminal
history record check. (Section 30(g) of the Health Care Worker Background Check
Act [225 ILCS
46/30(g) ])
h) Request for fingerprint-based UCIA
criminal records check
An applicant, employee, or nurse aide whose UCIA criminal
history record check indicates a conviction for committing or attempting to
commit one or more of the offenses enumerated in subsections (a)(1) through
(32) of this Section may request that the provider commence a fingerprint-based
UCIA criminal records check by submitting information in a form and manner
prescribed by the Department of State Police (see 20 Ill. Adm. Code 1265)
within 30 days after receipt of the criminal records report to validate
identity and clear one's record. (Section 35 of the Health Care Worker
Background Check Act [225 ILCS
46/35 ])
i) Eligibility for waiver
1) An applicant, employee, or nurse aide may
request a waiver of the prohibition against employment. (Section 40 of the
Health Care Worker Background Check Act [225
ILCS 46/40 ])
2) The Department may grant a waiver based on
any mitigating circumstances, which may include but not be limited to:
A) The applicant's, employee's or nurse
aide's age at the time that the crime was committed;
B) The circumstances surrounding the
crime;
C) The length of time since
the conviction;
D) The applicant or
employee's criminal history since the conviction;
E) The applicant or employee's work
history;
F) The applicant or
employee's current employment references;
G) The applicant or employee's character
references;
H) Nurse Aide Registry
records; and
I) 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,
recipients or clients. (Section 40(b) of the Health Care Worker Background
Check Act [225 ILCS
46/40(b) ])
j) Application for waiver
1) If the applicant, employee or nurse aide
wishes to request a waiver, the request shall be submitted within 5 calendar
days after receipt of the criminal records report. A complete waiver request
shall include the following:
A) A statement
specifying any mitigating circumstances (see subsection (i)(2) of this Section)
the person believes are relevant to the employment in question; and
B) Either:
i) Information necessary for the Department
to obtain a fingerprint-based UCIA criminal records check, including a suitable
set of fingerprints, in a form and manner prescribed by the Department of State
Police (see 20 Ill. Adm. Code 1265), the fee for such a check (which shall not
exceed the actual cost of the check) and the findings of the required non
fingerprint-based UCIA criminal records check conducted by the Department of
State Police; or
ii) The report of
the results of the fingerprint-based UCIA criminal records check done pursuant
to subsection (h) of this Section.
2) Provider staff may assist the applicant,
employee or nurse aide in completing the application.
3) The waiver request shall be submitted to:
Accreditation, Licensure and Certification
Department of Human Services
405 Stratton Building
Springfield IL 62765
k) Waiver decision
1) The waiver request shall be reviewed by a
panel of Department staff. The Department shall return a decision to the
applicant, employee, or nurse aide and the provider within 30 calendar days
after receipt of the completed waiver request including receipt of a report
from the State Police based on the fingerprint-based record check.
2) The provider is not obligated to hire or
offer permanent employment to an applicant or to retain an employee who is
granted a waiver. (Section 40(f) of the Health Care Worker Background Check Act
[225 ILCS
46/40(f) ])
3) The Department shall be immune from
liability for any waivers granted. (Section 40(e) of the Health Care Worker
Background Check Act [225 ILCS
46/40(e) ])
l) Appeal of the decision
1) The applicant, employee, or nurse aide may
request further review of his or her request for a waiver within 30 calendar
days after the receipt of the Department's denial of the waiver.
2) The applicant, employee, or nurse aide may
submit additional documentation of the mitigating circumstances.
3) The appeal shall be submitted to:
Director
Division of Disability and Behavioral Health Services
Department of Human Services
100 South Grand Avenue East
Springfield IL 62762
4) The Secretary shall act on the appeal
within 30 calendar days after receipt of the appeal and shall issue a final
decision granting or denying the waiver request.
m) This Section shall not apply to:
1) An individual who is licensed by the
Department of Professional Regulation or the Department of Public Health under
another law; or
2) An individual
employed or retained by the provider as defined by Section 15 of the Health
Care Worker Background Check Act [225 ILCS 46/15] for whom a criminal
background check is required by another law of this State. (Section 20 of the
Health Care Worker Background Check Act [225 ILCS 46/20
])
n) The provider shall
send a copy of the results of the UCIA criminal history record check to the
State Nurse Aide Registry for an individual employed as a nurse aide within 10
working days after receipt of the results. (Section 30(b) of the Health Care
Worker Background Check Act [225 ILCS
46/30(b) ])
o) The provider shall retain on file for a
period of five years records of criminal records requests for all employees.
The files shall be subject to inspection by the Department's Office of
Accreditation and Licensure. The provider shall retain the results of the UCIA
criminal history records check and waiver, if appropriate, for the duration of
the individual's employment. A fine of $500 may be imposed for failure to
maintain these records. (Section 50 of the Health Care Worker Background Check
Act [225 ILCS
46/50 ])