Statutes > Illinois Statutes > CHAPTER 225 PROFESSIONS AND OCCUPATIONS > 225 ILCS 46/ Health Care Worker Background Check Act.

225 ILCS 46/ Health Care Worker Background Check Act.

    (225 ILCS 46/1)
    Sec. 1. Short title. This Act may be cited as the Health Care Worker Background Check Act.
(Source: P.A. 89‑197, eff. 7‑21‑95.)

    (225 ILCS 46/5)
    Sec. 5. Purpose. The General Assembly finds that it is in the public interest to protect the most frail and disabled citizens of the State of Illinois from possible harm through a criminal background check of certain health care workers and all employees of licensed and certified long‑term care facilities who have or may have contact with residents or have access to the living quarters or the financial, medical, or personal records of residents.
(Source: P.A. 94‑665, eff. 1‑1‑06.)

    (225 ILCS 46/10)
    Sec. 10. Applicability. This Act applies to all individuals employed or retained by a health care employer as home health care aides, nurse aides, personal care assistants, private duty nurse aides, day training personnel, or an individual working in any similar health‑related occupation where he or she provides direct care or has access to long‑term care residents or the living quarters or financial, medical, or personal records of long‑term care residents. This Act also applies to all employees of licensed or certified long‑term care facilities who have or may have contact with residents or access to the living quarters or the financial, medical, or personal records of residents.
(Source: P.A. 94‑665, eff. 1‑1‑06.)

    (225 ILCS 46/15)
    (Text of Section before amendment by P.A. 96‑339)
    Sec. 15. Definitions. In this Act:
    "Applicant" means an individual seeking employment with a health care employer who has received a bona fide conditional offer of employment.
    "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.
    "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 interpreting this definition with regard to the health care employers that it licenses.
    "Disqualifying offenses" means those offenses set forth in Section 25 of this Act.
    "Employee" means any individual hired, employed, or retained to which this Act applies.
    "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.
    "Health care employer" means:
        (1) the owner or licensee of any of the following:
            (i) a community living facility, as defined in
         the Community Living Facilities Act;
            (ii) a life care facility, as defined in the Life
         Care Facilities Act;
            (iii) a long‑term care facility;
            (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;
            (v) a hospice care program or volunteer hospice
         program, as defined in the Hospice Program Licensing Act;
            (vi) a hospital, as defined in the Hospital
         Licensing Act;
            (vii) (blank);
            (viii) a nurse agency, as defined in the Nurse
         Agency Licensing Act;
            (ix) a respite care provider, as defined in the
         Respite Program Act;
            (ix‑a) an establishment licensed under the
         Assisted Living and Shared Housing Act;
            (x) a supportive living program, as defined in
         the Illinois Public Aid Code;
            (xi) early childhood intervention programs as
         described in 59 Ill. Adm. Code 121;
            (xii) the University of Illinois Hospital,
         Chicago;
            (xiii) programs funded by the Department on Aging
         through the Community Care Program;
            (xiv) programs certified to participate in the
         Supportive Living Program authorized pursuant to Section 5‑5.01a of the Illinois Public Aid Code;
            (xv) programs listed by the Emergency Medical
         Services (EMS) Systems Act as Freestanding Emergency Centers;
            (xvi) locations licensed under the Alternative
         Health Care Delivery Act;
        (2) a day training program certified by the
     Department of Human Services;
        (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
        (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.
    "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 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.
    "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.
    "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, a supportive living facility, an assisted living establishment, or a shared housing establishment or registered as a board and care home.
(Source: P.A. 94‑379, eff. 1‑1‑06; 94‑570, eff. 8‑12‑05; 94‑665, eff. 1‑1‑06; 95‑120, eff. 8‑13‑07; 95‑331, eff. 8‑21‑07.)
 
    (Text of Section after amendment by P.A. 96‑339)
    Sec. 15. Definitions. In this Act:
    "Applicant" means an individual seeking employment with a health care employer who has received a bona fide conditional offer of employment.
    "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.
    "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 interpreting this definition with regard to the health care employers that it licenses.
    "Disqualifying offenses" means those offenses set forth in Section 25 of this Act.
    "Employee" means any individual hired, employed, or retained to which this Act applies.
    "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.
    "Health care employer" means:
        (1) the owner or licensee of any of the following:
            (i) a community living facility, as defined in
         the Community Living Facilities Act;
            (ii) a life care facility, as defined in the Life
         Care Facilities Act;
            (iii) a long‑term care facility;
            (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;
            (v) a hospice care program or volunteer hospice
         program, as defined in the Hospice Program Licensing Act;
            (vi) a hospital, as defined in the Hospital
         Licensing Act;
            (vii) (blank);
            (viii) a nurse agency, as defined in the Nurse
         Agency Licensing Act;
            (ix) a respite care provider, as defined in the
         Respite Program Act;
            (ix‑a) an establishment licensed under the
         Assisted Living and Shared Housing Act;
            (x) a supportive living program, as defined in
         the Illinois Public Aid Code;
            (xi) early childhood intervention programs as
         described in 59 Ill. Adm. Code 121;
            (xii) the University of Illinois Hospital,
         Chicago;
            (xiii) programs funded by the Department on Aging
         through the Community Care Program;
            (xiv) programs certified to participate in the
         Supportive Living Program authorized pursuant to Section 5‑5.01a of the Illinois Public Aid Code;
            (xv) programs listed by the Emergency Medical
         Services (EMS) Systems Act as Freestanding Emergency Centers;
            (xvi) locations licensed under the Alternative
         Health Care Delivery Act;
        (2) a day training program certified by the
     Department of Human Services;
        (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
        (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.
    "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 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.
    "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.
    "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 or the MR/DD Community Care Act, a supportive living facility, an assisted living establishment, or a shared housing establishment or registered as a board and care home.
(Source: P.A. 95‑120, eff. 8‑13‑07; 95‑331, eff. 8‑21‑07; 96‑339, eff. 7‑1‑10.)

    (225 ILCS 46/20)
    Sec. 20. Exceptions. This Act shall not apply to:
        (1) an individual who is licensed by the Department
     of Financial and Professional Regulation or the Department of Public Health under another law of this State;
        (2) an individual employed or retained by a health
     care employer for whom a criminal background check is required by another law of this State; or
        (3) a student in a licensed health care field
     including, but not limited to, a student nurse, a physical therapy student, or a respiratory care student unless he or she is (i) employed by a health care employer in a position with duties involving direct care for clients, patients, or residents or (ii) employed by a long‑term care facility in a position that involves or may involve contact with residents or access to the living quarters or the financial, medical, or personal records of residents.
(Source: P.A. 95‑120, eff. 8‑13‑07.)

    (225 ILCS 46/25)
    Sec. 25. Persons ineligible to be hired by health care employers and long‑term care facilities.
    (a) 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, 11‑6, 11‑9.1, 11‑9.5, 11‑19.2, 11‑20.1, 12‑1, 12‑2, 12‑3, 12‑3.1, 12‑3.2, 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, 16‑1, 16‑1.3, 16A‑3, 17‑3, 18‑1, 18‑2, 18‑3, 18‑4, 18‑5, 19‑1, 19‑3, 19‑4, 20‑1, 20‑1.1, 24‑1, 24‑1.2, 24‑1.5, or 33A‑2 of the Criminal Code of 1961; those provided in Section 4 of the Wrongs to Children Act; those provided in Section 53 of the Criminal Jurisprudence Act; those defined in Section 5, 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) 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, 16G‑15, 16G‑20, 18‑5, 20‑1.2, 24‑1.1, 24‑1.2‑5, 24‑1.6, 24‑3.2, or 24‑3.3 of the Criminal Code of 1961; Section 4, 5, 6, 8, or 17.02 of the Illinois Credit Card and Debit Card Act; 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. 95‑120, eff. 8‑13‑07; 95‑639, eff. 10‑5‑07; 95‑876, eff. 8‑21‑08; 96‑710, eff. 1‑1‑10.)

    (225 ILCS 46/25.1)
    Sec. 25.1. (Repealed).
(Source: P.A. 90‑441, eff. 1‑1‑98. Repealed by P.A. 95‑120, eff. 8‑13‑07.)

    (225 ILCS 46/30)
    Sec. 30. (Repealed).
(Source: P.A. 95‑545, eff. 8‑28‑07. Repealed by P.A. 95‑120, eff. 8‑13‑07.)

    (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 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