Health Care Council of Illinois

 

Regulatory Update: News and Views

 

 

May 1, 2008                                                                                                                                                                                                     Number 4

 

Health Care Worker Background Check

 

As reviewed in the previous three weeks, the Illinois Department of Public Health (IDPH) published sweeping proposed amendments to the employee Health Care Worker Background Check Rules in the April 4th Illinois Register.  The new proposed regulations, once enacted, will phase-in the fingerprinting of all new unlicensed employees.  It is expected that the Department will begin phasing-in the fingerprint check program for new unlicensed employees sometime this summer, most likely starting with the ten northern counties that had participated in last year’s federal fingerprint pilot project.

 

The first week we provided an overview of the changes with these proposed regulations.  In the second edition, we examined some of the operational implications for facilities, including who does and does not need a fingerprint check and using the Health Care Worker Registry.  Last week we reviewed the fingerprinting process and documentation requirements. This week we conclude with a review of disqualifying offenses and waivers.

 

Disqualifying Offenses and Waivers

 

Although the list of disqualifying offenses remains the same, the new regulations essentially create three categories of disqualifying offenses:

  • crimes likes murder and sexual assault which will never be waivered;
  • non-violent offenses over five to nine years ago will be automatically waivered (No waiver request will be needed. Employers will be notified of the automatic “rehabilitation waiver” by IDPH at the same time they are notified of the results of the fingerprint check.   Employees receiving an automatic waiver will not have to request a waiver and can continue working); and
  • non-violent offenses over one to ten years ago for which a waiver request will need to be submitted to IDPH.  During the time a waiver request is being made, the employee cannot work in a long term care facility in a position that has access to residents or records.  The law requires IDPH to make a waiver request decision within thirty days after a completed waiver request is submitted.

 

1. Section 955.270(e) - No Waiver Possible:

 

“Waivers will not be granted to individuals who have been convicted of committing or attempting to commit one or more of the following offenses:

 

1)      Solicitation of murder, solicitation of murder for hire [720 ILCS 5/8-1.1 and 8-1.2];

2)      Murder, drug induced homicide, involuntary manslaughter and reckless homicide, intentional homicide of an unborn child, voluntary manslaughter of an unborn child, involuntary manslaughter and reckless homicide of an unborn child, or concealment of a homicidal death [720 ILCS 5/9-1, 9-1.2, 9-2.1, 9-3, 9-3.1, 9-3.2, and 9-3.3];

3)      Kidnapping, or aggravated kidnapping [720 ILCS 5/10-1 and 10-2];

4)      Indecent solicitation of a child, sexual exploitation of a child, sexual misconduct with a person with a disability, exploitation of a child, child pornography [720 ILCS 5/11-6, 11-9.1, 11-9.5, 11-19.2, and 11-20.1];

5)      Aggravated domestic battery, aggravated battery, heinous battery, aggravated battery with a firearm, aggravated battery with a machine gun, aggravated battery of a child, aggravated battery of an unborn child, aggravated battery of a senior citizen, or drug induced infliction of great bodily harm [720 ILCS 5/12-3.3, 12-4, 12-4.1, 12-4.2, 12-4.2-5, 12-4.3, 12-4.4, 12-4.6, and 12-4.7];

6)      Criminal sexual assault or aggravated criminal sexual assault [720 ILCS 5/12-13, 12-14, and 12-14.1];

7)      Criminal sexual abuse, aggravated criminal sexual abuse or predatory criminal sexual assault of a child [720 ILCS 5/12-15 and 12-16]

8)      Abuse and gross neglect of a long term care facility resident [720 ILCS 5/12-19];

9)      Criminal abuse or neglect of an elderly or disabled person [720 ILCS 5/12-21];

10)  Financial exploitation of an elderly person or a person with a disability [720 ICLS 5/16-1.3];

11)   Armed robbery [720 ILCS 5/18-2];

12)   Aggravated vehicular hijacking [720 ILCS 5/18-4], and

13)   Aggravated robbery [720 ILCS 5/18-5];

 

2. Section 955.275 Automatic Rehabilitation Waivers

 

“The Department may consider the results of a fingerprint-based criminal history records check for a rehabilitation waiver, if sufficient time has passed since the last disqualifying conviction.  A rehabilitation waiver may be granted without a waiver application being submitted by the student, applicant, or employee.

 

For an applicant to be considered for a rehabilitation waiver, the Department will have received from him or her criminal history records check that meets the requirements of Section 955.115 and 955.165 of this Part.

 

A waiver without a waiver application shall not be granted unless the student, applicant, or employee has met the following time frames:

 

1) Single disqualifying misdemeanor conviction – 5 years after conviction date;

2) Two disqualifying misdemeanor convictions – 7 years after conviction date;

3) Three or more disqualifying misdemeanor convictions – 9 years after conviction date;

4) Single disqualifying felony conviction – 7 years after conviction date;

5) Two disqualifying felony convictions – 9 years after conviction date; and

6) Three or more felony convictions shall not be considered for a rehabilitation waiver.

 

A waiver without a waiver application may be granted to an individual who has been convicted of committing or attempting to commit one or more of the following offenses if the time frames listed in subsection (c) have been met:

 

1)      Unlawful restraint, aggravated unlawful restraint, child abduction, or aiding and abetting child abduction [720 ILCS 5/10-3, 10-3.1, 10-5, and 10-7];

2)      Assault, battery, domestic battery (as a misdemeanor and if not preceded by a violation of an order of protection) [720 ILCS 5/12-1, 12-3,12-3.2];

3)      Theft (as a misdemeanor); theft of mislaid property, offense of retail theft (as a misdemeanor) [720 ILCS 5/16-1, 16-2, 16A-3];

4)      Criminal trespass to a residence [720 ILCS 5/19-4];

5)      Reckless discharge of a firearm [720 ILCS 5/24-1.5];

6)      Practice of nursing without a license [720 ILCS 65/10-5];

7)      Violations under the Criminal Jurisprudence Act (formerly Ill. Rev. Stat. 1991, ch. 23. par. 23680;

8)      Receiving a stolen credit card or debit card [720 ILCS 250/4];

9)      Receiving a lost or mislaid credit or debit card with intent to use, sell or transfer [720 ILCS 250/5];

10)  Sale or purchase of a credit card without user’s consent [720 ILCS 250/6];

11)  Use of credit or debit card with the intent to defraud [720 ILCS 250/8]; and

12)  Fraudulent use of electronic transmission [720 ILCS 250/17.02].

 

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 a rehabilitation waiver.  The waiver will be recorded in the Health Care Worker Registry.  If a rehabilitation waiver is not granted, the individual may apply for a waiver by submitting a completed waiver application pursuant to Section 955.260 of this Part.”

 

3. Section 270(d) Waiver Requests

 

Finally there is the category of disqualifying offenses for which an individual may apply for a waiver, providing the time frames for applying for a waiver have been met.  These time frames are not as lengthy as the automatic rehabilitation waivers:

 

“Waivers will not be granted to individuals who have not met the following time frames:

 

1) Single disqualifying misdemeanor conviction – no earlier than 1 year after conviction date;

2) Two disqualifying misdemeanor convictions – no earlier than 3 years after conviction date;

3) Three or more disqualifying misdemeanor convictions – no earlier than 5 years after conviction date;

4) Single disqualifying felony conviction – no earlier than 3 years after conviction date;

5) Two to three disqualifying felony convictions – no earlier than 5 years after conviction date; and

6) More than three disqualifying felony convictions – no earlier than 10 years after the most recent conviction.”

 

An individual can apply for a waiver if they committed any of the crimes listed in the rehabilitation waiver section but did not meet the longer time frames, but were within the time frames for a waiver application listed above.  The following additional disqualifying offenses are eligible for a waiver if the time frames are met and if a waiver request is made and approved:

 

1.      Aggravated assault and battery of an unborn child [720 ILCS 12-2, 12-3.1];

2.      Tampering with food, drugs or cosmetics (720 ILCS 5/12-4.5];

3.      Aggravated stalking [720 ILCS 5/12-7.4];

4.      Home invasion [720 ILCS 5/12-11];

5.      Endangering the life or health of a child [720 ILCS 5/12-21.6];

6.      Ritual mutilation, ritualized abuse of a child [720 ILCS 5/12-32 and 12-33];

7.      Financial identify theft, aggravated financial identity theft [720 ILCS 16G-15, 16G-20];

8.      Forgery [720 ILCS 5/17-3];

9.      Robbery [720 ILCS 5/18-1];

10.  Vehicular hijacking [720 ILCS 5/18-3];

11.  Burglary, residential burglary [720 ILCS 5/19-1 and 19-3];

12.  Arson, aggravated arson, residential arson [720 ILCS 5/20-1, 20-1.1, and 20-1.2];

13.  Unlawful use of weapons, unlawful use or possession of weapons by felons or persons in the custody of Department of Corrections facilities, aggravated discharge of a firearm, aggravated discharge of a maching gun or a firearm equipped with a silencer, aggravated unlawful use of a weapon, unlawful sale or delivery of firearms on the premises of any school [720 ILCS 5/24-1, 24-1.1, 24-1.2, 24-1.2-5, 24-1.6, 24-3.2, and 24-3.3];

14.  Armed violence [720 ILCS 5/33 A-2];

15.  Endangering life or health of a child [720 ILCS 150/4];

16.  Permitting sexual abuse of a child [720 ILCS 150/5.1];

17.  Violations under the Cannabis Control Act: Manufacture, delivery, or trafficking of cannabis; delivery of cannabis on school grounds or delivery to person under 18; violation by person under 18; calculated criminal cannabis conspiracy [720 ILCS 550.5, 5.1, 5.2, 7, and 9];

18.  Violations under the Illinois Controlled Substances Act: manufacture, delivery or trafficking of controlled substances, calculated criminal drug conspiracy [720 ILCS 570.401, 401.1, 404, 405, 405.1, 407, and 407.1]

 

According to 955.260 Application for Waiver:  “Any student, applicant, employee, or employer 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 (The forms and instructions for completion are available on the public Registry website at www.idph.state.il.us/nar, with questions answered by calling 217-785-5133)

 

a)      Providing an entire work history or attaching a complete resume;

b)      Providing information concerning convictions in other states or attaching the complete results of a criminal history records check from other states;

c)      Providing information concerning convictions by the federal government or attaching the complete results of a criminal history records check from the Federal Bureau of Investigation; and

d)      Providing information concerning certification as a nurse aide in other state, attaching certificates or verifications;

 

2. Providing a written explanation of each conviction, to include:

 

a)      what happened;

b)      how many years have passed since the offense;

c)      the individuals involved;

d)      the age of the applicant at the time of the offense; and

e)      any other circumstances surrounding the offense

 

3.      Providing proof of completion of a rehabilitation program, if the use of alcohol or other drugs was involved in the offense, and the individual was ordered to participate in a rehabilitation program as part of the judgment.

4.      Providing official documentation showing that all fines have been paid, if applicable, except in the instance of payment of court-imposed fines or restitutions in which the applicant is adhering to a payment schedule, and the date of probation or parole was satisfactorily completed, if applicable.

5.      Submitting the results of a fingerprint-based criminal history records check.

 

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.

 

A request for a waiver will automatically be denied unless the applicant has met the time periods in Section 955.270(h).

 

Each request for waiver consideration shall be accompanied by a fully completed waiver application.  The waiver application will not be deemed complete until the Department has received all of the information required by this Section.

 

The Department will inform health care employers if a waiver is being sought by entering a record notation on the Health Care Worker Registry that a waiver is pending and must act upon the waiver request within 30 days after receipt of all necessary information pursuant to Section 955.260 of this Part.  If a waiver is granted, denied, or revoked, that information will be entered on the Health Care Worker Registry.

 

An individual shall not be employed in a direct care position from the time that the employer receives information indicating that a criminal history records check contains disqualifying convictions until such time as the individual receives a waiver from the Department.”

 

 

Disqualifying Crimes vs Other Crimes

 

Section 955.165(m) reads: “The Health Care Worker Registry will indicate only those criminal convictions that are disqualifying under the Act.  Nothing in his Part shall prohibit the health care employer from developing policies concerning employment of individuals whose criminal history records checks indicate convictions for offenses that are not disqualifying.”

 

A person cannot work in a nursing home in a position with access to residents or records because he or she has been convicted of a criminal offense listed in the Health Care Worker Background Act.  That is clear.  However, even though these regulations allow a facility to maintain a policy about not hiring employees for other offenses, it is strongly recommended that a facility consult with an attorney knowledgeable in labor law before implementing a policy of not hiring employees for offenses not covered under the law.

 

There is one more section 955.285 of the proposed regulations that set forth the requirements and responsibilities of the livescan vendors that do not directly affect the operations of the nursing homes.  Anyone wishing to see those requirements can go to the website listed in the closing paragraph.

 

This new program is not yet in effect.  You will be informed by IDPH and your associations of the timetable for replacing your UCIA name-based background check with the livescan vendor fingerprint program in your area.  As with the federal pilot project, it can be expected that IDPH will be conducting training sessions in your area just prior to implementing the program.  Until such time, facilities should continue to do UCIA background checks as required under current law and regulations.  There is a public comment period until May 19, 2008.  If you wish to review the proposed rules in their entirety, they are available on pages 4529 to 4573 at: http://www.cyberdriveillinois.com/departments/index/register/register_volume32_issue14.pdf.  If you have comments or changes you would like your associations to recommend, please e-email your comments to mwestenberger@ihca.com or tsullivan@nursinghome.org by May 6, 2008.

 

Correction: CNAs with 24 month break in employment

 

Two weeks ago, it was stated that, by federal law, “if no facility reports the CNA as having worked in healthcare for two years, that individual will be listed as “inactive” on the Registry, and will be required to retake the training and competency program over again.”  We received a call from the IDPH Educational and Training section to clarify that, if a CNA has not worked for pay in healthcare for two years, he or she will be required to retake the competency exam and be observed using the 21 manual skills review, but will not be required to complete the entire 120-hour training course.