59 Ill. Adm. Code 119.261
Application for waiver of the prohibition against employment
Section 119
Section 119.261Â Application
for waiver of the prohibition against employment
a)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â Indecent solicitation of a child (Section 11-6 of the Criminal
Code of 1961 [720 ILCS 5/11-6]);
8)Â Â Â Â Â Â Â Â Predatory criminal sexual assault of a child (Section 12-14.1
of the Criminal Code of 1961 [720 ILCS 5/12-14.1]);
9)Â Â Â Â Â Â Â Â Sexual exploitation of a child (Section 11-9.1 of the Criminal
Code of 1961 [720 ILCS 5/11-9.1]);
10)Â Â Â Â Â Â Exploitation of a child (Section 11-19.2 of the Criminal Code
of 1961 [720 ILCS 5/11-19.2]);
11)Â Â Â Â Â Â Child pornography (Section 11-20.1 of the Criminal Code of 1961
[720 ILCS 5/11-20.1]);
12)Â Â Â Â Â Â 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)Â Â Â Â Â Â 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)Â Â Â Â Â Â 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)Â Â Â Â Â Â Criminal neglect of an elderly or disabled person (Section
12-21 of the Criminal Code of 1961 [720 ILCS 5/12-21]);
16)Â Â Â Â Â Â 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)Â Â Â Â Â Â Aggravated robbery (Section 18-5 of the Criminal Code of 1961
[720 ILCS 5/18-5]);
18)Â Â Â Â Â Â Criminal trespass (Section 19-4 of the Criminal Code of 1961
[720 ILCS 5/19-4]);
19)Â Â Â Â Â Â Home invasion (Section 12-11 of Criminal Code of 1961 [720 ILCS
5/12-11]);
20)Â Â Â Â Â Â Arson (Sections 20-1 and 20-1.1 of the Criminal Code of 1961
[720 ILCS 5/20-1 and 20-1.1]);
21)Â Â Â Â Â Â 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)Â Â Â Â Â Â Armed violence (Article 33A of the Criminal Code of 1961 [720
ILCS 5/Art. 33A]);
23)Â Â Â Â Â Â Heinous battery (Section 12-4.1 of the Criminal Code of 1961
[720 ILCS 5/12-4.1]);
24)Â Â Â Â Â Â Tampering with food, drugs or cosmetics (Section 12-4.5 of the
Criminal Code of 1961 [720 ILCS 5/12-4.5]);
25)Â Â Â Â Â Â Aggravated stalking (Section 12-7.4 of the Criminal Code of
1961 [720 ILCS 5/12-7.4]);
26)Â Â Â Â Â Â 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)Â Â Â Â Â Â Forgery (Section 17-3 of the Criminal Code of 1961 [720 ILCS
5/17-3]);
28)Â Â Â Â Â Â 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)Â Â Â Â Â Â 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)Â Â Â Â Â Â Delivery of cannabis on school grounds (Section 5.2 of the Cannabis
Control Act [720 ILCS 550/5.2]);
31)Â Â Â Â Â Â 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)Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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."Â 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."Â The provision of nursing
assistance
with 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
who
is 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."Â 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."Â 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"Â The Uniform Conviction Information Act [20
ILCS 2635].
c)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â Initiation of UCIA criminal history record check
1)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â Â Application for waiver
1)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Either:
i)Â Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â The report of the results of the fingerprint-based UCIA criminal
records check done pursuant to subsection (h) of this Section.
2)Â Â Â Â Â Â Â Â Provider staff may assist the applicant, employee or nurse
aide in completing the application.
3)Â Â Â Â Â Â Â Â The waiver request shall be submitted to:
Accreditation, Licensure and Certification
Department of Human Services
405 Stratton Building
Springfield IL 62765
k)Â Â Â Â Â Â Â Â Waiver decision
1)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â Â Appeal of the decision
1)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â The applicant, employee, or nurse aide may submit additional
documentation of the mitigating circumstances.
3)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â Â 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)Â Â Â Â Â Â Â 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])