Criminal Convictions and Pending Criminal Charges

Section 385 TITLE 89: SOCIAL SERVICES CHAPTER III: DEPARTMENT OF CHILDREN AND FAMILY SERVICES SUBCHAPTER d: LICENSING ADMINISTRATION PART 385 BACKGROUND CHECKS SECTION 385.60 CRIMINAL CONVICTIONS AND PENDING CRIMINAL CHARGES Section 385.60  Criminal Convictions and Pending Criminal Charges a)         Non-Waivable Convictions that are Bars to Licensure/Employment 1)         Persons convicted of crimes or convicted of attempting to commit crimes identified as lifetime (non-waivable) bars in Appendix A of this Part shall not: A)        receive a license from the Department to operate a child care facility or have such a license renewed; B)        be an employee, non-licensed contractual provider, intern, or volunteer at a congregate facility licensed by the Department; C)        be an employee, non-licensed contractual provider, intern, or volunteer at a day care home, group day care home, day care center, foster family home, or host home; or D)        be a member of the household in a day care home, group day care home, foster family home, or host home. 2)         When a licensee is convicted of crimes that are non-waivable bars to licensure, or convicted of attempting to commit these crimes, action shall be taken by the supervising licensing entity: A)        to begin the revocation process or the process to refuse to renew the license; or B)        to refuse to issue a full license, subsequent to a permit. b)         Special Provisions for Foster Family Homes and Host Homes In addition to the provisions set forth in subsection (a), no applicant may be licensed by the Department to operate a foster family home or host home, and no person may reside in a foster family home or host home licensed by the Department, who has been convicted of committing or attempting to commit any of the offenses listed in Appendix A, Waivable Bars (Not Including Foster Homes and Host Homes) or the offenses listed in Section 385.36. c)         Special Provisions for Day Care Homes, Group Day Care Homes, and Day Care Centers In additions to the provisions set forth in subsection (a), no applicant may be licensed by the Department to operate a day care home, group day care home, or day care center, and no person may reside in a day care home or group day care home licensed by the Department who has been convicted of the offenses listed in Section 385.34. d)         For offenses listed in Appendix A as Waivable Bars (Not Including Foster Homes and Host Homes) the Department may make an exception and, for child care facilities other than foster family homes, issue a new child care facility license to or renew the existing child care facility license of an applicant, a person employed by a child care facility, or an applicant who has an adult residing in a home child care facility , provided that all of the following requirements are met : 1) The relevant offense occurred more than 5 years prior to the date of application or renewal, except for drug offenses.  The relevant drug offense must have occurred more than 10 years prior to the date of the application or renewal, unless the applicant passed a drug test, arranged and paid for by the child care facility, no less than 5 years after the offense. 2) The Department must conduct a background check and assess all convictions and recommendations of the child care facility to determine if hiring or licensing the applicant is in accordance with Department administrative rules and procedures. 3) The applicant meets all other requirements and qualifications for licensure.  [225 ILCS 10/4.2(b-2)] e)         The Department may make an exception and issue a new foster family home license or may renew an existing foster family home license of an applicant who was convicted of an offense described in Appendix A in the section titled Additional Foster Home Restrictions , provided all of the following requirements are met: 1) The relevant criminal offense or offenses occurred more than 10 years prior to the date of application or renewal. 2) The applicant had previously disclosed the conviction or convictions to the Department for purposes of a background check. 3) After the disclosure, the Department either placed a child in the home or the foster family home license was issued. 4) During the background check, the Department had assessed and waived the conviction in compliance with the existing statutes and rules in effect at the time of the hire or licensure. 5) The applicant meets all other requirements and qualifications to be licensed as a foster family home under the Child Care Act of 1969 and the Department's administrative rules. 6) The applicant has a history of providing a safe, stable home environment and appears able to continue to provide a safe, stable home environment. [225 ILCS 10/4.2(d)] f)         Assessment of Criminal Convictions Other than Non-Waivable Convictions that are Bars to Licensure Except as specified in subsections (d) and (e), an individual convicted of a crime will not automatically be prohibited from licensure, renewal of a license, or employment in a child care facility, or from residing in a family home in which a child care facility operates. 1)         The Department or contributing agency licensing staff shall obtain written consent from the individual who is the subject of the criminal conviction in order to review pertinent criminal records. 2)         An assessment of each criminal conviction shall include the following: A) the age of the individual when the offense was committed; B) the circumstances surrounding the offense; C) the length of time since the conviction; D) the specific duties and responsibilities necessarily related to the license being applied for, and the bearing, if any, that the individual's conviction history may have on their fitness to perform these duties and responsibilities; E) the individual's employment references; F) the individual's character references and any certificates of achievement; G) an academic transcript showing the educational achievement since the disqualifying conviction; H) a Certificate of Relief from Disabilities or Certificate of Good Conduct; and I) anything else that speaks to the individual's character. [225 ILCS 10/4.2(e)] g)         Assessment of Pending Criminal Charges 1)         When an employer receives notice that an employee has a pending charge for a crime identified as a lifetime (non-waivable) bar in Appendix A, or a pending charge for any crimes identified in Section 385.34 or Section 385.36 the employer shall immediately inform the employee and take action to develop a protective plan to ensure the employee does not have unsupervised access to children.  The employer shall request a written consent from the employee to allow the employer to have full access to current pending charges.  The employee shall have the responsibility to request a certified final disposition on pending charges that would be a bar, if convicted, before a decision is made related to employment. 2)         When the supervising agency of a licensed child care facility or a non-licensed service provider receives notice that a licensee or household member has a pending charge for a crime listed as a barring offense, the supervising agency shall take steps necessary to develop a protective plan to ensure the safety, health and welfare of children served.  The licensee shall be responsible to request a certified final disposition on pending charges that would be a bar to licensure, if convicted. 3)         For pending charges that are identified as waivable in Appendix A, the supervising agency shall assess following areas to determine whether a final disposition of the pending charge is needed, before taking action on the individual's employment or license: A)        the seriousness and nature of the charges that are pending, including a determination of whether the charges are among those listed in Section 4.2(b), (b-1), (b-1.5), or (c) of the Child Care Act that serve as a bar to licensure or employment in a position that allows access to children; B)        the circumstances surrounding the incident that led to the criminal charge; C)        the relationship of the charges to the ability to care for children or to have access to children and confidential information in a child care facility; D)        whether the individual has ever been convicted of or charged with crimes of a similar nature; and E)        three positive character references and other information submitted by or on behalf of the individual or any other person, especially about the suitability of the individual to care for children. h)         Notification of Hiring Decision A child care facility shall notify the Department in writing of its decision to employ a person, or retain an employee, with a criminal history.  The decision of the employer is final.  Employment decisions may not be appealed to the Department.