August 19, 2019
Health Care Alert
Health Care Alert
Author(s): Edward Clancy
This alert was co-authored by Jacalyn Smith.
On July 31, 2019, Governor JB Pritzker signed Senate Bill 1965 into law and opened a new job market to approximately 4.2 million Illinois residents. The bill amends the Health Care Worker Background Check Act and allows individuals with a criminal record of a disqualifying offense to work in the health care industry.
In relation to health care employers and long-term care facilities, the Health Care Worker Background Check Act (225 ILCS 46/1 to 99) requires them to initiate a fingerprint-based criminal history records check on certain individuals to whom they make a conditional offer of employment and who has not had a previous background check. The Illinois Department of Public Health (“IDPH”) maintains the individuals’ (and other individuals’, who have had health care worker background checks) information and the results of their criminal history record checks in its Health Care Worker Registry, as long as they stay active on the registry.
Before initiating a criminal history check, an employer accesses the Health Care Worker Registry on IDPH’s website to determine whether it lists the individual. If the registry shows that a potential employee is inactive in the registry or has a criminal conviction of a disqualifying offense that IDPH has not waived, then the employer may not hire, employ, or retain the individual. In addition to the criminal history check, employers must also conduct internet searches on certain websites, including 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 List of Excluded Individuals and Entities database on 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. These findings also prohibit an employer from hiring, employing, or retaining the individual.
Before July 31, 2019, Illinois residents applying to work in a health care facility could not initiate their own criminal history check. Rather, only health care providers who extended a conditional job offer to an applicant could start the process. Under SB 1965, an individual, through a workforce intermediary or organization that provides pro bono legal services, can request a criminal history check before receiving a job offer. If the criminal history check shows a disqualifying offense, the individual may begin the process of obtaining a waiver.
Although SB 1965 aims to destigmatize an individual’s record of a disqualifying offense, it still requires the individual to be qualified for a position in health care. Most health care jobs involve direct care, which includes assisting patients with feeding, dressing, moving, bathing, toileting, or other personal needs. Direct care occurs in a variety of health care settings, such as hospitals, hospices, skilled nursing facilities, and home health care. These positions often require at least a high school diploma or the equivalent.
Safer Foundations, a not-for-profit organization that offers services to people with criminal records, estimates that by 2026 Illinois will have more than 93,000 unfilled jobs in the health care field. This number includes 18,000 technicians and 74,000 support staff members. SB 1965 offers an opportunity for health care providers to expand their health care staff to meet the needs of patients and residents.
By allowing potential applicants to initiate a fingerprint-based criminal history records check and to apply for and receive a waiver before receiving a job offer, the new law encourages employees to disclose past offenses and avoid the delay of initiating and waiting for the results of criminal history checks. According to Illinois State Senator Elgie R. Sims, Jr., the background checks “provide a greater level of transparency between applicants and employers, avoid wait times, and help Illinoisans with criminal records have a better shot at getting a job.”
Health care providers will still be responsible for checking regularly whether their employees are on any state or federal exclusions lists like the OIG List of Excluded Individuals/Entities. However, the new law allows employers to consider and hire a significantly wider applicant pool.
The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.
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