HOUSE BILL No. 6157 November 28, 2000, Introduced by Reps. Brewer and Gieleghem and referred to the Committee on Health Policy. A bill to amend 1978 PA 368, entitled "Public health code," (MCL 333.1101 to 333.25211) by adding article 16. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 ARTICLE 16. HOME HEALTH SERVICES PROVIDERS 2 PART 191. CRIMINAL BACKGROUND CHECKS 3 SEC. 19101. (1) FOR PURPOSES OF THIS ARTICLE, THE WORDS AND 4 PHRASES DEFINED IN SECTION 19103 APPLY TO ALL SECTIONS IN THIS 5 ARTICLE AND HAVE THE MEANINGS ASCRIBED TO THEM IN THAT SECTION. 6 (2) IN ADDITION, ARTICLE 1 CONTAINS GENERAL DEFINITIONS AND 7 PRINCIPLES OF CONSTRUCTION APPLICABLE TO ALL ARTICLES IN THIS 8 CODE. 9 SEC. 19103. AS USED IN THIS ARTICLE: 10 (A) "HEALTH CARE PROVIDER" MEANS A HEALTH PROFESSIONAL, 11 HEALTH FACILITY OR AGENCY, OR LOCAL HEALTH DEPARTMENT. 06522'00 LTB 2 1 (B) "HOME HEALTH SERVICES PROVIDER" MEANS AN INDIVIDUAL WHO 2 REGULARLY PROVIDES DIRECT HEALTH SERVICES TO A PATIENT IN THE 3 PATIENT'S HOME. 4 SEC. 19105. (1) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION 5 (2), A HEALTH CARE PROVIDER SHALL NOT EMPLOY OR INDEPENDENTLY 6 CONTRACT WITH A HOME HEALTH SERVICES PROVIDER AFTER THE EFFECTIVE 7 DATE OF THE AMENDATORY ACT THAT ADDED THIS SECTION IF THE INDI- 8 VIDUAL HAS BEEN CONVICTED IN THIS STATE OF 1 OR MORE OF THE 9 FOLLOWING: 10 (A) A FELONY OR AN ATTEMPT OR CONSPIRACY TO COMMIT A FELONY 11 WITHIN THE 15 YEARS IMMEDIATELY PRECEDING THE DATE OF APPLICATION 12 FOR EMPLOYMENT OR THE DATE OF THE EXECUTION OF THE CONTRACT OR 13 WITHIN THE 15 YEARS IMMEDIATELY PRECEDING THE DATE OF THE 14 INDIVIDUAL'S MOST RECENT CRIMINAL HISTORY CHECK PERFORMED UNDER 15 THIS SECTION, IF THE INDIVIDUAL IS EMPLOYED BY OR UNDER CONTRACT 16 TO THE HEALTH CARE PROVIDER BEFORE THE EFFECTIVE DATE OF THE 17 AMENDATORY ACT THAT ADDED THIS SECTION. 18 (B) A MISDEMEANOR INVOLVING ABUSE, NEGLECT, ASSAULT, BAT- 19 TERY, OR CRIMINAL SEXUAL CONDUCT OR INVOLVING FRAUD OR THEFT 20 AGAINST A VULNERABLE ADULT AS THAT TERM IS DEFINED IN 21 SECTION 145M OF THE MICHIGAN PENAL CODE, 1931 PA 328, 22 MCL 750.145M, WITHIN THE 10 YEARS IMMEDIATELY PRECEDING THE DATE 23 OF APPLICATION FOR EMPLOYMENT OR THE DATE OF THE EXECUTION OF THE 24 CONTRACT OR WITHIN THE 10 YEARS IMMEDIATELY PRECEDING THE DATE OF 25 THE HOME HEALTH SERVICES PROVIDER'S MOST RECENT CRIMINAL HISTORY 26 CHECK PERFORMED UNDER THIS SECTION, IF THE HOME HEALTH SERVICES 27 PROVIDER IS EMPLOYED BY OR UNDER CONTRACT TO THE HEALTH CARE 06522'00 3 1 PROVIDER BEFORE THE EFFECTIVE DATE OF THE AMENDATORY ACT THAT 2 ADDED THIS SECTION. 3 (2) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBSECTION AND SUB- 4 SECTION (5), A HEALTH CARE PROVIDER SHALL NOT EMPLOY OR INDEPEN- 5 DENTLY CONTRACT WITH A HOME HEALTH SERVICES PROVIDER AFTER THE 6 EFFECTIVE DATE OF THE AMENDATORY ACT THAT ADDED THIS SECTION 7 UNTIL THE HEALTH CARE PROVIDER COMPLIES WITH SUBSECTION (4). 8 THIS SUBSECTION AND SUBSECTION (1) DO NOT APPLY TO A HOME HEALTH 9 SERVICES PROVIDER WHO IS EMPLOYED BY OR UNDER CONTRACT TO THE 10 HEALTH CARE PROVIDER BEFORE THE EFFECTIVE DATE OF THE AMENDATORY 11 ACT THAT ADDED THIS SUBSECTION, IF THE HOME HEALTH SERVICES PRO- 12 VIDER HAS HAD A CRIMINAL HISTORY CHECK THAT IS EQUIVALENT TO THE 13 CRIMINAL HISTORY CHECK CONDUCTED UNDER THIS SECTION WITHIN THE 2 14 YEARS IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE AMENDATORY 15 ACT THAT ADDED THIS SECTION OR IS PERFORMED UNDER THIS SECTION. 16 (3) A HOME HEALTH SERVICES PROVIDER WHO APPLIES FOR EMPLOY- 17 MENT EITHER AS AN EMPLOYEE OR AS AN INDEPENDENT CONTRACTOR WITH A 18 HEALTH CARE PROVIDER SHALL GIVE WRITTEN CONSENT AT THE TIME OF 19 APPLICATION FOR THE DEPARTMENT OF STATE POLICE OR ANOTHER AUTHO- 20 RIZED LAW ENFORCEMENT AGENCY TO CONDUCT A CRIMINAL HISTORY CHECK 21 UNDER SUBSECTION (4). IF THE DEPARTMENT OF STATE POLICE OR OTHER 22 AUTHORIZED LAW ENFORCEMENT AGENCY HAS CONDUCTED A CRIMINAL HIS- 23 TORY CHECK ON THE APPLICANT WITHIN THE 6 MONTHS IMMEDIATELY PRE- 24 CEDING THE DATE OF APPLICATION, THE HEALTH CARE PROVIDER MAY USE 25 A CERTIFIED COPY OF THAT CRIMINAL HISTORY CHECK IN LIEU OF 26 OBTAINING WRITTEN CONSENT AND REQUESTING A NEW CRIMINAL HISTORY 27 CHECK UNDER THIS SUBSECTION AND SUBSECTION (4). IF THE APPLICANT 06522'00 4 1 IS APPLYING FOR EMPLOYMENT AS AN INDEPENDENT CONTRACTOR AND IS 2 USING A PRIOR CRIMINAL HISTORY CHECK AS DESCRIBED IN THIS SUBSEC- 3 TION, THE HEALTH CARE PROVIDER SHALL ACCEPT THE CERTIFIED COPY OF 4 THE CRIMINAL HISTORY CHECK ONLY FROM THE FIRM OR AGENCY THAT 5 EMPLOYS THE APPLICANT OR FROM THE DEPARTMENT OF STATE POLICE OR 6 OTHER AUTHORIZED LAW ENFORCEMENT AGENCY. 7 (4) UPON RECEIPT OF THE WRITTEN CONSENT REQUIRED UNDER SUB- 8 SECTION (3), A HEALTH CARE PROVIDER SHALL MAKE A REQUEST TO THE 9 DEPARTMENT OF STATE POLICE OR ANOTHER AUTHORIZED LAW ENFORCEMENT 10 AGENCY TO CONDUCT A CRIMINAL HISTORY CHECK ON THE APPLICANT. THE 11 REQUEST SHALL BE MADE ON A FORM AND IN A MANNER PRESCRIBED BY THE 12 DEPARTMENT OF STATE POLICE OR BY THE OTHER AUTHORIZED LAW 13 ENFORCEMENT AGENCY. IF THERE IS A CHARGE FOR CONDUCTING THE 14 CRIMINAL HISTORY CHECK, THE HEALTH CARE PROVIDER REQUESTING THE 15 CRIMINAL HISTORY CHECK SHALL PAY THE COST OF THE CHARGE. THE 16 HEALTH CARE PROVIDER SHALL NOT SEEK REIMBURSEMENT FOR THE CHARGE 17 FROM THE APPLICANT WHO IS THE SUBJECT OF THE CRIMINAL HISTORY 18 CHECK. THE DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED LAW 19 ENFORCEMENT AGENCY SHALL CONDUCT A CRIMINAL HISTORY CHECK ON THE 20 APPLICANT NAMED IN THE REQUEST. THE DEPARTMENT OF STATE POLICE 21 OR OTHER AUTHORIZED LAW ENFORCEMENT AGENCY SHALL PROVIDE THE 22 HEALTH CARE PROVIDER WITH A REPORT OF THE CRIMINAL HISTORY 23 CHECK. THE REPORT SHALL CONTAIN ANY CRIMINAL HISTORY RECORD 24 INFORMATION ON THE APPLICANT MAINTAINED BY THE DEPARTMENT OF 25 STATE POLICE OR OTHER AUTHORIZED LAW ENFORCEMENT AGENCY. THE 26 DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED LAW ENFORCEMENT 06522'00 5 1 AGENCY SHALL CERTIFY EACH REPORT WITH AN OFFICIAL SEAL OR OTHER 2 SYMBOL OF AUTHENTICITY. 3 (5) IF A HEALTH CARE PROVIDER DETERMINES IT NECESSARY TO 4 EMPLOY AN APPLICANT BEFORE RECEIVING THE RESULTS OF THE 5 APPLICANT'S CRIMINAL HISTORY CHECK UNDER SUBSECTION (4), THE 6 HEALTH CARE PROVIDER MAY EMPLOY THE APPLICANT AS A CONDITIONAL 7 EMPLOYEE OR CONDITIONAL STAFF MEMBER IF ALL OF THE FOLLOWING 8 APPLY: 9 (A) THE HEALTH CARE PROVIDER REQUESTS THE CRIMINAL HISTORY 10 CHECK UNDER SUBSECTION (4) BEFORE CONDITIONALLY EMPLOYING THE 11 APPLICANT. 12 (B) THE APPLICANT SIGNS A STATEMENT THAT HE OR SHE HAS NOT 13 BEEN CONVICTED OF 1 OR MORE OF THE CRIMES THAT ARE DESCRIBED IN 14 SUBSECTION (1)(A) AND (B), AND AGREEING THAT, IF THE CRIMINAL 15 HISTORY CHECK CONDUCTED UNDER SUBSECTION (4) IS NOT THE SAME AS 16 THE APPLICANT'S STATEMENT UNDER THIS SUBDIVISION, HIS OR HER 17 EMPLOYMENT IS TERMINABLE AT THE OPTION OF THE HEALTH CARE 18 PROVIDER. NOT LATER THAN 90 DAYS AFTER THE EFFECTIVE DATE OF THE 19 AMENDATORY ACT THAT ADDED THIS SUBSECTION, THE DEPARTMENT SHALL 20 DEVELOP AND DISTRIBUTE A MODEL FORM FOR THE STATEMENT REQUIRED 21 UNDER THIS SUBDIVISION. THE DEPARTMENT SHALL MAKE THE MODEL FORM 22 AVAILABLE TO HEALTH CARE PROVIDERS UPON REQUEST AT NO CHARGE. 23 (6) IF AN APPLICANT IS EMPLOYED AS A CONDITIONAL EMPLOYEE 24 UNDER SUBSECTION (5) AND THE REPORT DESCRIBED IN SUBSECTION (4) 25 IS SUBSTANTIALLY DIFFERENT FROM HIS OR HER STATEMENT UNDER SUB- 26 SECTION (5)(B), THE HEALTH CARE PROVIDER MAY TERMINATE THE 27 INDIVIDUAL'S EMPLOYMENT. A HOME HEALTH SERVICES PROVIDER WHO 06522'00 6 1 KNOWINGLY PROVIDES FALSE INFORMATION REGARDING CRIMINAL 2 CONVICTIONS ON A STATEMENT DESCRIBED IN SUBSECTION (5)(B) IS 3 GUILTY OF A MISDEMEANOR PUNISHABLE BY IMPRISONMENT FOR NOT MORE 4 THAN 90 DAYS OR A FINE OF NOT MORE THAN $500.00, OR BOTH. 5 (7) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (8), A HEALTH 6 CARE PROVIDER SHALL USE CRIMINAL HISTORY RECORD INFORMATION 7 OBTAINED UNDER SUBSECTION (4) OR (5) ONLY FOR THE PURPOSE OF 8 EVALUATING AN APPLICANT'S QUALIFICATIONS FOR EMPLOYMENT IN THE 9 POSITION FOR WHICH HE OR SHE HAS APPLIED AND FOR THE PURPOSES OF 10 SUBSECTIONS (5) AND (6). A HEALTH CARE PROVIDER OR AN EMPLOYEE 11 OF THE HEALTH CARE PROVIDER SHALL NOT DISCLOSE CRIMINAL HISTORY 12 RECORD INFORMATION OBTAINED UNDER SUBSECTION (4) OR (5) TO A 13 PERSON WHO IS NOT DIRECTLY INVOLVED IN EVALUATING THE APPLICANT'S 14 QUALIFICATIONS FOR EMPLOYMENT. 15 (8) A HEALTH CARE PROVIDER SHALL REPORT THE CRIMINAL HISTORY 16 RECORD INFORMATION OBTAINED UNDER SUBSECTION (4) OR (5) AND ANY 17 OTHER CRIMINAL HISTORY INFORMATION REGARDING AN APPLICANT 18 EMPLOYED BY OR UNDER CONTRACT TO THE HEALTH CARE PROVIDER AND 19 OBTAINED BY THE HEALTH CARE PROVIDER TO THE DEPARTMENT OF CON- 20 SUMER AND INDUSTRY SERVICES. 21 SEC. 19107. (1) A HEALTH CARE PROVIDER SHALL REPORT EITHER 22 OF THE FOLLOWING TO THE DEPARTMENT OF CONSUMER AND INDUSTRY SERV- 23 ICES NOT MORE THAN 30 DAYS AFTER IT OCCURS: 24 (A) DISCIPLINARY ACTION TAKEN BY THE HEALTH CARE PROVIDER 25 AGAINST A HOME HEALTH SERVICES PROVIDER WHO IS EMPLOYED BY OR 26 UNDER CONTRACT TO THE HEALTH CARE PROVIDER BASED ON THE HOME 27 HEALTH SERVICES PROVIDER'S PROFESSIONAL COMPETENCE OR 06522'00 7 1 DISCIPLINARY ACTION THAT RESULTS IN A CHANGE OF EMPLOYMENT 2 STATUS. 3 (B) A CASE IN WHICH A HOME HEALTH SERVICES PROVIDER RESIGNS 4 OR TERMINATES A CONTRACT OR WHOSE CONTRACT IS NOT RENEWED INSTEAD 5 OF THE HEALTH CARE PROVIDER TAKING DISCIPLINARY ACTION AGAINST 6 THE HOME HEALTH SERVICES PROVIDER. 7 (2) UPON REQUEST BY ANOTHER HEALTH CARE PROVIDER SEEKING A 8 REFERENCE FOR PURPOSES OF CHANGING OR GRANTING STAFF CREDENTIALS 9 OR EMPLOYMENT, A HEALTH CARE PROVIDER THAT EMPLOYS OR CONTRACTS 10 WITH A HOME HEALTH SERVICES PROVIDER SHALL NOTIFY THE REQUESTING 11 HEALTH CARE PROVIDER OF DISCIPLINARY OR OTHER ACTION REPORTABLE 12 UNDER SUBSECTION (5) THAT IT HAS TAKEN AGAINST A HOME HEALTH 13 SERVICES PROVIDER EMPLOYED BY OR UNDER CONTRACT TO THE HEALTH 14 CARE PROVIDER. 15 (3) A HEALTH CARE PROVIDER SHALL REPORT TO THE DEPARTMENT OF 16 CONSUMER AND INDUSTRY SERVICES FINAL DISCIPLINARY ACTION TAKEN BY 17 THE HEALTH CARE PROVIDER AGAINST A HOME HEALTH SERVICES PROVIDER 18 THAT INVOLVES SEXUAL OR OTHER ABUSE, NEGLECT, PHYSICAL HARM, 19 THEFT, OR FRAUDULENT BEHAVIOR AGAINST A PATIENT AND ALL CRIMINAL 20 HISTORY RECORD INFORMATION OBTAINED UNDER SECTION 19105(4) OR 21 (5). A REPORT REQUIRED UNDER THIS SUBSECTION IS IN ADDITION TO, 22 AND IS NOT SATISFIED BY, A REPORT MADE UNDER SUBSECTION (1)(A). 23 (4) A REPORT RECEIVED BY THE DEPARTMENT OF CONSUMER AND 24 INDUSTRY SERVICES UNDER SUBSECTION (1) OR (3) IS PUBLIC 25 INFORMATION. 06522'00 8 1 (5) FOR THE PURPOSE OF REPORTING DISCIPLINARY ACTIONS 2 ACCORDING TO THIS SECTION, A HEALTH CARE PROVIDER SHALL INCLUDE 3 ONLY THE FOLLOWING IN THE INFORMATION PROVIDED: 4 (A) THE NAME OF THE HOME HEALTH SERVICES PROVIDER AGAINST 5 WHOM DISCIPLINARY ACTION HAS BEEN TAKEN. 6 (B) A DESCRIPTION OF THE DISCIPLINARY ACTION TAKEN. 7 (C) THE SPECIFIC GROUNDS FOR THE DISCIPLINARY ACTION TAKEN. 8 (D) THE DATE OF THE INCIDENT THAT IS THE BASIS FOR THE DIS- 9 CIPLINARY ACTION. 06522'00 Final page. LTB