HB-6627, As Passed House, December 4, 2008

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 6627

 

November 12, 2008, Introduced by Rep. Miller and referred to the Committee on Transportation.

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending section 20173a (MCL 333.20173a), as amended by 2008 PA

 

123.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 20173a. (1) Except as otherwise provided in subsection

 

(2), a health facility or agency that is a nursing home, county

 

medical care facility, hospice, hospital that provides swing bed

 

services, home for the aged, or home health agency shall not

 

employ, independently contract with, or grant clinical privileges

 

to an individual who regularly has direct access to or provides

 

direct services to patients or residents in the health facility or

 


agency after April 1, 2006 if the individual satisfies 1 or more of

 

the following:

 

     (a) Has been convicted of a relevant crime described under 42

 

USC 1320a-7.

 

     (b) Has been convicted of any of the following felonies, an

 

attempt or conspiracy to commit any of those felonies, or any other

 

state or federal crime that is similar to the felonies described in

 

this subdivision, other than a felony for a relevant crime

 

described under 42 USC 1320a-7, unless 15 years have lapsed since

 

the individual completed all of the terms and conditions of his or

 

her sentencing, parole, and probation for that conviction prior to

 

the date of application for employment or clinical privileges or

 

the date of the execution of the independent contract:

 

     (i) A felony that involves the intent to cause death or serious

 

impairment of a body function, that results in death or serious

 

impairment of a body function, that involves the use of force or

 

violence, or that involves the threat of the use of force or

 

violence.

 

     (ii) A felony involving cruelty or torture.

 

     (iii) A felony under chapter XXA of the Michigan penal code,

 

1931 PA 328, MCL 750.145m to 750.145r.

 

     (iv) A felony involving criminal sexual conduct.

 

     (v) A felony involving abuse or neglect.

 

     (vi) A felony involving the use of a firearm or dangerous

 

weapon.

 

     (vii) A felony involving the diversion or adulteration of a

 

prescription drug or other medications.

 


     (c) Has been convicted of a felony or an attempt or conspiracy

 

to commit a felony, other than a felony for a relevant crime

 

described under 42 USC 1320a-7 or a felony described under

 

subdivision (b), unless 10 years have lapsed since the individual

 

completed all of the terms and conditions of his or her sentencing,

 

parole, and probation for that conviction prior to the date of

 

application for employment or clinical privileges or the date of

 

the execution of the independent contract.

 

     (d) Has been convicted of any of the following misdemeanors,

 

other than a misdemeanor for a relevant crime described under 42

 

USC 1320a-7, or a state or federal crime that is substantially

 

similar to the misdemeanors described in this subdivision, within

 

the 10 years immediately preceding the date of application for

 

employment or clinical privileges or the date of the execution of

 

the independent contract:

 

     (i) A misdemeanor involving the use of a firearm or dangerous

 

weapon with the intent to injure, the use of a firearm or dangerous

 

weapon that results in a personal injury, or a misdemeanor

 

involving the use of force or violence or the threat of the use of

 

force or violence.

 

     (ii) A misdemeanor under chapter XXA of the Michigan penal

 

code, 1931 PA 328, MCL 750.145m to 750.145r.

 

     (iii) A misdemeanor involving criminal sexual conduct.

 

     (iv) A misdemeanor involving cruelty or torture unless

 

otherwise provided under subdivision (e).

 

     (v) A misdemeanor involving abuse or neglect.

 

     (e) Has been convicted of any of the following misdemeanors,

 


other than a misdemeanor for a relevant crime described under 42

 

USC 1320a-7, or a state or federal crime that is substantially

 

similar to the misdemeanors described in this subdivision, within

 

the 5 years immediately preceding the date of application for

 

employment or clinical privileges or the date of the execution of

 

the independent contract:

 

     (i) A misdemeanor involving cruelty if committed by an

 

individual who is less than 16 years of age.

 

     (ii) A misdemeanor involving home invasion.

 

     (iii) A misdemeanor involving embezzlement.

 

     (iv) A misdemeanor involving negligent homicide or a violation

 

of section 601d(1) of the Michigan vehicle code, 1949 PA 300, MCL

 

257.601d.

 

     (v) A misdemeanor involving larceny unless otherwise provided

 

under subdivision (g).

 

     (vi) A misdemeanor of retail fraud in the second degree unless

 

otherwise provided under subdivision (g).

 

     (vii) Any other misdemeanor involving assault, fraud, theft, or

 

the possession or delivery of a controlled substance unless

 

otherwise provided under subdivision (d), (f), or (g).

 

     (f) Has been convicted of any of the following misdemeanors,

 

other than a misdemeanor for a relevant crime described under 42

 

USC 1320a-7, or a state or federal crime that is substantially

 

similar to the misdemeanors described in this subdivision, within

 

the 3 years immediately preceding the date of application for

 

employment or clinical privileges or the date of the execution of

 

the independent contract:

 


     (i) A misdemeanor for assault if there was no use of a firearm

 

or dangerous weapon and no intent to commit murder or inflict great

 

bodily injury.

 

     (ii) A misdemeanor of retail fraud in the third degree unless

 

otherwise provided under subdivision (g).

 

     (iii) A misdemeanor under part 74 unless otherwise provided

 

under subdivision (g).

 

     (g) Has been convicted of any of the following misdemeanors,

 

other than a misdemeanor for a relevant crime described under 42

 

USC 1320a-7, or a state or federal crime that is substantially

 

similar to the misdemeanors described in this subdivision, within

 

the year immediately preceding the date of application for

 

employment or clinical privileges or the date of the execution of

 

the independent contract:

 

     (i) A misdemeanor under part 74 if the individual, at the time

 

of conviction, is under the age of 18.

 

     (ii) A misdemeanor for larceny or retail fraud in the second or

 

third degree if the individual, at the time of conviction, is under

 

the age of 16.

 

     (h) Is the subject of an order or disposition under section

 

16b of chapter IX of the code of criminal procedure, 1927 PA 175,

 

MCL 769.16b.

 

     (i) Has been the subject of a substantiated finding of

 

neglect, abuse, or misappropriation of property by a state or

 

federal agency pursuant to an investigation conducted in accordance

 

with 42 USC 1395i-3 or 1396r.

 

     (2) Except as otherwise provided in subsection (5), a health

 


facility or agency that is a nursing home, county medical care

 

facility, hospice, hospital that provides swing bed services, home

 

for the aged, or home health agency shall not employ, independently

 

contract with, or grant privileges to an individual who regularly

 

has direct access to or provides direct services to patients or

 

residents in the health facility or agency after April 1, 2006

 

until the health facility or agency conducts a criminal history

 

check in compliance with subsection (4). This subsection and

 

subsection (1) do not apply to any of the following:

 

     (a) An individual who is employed by, under independent

 

contract to, or granted clinical privileges in a health facility or

 

agency before April 1, 2006. Beginning April 1, 2009, an individual

 

who is exempt under this subdivision shall provide the department

 

of state police with a set of fingerprints and the department of

 

state police shall input those fingerprints into the automated

 

fingerprint identification system database established under

 

subsection (12). An individual who is exempt under this subdivision

 

is not limited to working within the health facility or agency with

 

which he or she is employed by, under independent contract to, or

 

granted clinical privileges on April 1, 2006. That individual may

 

transfer to another health facility or agency that is under the

 

same ownership with which he or she was employed, under contract,

 

or granted privileges. If that individual wishes to transfer to

 

another health facility or agency that is not under the same

 

ownership, he or she may do so provided that a criminal history

 

check is conducted by the new health facility or agency in

 

accordance with subsection (4). If an individual who is exempt

 


under this subdivision is subsequently convicted of a crime

 

described under subsection (1)(a) to (g) or found to be the subject

 

of a substantiated finding described under subsection (1)(i) or an

 

order or disposition described under subsection (1)(h), or is found

 

to have been convicted of a relevant crime described under

 

subsection (1)(a), then he or she is no longer exempt and shall be

 

terminated from employment or denied employment.

 

     (b) An individual who is an independent contractor with a

 

health facility or agency that is a nursing home, county medical

 

care facility, hospice, hospital that provides swing bed services,

 

home for the aged, or home health agency if the services for which

 

he or she is contracted is not directly related to the provision of

 

services to a patient or resident or if the services for which he

 

or she is contracted allows for direct access to the patients or

 

residents but is not performed on an ongoing basis. This exception

 

includes, but is not limited to, an individual who independently

 

contracts with the health facility or agency to provide utility,

 

maintenance, construction, or communications services.

 

     (3) An individual who applies for employment either as an

 

employee or as an independent contractor or for clinical privileges

 

with a health facility or agency that is a nursing home, county

 

medical care facility, hospice, hospital that provides swing bed

 

services, home for the aged, or home health agency and has received

 

a good faith offer of employment, an independent contract, or

 

clinical privileges from the health facility or agency shall give

 

written consent at the time of application for the department of

 

state police to conduct an initial criminal history check under

 


this section, along with identification acceptable to the

 

department of state police.

 

     (4) Upon receipt of the written consent and identification

 

required under subsection (3), a health facility or agency that is

 

a nursing home, county medical care facility, hospice, hospital

 

that provides swing bed services, home for the aged, or home health

 

agency that has made a good faith offer of employment or an

 

independent contract or clinical privileges to the applicant shall

 

make a request to the department of state police to conduct a

 

criminal history check on the applicant, to input the applicant's

 

fingerprints into the automated fingerprint identification system

 

database, and to forward the applicant's fingerprints to the

 

federal bureau of investigation. The department of state police

 

shall request the federal bureau of investigation to make a

 

determination of the existence of any national criminal history

 

pertaining to the applicant. The applicant shall provide the

 

department of state police with a set of fingerprints. The request

 

shall be made in a manner prescribed by the department of state

 

police. The health facility or agency shall make the written

 

consent and identification available to the department of state

 

police. The health facility or agency shall make a request to the

 

relevant licensing or regulatory department to conduct a check of

 

all relevant registries established pursuant to federal and state

 

law and regulations for any substantiated findings of abuse,

 

neglect, or misappropriation of property. If the department of

 

state police or the federal bureau of investigation charges a fee

 

for conducting the initial criminal history check, the charge shall

 


be paid by or reimbursed by the department with federal funds as

 

provided to implement a pilot program for national and state

 

background checks on direct patient access employees of long-term

 

care facilities or providers in accordance with section 307 of the

 

medicare prescription drug, improvement, and modernization act of

 

2003, Public Law 108-173. The health facility or agency shall not

 

seek reimbursement for a charge imposed by the department of state

 

police or the federal bureau of investigation from the individual

 

who is the subject of the initial criminal history check. A health

 

facility or agency, a prospective employee, or a prospective

 

independent contractor covered under this section may not be

 

charged for the cost of an initial criminal history check required

 

under this section. The department of state police shall conduct a

 

criminal history check on the applicant named in the request. The

 

department of state police shall provide the department with a

 

written report of the criminal history check conducted under this

 

subsection if the criminal history check contains any criminal

 

history record information. The report shall contain any criminal

 

history record information on the applicant maintained by the

 

department of state police. The department of state police shall

 

provide the results of the federal bureau of investigation

 

determination to the department within 30 days after the request is

 

made. If the requesting health facility or agency is not a state

 

department or agency and if a criminal conviction is disclosed on

 

the written report of the criminal history check or the federal

 

bureau of investigation determination, the department shall notify

 

the health facility or agency and the applicant in writing of the

 


type of crime disclosed on the written report of the criminal

 

history check or the federal bureau of investigation determination

 

without disclosing the details of the crime. Any charges imposed by

 

the department of state police or the federal bureau of

 

investigation for conducting an initial criminal history check or

 

making a determination under this subsection shall be paid in the

 

manner required under this subsection. The notice shall include a

 

statement that the applicant has a right to appeal a decision made

 

by the health facility or agency regarding his or her employment

 

eligibility based on the criminal background check. The notice

 

shall also include information regarding where to file and

 

describing the appellate procedures established under section

 

20173b.

 

     (5) If a health facility or agency that is a nursing home,

 

county medical care facility, hospice, hospital that provides swing

 

bed services, home for the aged, or home health agency determines

 

it necessary to employ or grant clinical privileges to an applicant

 

before receiving the results of the applicant's criminal history

 

check under this section, the health facility or agency may

 

conditionally employ or grant conditional clinical privileges to

 

the individual if all of the following apply:

 

     (a) The health facility or agency requests the criminal

 

history check under this section upon conditionally employing or

 

conditionally granting clinical privileges to the individual.

 

     (b) The individual signs a statement in writing that indicates

 

all of the following:

 

     (i) That he or she has not been convicted of 1 or more of the

 


crimes that are described in subsection (1)(a) to (g) within the

 

applicable time period prescribed by each subdivision respectively.

 

     (ii) That he or she is not the subject of an order or

 

disposition described in subsection (1)(h).

 

     (iii) That he or she has not been the subject of a substantiated

 

finding as described in subsection (1)(i).

 

     (iv) The individual agrees that, if the information in the

 

criminal history check conducted under this section does not

 

confirm the individual's statements under subparagraphs (i) to (iii),

 

his or her employment or clinical privileges will be terminated by

 

the health facility or agency as required under subsection (1)

 

unless and until the individual appeals and can prove that the

 

information is incorrect.

 

     (v) That he or she understands the conditions described in

 

subparagraphs (i) to (iv) that result in the termination of his or

 

her employment or clinical privileges and that those conditions are

 

good cause for termination.

 

     (6) The department shall develop and distribute a model form

 

for the statement required under subsection (5)(b). The department

 

shall make the model form available to health facilities or

 

agencies subject to this section upon request at no charge.

 

     (7) If an individual is employed as a conditional employee or

 

is granted conditional clinical privileges under subsection (5),

 

and the report described in subsection (4) does not confirm the

 

individual's statement under subsection (5)(b)(i) to (iii), the

 

health facility or agency shall terminate the individual's

 

employment or clinical privileges as required by subsection (1).

 


     (8) An individual who knowingly provides false information

 

regarding his or her identity, criminal convictions, or

 

substantiated findings on a statement described in subsection

 

(5)(b)(i) to (iii) is guilty of a misdemeanor punishable by

 

imprisonment for not more than 93 days or a fine of not more than

 

$500.00, or both.

 

     (9) A health facility or agency that is a nursing home, county

 

medical care facility, hospice, hospital that provides swing bed

 

services, home for the aged, or home health agency shall use

 

criminal history record information obtained under subsection (4)

 

only for the purpose of evaluating an applicant's qualifications

 

for employment, an independent contract, or clinical privileges in

 

the position for which he or she has applied and for the purposes

 

of subsections (5) and (7). A health facility or agency or an

 

employee of the health facility or agency shall not disclose

 

criminal history record information obtained under subsection (4)

 

to a person who is not directly involved in evaluating the

 

applicant's qualifications for employment, an independent contract,

 

or clinical privileges. An individual who knowingly uses or

 

disseminates the criminal history record information obtained under

 

subsection (4) in violation of this subsection is guilty of a

 

misdemeanor punishable by imprisonment for not more than 93 days or

 

a fine of not more than $1,000.00, or both. Upon written request

 

from another health facility or agency, psychiatric facility or

 

intermediate care facility for people with mental retardation, or

 

adult foster care facility that is considering employing,

 

independently contracting with, or granting clinical privileges to

 


an individual, a health facility or agency that has obtained

 

criminal history record information under this section on that

 

individual shall, with the consent of the applicant, share the

 

information with the requesting health facility or agency,

 

psychiatric facility or intermediate care facility for people with

 

mental retardation, or adult foster care facility. Except for a

 

knowing or intentional release of false information, a health

 

facility or agency has no liability in connection with a criminal

 

background check conducted under this section or the release of

 

criminal history record information under this subsection.

 

     (10) As a condition of continued employment, each employee,

 

independent contractor, or individual granted clinical privileges

 

shall do each of the following:

 

     (a) Agree in writing to report to the health facility or

 

agency immediately upon being arraigned for 1 or more of the

 

criminal offenses listed in subsection (1)(a) to (g), upon being

 

convicted of 1 or more of the criminal offenses listed in

 

subsection (1)(a) to (g), upon becoming the subject of an order or

 

disposition described under subsection (1)(h), and upon being the

 

subject of a substantiated finding of neglect, abuse, or

 

misappropriation of property as described in subsection (1)(i).

 

Reporting of an arraignment under this subdivision is not cause for

 

termination or denial of employment.

 

     (b) If a set of fingerprints is not already on file with the

 

department of state police, provide the department of state police

 

with a set of fingerprints.

 

     (11) In addition to sanctions set forth in section 20165, a

 


licensee, owner, administrator, or operator of a nursing home,

 

county medical care facility, hospice, hospital that provides swing

 

bed services, home for the aged, or home health agency who

 

knowingly and willfully fails to conduct the criminal history

 

checks as required under this section is guilty of a misdemeanor

 

punishable by imprisonment for not more than 1 year or a fine of

 

not more than $5,000.00, or both.

 

     (12) In collaboration with the department of state police, the

 

department of information technology shall establish an automated

 

fingerprint identification system database that would allow the

 

department of state police to store and maintain all fingerprints

 

submitted under this section and would provide for an automatic

 

notification if and when a subsequent criminal arrest fingerprint

 

card submitted into the system matches a set of fingerprints

 

previously submitted in accordance with this section. Upon such

 

notification, the department of state police shall immediately

 

notify the department and the department shall immediately contact

 

the respective health facility or agency with which that individual

 

is associated. Information in the database established under this

 

subsection is confidential, is not subject to disclosure under the

 

freedom of information act, 1976 PA 442, MCL 15.231 to 15.246, and

 

shall not be disclosed to any person except for purposes of this

 

act or for law enforcement purposes.

 

     (13) On or before April 1, 2009, the department shall submit a

 

written report to the legislature outlining a plan to cover the

 

costs of the criminal history checks required under this section if

 

federal funding is no longer available or is inadequate to cover

 


those costs.

 

     (14) The department and the department of state police shall

 

maintain an electronic web-based system to assist those health

 

facilities and agencies required to check relevant registries and

 

conduct criminal history checks of its employees and independent

 

contractors and to provide for an automated notice to those health

 

facilities or agencies for those individuals inputted in the system

 

who, since the initial check, have been convicted of a

 

disqualifying offense or have been the subject of a substantiated

 

finding of abuse, neglect, or misappropriation of property.

 

     (15) As used in this section:

 

     (a) "Adult foster care facility" means an adult foster care

 

facility licensed under the adult foster care facility licensing

 

act, 1979 PA 218, MCL 400.701 to 400.737.

 

     (b) "Direct access" means access to a patient or resident or

 

to a patient's or resident's property, financial information,

 

medical records, treatment information, or any other identifying

 

information.

 

     (c) "Home health agency" means a person certified by medicare

 

whose business is to provide to individuals in their places of

 

residence other than in a hospital, nursing home, or county medical

 

care facility 1 or more of the following services: nursing

 

services, therapeutic services, social work services, homemaker

 

services, home health aide services, or other related services.

 

     (d) "Independent contract" means a contract entered into by a

 

health facility or agency with an individual who provides the

 

contracted services independently or a contract entered into by a

 


health facility or agency with an organization or agency that

 

employs or contracts with an individual after complying with the

 

requirements of this section to provide the contracted services to

 

the health facility or agency on behalf of the organization or

 

agency.

 

     (e) "Medicare" means benefits under the federal medicare

 

program established under title XVIII of the social security act,

 

42 USC 1395 to 1395hhh.

 

     Enacting section 1. This amendatory act takes effect October

 

31, 2010.

 

     Enacting section 2. This amendatory act does not take effect

 

unless Senate Bill No. 104 of the 94th Legislature is enacted into

 

law.