SB-1578, As Passed House, December 18, 2008

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE SUBSTITUTE FOR

 

SENATE BILL NO. 1578

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1979 PA 218, entitled

 

"Adult foster care facility licensing act,"

 

by amending section 34b (MCL 400.734b), as amended by 2008 PA 135.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 34b. (1) In addition to the restrictions prescribed in

 

sections 13, 22, and 31, and except as otherwise provided in

 

subsection (2), an adult foster care facility shall not employ or

 

independently contract with an individual who regularly has direct

 

access to or provides direct services to residents of the adult

 

foster care facility 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 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 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 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 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 moving

 

violation causing death.

 

     (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 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 of the public health code,

 

1978 PA 368, MCL 333.7401 to 333.7461, 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 the date of the execution of the independent

 

contract:

 

     (i) A misdemeanor under part 74 of the public health code, 1978

 

PA 368, MCL 333.7401 to 333.7461, 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 according to an investigation conducted in

 

accordance with 42 USC 1395i-3 or 1396r.

 

     (2) Except as otherwise provided in subsection (6), an adult

 

foster care facility shall not employ or independently contract

 

with an individual who has direct access to residents after April

 

1, 2006 until the adult foster care facility conducts a criminal

 


history check in compliance with subsections (4) and (5). This

 

subsection and subsection (1) do not apply to an individual who is

 

employed by or under contract to an adult foster care facility

 

before April 1, 2006. Beginning April 1, 2009, an individual who is

 

exempt under this subsection shall provide the department of state

 

police 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 subsection is not limited to

 

working within the adult foster care facility with which he or she

 

is employed by or under independent contract with on April 1, 2006.

 

That individual may transfer to another adult foster care facility

 

that is under the same ownership with which he or she was employed

 

or under contract. If that individual wishes to transfer to an

 

adult foster care facility that is not under the same ownership, he

 

or she may do so provided that a criminal history check is

 

conducted by the new facility in accordance with subsection (4). If

 

an individual who is exempt under this subsection is subsequently

 

convicted of a crime or offense 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), he

 

or she is no longer exempt and shall be terminated from employment

 

or denied employment.

 

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

 

employee or as an independent contractor with an adult foster care

 


facility and has received a good faith offer of employment or

 

independent contract from the adult foster care facility 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. The individual, at the time of initial application,

 

shall provide identification acceptable to the department of state

 

police.

 

     (4) Upon receipt of the written consent and identification

 

required under subsection (3), the adult foster care facility that

 

has made a good faith offer of employment or independent contract

 

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

 

criminal history check on the individual and input the individual's

 

fingerprints into the automated fingerprint identification system

 

database, and shall make a request to the relevant licensing or

 

regulatory department to perform a check of all relevant registries

 

established according to federal and state law and regulations for

 

any substantiated findings of abuse, neglect, or misappropriation

 

of property. The request shall be made in a manner prescribed by

 

the department of state police and the relevant licensing or

 

regulatory department or agency. The adult foster care facility

 

shall make the written consent and identification available to the

 

department of state police and the relevant licensing or regulatory

 

department or agency. 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 adult foster care facility 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. The

 

department of state police shall conduct an initial criminal

 

history check on the individual 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 that contains a criminal record. The report shall

 

contain any criminal history record information on the individual

 

maintained by the department of state police.

 

     (5) Upon receipt of the written consent and identification

 

required under subsection (3), if the individual has applied for

 

employment either as an employee or as an independent contractor

 

with an adult foster care facility, the adult foster care facility

 

that has made a good faith offer of employment or independent

 

contract shall comply with subsection (4) and shall make a request

 

to the department of state police to forward the individual'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 individual. An individual described in

 

this subsection shall provide the department of state police with a

 

set of fingerprints. The department of state police shall complete

 


the criminal history check under subsection (4) and, except as

 

otherwise provided in this subsection, provide the results of its

 

determination under subsection (4) and the results of the federal

 

bureau of investigation determination to the department within 30

 

days after the request is made. If the requesting adult foster care

 

facility is not a state department or agency and if a criminal

 

conviction is disclosed on the written report of the criminal

 

history check obtained under subsection (4) or the federal bureau

 

of investigation determination, the department shall notify the

 

adult foster care facility and the individual in writing of the

 

type of crime disclosed on the written report of the criminal

 

history check obtained under subsection (4) or the federal bureau

 

of investigation determination without disclosing the details of

 

the crime. The notification shall inform the facility or agency and

 

the applicant regarding the appeal process in section 34c. 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 subsection (4).

 

     (6) If an adult foster care facility determines it necessary

 

to employ or independently contract with an individual before

 

receiving the results of the individual's criminal history check

 

required under this section, the adult foster care facility may

 

conditionally employ the individual if both of the following apply:

 

     (a) The adult foster care facility requests the criminal

 

history check required under this section, upon conditionally

 

employing the individual.

 


     (b) The individual signs a written statement indicating 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 subsection (1)(a) to (g).

 

     (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 statement under subparagraphs (i) to (iii),

 

his or her employment will be terminated by the adult foster care

 

facility as required under subsection (1) unless and until the

 

individual 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 and that those conditions are good cause for

 

termination.

 

     (7) The department shall develop and distribute the model form

 

for the statement required under subsection (6)(b). The department

 

shall make the model form available to adult foster care facilities

 

upon request at no charge.

 

     (8) If an individual is conditionally employed under

 

subsection (6), and the report described in subsection (4) or (5),

 

if applicable, does not confirm the individual's statement under

 

subsection (6)(b)(i) to (iii), the adult foster care facility shall

 


terminate the individual's employment as required by subsection

 

(1).

 

     (9) An individual who knowingly provides false information

 

regarding his or her identity, criminal convictions, or

 

substantiated findings on a statement described in subsection

 

(6)(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.

 

     (10) An adult foster care facility shall use criminal history

 

record information obtained under subsection (4) or (5) only for

 

the purpose of evaluating an individual's qualifications for

 

employment in the position for which he or she has applied and for

 

the purposes of subsections (6) and (8). An adult foster care

 

facility or an employee of the adult foster care facility shall not

 

disclose criminal history record information obtained under this

 

section to a person who is not directly involved in evaluating the

 

individual's qualifications for employment or independent contract.

 

An individual who knowingly uses or disseminates the criminal

 

history record information obtained under subsection (4) or (5) 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 adult

 

foster care facility, psychiatric facility or intermediate care

 

facility for people with mental retardation, or health facility or

 

agency that is considering employing or independently contracting

 

with an individual, an adult foster care facility 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 adult foster care facility,

 

psychiatric facility or intermediate care facility for people with

 

mental retardation, or health facility or agency. Except for a

 

knowing or intentional release of false information, an adult

 

foster care facility has no liability in connection with a

 

background check conducted under this section or the release of

 

criminal history record information under this subsection.

 

     (11) As a condition of continued employment, each employee or

 

independent contractor shall do both of the following:

 

     (a) Agree in writing to report to the adult foster care

 

facility immediately upon being arraigned on 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 becoming

 

the subject of a substantiated finding described under 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.

 

     (12) In addition to sanctions set forth in this act, a

 

licensee, owner, administrator, or operator of an adult foster care

 

facility 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.

 

     (13) 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 at the time 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 adult foster care facility 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.

 

     (14) If an individual independently contracts with an adult

 

foster care facility, subsections (1) and (2) do not apply if the

 

contractual work performed by the individual is not directly

 

related to the clinical, health care, or personal services

 

delivered by the adult foster care facility or if the individual's

 

duties are not performed on an ongoing basis with direct access to

 

residents. This exception includes, but is not limited to, an

 

individual who independently contracts with the adult foster care

 

facility to provide utility, maintenance, construction, or

 

communication services.

 


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

 

maintain an electronic web-based system to assist the adult foster

 

care facilities required to check relevant registries and conduct

 

criminal history checks of its employees and independent

 

contractors and to provide for an automated notice to the adult

 

foster care facilities for the individuals entered 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.

 

     (16) The department shall submit to the legislature not later

 

than April 1, 2009 a written report regarding the department's plan

 

to continue performing criminal history checks if adequate federal

 

funding is not available to continue performing future criminal

 

history checks.

 

     (17) An adult foster care facility or a prospective employee

 

covered under this section may not be charged for the cost of an

 

initial criminal history check required under this act.

 

     (18) As used in this section:

 

     (a) "Direct access" means access to a resident or resident's

 

property, financial information, medical records, treatment

 

information, or any other identifying information.

 

     (b) "Health facility or agency" means a health facility or

 

agency as defined in section 20106 of the public health code, 1978

 

PA 368, MCL 333.20106.

 

     (c) "Independent contract" means a contract entered into by an

 

adult foster care facility with an individual who provides the

 

contracted services independently or a contract entered into by an

 


adult foster care facility 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 adult foster care facility on behalf of the organization or

 

agency.

 

     (d) "Title XIX" means title XIX of the social security act, 42

 

USC 1396 to 1396r-6 and 1396r-8 to 1396v.

 

     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.