SENATE BILL No. 1580

 

 

November 5, 2008, Introduced by Senators SWITALSKI and GLEASON and referred to the Committee on Transportation.

 

 

 

     A bill to amend 1974 PA 258, entitled

 

"Mental health code,"

 

by amending section 134a (MCL 330.1134a), as added by 2006 PA 27.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 134a. (1) Except as otherwise provided in subsection (2),

 

a psychiatric facility or intermediate care facility for people

 

with mental retardation 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 psychiatric facility or intermediate care facility

 

for people with mental retardation after the effective date of this

 

section 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 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 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 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 clinical privileges 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 pursuant to an investigation conducted in accordance

 

with 42 USC 1395i-3 or 1396r.

 

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

 

psychiatric facility or intermediate care facility for people with

 

mental retardation 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 psychiatric facility or intermediate care facility for people

 

with mental retardation after the effective date of this section

 

until the psychiatric facility or intermediate care facility for

 

people with mental retardation 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 psychiatric

 

facility or intermediate care facility for people with mental

 

retardation before the effective date of this section. Within 24

 

months after the effective date of this section, 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 psychiatric facility or

 

intermediate care facility for people with mental retardation with

 

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

 

granted clinical privileges on the effective date of this section.

 

That individual may transfer to another psychiatric facility or

 

intermediate care facility for people with mental retardation 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 psychiatric facility or intermediate care


 

facility for people with mental retardation that is not under the

 

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

 

history check is conducted by the new psychiatric facility or

 

intermediate care facility for people with mental retardation 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) through (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

 

psychiatric facility or intermediate care facility for people with

 

mental retardation 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 psychiatric facility or intermediate care facility for

 

people with mental retardation 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 psychiatric facility or intermediate care facility for


 

people with mental retardation and has received a good faith offer

 

of employment, an independent contract, or clinical privileges from

 

the psychiatric facility or intermediate care facility for people

 

with mental retardation 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 psychiatric facility or

 

intermediate care facility for people with mental retardation 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 psychiatric facility or intermediate care facility for

 

people with mental retardation shall make the written consent and

 

identification available to the department of state police. The

 

psychiatric facility or intermediate care facility for people with

 

mental retardation 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 psychiatric facility or intermediate care

 

facility for people with mental retardation 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

 

psychiatric facility or intermediate care facility for people with

 

mental retardation, 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 psychiatric facility or intermediate care

 

facility for people with mental retardation 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 psychiatric facility or intermediate care facility for people

 

with mental retardation 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 psychiatric facility or intermediate care facility for

 

people with mental retardation 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 of the public health code, 1978 PA 368, MCL 333.20173b.

 

     (5) If a psychiatric facility or intermediate care facility

 

for people with mental retardation 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 psychiatric facility or intermediate care

 

facility for people with mental retardation may conditionally

 

employ or grant conditional clinical privileges to the individual

 

if all of the following apply:

 

     (a) The psychiatric facility or intermediate care facility for

 

people with mental retardation 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) through (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) through

 

(iii), his or her employment or clinical privileges will be

 

terminated by the psychiatric facility or intermediate care

 

facility for people with mental retardation 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) through (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 psychiatric facilities or

 

intermediate care facilities for people with mental retardation

 

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) through (iii), the

 

psychiatric facility or intermediate care facility for people with

 

mental retardation 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) through (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 psychiatric facility or intermediate care facility for

 

people with mental retardation 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 psychiatric facility or intermediate care facility for

 

people with mental retardation or an employee of the psychiatric

 

facility or intermediate care facility for people with mental

 

retardation 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 psychiatric

 

facility or intermediate care facility for people with mental

 

retardation, health facility or agency, or adult foster care

 

facility that is considering employing, independently contracting

 

with, or granting clinical privileges to an individual, a

 

psychiatric facility or intermediate care facility for people with

 

mental retardation 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

 

psychiatric facility or intermediate care facility for people with

 

mental retardation, health facility or agency, or adult foster care

 

facility. Except for a knowing or intentional release of false

 

information, a psychiatric facility or intermediate care facility

 

for people with mental retardation 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 psychiatric facility or

 

intermediate care facility for people with mental retardation

 

immediately upon being arraigned for 1 or more of the criminal

 

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

 

convicted of 1 or more of the criminal offenses listed in

 

subsection (1)(a) through (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 this act, a

 

licensee, owner, administrator, or operator of a psychiatric

 

facility or intermediate care facility for people with mental

 

retardation 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 psychiatric facility or intermediate care facility

 

for people with mental retardation 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) Within 1 year after the effective date of the amendatory

 

act that added this section, the department shall submit a written

 

report to the legislature regarding each of the following:

 

     (a) The impact and effectiveness of this amendatory act.

 

     (b) The feasibility of implementing criminal history checks on

 

volunteers who work in those psychiatric facilities or intermediate

 

care facilities for people with mental retardation and on state

 

agency employees who are involved in the licensing of those

 

psychiatric facilities or intermediate care facilities for people

 

with mental retardation and regulation of those employees.

 

     (c) The amount of federal funds provided to implement a pilot


 

program for national and state background checks on direct access

 

employees of long-term care facilities or providers, the amount of

 

those funds expended to date, and the amount of those funds

 

remaining.

 

     (14) Within 3 years after the effective date of this section,

 

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.

 

     (15) By March 1, 2007, the department and the department of

 

state police shall develop and implement an electronic web-based

 

system to assist those psychiatric facilities or intermediate care

 

facilities for people with mental retardation 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 psychiatric facilities or intermediate

 

care facilities for people with mental retardation 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.

 

     (16) 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) "Health facility or agency" means 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 licensed as required under article

 

17 of the public health code, 1978 PA 368, MCL 333.20101 to

 

333.22260.

 

     (d) "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.

 

     (e) "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.

 

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

 

program established under title XVIII of the social security act,

 

42 USC 1395 to 1395ggg.

 

     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.