SB-1101, As Passed Senate, April 20, 2010

SUBSTITUTE FOR

SENATE BILL NO. 1101

     A bill to amend 1979 PA 218, entitled

"Adult foster care facility licensing act,"

by amending sections 4, 5, and 13 (MCL 400.704, 400.705, and

400.713), sections 4 and 5 as amended by 1996 PA 194 and section 13

as amended by 2004 PA 281.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 4. (1) "Council" means the adult foster care licensing

advisory council created in section 8.

     (2) "Department" means the family independence agency

department of human services.

     (3) "Developmental disability" means a disability as defined

in section 500(h) of Act No. 258 of the Public Acts of 1974, being

section 330.1500 of the Michigan Compiled Laws 100a of the mental

health code, 1974 PA 258, MCL 330.1100a.

     (4) "Direct access" means access to a resident or to a

resident's property, financial information, medical records,

treatment information, or any other identifying information.

(5) (4) "Director" means the director of the department.

(6) (5) "Do-not-resuscitate order" means a document executed

pursuant according to section 3 of the Michigan do-not-resuscitate

procedure act, 1996 PA 193, MCL 333.1053, directing that, in the

event a resident suffers cessation of both spontaneous respiration

and circulation, no resuscitation will be initiated.

(7) (6) "Foster care" means the provision of supervision,

personal care, and protection in addition to room and board, for 24

hours a day, 5 or more days a week, and for 2 or more consecutive

weeks for compensation.

     Sec. 5. (1) "Good moral character" means good moral character

as defined in Act No. 381 of the Public Acts of 1974, being

sections 338.41 to 338.47 of the Michigan Compiled Laws 1974 PA

381, MCL 338.41 to 338.47.

     (2) "Licensed hospice program" means a health care program

that provides a coordinated set of services rendered at home or in

an outpatient or institutional setting for individuals suffering

from a disease or condition with a terminal prognosis and that is

licensed under article 17 of the public health code, Act No. 368 of

the Public Acts of 1978, being sections 333.20101 to 333.22260 of

the Michigan Compiled Laws 1978 PA 368, MCL 333.20101 to 333.22260.

     (3) "Licensee" means the agency, association, corporation,

organization, person, or department or agency of the state, county,

city, or other political subdivision, that has been issued a

license to operate an adult foster care facility.

     (4) "Licensee designee" means the individual designated in

writing by the owner or person with legal authority to act on

behalf of the company or organization on licensing matters. The

licensee designee who is not an owner, partner, or director of the

applicant shall not sign the original license application or

amendments to the application.

(5) (4) "Mental illness" means a substantial disorder of

thought or mood that significantly impairs judgment, behavior,

capacity to recognize reality, or ability to cope with the ordinary

demands of life.

(6) (5) "New construction" means a newly constructed facility

or a facility that has been completely renovated for use as an

adult foster care facility.

     Sec. 13. (1) A person, partnership, corporation, association,

or a department or agency of the state, county, city, or other

political subdivision shall not establish or maintain an adult

foster care facility unless licensed by the department.

     (2) Application for a license shall be made on forms provided

and in the manner prescribed by the department. The application

shall be accompanied by the fee prescribed in section 13a.

     (3) Before issuing or renewing a license, the department shall

investigate the activities and standards of care of the applicant

and shall make an on-site evaluation of the facility. On-site

inspections conducted in response to the application may be

conducted without prior notice to the applicant. Subject to

subsections (9), (10), and (11), the department shall issue or

renew a license if satisfied as to all of the following:

     (a) The financial stability of the facility.

     (b) The applicant's compliance with this act and rules

promulgated under this act.

     (c) The good moral character of the applicant, or owners,

partners, or directors of the facility, if other than an

individual. Each of these persons shall be not less than 18 years

of age.

     (d) The physical and emotional ability of the applicant, and

the person responsible for the daily operation of the facility to

operate an adult foster care facility.

     (e) The good moral character of the person responsible for the

daily operations of the facility and all employees of the facility.

The applicant shall be responsible for assessing the good moral

character of the employees of the facility. The person responsible

for the daily operation of the facility shall be not less than 18

years of age.

     (4) The department shall require an applicant or a licensee to

disclose the names, addresses, and official positions of all

persons who have an ownership interest in the adult foster care

facility. If the adult foster care facility is located on or in

real estate that is leased, the applicant or licensee shall

disclose the name of the lessor of the real estate and any direct

or indirect interest that the applicant or licensee has in the

lease other than as lessee.

     (5) Each license shall state the maximum number of persons to

be received for foster care at 1 time.

     (6) If applicable, a license shall state the type of

specialized program for which certification has been received from

the department.

     (7) A license shall be issued to a specific person for a

facility at a specific location, is nontransferable, and remains

the property of the department. The prohibition against transfer of

a license to another location does not apply if a licensee's adult

foster care facility or home is closed as a result of eminent

domain proceedings, if the facility or home, as relocated,

otherwise meets the requirements of this act and the rules

promulgated under this act.

     (8) An applicant or licensee proposing a sale of an adult

foster care facility or home to another owner shall provide the

department with advance notice of the proposed sale in writing. The

applicant or licensee and other parties to the sale shall arrange

to meet with specified department representatives and shall obtain

before the sale a determination of the items of noncompliance with

applicable law and rules that shall be corrected. The department

shall notify the respective parties of the items of noncompliance

before the change of ownership, shall indicate that the items of

noncompliance shall be corrected as a condition of issuance of a

license to the new owner, and shall notify the prospective

purchaser of all licensure requirements.

     (9) The department shall not issue a license to or renew the

license of a person who has an owner, partner, or director of the

applicant, who has regular direct access to residents or who has

on-site facility operational responsibilities, or an applicant or

the licensee designee, if any of those individuals have been

convicted of a 1 or more of the following:

     (a) A felony under this act or under chapter XXA of the

Michigan penal code, 1931 PA 328, MCL 750.145m to 750.145r. The

department shall not issue a license to or renew the license of a

person who has been convicted of a

     (b) A misdemeanor under this act or under chapter XXA of the

Michigan penal code, 1931 PA 328, MCL 750.145m to 750.145r, for a

period of within the 10 years after the conviction immediately

preceding the application.

     (c) A misdemeanor involving abuse, neglect, assault, battery,

or criminal sexual conduct or involving fraud or theft against a

vulnerable adult as that term is defined in section 145m of the

Michigan penal code, 1931 PA 328, MCL 750.145m, or a state or

federal crime that is substantially similar to a misdemeanor

described in this subdivision within the 10 years immediately

preceding the application.

     (10) If the department has revoked, suspended, or refused to

renew a person's license for an adult foster care facility

according to section 22, the department may refuse to issue a

license to or renew a license of that person for a period of 5

years after the suspension, revocation, or nonrenewal of the

license.

     (11) The department may refuse to issue a license to or renew

the license of an applicant if the department determines that the

applicant has a relationship with a former licensee whose license

under this act has been suspended, revoked, or nonrenewed under

subsection (9) or section 22 or a convicted person to whom a

license has been denied under subsection (9). This subsection

applies for 5 years after the suspension, revocation, or nonrenewal

of the former licensee's license or the denial of the convicted

person's license. For purposes of this subsection, an applicant has

a relationship with a former licensee or convicted person if the

former licensee or convicted person is involved with the facility

in 1 or more of the following ways:

     (a) Participates in the administration or operation of the

facility.

     (b) Has a financial interest in the operation of the facility.

     (c) Provides care to residents of the facility.

     (d) Has contact with residents or staff on the premises of the

facility.

     (e) Is employed by the facility.

     (f) Resides in the facility.

     (12) If the department determines that an unlicensed facility

is an adult foster care facility, the department shall notify the

owner or operator of the facility that it is required to be

licensed under this act. A person receiving the notification

required under this section who does not apply for a license within

30 days is subject to the penalties described in subsection (13).

     (13) Subject to subsection (12), a person who violates

subsection (1) is guilty of a misdemeanor, punishable by

imprisonment for not more than 2 years or a fine of not more than

$50,000.00, or both. A person who has been convicted of a violation

of subsection (1) who commits a second or subsequent violation is

guilty of a felony, punishable by imprisonment for not more than 5

years or a fine of not more than $75,000.00, or both.

     (14) Beginning the effective date of the amendatory act that

added this subsection, the The department shall issue an initial or

renewal license not later than 6 months after the applicant files a

completed application. Receipt of the application is considered the

date the application is received by any agency or department of

this state. If the application is considered incomplete by the

department, the department shall notify the applicant in writing or

make notice electronically available within 30 days after receipt

of the incomplete application, describing the deficiency and

requesting additional information. If the department identifies a

deficiency or requires the fulfillment of a corrective action plan,

the 6-month period is tolled until either of the following occurs:

     (a) Upon notification by the department of a deficiency, until

the date the requested information is received by the department.

     (b) Upon notification by the department that a corrective

action plan is required, until the date the department determines

the requirements of the corrective action plan have been met.

     (15) The determination of the completeness of an application

does not operate as an approval of the application for the license

and does not confer eligibility of an applicant determined

otherwise ineligible for issuance of a license.

     (16) If the department fails to issue or deny a license within

the time required by this section, the department shall return the

license fee and shall reduce the license fee for the applicant's

next renewal application, if any, by 15%. Failure to issue or deny

a license within the time period required under this section does

not allow the department to otherwise delay processing an

application. The completed application shall be placed in sequence

with other completed applications received at that same time. The

department shall not discriminate against an applicant in the

processing of an application based on the fact that the application

fee was refunded or discounted under this subsection.

     (17) If, on a continual basis, inspections performed by a

local health department delay the department in issuing or denying

licenses under this act within the 6-month period, the department

may use department staff to complete the inspections instead of the

local health department causing the delays.

     (18) Beginning October 1, 2005, the The director of the

department shall submit a report by December 1 of each year to the

standing committees and appropriations subcommittees of the senate

and house of representatives concerned with human services issues.

The director shall include all of the following information in the

report concerning the preceding fiscal year:

     (a) The number of initial and renewal applications the

department received and completed within the 6-month time period

described in subsection (14).

     (b) The number of applications requiring a request for

additional information.

     (c) The number of applications rejected.

     (d) The number of licenses not issued within the 6-month

period.

     (e) The average processing time for initial and renewal

licenses granted after the 6-month period.

     (19) An applicant, if an individual, shall give written

consent at the time of original license application for the

department of state police to conduct the criminal history check

and criminal records check required under this section. A licensee

designee shall give written consent at the time of appointment for

the department of state police to conduct the criminal history

check and criminal records check required under this section.

     (20) Unless already submitted under subsection (19), an owner,

partner, or director of the applicant who has regular direct access

to residents or who has on-site facility operational

responsibilities shall give written consent at the time of original

license application for the department of state police to conduct

the criminal history check and criminal records check required

under this section.

     (21) The department shall request a criminal history check and

criminal records check required under this section in the manner

prescribed by the department of state police. The department of

state police shall conduct the criminal history check and provide a

report of the results to the licensing or regulatory bureau of the

department. The report shall contain any criminal history

information on the person maintained by the department of state

police and the results of the criminal records check from the

federal bureau of investigation. The department of state police may

charge the person on whom the criminal history check and criminal

records check are performed under this section a fee that does not

exceed the actual and reasonable cost of conducting the checks.

     (22) Not later than 1 year after the effective date of the

2010 amendatory act that added this subsection, all licensees and

licensee designees of facilities licensed on the effective date of

the amendatory act that added this subsection and all persons

described in subsection (20) shall comply with the requirements of

this section.

     (23) Beginning the effective date of the 2010 amendatory act

that added this subsection, if an applicant or licensee designee or

person described in subsection (20) applies for a license or to

renew a license to operate an adult foster care facility and he or

she or the licensee designee previously underwent a criminal

history check and criminal records check required under subsection

(19) or (20) and has remained continuously licensed after the

criminal history check and criminal records check have been

performed, that person is not required to submit to another

criminal history check or criminal records check upon renewal of

the license obtained under subsection (3).

     (24) The department of state police shall store and maintain

all fingerprints submitted under this act in an automated

fingerprint identification system database that provides for an

automatic notification at the time of a subsequent criminal arrest

fingerprint card submitted into the system that matches a set of

fingerprints previously submitted in accordance with this act. Upon

notification, the department of state police shall immediately

notify the department and the department shall take the appropriate

action.

     (25) A licensee, licensee designee, owner, partner, or

director of the licensee shall not be permitted on the premises of

an adult foster care facility if he or she has been convicted of

any of the following: adult abuse, neglect, or financial

exploitation; or listed offenses as defined in section 2 of the sex

offenders registration act, 1943 PA 295, MCL 28.722.

(26) (19) As used in this section, "completed application"

means an application complete on its face and submitted with any

applicable licensing fees as well as any other information,

records, approval, security, or similar item required by law or

rule from a local unit of government, a federal agency, or a

private entity but not from another department or agency of this

state. Beginning October 1, 2005, a A completed application does

not include a health inspection performed by a local health

department.

     Enacting section 1. This amendatory act does not take effect

unless Senate Bill No. 1102 of the 95th Legislature is enacted into

law.