HOUSE BILL No. 4727 May 25, 1999, Introduced by Reps. Law, Howell, Woronchak, Caul, Faunce, Julian, Koetje, Gilbert, Hager, Richardville, Bisbee, Richner, Van Woerkom, DeRossett, Vear, DeVuyst and Sanborn and referred to the Committee on Health Policy. A bill to amend 1978 PA 368, entitled "Public health code," by amending sections 20165 and 20175 (MCL 333.20165 and 333.20175), section 20165 as amended by 1998 PA 108 and section 20175 as amended by 1993 PA 79, and by adding section 20173. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 20165. (1) Except as otherwise provided in this sec- 2 tion, after notice of intent to an applicant or licensee to deny, 3 limit, suspend, or revoke the applicant's or licensee's license 4 or certification and an opportunity for a hearing, the department 5 may deny, limit, suspend, or revoke the license or certification 6 or impose an administrative fine on a licensee if 1 or more of 7 the following exist: 00218'99 CPD 2 1 (a) Fraud or deceit in obtaining or attempting to obtain a 2 license or certification or in the operation of the licensed 3 health facility or agency. 4 (b) A violation of this article or a rule promulgated under 5 this article. 6 (c) False or misleading advertising. 7 (d) Negligence or failure to exercise due care, including 8 negligent supervision of employees and subordinates. 9 (e) Permitting a license or certificate to be used by an 10 unauthorized health facility or agency. 11 (f) Evidence of abuse regarding a patient's health, welfare, 12 or safety or the denial of a patient's rights. 13 (g) Failure to comply with section 10102a(7). 14 (h) Failure to comply with part 222 or a term, condition, or 15 stipulation of a certificate of need issued under part 222, or 16 both. 17 (i) A violation of section 20197(1). 18 (J) FAILURE TO MAKE A REPORT UNDER SECTION 20175(5) OR (7). 19 (2) The department may deny an application for a license or 20 certification based on a finding of a condition or practice that 21 would constitute a violation of this article if the applicant 22 were a licensee. 23 (3) Denial, suspension, or revocation of an individual emer- 24 gency medical services personnel license under part 209 is gov- 25 erned by section 20958. 26 (4) If the department determines under subsection (1) that a 27 health facility or agency has violated section 20197(1), the 00218'99 3 1 department shall impose an administrative fine of $5,000,000.00 2 on the health facility or agency. 3 SEC. 20173. (1) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION 4 (2), A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, COUNTY 5 MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL NOT EMPLOY, 6 INDEPENDENTLY CONTRACT WITH, OR GRANT CLINICAL PRIVILEGES TO AN 7 INDIVIDUAL WHO REGULARLY PROVIDES DIRECT SERVICES TO PATIENTS OR 8 RESIDENTS IN THE HEALTH FACILITY OR AGENCY AFTER THE EFFECTIVE 9 DATE OF THE AMENDATORY ACT THAT ADDED THIS SECTION IF THE INDI- 10 VIDUAL HAS BEEN CONVICTED IN THIS STATE OF 1 OR MORE OF THE 11 FOLLOWING: 12 (A) A FELONY OR AN ATTEMPT OR CONSPIRACY TO COMMIT A FELONY 13 WITHIN THE 15 YEARS IMMEDIATELY PRECEDING THE DATE OF APPLICATION 14 FOR EMPLOYMENT OR CLINICAL PRIVILEGES OR THE DATE OF THE EXECU- 15 TION OF THE CONTRACT OR WITHIN THE 15 YEARS IMMEDIATELY PRECEDING 16 THE DATE OF THE INDIVIDUAL'S MOST RECENT CRIMINAL HISTORY CHECK 17 PERFORMED UNDER THIS SECTION, IF THE INDIVIDUAL IS EMPLOYED BY, 18 UNDER CONTRACT TO, OR GRANTED CLINICAL PRIVILEGES IN THE HEALTH 19 FACILITY OR AGENCY BEFORE THE EFFECTIVE DATE OF THE AMENDATORY 20 ACT THAT ADDED THIS SECTION. 21 (B) A MISDEMEANOR INVOLVING ABUSE, NEGLECT, ASSAULT, BAT- 22 TERY, OR CRIMINAL SEXUAL CONDUCT OR INVOLVING FRAUD OR THEFT 23 AGAINST A VULNERABLE ADULT AS THAT TERM IS DEFINED IN 24 SECTION 145M OF THE MICHIGAN PENAL CODE, 1931 PA 328, 25 MCL 750.145M, WITHIN THE 10 YEARS IMMEDIATELY PRECEDING THE DATE 26 OF APPLICATION FOR EMPLOYMENT OR CLINICAL PRIVILEGES OR THE DATE 27 OF THE EXECUTION OF THE CONTRACT OR WITHIN THE 10 YEARS 00218'99 4 1 IMMEDIATELY PRECEDING THE DATE OF THE INDIVIDUAL'S MOST RECENT 2 CRIMINAL HISTORY CHECK PERFORMED UNDER THIS SECTION, IF THE INDI- 3 VIDUAL IS EMPLOYED BY, UNDER CONTRACT TO, OR GRANTED CLINICAL 4 PRIVILEGES IN THE HEALTH FACILITY OR AGENCY BEFORE THE EFFECTIVE 5 DATE OF THE AMENDATORY ACT THAT ADDED THIS SECTION. 6 (2) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBSECTION AND SUB- 7 SECTION (5), A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 8 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL NOT 9 EMPLOY, INDEPENDENTLY CONTRACT WITH, OR GRANT PRIVILEGES TO AN 10 INDIVIDUAL AFTER THE EFFECTIVE DATE OF THE AMENDATORY ACT THAT 11 ADDED THIS SECTION UNTIL THE HEALTH FACILITY OR AGENCY COMPLIES 12 WITH SUBSECTION (4). THIS SUBSECTION AND SUBSECTION (1) DO NOT 13 APPLY TO AN INDIVIDUAL WHO IS EMPLOYED BY, UNDER CONTRACT TO, OR 14 GRANTED CLINICAL PRIVILEGES IN A HEALTH FACILITY OR AGENCY BEFORE 15 THE EFFECTIVE DATE OF THE AMENDATORY ACT THAT ADDED THIS SUBSEC- 16 TION, IF THE INDIVIDUAL HAS HAD A CRIMINAL HISTORY CHECK THAT IS 17 EQUIVALENT TO THE CRIMINAL HISTORY CHECK CONDUCTED UNDER THIS 18 SECTION OR IS PERFORMED UNDER THIS SECTION WITHIN THE 2 YEARS 19 IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE AMENDATORY ACT 20 THAT ADDED THIS SECTION. 21 (3) AN INDIVIDUAL WHO APPLIES FOR EMPLOYMENT EITHER AS AN 22 EMPLOYEE OR AS AN INDEPENDENT CONTRACTOR OR FOR CLINICAL PRIVI- 23 LEGES WITH A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 24 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL GIVE 25 WRITTEN CONSENT AT THE TIME OF APPLICATION FOR THE DEPARTMENT OF 26 STATE POLICE OR ANOTHER AUTHORIZED LAW ENFORCEMENT AGENCY TO 27 CONDUCT A CRIMINAL HISTORY CHECK UNDER SUBSECTION (4). IF THE 00218'99 5 1 DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED LAW ENFORCEMENT 2 AGENCY HAS CONDUCTED A CRIMINAL HISTORY CHECK ON THE APPLICANT 3 WITHIN THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE OF APPLICA- 4 TION, THE HEALTH FACILITY OR AGENCY MAY USE A CERTIFIED COPY OF 5 THAT CRIMINAL HISTORY CHECK IN LIEU OF OBTAINING WRITTEN CONSENT 6 AND REQUESTING A NEW CRIMINAL HISTORY CHECK UNDER THIS SUBSECTION 7 AND SUBSECTION (4). IF THE APPLICANT IS APPLYING FOR EMPLOYMENT 8 AS AN INDEPENDENT CONTRACTOR AND IS USING A PRIOR CRIMINAL HIS- 9 TORY CHECK AS DESCRIBED IN THIS SUBSECTION, THE HEALTH FACILITY 10 OR AGENCY SHALL ACCEPT THE CERTIFIED COPY OF THE CRIMINAL HISTORY 11 CHECK ONLY FROM THE FIRM OR AGENCY THAT EMPLOYS THE INDIVIDUAL OR 12 FROM THE DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED LAW 13 ENFORCEMENT AGENCY. 14 (4) UPON RECEIPT OF THE WRITTEN CONSENT REQUIRED UNDER SUB- 15 SECTION (3), A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 16 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL MAKE A 17 REQUEST TO THE DEPARTMENT OF STATE POLICE OR ANOTHER AUTHORIZED 18 LAW ENFORCEMENT AGENCY TO CONDUCT A CRIMINAL HISTORY CHECK ON THE 19 APPLICANT. THE REQUEST SHALL BE MADE ON A FORM AND IN A MANNER 20 PRESCRIBED BY THE DEPARTMENT OF STATE POLICE OR BY THE OTHER 21 AUTHORIZED LAW ENFORCEMENT AGENCY. IF THERE IS A CHARGE FOR CON- 22 DUCTING THE CRIMINAL HISTORY CHECK, THE HEALTH FACILITY OR AGENCY 23 REQUESTING THE CRIMINAL HISTORY CHECK SHALL PAY THE COST OF THE 24 CHARGE. THE HEALTH FACILITY OR AGENCY SHALL NOT SEEK REIMBURSE- 25 MENT FOR THE CHARGE FROM THE INDIVIDUAL WHO IS THE SUBJECT OF THE 26 CRIMINAL HISTORY CHECK. THE DEPARTMENT OF STATE POLICE OR OTHER 27 AUTHORIZED LAW ENFORCEMENT AGENCY SHALL CONDUCT A CRIMINAL 00218'99 6 1 HISTORY CHECK ON THE INDIVIDUAL NAMED IN THE REQUEST. THE 2 DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED LAW ENFORCEMENT 3 AGENCY SHALL PROVIDE THE HEALTH FACILITY OR AGENCY WITH A REPORT 4 OF THE CRIMINAL HISTORY CHECK. THE REPORT SHALL CONTAIN ANY 5 CRIMINAL HISTORY RECORD INFORMATION ON THE APPLICANT MAINTAINED 6 BY THE DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED LAW 7 ENFORCEMENT AGENCY. THE DEPARTMENT OF STATE POLICE OR OTHER 8 AUTHORIZED LAW ENFORCEMENT AGENCY SHALL CERTIFY EACH REPORT WITH 9 AN OFFICIAL SEAL OR OTHER SYMBOL OF AUTHENTICITY. 10 (5) IF A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 11 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED DETERMINES IT 12 NECESSARY TO EMPLOY OR GRANT CLINICAL PRIVILEGES TO AN APPLICANT 13 BEFORE RECEIVING THE RESULTS OF THE APPLICANT'S CRIMINAL HISTORY 14 CHECK UNDER SUBSECTION (4), THE HEALTH FACILITY OR AGENCY MAY 15 EMPLOY OR GRANT CLINICAL PRIVILEGES TO THE INDIVIDUAL AS A CONDI- 16 TIONAL EMPLOYEE OR CONDITIONAL STAFF MEMBER IF ALL OF THE FOLLOW- 17 ING APPLY: 18 (A) THE HEALTH FACILITY OR AGENCY REQUESTS THE CRIMINAL HIS- 19 TORY CHECK UNDER SUBSECTION (4) BEFORE CONDITIONALLY EMPLOYING OR 20 GRANTING CLINICAL PRIVILEGES TO THE INDIVIDUAL. 21 (B) THE INDIVIDUAL SIGNS A STATEMENT THAT HE OR SHE HAS NOT 22 BEEN CONVICTED OF 1 OR MORE OF THE CRIMES THAT ARE DESCRIBED IN 23 SUBSECTION (1)(A) AND (B), AND AGREEING THAT, IF THE CRIMINAL 24 HISTORY CHECK CONDUCTED UNDER SUBSECTION (4) IS NOT THE SAME AS 25 THE INDIVIDUAL'S STATEMENT UNDER THIS SUBDIVISION, HIS OR HER 26 EMPLOYMENT OR CLINICAL PRIVILEGES ARE TERMINABLE AT THE OPTION OF 27 THE HEALTH FACILITY OR AGENCY. NOT LATER THAN 90 DAYS AFTER THE 00218'99 7 1 EFFECTIVE DATE OF THE AMENDATORY ACT THAT ADDED THIS SUBSECTION, 2 THE DEPARTMENT SHALL DEVELOP AND DISTRIBUTE A MODEL FORM FOR THE 3 STATEMENT REQUIRED UNDER THIS SUBDIVISION. THE DEPARTMENT SHALL 4 MAKE THE MODEL FORM AVAILABLE TO HEALTH FACILITIES OR AGENCIES 5 UPON REQUEST AT NO CHARGE. 6 (6) IF AN INDIVIDUAL IS EMPLOYED AS A CONDITIONAL EMPLOYEE 7 OR IS GRANTED CONDITIONAL STAFF PRIVILEGES UNDER SUBSECTION (5), 8 AND THE REPORT DESCRIBED IN SUBSECTION (4) IS SUBSTANTIALLY DIF- 9 FERENT FROM THE INDIVIDUAL'S STATEMENT UNDER SUBSECTION (5)(B), 10 THE HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, COUNTY MED- 11 ICAL CARE FACILITY, OR HOME FOR THE AGED MAY TERMINATE THE 12 INDIVIDUAL'S EMPLOYMENT OR CLINICAL PRIVILEGES. AN INDIVIDUAL 13 WHO KNOWINGLY PROVIDES FALSE INFORMATION REGARDING CRIMINAL CON- 14 VICTIONS ON A STATEMENT DESCRIBED IN SUBSECTION (5)(B) IS GUILTY 15 OF A MISDEMEANOR, PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 90 16 DAYS OR A FINE OF NOT MORE THAN $500.00, OR BOTH. 17 (7) A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 18 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL USE 19 CRIMINAL HISTORY RECORD INFORMATION OBTAINED UNDER SUBSECTION (4) 20 OR (5) ONLY FOR THE PURPOSE OF EVALUATING AN APPLICANT'S QUALIFI- 21 CATIONS FOR CLINICAL PRIVILEGES OR FOR EMPLOYMENT IN THE POSITION 22 FOR WHICH HE OR SHE HAS APPLIED AND FOR THE PURPOSES OF SUBSEC- 23 TIONS (5) AND (6). A HEALTH FACILITY OR AGENCY OR AN EMPLOYEE OF 24 THE HEALTH FACILITY OR AGENCY SHALL NOT DISCLOSE CRIMINAL HISTORY 25 RECORD INFORMATION OBTAINED UNDER SUBSECTION (4) OR (5) TO A 26 PERSON WHO IS NOT DIRECTLY INVOLVED IN EVALUATING THE APPLICANT'S 27 QUALIFICATIONS FOR EMPLOYMENT OR CLINICAL PRIVILEGES. 00218'99 8 1 Sec. 20175. (1) A health facility or agency shall keep and 2 maintain a record for each patient including a full and complete 3 record of tests and examinations performed, observations made, 4 treatments provided, and in the case of a hospital, the purpose 5 of hospitalization. In addition to the sanctions set forth in 6 section 20165, a hospital that fails to comply with this subsec- 7 tion is subject to an administrative fine of $10,000.00. 8 (2) A hospital shall take precautions to assure that the 9 records required by subsection (1) are not wrongfully altered or 10 destroyed. A hospital that fails to comply with this subsection 11 is subject to an administrative fine of $10,000.00. 12 (3) Unless otherwise provided by law, the licensing and cer- 13 tification records required by this article are public records. 14 (4) Departmental officers and employees shall respect the 15 confidentiality of patient clinical records and shall not divulge 16 or disclose the contents ofrecordsA PATIENT CLINICAL RECORD 17 in a manner that identifies an individual except pursuant to 18 court order. 19 (5) A health facility or agencythat employs, contracts20with, or grants privileges to a health professional licensed or21registered under article 15shall report the following to the 22 department ofcommerceCONSUMER AND INDUSTRY SERVICES not more 23 than 30 days after it occurs: 24 (a) Disciplinary action taken by the health facility or 25 agency against a health professional WHO IS licensed or regis- 26 tered under article 15 AND EMPLOYED BY, UNDER CONTRACT TO, OR 27 GRANTED CLINICAL PRIVILEGES IN THE HEALTH FACILITY OR AGENCY 00218'99 9 1 based on the licensee's or registrant's professional competence, 2 disciplinary action that results in a change of employment 3 status, or disciplinary action based on conduct that adversely 4 affects the licensee's or registrant's clinical privileges for a 5 period of more than 15 days. As used in this subdivision, 6 "adversely affects" means the reduction, restriction, suspension, 7 revocation, denial, or failure to renew the clinical privileges 8 of a licensee or registrant by a health facility or agency. 9 (b) Restriction or acceptance of the surrender of the clini- 10 cal privileges of alicensee or registrantHEALTH PROFESSIONAL 11 LICENSED OR REGISTERED UNDER ARTICLE 15 under either of the fol- 12 lowing circumstances: 13 (i) The licensee or registrant is under investigation by the 14 health facility or agency. 15 (ii) There is an agreement in which the health facility or 16 agency agrees not to conduct an investigation into the licensee's 17 or registrant's alleged professional incompetence or improper 18 professional conduct. 19 (c) A case in which a health professional LICENSED OR REGIS- 20 TERED UNDER ARTICLE 15 resigns or terminates a contract or whose 21 contract is not renewed instead of the health facility OR AGENCY 22 taking disciplinary action against the health professional. 23 (6) Upon request by another health facility or agency seek- 24 ing a reference for purposes of changing or granting staff OR 25 CLINICAL privileges, credentials, or employment, a health facil- 26 ity or agency that employs, contracts with, or grants STAFF OR 27 CLINICAL privileges to health professionals licensed or 00218'99 10 1 registered under article 15 shall notify the requesting health 2 facility or agency ofanydisciplinary or other action report- 3 able under subsection (5) that it has taken against a health pro- 4 fessional licensed or registered under article 15 and employed 5 by, under contract to, or granted STAFF OR CLINICAL privileges by 6 the health facility or agency. 7 (7) A HEALTH FACILITY OR AGENCY SHALL REPORT TO THE DEPART- 8 MENT OF CONSUMER AND INDUSTRY SERVICES FINAL DISCIPLINARY ACTION 9 TAKEN BY THE HEALTH FACILITY OR AGENCY AGAINST AN EMPLOYEE THAT 10 INVOLVES SEXUAL OR OTHER ABUSE, NEGLECT, PHYSICAL HARM, THEFT, OR 11 FRAUDULENT BEHAVIOR AGAINST A PATIENT OR RESIDENT OF THE HEALTH 12 FACILITY OR AGENCY. A REPORT REQUIRED UNDER THIS SUBSECTION IS 13 IN ADDITION TO, AND IS NOT SATISFIED BY, A REPORT MADE UNDER SUB- 14 SECTION (5)(A). 15 (8) A REPORT RECEIVED BY THE DEPARTMENT OF CONSUMER AND 16 INDUSTRY SERVICES UNDER SUBSECTION (5) OR (7) IS PUBLIC 17 INFORMATION. 18 (9)(7)For the purpose of reporting disciplinary actions 19 pursuant to this section, a health facility or agency shall 20 include only the following in the information provided: 21 (a) The name of the licensee or registrant OR OTHER EMPLOYEE 22 against whom disciplinary action has been taken. 23 (b) A description of the disciplinary action taken. 24 (c) The specific grounds for the disciplinary action taken. 25 (d) The date of the incident that is the basis for the dis- 26 ciplinary action. 00218'99 11 1 (10)(8)The records, data, and knowledge collected for or 2 by individuals or committees assigned a professional review 3 function in a health facility or agency are confidential, shall 4 be used only for the purposes provided in this article, are not 5 public records, and are not subject to court subpoena. 00218'99 Final page. CPD