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HB-5448, As Passed House, December 6, 2005

SUBSTITUTE FOR

HOUSE BILL NO. 5448

A bill to amend 1974 PA 258, entitled

"Mental health code,"

by amending section 147 (MCL 330.1147), as amended by 1991 PA 40,

and by adding section 134a.

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 the amendatory act that added this section if

the individual satisfies 1 or more of the following:

(a) The individual 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, 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 before the date of application for employment or

clinical privileges or the date of the execution of the

independent contract.

(b) The individual has been convicted of a misdemeanor,

other than a misdemeanor for a relevant crime described under 42

USC 1320a-7, involving abuse, neglect, assault, battery, or

criminal sexual conduct or involving fraud or theft, a

misdemeanor under part 74 of the public health code, 1978 PA 368,

MCL 333.7401 to 333.7461, or a state or federal crime that is

substantially similar to a misdemeanor 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.

described under 42 USC 1320a-7.

(d) The individual has been the subject of a substantiated

finding of neglect, abuse, or misappropriation of property by the

department pursuant to an investigation conducted in accordance

with 42 USC 1395i-3 or 1396r.

(e) The individual 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.

(2) Except as otherwise provided in this subsection and

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 the amendatory act that added this section

until the psychiatric facility or intermediate care facility for

people with mental retardation complies with subsection (4). This

subsection and subsection (1) do not apply to any of the

following:

(a) Except as otherwise provided under this subdivision, 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 the amendatory act that added this

section. 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 the

amendatory act that added this section. That individual may

transfer to another psychiatric facility or intermediate care

facility for people with mental retardation if a criminal history

check being conducted in accordance with subsection (1) and this

subsection does not indicate a prohibited offense under this act

subsequent to the effective date of the amendatory act that added

this section. If an individual who is exempt under this

subdivision is subsequently convicted of a crime described under

subsection (1)(a) or (b), or found to be the subject of a

substantiated finding described under subsection (1)(d) or an

order or disposition described under subsection (1)(e), or is

found to have been convicted of a relevant crime described under

subsection (1)(c), he or she is subject to the requirements of

subsection (1) and this subsection and may be denied employment or

may be terminated from 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 are not directly related to providing services to a

patient or resident or if the services for which he or she is

independently contracted do allow for direct access to the patients

or residents but are not performed on an ongoing basis. This

exception includes, but is not limited to, independent contractors

who 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 a criminal history check under subsection

(4), along with identification information acceptable to the

department of state police for use in conducting the criminal

history check.

(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 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 information

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 department to conduct a

check of all relevant registries established according to federal

regulations for any substantiated findings of abuse, neglect, or

misappropriation of property. If there is a charge for conducting

the criminal history check, the charge shall be paid by or

reimbursed by the department with medicaid and medicare funding as

appropriate. The psychiatric facility or intermediate care

facility for people with mental retardation shall not seek

reimbursement for the charge from the individual who is the

subject of the criminal history check. 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 report 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. The department shall notify the individual who is the subject

of the federal bureau of investigation determination in writing of

the type of criminal conviction disclosed on the federal bureau of

investigation determination without disclosing the details of the

criminal conviction. The notice shall include a statement that the

individual has a right to appeal a decision made by the department

regarding his or her employment eligibility based on the criminal

background check. The notice shall include information regarding

where to file the appeal and information 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 finds it necessary to employ,

contract with, or grant clinical privileges to an applicant before

receiving the results of the applicant's criminal history check

under subsection (4), the psychiatric facility or intermediate care

facility for people with mental retardation may conditionally

employ, conditionally contract with, or conditionally grant

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 subsection (4) upon conditionally employing,

conditionally contracting with, 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), (b), and (c) within

the applicable time period prescribed by subsection (1)(a) and (b).

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

finding as described in subsection (1)(d) or an order or

disposition as described under subsection (1)(e).

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

criminal history check conducted under subsection (4) does not

confirm the individual's statements under subparagraphs (i) and (ii),

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) until the

individual appeals and can prove that the information is incorrect.

The psychiatric facility or intermediate care facility for people

with mental retardation shall provide a copy of the results of the

criminal history check conducted under subsection (4) to the

applicant.

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

subparagraphs (i), (ii), and (iii) that result in the termination of

his or her employment or clinical privileges and that those

conditions are good cause for termination.

(6) On the effective date of the amendatory act that added

this section, 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 the

psychiatric facility or intermediate care facility 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 independent contractor 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) and (ii), 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 criminal convictions or substantiated findings on a

statement described in subsection (5)(b)(i) or (ii) 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) or (5) 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 agency 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. A person who

suffers injury as a result of a violation of this subsection

may bring a civil cause of action for damages against the

person who violates this subsection. 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, or agency

that has obtained criminal history record information under

this section on that individual shall share, with the

consent of the applicant, 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

psychiatric facility or intermediate care facility for people

with mental retardation has no liability in connection with

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 agree in writing to report to the psychiatric

facility or intermediate care facility for people with mental

retardation immediately upon either of the following:

(a) Being convicted of 1 or more of the criminal offenses

listed in subsection (1)(a), (b), and (c).

(b) Being the subject of a substantiated finding of neglect,

abuse, or misappropriation of property as described in subsection

(1)(d).

under subsection (1)(e).

(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) 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 the impact

and effectiveness of the provisions of the amendatory act that

added this section and on the feasibility of implementing

criminal history checks on volunteers who work in the psychiatric

facilities or intermediate care facilities for people with mental

retardation.

(13) 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.

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

psychiatric facility or intermediate care facility for people

with mental retardation 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 psychiatric facility or intermediate care facility for

people with mental retardation 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 1395ggg.

Sec. 147. Except as otherwise provided in ~~section 149b~~

sections 134a and 149b, psychiatric hospitals or units operated by

the state or federal government are exempt from sections 134

through 150.

Enacting section 1. Section 134a of the mental health code,

1974 PA 258, MCL 330.1134a, as added by this amendatory act, takes

effect 60 days after the department secures the necessary federal

approval or waiver to utilize federal funds to enable the

department to pay for or reimburse the costs incurred by adult

foster care facilities for requesting a national criminal history

check to be conducted by the federal bureau of investigation and