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SB-0622, As Passed Senate, December 13, 2005

SUBSTITUTE FOR

SENATE BILL NO. 622

A bill to amend 1979 PA 218, entitled

"Adult foster care facility licensing act,"

(MCL 400.701 to 400.737) by adding sections 34b and 34c; and to

repeal acts and parts of acts.

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 provides

direct services to residents of the adult foster care facility

after the effective date of this section if the individual

satisfies 1 or more of the following:

(a) 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 the date of the execution

of the independent contract.

(b) Has been convicted of a misdemeanor under part 74, a

misdemeanor, other than a misdemeanor for a relevant crime

described under 42 USC 1320a-7, involving abuse, neglect, assault,

battery, criminal sexual conduct, fraud, or theft, 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 the date of the

execution of the contract.

of the Michigan administrative code.

(d) 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.

(e) Has been convicted of a relevant crime as described under

42 USC 1320a-7.

(f) Has been the subject of a substantiated finding by a state

or federal agency under 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 the

effective date of this section 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 the effective date of this section. Within 24

months after the effective date of this section, 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 the effective date of this section. That individual may

transfer to another adult foster care facility provided that a

criminal history check being conducted in accordance with this

subsection does not indicate a prohibited offense as described in

subsection (1). If an individual who is exempt under this

subsection is subsequently convicted of a crime or offense

described under subsection (1)(a), (b), or (c) or found to be the

subject of a substantiated finding described under subsection

(1)(f) or an order or disposition described under subsection

(1)(d), or is found to have been convicted of a relevant crime

described under subsection (1)(e), he or she is no longer exempt

and may be denied employment or may be terminated from 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

as required by the medicare prescription drug, improvement and

modernization act of 2003, Public Law 108-173. 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 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 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 (f) within the

applicable time period prescribed by subsection (1)(a) to (f).

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

criminal history check conducted under this section does not

confirm the individual's statement under subparagraph (i), 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. The adult foster care

facility shall provide a copy of the results of the criminal

history check conducted under this section, to the individual upon

request.

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

subparagraphs (i) and (ii) that result in the termination of his or

her employment and that those conditions are good cause for

termination.

(7) The department shall make the model form for the written

statement required under subsection (6)(b) 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), 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 a criminal conviction on a statement described in

subsection (6)(b)(i) 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.

Upon written request from another adult foster care facility 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 share the information

with the requesting adult foster care facility 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), (b), (c), and (e),

upon being convicted of 1 or more of the criminal offenses listed

in subsection (1)(a), (b), (c), and (e), upon becoming the subject

Senate Bill No. 622 as amended December 13, 2005

of an order or disposition described under subsection (1)(d), and

upon becoming the subject of a substantiated finding described

under subsection (1)(f).

(b) 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<<, AND MAY BE SUBJECT TO CIVIL

LIABILITY FOR PERSONAL INJURY OR DEATH OF ANOTHER RESIDENT CAUSED BY AN INDIVIDUAL EMPLOYED, INDEPENDENTLY CONTRACTED WITH, OR GRANTED CLINICAL PRIVILEGES WITH THAT HEALTH FACILITY OR AGENCY WHO WOULD HAVE BEEN TERMINATED OR DENIED EMPLOYMENT IF THE LICENSEE, OWNER, ADMINISTRATOR, OR OPERATOR OF THAT FACILITY WOULD HAVE CONDUCTED THE CRIMINAL HISTORY CHECK AS REQUIRED UNDER THIS SECTION>>.

(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.

(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

patients. 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 shall study the effect criminal history

checks would have on volunteers and state agency employees, the

potential for abuse in adult foster care facilities, and the status

of the federal funds being used to perform the criminal history

checks, and report to the legislature 1 year after the effective

date of the amendatory act that added this subsection.

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

than 3 years after the effective date of the amendatory act that

added this subsection 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.

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.

Sec. 34c. An individual who has been disqualified from or

denied employment by an adult foster care facility based on a

criminal history check conducted pursuant to section 34a or 34b may

appeal to the department on a form provided by the department if he

or she believes that the criminal history report is inaccurate. The

individual shall file the appeal with the director of the

department within 15 days after receiving the written report of the

criminal history check unless the conviction contained in the

criminal history report is one that may be expunged or set aside.

If an individual has been disqualified or denied employment based

on a conviction that may be expunged or set aside, then he or she

shall file the appeal within 15 days after a court order granting

or denying his or her application to expunge or set aside that

conviction is granted. If the order is granted and the conviction

is expunged or set aside, then the individual shall not be

disqualified or denied employment based solely on that conviction.

The director shall review the appeal and issue a written decision

within 30 days after receiving the appeal. The decision of the

director is final.

Enacting section 1. Section 34a of the adult foster care

facility licensing act, 1979 PA 218, MCL 400.734a, is repealed

effective 60 days after the department secures the necessary

federal approval or waiver, and files a written notice, as provided

under enacting section 2.

Enacting section 2. Sections 34b and 34c of the adult foster

care facility licensing act, 1979 PA 218, MCL 400.734b, as added by

this amendatory act, take effect 60 days after the department

secures the necessary federal approval or waivers to utilize

federal funds to reimburse adult foster care facilities for the

costs incurred for requesting a national criminal history check to

be conducted by the federal bureau of investigation and files with

the secretary of state a written notice that the federal approval,

if necessary, has been secured and written notice that the

department has issued a medicaid policy bulletin regarding the

payment and reimbursement for the criminal history checks.

Enacting section 3. This amendatory act does not take effect

unless all of the following bills of the 93rd Legislature are

enacted into law:

(a) Senate Bill No. 621.

(b) House Bill No. 5168.