June 21, 2005, Introduced by Senators STAMAS, CROPSEY, BIRKHOLZ, GILBERT, PATTERSON, TOY and ALLEN and referred to the Committee on Senior Citizens and Veterans Affairs.
A bill to amend 1979 PA 218, entitled
"Adult foster care facility licensing act,"
by amending section 34a (MCL 400.734a), as added by 2004 PA 59.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 34a. (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 the amendatory act that added this
section
if the individual has been convicted of satisfies 1 or
more of the following:
(a) A
Has been convicted of a felony or an attempt or
conspiracy to commit a felony within the 15 years immediately
preceding the date of application for employment or the date of the
execution of the independent contract.
(b) A
Has been convicted of 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 date of
application for employment or the date of the execution of the
contract.
(c) An
Has been convicted of an offense listed under R
400.1152 of the Michigan administrative code.
(d) Is the subject of an order or disposition under any of the
following:
(i) Section 464a of the mental health code, 1974 PA 258, MCL
330.1464a.
(ii) Section 5107 of the estates and protected individuals
code, 1998 PA 386, MCL 700.5107.
(iii) Sections 2950 and 2950a of the revised judicature act of
1961, 1961 PA 236, MCL 600.2950 and 600.2950a.
(iv) Section 16b of chapter IX of the code of criminal
procedure, 1927 PA 175, MCL 769.16b.
(e) Has been found not guilty but mentally ill of any crime
and has offered a plea of not guilty of, or been acquitted of, any
crime by reason of insanity.
(f) Has been subject to an order of involuntary commitment in
an inpatient or outpatient setting due to mental illness.
(g) Has a diagnosed mental illness at the time the application
is made regardless of whether he or she is receiving treatment for
that illness.
(h) Is under a court order of legal incapacity in this state
or elsewhere.
(i) Is participating in a substance abuse rehabilitation
program.
(2) Except as otherwise provided in this subsection and
subsection (7), an adult foster care facility shall not employ or
independently
contract with an individual who regularly provides
direct
services to residents after the effective date of the
amendatory
act that added this section until the adult foster care
facility
complies with subsection (4), (5), or (6). 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 the amendatory act that added this
subsection.
(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 a annual
criminal history check
checks
under this section, along with identification acceptable to the
department of state police. If the department of state police or
equivalent state agency under subsection (6) has conducted a
criminal
history check on the individual within the 24 12 months
immediately preceding the date of application and the individual
provides written consent for release of information for the
purposes of this section, the adult foster care facility may use a
copy of that criminal history check instead of obtaining written
consent and requesting a new criminal history check under this
section. If the individual is using a prior criminal history check
as described in this subsection, the adult foster care facility
shall accept the copy of the results of the criminal history check
only from the adult foster care facility or health facility or
agency that previously employed or independently contracted with
the individual.
(4) Upon receipt of the written consent and identification
required under subsection (3), if the individual has resided in
this state for 3 or more years preceding the good faith offer of
employment or independent contract, 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. The request
shall be made in a manner prescribed by the department of state
police. The adult foster care facility shall make the written
consent and identification available to the department of state
police. If there is a charge for conducting the criminal history
check, the adult foster care facility requesting the criminal
history check shall pay the cost of the charge. The adult foster
care facility 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 an
annual criminal
history check on the individual named in the request. The
department of state police shall provide the adult foster care
facility with a written report of the criminal history check. The
report shall contain any criminal history record information on the
individual maintained by the department of state police. As a
condition of employment, an individual shall sign a written
statement that he or she has been a resident of this state for 3 or
more years preceding the good faith offer of employment or
independent contract.
(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 licensed for more than 6 persons
and has resided in this state for less than 3 years preceding the
good faith offer of employment or independent contract, 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 2 sets 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) to the adult foster care facility and the results of
the federal bureau of investigation determination to the department
of consumer
and industry human services 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 crime is disclosed on the
federal bureau of investigation determination, the department of
human services shall notify the adult foster care facility in
writing of the type of crime disclosed on the federal bureau of
investigation determination without disclosing the details of the
crime. The charges for fingerprinting or a federal bureau of
investigation determination under this subsection shall be paid in
the manner required under subsection (4).
(6) 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 licensed for 6 persons or less
and has resided in this state for less than 3 years preceding the
good faith offer of employment or independent contract, the adult
foster care facility that has made the good faith offer of
employment or independent contract shall comply with subsection (4)
and shall make a request to the department of state police or state
agency responsible for maintaining statewide criminal history
information of all the states in which the individual resided
during the preceding 5 years to conduct a criminal history check on
the individual.
(7) 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) and (b) within the
applicable time period prescribed by subsection (1)(a) and (b).
(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.
(8) On
the effective date of the amendatory act that added
this
subsection, the department of consumer and industry services
shall
develop and distribute a model form for the statement
required
under subsection (7)(b). The department of consumer and
industry
human services shall make the model form for the
statement required under subsection (7)(b) available to adult
foster care facilities upon request at no charge.
(9) If an individual is conditionally employed under
subsection (7), and the report described in subsection (4), (5), or
(6), if applicable, does not confirm the individual's statement
under subsection (7)(b)(i), the adult foster care facility shall
terminate the individual's employment as required by subsection
(1).
(10) An individual who knowingly provides false information
regarding a criminal conviction on a statement described in
subsection (7)(b)(i) is guilty of a misdemeanor punishable by
imprisonment for not more than 90 days or a fine of not more than
$500.00, or both.
(11) An adult foster care facility shall use criminal history
record information obtained under subsection (4), (5), or (6) 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 (7) and (9). 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.
(12) As a condition of continued employment, each employee or
independent
contractor shall agree in writing to
report do both
of the following:
(a) Report to the adult foster care facility immediately upon
being arrested for or convicted of 1 or more of the criminal
offenses listed in subsection (1)(a) and (b).
(b) Consent to the performance of an annual criminal history
check as provided under subsection (4).
(13) In addition to sanctions set forth in this act, an adult
foster care facility that fails to conduct the criminal history
checks as required under this section is guilty of a felony
punishable by imprisonment for not more than 4 years or a fine of
not more than $50,000.00, or both.
(14) (13)
As used in this section:
(a) "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.
(b) "Independent contract" means a contract entered into by an
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.