SENATE BILL No. 772

 

 

September 22, 2005, Introduced by Senators CHERRY, BASHAM, GOSCHKA, PRUSI, BARCIA, SCOTT, BRATER, THOMAS, CLARK-COLEMAN, JACOBS, CLARKE, OLSHOVE and EMERSON and referred to the Committee on Health Policy.

 

 

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

(MCL 333.1101 to 333.25211) by adding sections 20173a and 20173b;

 

and to repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 20173a. (1) Except as otherwise provided in subsection

 

(2), a health facility or agency that is a nursing home, county

 

medical care facility, hospice, hospital that provides swing bed

 

services, home for the aged, or home health agency 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 health facility or


 

agency after the effective date of the amendatory act that added

 

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 prior to

 

the date of application for employment or clinical privileges or

 

the date of the execution of the independent contract.

 

     (b) 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 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 clinical privileges or the date of

 

the execution of the independent contract.

 

     (c) Has been convicted of a relevant crime described under 42

 

USC 1320a-7.

 

     (d) 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.

 

     (2) Except as otherwise provided in this subsection and


 

subsection (5), a health facility or agency that is a nursing home,

 

county medical care facility, hospice, hospital that provides swing

 

bed services, home for the aged, or home health agency 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 health facility or agency

 

after the effective date of the amendatory act that added this

 

section until the health facility or agency 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 health facility or agency 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 health facility or agency 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

 

health facility or agency without a criminal history check being

 

conducted in accordance with subsections (1) and (2). However, if

 

the individual is subsequently convicted of a crime described under

 

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

 

substantiated finding described under subsection (1)(d), then he or

 

she is subject to the requirements of subsections (1) and (2) and

 

may be denied employment or may be terminated from employment.

 

     (b) An individual who is an independent contractor with a


 

health facility or agency that is a nursing home, county medical

 

care facility, hospice, hospital that provides swing bed services,

 

home for the aged, or home health agency if the services for which

 

he or she is contracted are not directly related to the provision

 

of services to a patient or resident or if the services for which

 

he or she is 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 health facility or agency that is a nursing home, county

 

medical care facility, hospice, hospital that provides swing bed

 

services, home for the aged, or home health agency and has received

 

a good faith offer of employment, an independent contract, or

 

clinical privileges from the health facility or agency 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 acceptable to the department of

 

state police.

 

     (4) Upon receipt of the written consent and identification

 

required under subsection (3), a health facility or agency that is

 

a nursing home, county medical care facility, hospice, hospital

 

that provides swing bed services, home for the aged, or home health

 

agency 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 health facility or agency

 

shall make the written consent and identification available to the

 

department of state police. The health facility or agency shall

 

make a request to the department to conduct a check of all relevant

 

registries established pursuant 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 health facility or agency requesting the criminal

 

history check shall pay the cost of the charge. The health facility

 

or agency 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 health facility or agency with a written

 

report of the criminal history check conducted under this

 

subsection. 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. If the requesting health

 

facility or agency 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 health

 

facility or agency and the applicant in writing of the type of

 

crime disclosed on the federal bureau of investigation

 

determination without disclosing the details of the crime. Any

 

charges for fingerprinting or a federal bureau of investigation

 

determination under this subsection shall be paid in the manner

 

required under this subsection. The notice shall include a

 

statement that the applicant has a right to appeal a decision made

 

by the health facility or agency regarding his or her employment

 

eligibility based on the criminal background check. The notice

 

shall also include information regarding where to file and

 

describing the appellate procedures established under section

 

20173b.

 

     (5) If a health facility or agency that is a nursing home,

 

county medical care facility, hospice, hospital that provides swing

 

bed services, home for the aged, or home health agency determines

 

it necessary to employ or grant clinical privileges to an applicant

 

before receiving the results of the applicant's criminal history

 

check under subsection (4), the health facility or agency may

 

conditionally employ or grant conditional clinical privileges to

 

the individual if all of the following apply:

 

     (a) The health facility or agency requests the criminal

 

history check under subsection (4) upon conditionally employing 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).

 

     (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 health facility or agency as required under subsection (1)

 

unless and until the individual appeals and can prove that the

 

information is incorrect. The health facility or agency 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 health facilities

 

or agencies subject to this section upon request at no charge.

 

     (7) If an individual is employed as a conditional employee 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

 

health facility or agency 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 $1,000.00, or both.

 

     (9) A health facility or agency that is a nursing home, county

 

medical care facility, hospice, hospital that provides swing bed

 

services, home for the aged, or home health agency 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 health facility or

 

agency or an employee of the health facility or agency 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 or adult foster care

 

facility that is considering employing, independently contracting

 

with, or granting clinical privileges to an individual, a health

 

facility 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 or adult foster care facility. Except for

 

a knowing or intentional release of false information, a health

 

facility or agency 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 health facility or agency

 

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).

 

     (11) 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

 

this amendatory act and on the feasibility of implementing criminal

 

history checks on volunteers who work in those health facilities or

 

agencies and on state agency employees who are involved in the


 

licensing of those health facilities or agencies and regulation of

 

those employees.

 

     (12) 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) "Home health agency" means a person certified by 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.

 

     (c) "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

 

health facility or agency 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 health facility or agency on behalf of the organization or

 

agency.

 

     (d) "Medicare" means benefits under the federal medicare

 

program established under title XVIII of the social security act,

 

42 USC 1395 to 1395ggg.

 

     Sec. 20173b. (1) The department shall establish an employment

 

eligibility appeal board. The appeal board shall consist of the

 

following members appointed by the governor:

 

     (a) Two representatives of the department's bureau of health


 

systems who deal primarily with the licensing of health facilities.

 

     (b) Two representatives of the department of human services

 

who deal primarily with the licensing of adult foster care

 

facilities and homes for the aged.

 

     (c) Two members representing the public.

 

     (d) One member representing providers.

 

     (e) One member representing organized labor groups.

 

     (f) One member representing consumers of long-term care

 

services.

 

     (2) Except as otherwise provided under subsection (4), the

 

appeal board shall hear and decide applications for appeal from

 

individuals who have been disqualified from or denied employment by

 

a health facility or agency that is a nursing home, county medical

 

care facility, hospice, hospital that provides swing bed services,

 

home for the aged, or home health agency, or by an adult foster

 

care facility, based on a criminal background check conducted

 

pursuant to section 20173 or 20173a.

 

     (3) Members of the appeal board shall serve for terms of 3

 

years or until a successor is appointed, whichever is later, except

 

that of the members first appointed 3 shall serve 3 years, 3 shall

 

serve 2 years, and 3 shall serve 1 year. If a vacancy occurs on the

 

appeal board, the governor shall make an appointment for the

 

unexpired term in the same manner as the original appointment.

 

Members of the appeal board shall serve without compensation.

 

However, members of the appeal board may be reimbursed for their

 

actual and necessary expenses incurred in the performance of their

 

official duties as members of the appeal board.


 

     (4) An individual who has been convicted of a relevant crime

 

as described under section 20173a(1)(c) does not have a right to

 

appeal a denial of his or her employment with a health facility or

 

agency that is a nursing home, county medical care facility,

 

hospice, hospital that provides swing bed services, home for the

 

aged, or home health agency. An individual who has been convicted

 

of a felony, other than that described under section 20173a(1)(c),

 

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 felony described in this subdivision,

 

does not have the right to appeal a denial of his or her employment

 

with a health facility described under this subsection unless 3

 

years have lapsed since he or she completed all of the sentencing

 

requirements, including probation, parole, and restitution for that

 

conviction.

 

     (5) The department may charge a fee to cover the cost of the

 

appeal.

 

     (6) The department shall promulgate rules to implement this

 

section. The department may promulgate rules to provide for an

 

expedited administrative appeals process for certain nonviolent

 

crimes. The appeal board shall hear all appeals within 60 days of

 

receiving the application. If the appeal board finds upon clear and

 

convincing evidence that the individual was wrongfully disqualified

 

from or denied employment, the appeal board may grant the appellant

 

a certificate of employability. The appeal board may impose any


 

conditions or limitations on that certificate as it determines

 

necessary to protect the health and safety of patients or residents

 

within those facilities described under subsection (2).

 

     Enacting section 1. (1) Section 20173 is repealed effective 60

 

days after the department secures the necessary waiver, and files a

 

written notice, as provided under subsection (2).

 

     (2) Section 20173a of the public health code, 1978 PA 368, MCL

 

333.20173a, as added by this amendatory act, takes effect 60 days

 

after the department secures federal approval of the necessary

 

waivers to utilize federal funds to reimburse those 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 has been secured.

 

     (3) Section 20173b of the public health code, 1978 PA 368, MCL

 

333.20173b, as added by this amendatory act, takes effect the date

 

this amendatory act is enacted.