May 6, 2008, Introduced by Rep. Jackson and referred to the Committee on Appropriations.
A bill to amend 1974 PA 258, entitled
"Mental health code,"
by amending section 134a (MCL 330.1134a), as added by 2006 PA 27.
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 this
section
April 1, 2006 if
the individual satisfies 1 or more of the
following:
(a) Has been convicted of a relevant crime described under 42
USC 1320a-7.
(b) Has been convicted of any of the following felonies, an
attempt or conspiracy to commit any of those felonies, or any other
state or federal crime that is similar to the felonies described in
this subdivision, 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:
(i) A felony that involves the intent to cause death or serious
impairment of a body function, that results in death or serious
impairment of a body function, that involves the use of force or
violence, or that involves the threat of the use of force or
violence.
(ii) A felony involving cruelty or torture.
(iii) A felony under chapter XXA of the Michigan penal code,
1931 PA 328, MCL 750.145m to 750.145r.
(iv) A felony involving criminal sexual conduct.
(v) A felony involving abuse or neglect.
(vi) A felony involving the use of a firearm or dangerous
weapon.
(vii) A felony involving the diversion or adulteration of a
prescription drug or other medications.
(c) 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 or a felony described under
subdivision (b), unless 10 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.
(d) Has been convicted of any of the following misdemeanors,
other than a misdemeanor for a relevant crime described under 42
USC 1320a-7, or a state or federal crime that is substantially
similar to the misdemeanors 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:
(i) A misdemeanor involving the use of a firearm or dangerous
weapon with the intent to injure, the use of a firearm or dangerous
weapon that results in a personal injury, or a misdemeanor
involving the use of force or violence or the threat of the use of
force or violence.
(ii) A misdemeanor under chapter XXA of the Michigan penal
code, 1931 PA 328, MCL 750.145m to 750.145r.
(iii) A misdemeanor involving criminal sexual conduct.
(iv) A misdemeanor involving cruelty or torture unless
otherwise provided under subdivision (e).
(v) A misdemeanor involving abuse or neglect.
(e) Has been convicted of any of the following misdemeanors,
other than a misdemeanor for a relevant crime described under 42
USC 1320a-7, or a state or federal crime that is substantially
similar to the misdemeanors described in this subdivision, within
the 5 years immediately preceding the date of application for
employment or clinical privileges or the date of the execution of
the independent contract:
(i) A misdemeanor involving cruelty if committed by an
individual who is less than 16 years of age.
(ii) A misdemeanor involving home invasion.
(iii) A misdemeanor involving embezzlement.
(iv) A misdemeanor involving negligent homicide.
(v) A misdemeanor involving larceny unless otherwise provided
under subdivision (g).
(vi) A misdemeanor of retail fraud in the second degree unless
otherwise provided under subdivision (g).
(vii) Any other misdemeanor involving assault, fraud, theft, or
the possession or delivery of a controlled substance unless
otherwise provided under subdivision (d), (f), or (g).
(f) Has been convicted of any of the following misdemeanors,
other than a misdemeanor for a relevant crime described under 42
USC 1320a-7, or a state or federal crime that is substantially
similar to the misdemeanors described in this subdivision, within
the 3 years immediately preceding the date of application for
employment or clinical privileges or the date of the execution of
the independent contract:
(i) A misdemeanor for assault if there was no use of a firearm
or dangerous weapon and no intent to commit murder or inflict great
bodily injury.
(ii) A misdemeanor of retail fraud in the third degree unless
otherwise provided under subdivision (g).
(iii) A misdemeanor under part 74 of the public health code,
1978 PA 368, MCL 333.7401 to 333.7461, unless otherwise provided
under subdivision (g).
(g) Has been convicted of any of the following misdemeanors,
other than a misdemeanor for a relevant crime described under 42
USC 1320a-7, or a state or federal crime that is substantially
similar to the misdemeanors described in this subdivision, within
the year immediately preceding the date of application for
employment or clinical privileges or the date of the execution of
the independent contract:
(i) A misdemeanor under part 74 of the public health code, 1978
PA 368, MCL 333.7401 to 333.7461, if the individual, at the time of
conviction, is under the age of 18.
(ii) A misdemeanor for larceny or retail fraud in the second or
third degree if the individual, at the time of conviction, is under
the age of 16.
(h) 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.
(i) Has been the subject of a substantiated finding of
neglect, abuse, or misappropriation of property by a state or
federal
agency pursuant according to an investigation conducted in
accordance with 42 USC 1395i-3 or 1396r.
(2) Except as otherwise provided in 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 this section
April 1, 2006 until the psychiatric facility or intermediate care
facility for people with mental retardation conducts a criminal
history check in compliance with subsection (4). This subsection
and subsection (1) do not apply to any of the following:
(a) 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 this section April 1,
2006. Within 24 months after the effective date of
this section By
April 1, 2008, an individual who is exempt under this subdivision
shall provide the department of state police with 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 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 this section April 1,
2006. That individual may
transfer to another psychiatric facility or intermediate care
facility for people with mental retardation that is under the same
ownership with which he or she was employed, under contract, or
granted privileges. If that individual wishes to transfer to
another psychiatric facility or intermediate care facility for
people with mental retardation that is not under the same
ownership, he or she may do so provided that a criminal history
check is conducted by the new psychiatric facility or intermediate
care facility for people with mental retardation in accordance with
subsection (4). If an individual who is exempt under this
subdivision is subsequently convicted of a crime described under
subsection (1)(a) through (g) or found to be the subject of a
substantiated finding described under subsection (1)(i) or an order
or disposition described under subsection (1)(h), or is found to
have been convicted of a relevant crime described under subsection
(1)(a), then he or she is no longer exempt and shall be terminated
from employment or denied 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 is not directly related to the provision of services to
a patient or resident or if the services for which he or she is
contracted allows for direct access to the patients or residents
but is not performed on an ongoing basis. This exception includes,
but is not limited to, an individual who independently contracts
with the psychiatric facility or intermediate care facility for
people with mental retardation to 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 an
initial criminal history check under this section, along with
identification acceptable to the department of state police.
(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, to input the applicant's
fingerprints into the automated fingerprint identification system
database, 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 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 relevant licensing
or regulatory department to conduct a check of all relevant
registries
established pursuant to under
federal and state law and
regulations for any substantiated findings of abuse, neglect, or
misappropriation of property. 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 psychiatric
facility or intermediate care
facility for people with mental retardation shall pay the cost of
the charge. The psychiatric facility or intermediate care facility
for people with mental retardation 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. A psychiatric facility or
intermediate
care facility for people with mental retardation, a A
prospective
employee , or a
prospective independent contractor
covered under this section may not be charged for the cost of an
initial criminal history check required under this section. 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
criminal history check 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. If the requesting
psychiatric facility or intermediate care facility for people with
mental retardation is not a state department or agency and if a
criminal conviction is disclosed on the written report of the
criminal history check or the federal bureau of investigation
determination, the department shall notify the psychiatric facility
or intermediate care facility for people with mental retardation
and the applicant in writing of the type of crime disclosed on the
written report of the criminal history check or the federal bureau
of investigation determination without disclosing the details of
the crime. 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 this
subsection. The notice shall include a statement that the applicant
has a right to appeal a decision made by the psychiatric facility
or intermediate care facility for people with mental retardation
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 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 determines it necessary to
employ or grant clinical privileges to an applicant before
receiving the results of the applicant's criminal history check
under this section, the psychiatric facility or intermediate care
facility for people with mental retardation may conditionally
employ or grant conditional 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 this section 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) through (g) within
the applicable time period prescribed by each subdivision
respectively.
(ii) That he or she is not the subject of an order or
disposition described in subsection (1)(h).
(iii) That he or she has not been the subject of a substantiated
finding as described in subsection (1)(i).
(iv) The individual agrees that, if the information in the
criminal history check conducted under this section does not
confirm the individual's statements under subparagraphs (i) through
(iii), 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) unless and until the individual appeals and can
prove that the information is incorrect.
(v) That he or she understands the conditions described in
subparagraphs (i) through (iv) that result in the termination of his
or her employment or clinical privileges and that those conditions
are good cause for termination.
(6) 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 psychiatric facilities or
intermediate care facilities 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
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) through (iii), 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 his or her identity, criminal convictions, or
substantiated findings on a statement described in subsection
(5)(b)(i) through (iii) 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) 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 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. Upon written request from another psychiatric
facility or intermediate care facility for people with mental
retardation, health facility or agency, or adult foster care
facility that is considering employing, independently contracting
with, or granting clinical privileges to an individual, a
psychiatric facility or intermediate care facility for people with
mental retardation that has obtained criminal history record
information under this section on that individual shall, with the
consent of the applicant, share the information with the requesting
psychiatric facility or intermediate care facility for people with
mental retardation, health facility or agency, 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 a criminal background check conducted under this section or
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 do each of the following:
(a) Agree in writing to report to the psychiatric facility or
intermediate care facility for people with mental retardation
immediately upon being arraigned for 1 or more of the criminal
offenses listed in subsection (1)(a) through (g), upon being
convicted of 1 or more of the criminal offenses listed in
subsection (1)(a) through (g), upon becoming the subject of an
order or disposition described under subsection (1)(h), and upon
being the subject of a substantiated finding of neglect, abuse, or
misappropriation of property as described in subsection (1)(i).
Reporting of an arraignment under this subdivision is not cause for
termination or denial of employment.
(b) If a set of fingerprints is not already on file with the
department of state police, provide the department of state police
with a set of fingerprints.
(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) 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 if and when 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 psychiatric facility or intermediate care facility
for people with mental retardation with which that individual is
associated. Information in the database established under this
subsection is confidential, is not subject to disclosure under the
freedom of information act, 1976 PA 442, MCL 15.231 to 15.246, and
shall not be disclosed to any person except for purposes of this
act or for law enforcement purposes.
(13)
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 each of the following:
(a)
The impact and effectiveness of this amendatory act.
(b)
The feasibility of implementing criminal history checks on
volunteers
who work in those psychiatric facilities or intermediate
care
facilities for people with mental retardation and on state
agency
employees who are involved in the licensing of those
psychiatric
facilities or intermediate care facilities for people
with
mental retardation and regulation of those employees.
(c)
The amount of federal funds provided to implement a pilot
program
for national and state background checks on direct access
employees
of long-term care facilities or providers, the amount of
those
funds expended to date, and the amount of those funds
remaining.
(13) (14)
Within 3 years after the effective date of this
section
April 1, 2009, the department shall submit a written report
to the legislature outlining a plan to cover the costs of the
criminal history checks required under this section if federal
funding is no longer available or is inadequate to cover those
costs.
(14) (15)
By March 1, 2007, the The department and the
department
of state police shall develop and implement maintain an
electronic web-based system to assist those psychiatric facilities
or intermediate care facilities for people with mental retardation
required to check relevant registries and conduct criminal history
checks of its employees and independent contractors and to provide
for an automated notice to those psychiatric facilities or
intermediate care facilities for people with mental retardation for
those individuals inputted in the system who, since the initial
check, have been convicted of a disqualifying offense or have been
the subject of a substantiated finding of abuse, neglect, or
misappropriation of property.
(15) (16)
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.
(c) "Health facility or agency" means 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 licensed as required under article
17 of the public health code, 1978 PA 368, MCL 333.20101 to
333.22260.
(d) "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.
(e) "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.
(f) "Medicare" means benefits under the federal medicare
program established under title XVIII of the social security act,
42
USC 1395 to 1395ggg 1395hhh.