April 13, 2010, Introduced by Senators THOMAS, BIRKHOLZ and STAMAS and referred to the Committee on Families and Human Services.
A bill to amend 1974 PA 258, entitled
"Mental health code,"
by amending section 134a (MCL 330.1134a), as amended by 2008 PA
446.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
134a. (1) Except as otherwise provided in subsection (2)
section 20173a of the public health code, 1978 PA 368, MCL
333.20173a, 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 April 1,
2006
if the individual satisfies 1 or more of the following: until
the psychiatric facility or intermediate care facility for people
with mental retardation complies with section 20173a of the public
health code, 1978 PA 368, MCL 333.20173a, and conducts a criminal
history check as required under that section.
(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 or a
moving
violation
causing death.
(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 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 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 April 1, 2006. By April 1, 2011, 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 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 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 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 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)
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)
The department and the department of state police shall
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)
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 1395hhh.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 95th Legislature are
enacted into law:
(a) Senate Bill No. 1253.
(b) Senate Bill No. 1254.