Bill Text: MI HB4599 | 2011-2012 | 96th Legislature | Introduced
Bill Title: Health facilities; employees; crimes and actions that disqualify individual for employment at certain facilities; expand to include certain findings of abuse or neglect. Amends sec. 20173a of 1978 PA 368 (MCL 333.20173a). TIE BAR WITH: HB 4597'11, HB 4598'11
Spectrum: Slight Partisan Bill (Republican 15-8)
Status: (Introduced - Dead) 2011-05-04 - Printed Bill Filed 05/04/2011 [HB4599 Detail]
Download: Michigan-2011-HB4599-Introduced.html
HOUSE BILL No. 4599
May 3, 2011, Introduced by Reps. Liss, Lane, Bauer, Heise, Kurtz, Rendon, Wayne Schmidt, Jenkins, Farrington, Zorn, Damrow, Haines, Kowall, Callton, O'Brien, Haveman, Forlini, Lyons, Townsend, Darany, Stapleton, Slavens and Brown and referred to the Committee on Families, Children, and Seniors.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 20173a (MCL 333.20173a), as amended by 2010 PA
291.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20173a. (1) Except as otherwise provided in subsection
(2), a covered facility 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 covered facility if the individual satisfies 1 or
more of the following:
(a) Has been convicted of a relevant crime described under 42
USC 1320a-7(a).
(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(a), 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(a) 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(a), 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(a), 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 violation
of section 601d(1) of the Michigan vehicle code, 1949 PA 300, MCL
257.601d.
(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(a), 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 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(a), 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 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) Engages in conduct that becomes the subject of a
substantiated finding of neglect, abuse, or misappropriation of
property by a state or federal agency pursuant to an investigation
conducted in accordance with 42 USC 1395i-3 or 1396r, or the
subject of a substantiated finding of abuse class I, abuse class
II, neglect class I, or neglect class II by a state agency pursuant
to an investigation conducted under state law.
(2) Except as otherwise provided in this subsection or
subsection (5), a covered facility 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 covered facility until the covered facility or
staffing agency has a criminal history check conducted in
compliance with this section or has received criminal history
record information in compliance with subsections (3) and (10).
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 covered facility
before April 1, 2006. On or before April 1, 2011, an individual who
is exempt under this subdivision and who has not been the subject
of a criminal history check conducted in compliance with this
section 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 (13). An individual who is
exempt under this subdivision is not limited to working within the
covered facility with which he or she is employed by, under
independent contract to, or granted clinical privileges on April 1,
2006 but may transfer to another covered facility, adult foster
care facility, or mental health facility. If an individual who is
exempt under this subdivision is subsequently convicted of a crime
described under subsection (1)(a) to (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 42 USC
1320a-7(a), then he or she is no longer exempt and shall be
terminated from employment or denied employment or clinical
privileges.
(b) An individual who is under an independent contract with a
covered facility if he or she is not under the facility's control
and 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 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, an
individual who is under an independent contract with the covered
facility 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 staffing agency or covered facility and who has not been the
subject of a criminal history check conducted in compliance with
this section shall give written consent at the time of application
for the department of state police to conduct a criminal history
check under this section, along with identification acceptable to
the department of state police. If the applicant has been the
subject of a criminal history check conducted in compliance with
this section, the applicant shall give written consent at the time
of application for the covered facility or staffing agency to
obtain the criminal history record information as prescribed in
subsection (4) from the relevant licensing or regulatory department
and for the department of state police to conduct a criminal
history check under this section if the requirements of subsection
(10) are not met and a request to the federal bureau of
investigation to make a determination of the existence of any
national criminal history pertaining to the applicant is necessary,
along with identification acceptable to the department of state
police. Upon receipt of the written consent to obtain the criminal
history record information and identification required under this
subsection, the staffing agency or covered facility that has made a
good faith offer of employment or an independent contract or
clinical privileges to the applicant shall request the criminal
history record information from the relevant licensing or
regulatory department and shall make a request regarding that
applicant to the relevant licensing or regulatory department to
conduct a check of all relevant registries in the manner required
in subsection (4). If the requirements of subsection (10) are not
met and a request to the federal bureau of investigation to make a
subsequent determination of the existence of any national criminal
history pertaining to the applicant is necessary, the covered
facility or staffing agency shall proceed in the manner required in
subsection (4). A staffing agency that employs an individual who
regularly has direct access to or provides direct services to
patients or residents under an independent contract with a covered
facility shall submit information regarding the criminal history
check conducted by the staffing agency to the covered facility that
has made a good faith offer of independent contract to that
applicant.
(4) Upon receipt of the written consent to conduct a criminal
history check and identification required under subsection (3), a
staffing agency or covered facility 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 staffing agency or covered
facility shall make the written consent and identification
available to the department of state police. The staffing agency or
covered facility shall make a request regarding that applicant to
the relevant licensing or regulatory department to conduct a check
of all relevant registries established pursuant to 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 criminal history check, the staffing agency or
covered facility shall pay the cost of the charge. If the
department of state police or the federal bureau of investigation
charges a fee for conducting the criminal history check, the
department shall pay the cost of or reimburse the charge for a
covered facility that is a home for the aged. The staffing agency
or covered 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
criminal history check. A prospective employee or a prospective
independent contractor covered under this section may not be
charged for the cost of a 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. 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
staffing agency or covered facility is not a state department or
agency and if criminal history record information is disclosed on
the written report of the criminal history check or the federal
bureau of investigation determination that resulted in a
conviction, the department shall notify the staffing agency or
covered facility 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 a 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 the information relied upon by the
staffing agency or covered facility in making its decision
regarding his or her employment eligibility based on the criminal
history check. The notice shall also include information regarding
where to file and describing the appellate procedures established
under section 20173b.
(5) If a covered facility determines it necessary to employ or
grant clinical privileges to an applicant before receiving the
results of the applicant's criminal history check or criminal
history record information under this section, the covered facility
may conditionally employ or grant conditional clinical privileges
to the individual if all of the following apply:
(a) The covered facility requests the criminal history check
or criminal history record information 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) to (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) That he or she agrees that, if the information in the
criminal history check conducted under this section does not
confirm the individual's statements under subparagraphs (i) to (iii),
his or her employment or clinical privileges will be terminated by
the covered facility 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 that the conditions described
in subparagraphs (i) to (iv) may result in the termination of his or
her employment or clinical privileges and that those conditions are
good cause for termination.
(c) Except as otherwise provided in this subdivision, the
covered facility does not permit the individual to have regular
direct access to or provide direct services to patients or
residents in the covered facility without supervision until the
criminal history check or criminal history record information is
obtained and the individual is eligible for that employment or
clinical privileges. If required under this subdivision, the
covered facility shall provide on-site supervision of an individual
in the covered facility on a conditional basis under this
subsection by an individual who has undergone a criminal history
check conducted in compliance with this section. A covered facility
may permit an individual in the covered facility on a conditional
basis under this subsection to have regular direct access to or
provide direct services to patients or residents in the covered
facility without supervision if all of the following conditions are
met:
(i) The covered facility, at its own expense and before the
individual has direct access to or provides direct services to
patients or residents of the covered facility, conducts a search of
public records on that individual through the internet criminal
history access tool maintained by the department of state police
and the results of that search do not uncover any information that
would indicate that the individual is not eligible to have regular
direct access to or provide direct services to patients or
residents under this section.
(ii) Before the individual has direct access to or provides
direct services to patients or residents of the covered facility,
the individual signs a statement in writing that he or she has
resided in this state without interruption for at least the
immediately preceding 12-month period.
(iii) If applicable, the individual provides to the department
of state police a set of fingerprints on or before the expiration
of 10 business days following the date the individual was
conditionally employed or granted conditional clinical privileges
under this subsection.
(6) The department shall develop and distribute a model form
for the statements required under subsection (5)(b) and (c). The
department shall make the model form available to covered
facilities 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 information under subsection (3) or report under subsection
(4) does not confirm the individual's statement under subsection
(5)(b)(i) to (iii), the covered facility 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) to (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 staffing agency or covered facility shall use criminal
history record information obtained under subsection (3) or (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 staffing agency or covered facility
or an employee of the staffing agency or covered facility shall not
disclose criminal history record information obtained under
subsection (3) or (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 (3) or (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. Except for a knowing or intentional release of
false information, a staffing agency or covered facility has no
liability in connection with a criminal history check conducted in
compliance with this section or the release of criminal history
record information under this subsection.
(10) Upon consent of an applicant as required in subsection
(3) and upon request from a staffing agency or covered facility
that has made a good faith offer of employment or an independent
contract or clinical privileges to the applicant, the relevant
licensing or regulatory department shall review the criminal
history record information, if any, and notify the requesting
staffing agency or covered facility of the information in the
manner prescribed in subsection (4). Until the federal bureau of
investigation implements an automatic notification system similar
to the system required of the state police under subsection (13)
and federal regulations allow the federal criminal record to be
used for subsequent authorized uses, as determined in an order
issued by the department, a staffing agency or covered facility may
rely on the criminal history record information provided by the
relevant licensing or regulatory department under this subsection
and a request to the federal bureau of investigation to make a
subsequent determination of the existence of any national criminal
history pertaining to the applicant is not necessary if all of the
following requirements are met:
(a) The criminal history check was conducted during the
immediately preceding 12-month period.
(b) The applicant has been continuously employed by the
staffing agency or a covered facility, adult foster care facility,
or mental health facility since the criminal history check was
conducted in compliance with this section or meets the continuous
employment requirement of this subdivision other than being on
layoff status for less than 1 year from a covered facility, adult
foster care facility, or mental health facility.
(c) The applicant can provide evidence acceptable to the
relevant licensing or regulatory department that he or she has been
a resident of this state for the immediately preceding 12-month
period.
(11) 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 staffing agency or
covered facility immediately upon being arraigned for 1 or more of
the criminal offenses listed in subsection (1)(a) to (g), upon
being convicted of 1 or more of the criminal offenses listed in
subsection (1)(a) to (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.
(12) In addition to sanctions set forth in section 20165, a
licensee, owner, administrator, or operator of a staffing agency or
covered 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.
(13) In collaboration with the department of state police, the
department of technology, management, and budget shall establish
and maintain 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 under
this section. Upon such notification, the department of state
police shall immediately notify the department and the department
shall immediately contact each respective staffing agency or
covered facility 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.
(14) The department shall maintain an electronic web-based
system to assist staffing agencies and covered facilities required
to check relevant registries and conduct criminal history checks of
its employees, independent contractors, and individuals granted
privileges and to provide for an automated notice to those staffing
agencies and covered facilities for those individuals inputted in
the system who, since the initial criminal history check, have been
convicted of a disqualifying offense or have been the subject of a
substantiated finding of abuse, neglect, or misappropriation of
property. The department may charge a staffing agency a 1-time set-
up fee of up to $100.00 for access to the electronic web-based
system under this section.
(15) As used in this section:
(a) "Abuse class I", "abuse class II", "neglect class I", and
"neglect class II" mean those terms as defined in R 330.7001 of the
Michigan administrative code.
(b) (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.
(c) (b)
"Convicted" means either
of the following:
(i) For a crime that is not a relevant crime, a final
conviction, the payment of a fine, a plea of guilty or nolo
contendere if accepted by the court, or a finding of guilt for a
criminal law violation or a juvenile adjudication or disposition by
the juvenile division of probate court or family division of
circuit court for a violation that if committed by an adult would
be a crime.
(ii) For a relevant crime described under 42 USC 1320a-7(a),
convicted means that term as defined in 42 USC 1320a-7.
(d) (c)
"Covered facility" 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.
(e) (d)
"Criminal history check
conducted in compliance with
this section" includes a criminal history check conducted under
this section, under section 134a of the mental health code, 1974 PA
258, MCL 330.1134a, or under section 34b of the adult foster care
facility licensing act, 1979 PA 218, MCL 400.734b.
(f) (e)
"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.
(g) (f)
"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.
(h) (g)
"Independent contract"
means a contract entered into
by a covered facility with an individual who provides the
contracted services independently or a contract entered into by a
covered facility with a staffing agency that complies with the
requirements of this section to provide the contracted services to
the covered facility on behalf of the staffing agency.
(i) (h)
"Medicare" means benefits
under the federal medicare
program established under title XVIII of the social security act,
42
USC 1395 to 1395iii 1395kkk.
(j) (i)
"Mental health facility"
means a psychiatric facility
or intermediate care facility for people with mental retardation
under the mental health code, 1974 PA 258, MCL 330.1001 to
330.2106.
(k) (j)
"Staffing agency" means
an entity that recruits
candidates and provides temporary and permanent qualified staffing
for covered facilities, including independent contractors.
(l) (k)
"Under the facility's
control" means an individual
employed by or under independent contract with a covered facility
for whom the covered facility does both of the following:
(i) Determines whether the individual who has access to
patients or residents may provide care, treatment, or other similar
support service functions to patients or residents served by the
covered facility.
(ii) Directs or oversees 1 or more of the following:
(A) The policy or procedures the individual must follow in
performing his or her duties.
(B) The tasks performed by the individual.
(C) The individual's work schedule.
(D) The supervision or evaluation of the individual's work or
job performance, including imposing discipline or granting
performance awards.
(E) The compensation the individual receives for performing
his or her duties.
(F) The conditions under which the individual performs his or
her duties.
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 96th Legislature are
enacted into law:
(a) Senate Bill No.____ or House Bill No. 4598(request no.
01251'11).
(b) Senate Bill No.____ or House Bill No. 4597(request no.
01253'11).
