Bill Text: MI SB0939 | 2023-2024 | 102nd Legislature | Introduced
Bill Title: Mental health: facilities; licensure for adult residential psychiatric programs; provide for. Creates new act.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Introduced) 2024-06-25 - Referred To Committee On Civil Rights, Judiciary, And Public Safety [SB0939 Detail]
Download: Michigan-2023-SB0939-Introduced.html
SENATE BILL NO. 939
A bill to provide for licensing of adult psychiatric residential treatment facilities; to allow for psychiatric services to be provided under a residential psychiatric program in adult psychiatric residential treatment facilities; to establish standards of care for adult psychiatric residential treatment facilities; to provide for the powers and duties of certain state departments and agencies; to prescribe certain fees; and to provide for penalties and remedies.
the people of the state of michigan enact:
Sec. 1. This act may be cited as the "adult psychiatric residential treatment facility licensing act".
(a) "Adult" means an individual who is 18 years of age or older, other than an individual with a mental disability who is between 18 and 21 years of age.
(b) "Adult psychiatric residential treatment facility" or "APRTF" means a facility operated for the primary purpose of providing residential psychiatric services to adults under a residential psychiatric program. An APRTF does not include any of the following:
(i) A psychiatric hospital as that term is defined in section 100b of the mental health code, 1974 PA 258, MCL 330.1100b, or a psychiatric unit as that term is defined in section 100c of the mental health code, 1974 PA 258, MCL 330.1100c.
(ii) An adult foster care facility as that term is defined in section 3 of the adult foster care facility licensing act, 1979 PA 218, MCL 400.703.
(iii) A child care organization as that term is defined in section 1 of 1973 PA 116, MCL 722.111.
(iv) A home for the aged, hospice facility, or nursing home licensed under part 213, 214, or 217 of the public health code, MCL 333.21301 to 333.21335, 333.21401 to 333.21420, and 333.21701 to 333.21799e.
(v) A facility with a licensed substance use disorder program under part 62 of the public health code, MCL 333.6230 to 333.6251.
(vi) A veterans' facility as that term is defined in section 2 of the Michigan veterans' facility authority act, 2016 PA 560, MCL 36.102.
(vii) A hospital as that term is defined in section 20106 of the public health code, MCL 333.20106.
(c) "Community mental health services program" means that term as defined in section 100a of the mental health code, 1974 PA 258, MCL 330.1100a.
(d) "Department" means the department of licensing and regulatory affairs.
(e) "Director" means the director of the department.
(f) "Licensed health care professional" means an individual licensed or registered under article 15 of the public health code, MCL 333.16101 to 333.18838.
(g) "Licensee" means a person, firm, partnership, agency, governing body, association, corporation, or other entity that has been issued a license to operate an APRTF.
(h) "Personal care services" means services including, but not limited to, assisting individual's with activities of daily living, assisting individual's with self-administration of medication in accordance with rules promulgated under this act, and preparing special diets, other than complex therapeutic diets, for individuals according to the instructions of a physician or a licensed dietitian and in accordance with rules promulgated under this act. Personal care services does not include skilled nursing care.
(i) "Provisional license" means a license issued to a facility that has previously been licensed under this act but is temporarily unable to conform to the requirements of a regular license prescribed in this act or rules promulgated under this act.
(j) "Public health code" means the public health code, 1978 PA
368, MCL 333.1101 to 333.25211.
(k) "Regular license" means a license issued to an APRTF that is in compliance with this act and the rules promulgated under this act.
(l) "Resident" means an individual residing within an APRTF.
(m) "Residential psychiatric program" means a program that is provided by a public or private APRTF that offers a combination of residential, nutritional, supervisory, and personal care services, combined with mental health and psychiatric services in a comprehensive residential treatment setting. The program must be accredited by the Joint Commission on Accreditation of Healthcare Organizations, the Commission on Accreditation of Rehabilitation Facilities, or any other accrediting organization with comparable standards that is recognized by the department.
(n) "Residential psychiatric services" means active psychiatric treatment provided in an APRTF to a resident with a persistent pattern of emotional, psychological, or behavioral dysfunction of a severity that requires 24-hour supervised care provided under the direction of a physician licensed under part 170 or 175 of the public health code, MCL 333.17001 to 333.17097 and 333.17501 to 333.17556. Residential psychiatric services must be individualized and designed to achieve a less restrictive level of care at the earliest possible time. Residential psychiatric services must be certified by the physician in writing to be necessary in the setting in which the services will be provided such that the services can reasonably be expected to improve the resident's condition or prevent further regression.
(o) "Skilled nursing care" means providing nursing care services, health-related services, and social services under the supervision of a licensed registered nurse or licensed advanced practice registered nurse on a 24-hour basis.
(p) "Supervision" means guidance of a resident in the activities of daily living, including 1 or more of the following:
(i) Reminding a resident to maintain the resident's medication schedule, as directed by the resident's physician.
(ii) Reminding a resident of important activities to be carried out.
(iii) Assisting a resident in keeping appointments.
(q) "Temporary license" means a license issued to a facility that has not previously been licensed under this act.
Sec. 5. (1) A person, firm, partnership, agency, governing body, association, corporation, or other entity shall not establish, maintain, or operate an adult psychiatric residential treatment facility unless licensed under this act. An application for a license must be made on forms provided and in the manner prescribed by the department. The application must be accompanied by the appropriate fee as follows:
(a) For a temporary or renewal license, $500.00.
(b) For an initial regular license, $500.00.
(c) For a provisional license, $500.00.
(2) Before issuing or renewing a license, the department shall investigate the activities and standards of care of the applicant and shall make an on-site evaluation of the facility. On-site inspections conducted in response to the application may be conducted without prior notice to the applicant.
(3) If the department has revoked, suspended, or refused to renew a person's license, or denied an application for a license, for an APRTF according to section 13, the department may refuse to issue a license to or renew a license of that applicant for a period of 5 years after the suspension, revocation, or nonrenewal of the license, or denial of the application. The department may refuse to issue a license to or renew the license of an applicant if the department determines that the applicant has a relationship with a former licensee whose license under this act has been suspended, revoked, or nonrenewed under section 13. This subsection applies for 5 years after the suspension, revocation, or nonrenewal of the former licensee's license. For purposes of this subsection, an applicant has a relationship with a former licensee if the former licensee is involved with the facility in 1 or more of the following ways:
(a) Participates in the administration or operation of the facility.
(b) Has a financial interest in the operation of the facility.
(c) Provides care to residents of the facility.
(d) Has contact with residents or staff on the premises of the facility.
(e) Is employed by the facility.
(f) Resides in the facility.
(4) A separate license is not required under this act for a separate APRTF on the same campus if that facility is utilized to provide residential psychiatric services to adults under a residential psychiatric program under the same licensee.
Sec. 7. (1) A residential psychiatric program being provided by an APRTF must meet 1 of the following not later than 3 years after its initial regular license and must satisfy all of the following thereafter to maintain licensure:
(a) The standards pertaining to residential services contained in the "Comprehensive Accreditation Manual for Behavioral Health Care" published by the Joint Commission on Accreditation of Healthcare Organizations.
(b) The behavioral health standards pertaining to residential treatment published by the Commission on Accreditation of Rehabilitation Facilities.
(c) The standards of a similar organization approved by the director.
(2) Only an APRTF that is operated under direction of a physician licensed under part 170 or 175 of the public health code, MCL 333.17001 to 333.17097 and MCL 333.17501 to 333.17556, may administer medication to residents. An APRTF that is operated under the direction of an individual other than a physician licensed under part 170 or 175 of the public health code, MCL 333.17001 to 333.17097 and MCL 333.17501 to 333.17556, may do any of the following:
(a) Remind a resident when to take medication and watch to ensure that the resident follows the directions on the container.
(b) Assist a resident in the self-administration of medication by taking the medication from the locked area where it is stored, in accordance with rules promulgated under this act, and handing it to the resident. If the resident is physically unable to open the container, a staff member may open the container for the resident.
(c) Assist a physically impaired but mentally alert resident, including, but not limited to, a resident with arthritis, cerebral palsy, or Parkinson's disease, in removing oral or topical medication from a container and in consuming or applying the medication, upon request by or with the consent of the resident. If a resident is physically unable to place a dose of medicine to the resident's own mouth without spilling it, a staff member may place the dose in a container and place the container to the mouth of the resident.
(3) Nothing in this section prohibits a licensed health care professional from acting within the scope of that individual's license to administer medication at the request of a resident.
Sec. 9. (1) The director, the director's agent, or personnel of another department or agency, acting at the request of the director, may enter upon the premises of an applicant or licensee at a reasonable time to make inspections, as permitted by applicable law, for any of the following purposes:
(a) To determine whether the applicant or licensee is complying with this act and the rules promulgated under this act.
(b) To determine whether the APRTF has completed a plan of correction required under subsection (2) and corrected deficiencies to the satisfaction of the department.
(c) Upon complaint.
(2) In conducting an inspection under this act, the department may conduct an on-site examination and evaluation of the APRTF and the residential psychiatric program, its personnel, activities, and services. The APRTF shall give the department access to examine and copy all records, accounts, and any other documents relating to operating the APRTF, including records pertaining to residents, and access to the APRTF and the residential psychiatric program in order to conduct interviews with the owner or operator, staff, and residents. Following each inspection and review, the department shall complete a report listing any deficiencies and, including, when appropriate, a time table within which the owner or operator must correct the deficiencies. The department may require the licensee to submit a plan of correction describing how the deficiencies will be corrected.
(3) On-site inspections may be conducted without prior notice to the APRTF. A health and sanitation inspection of an APRTF must be conducted upon the request of the department by 1 of the following:
(a) Department staff.
(b) The department of health and human services.
(c) A local health department.
(4) The bureau of fire services created in section 1b of the fire prevention code, 1941 PA 207, MCL 29.1b, or local authorities, in carrying out this act, may visit an APRTF more often than annually to advise in matters affecting health or fire protection. Inspections must be made as permitted by law.
Sec. 11. (1) The department shall issue an initial regular, temporary, provisional, or renewal license not later than 6 months after the applicant files a completed application. Receipt of the application is considered the date the application is received by an agency or department of this state. If the application is considered incomplete by the department, the department shall notify the applicant in writing or make notice electronically available not later than 30 days after receipt of the incomplete application, describing the deficiency and requesting additional information. If the department identifies a deficiency or requires the fulfillment of a corrective action plan, the 6-month period is tolled until either of the following occurs:
(a) Upon notification by the department of a deficiency, until the date the requested information is received by the department.
(b) Upon notification by the department that a corrective action plan is required, until the date the department determines the requirements of the corrective action plan have been met.
(2) The determination of the completeness of an application does not operate as an approval of the application for the license and does not confer eligibility of an applicant determined otherwise ineligible for issuance of a license.
(3) If the department fails to issue or deny a license within the time required by this section, the department shall return the license fee and shall reduce the license fee for the applicant's next renewal application, if any, by 15%. Failure to issue or deny a license within the time period required under this section does not allow the department to otherwise delay processing an application. The completed application must be placed in sequence with other completed applications received at that same time. The department shall not discriminate against an applicant in the processing of an application based on the fact that the application fee was refunded or discounted under this subsection.
(4) The department may issue a full, provisional, or temporary license or renew a license. A full license expires 1 year after the date of issuance, a provisional license expires in a shorter period of time as specified by the department, and a temporary license expires 90 days after the date of issuance.
(5) As used in this section, "completed application" means an application complete on its face with all requested information provided and answers to all questions provided and submitted with any applicable licensing fees as well as any other information, records, approval, security, or similar item required by law or rule from a local unit of government, a federal agency, or a private entity but not from another department or agency of this state. A completed application does not include a health inspection performed by a local health department.
Sec. 13. (1) The department may deny, suspend, revoke, or refuse to renew a license, or modify a regular license to a provisional license, if the department finds 1 or more of the following:
(a) The APRTF or the residential psychiatric program being provided by the applicant or licensee has been cited for a pattern of serious noncompliance or repeated violations of statutes or rules during the period of current or previous licensure.
(b) The applicant or licensee submits false or misleading information as part of a license application, renewal, or investigation.
(2) An application for licensure must not be denied, a license must not be revoked, a renewal must not be refused, and a regular license must not be modified to a provisional license unless the department gives the applicant or licensee written notice of the grounds for the proposed denial, revocation, refusal to renew, or modification. If the proposed denial, revocation, refusal to renew, or modification is not appealed not later than 30 days after receipt, the department shall deny, revoke, refuse to renew, or modify the application or license. The applicant or licensee must appeal in writing to the department director, or the director's designee, a proposed denial, revocation, refusal to renew, or modification not later than 30 days after receipt of the written notice. Upon receipt of the written request for appeal, the director or the director's designee must conduct a contested case hearing under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. Notice of the hearing must be given to the applicant or licensee by personal service or delivery to the proper address by registered mail not less than 2 weeks before the date of the hearing. The director or the director's designee shall issue a decision as soon as practicable after the hearing and forward it to the protesting party by registered mail. The formal notice and hearing requirement in this subsection does not apply if the licensee and the department comply with subsection (6).
(3) A license must not be denied, suspended, or revoked, a renewal must not be refused, and a regular license must not be modified to a provisional license unless the department gives the licensee or applicant written notice of the grounds of the proposed denial, revocation, refusal to renew, or modification. If the licensee or applicant appeals the denial, revocation, refusal to renew, or modification by filing a written appeal with the director not later than 30 days after receipt of the written notice, the director or the director's designated representative shall conduct a contested case hearing at which the licensee or applicant may present testimony and confront witnesses. Notice of the hearing must be given to the licensee or applicant by personal service or delivery to the proper address by registered mail not less than 2 weeks before the date of the hearing. The decision of the director must be made and forwarded to the protesting party by registered mail not more than 30 days after the hearing. If the proposed denial, revocation, refusal to renew, or modification is not protested not later than 30 days, the license must be denied, revoked, refused, or modified.
(4) If the department has revoked, suspended, or refused to renew a license, the former licensee must not receive or maintain in that facility an adult who requires residential psychiatric care. A person who violates this subsection is guilty of a felony punishable by imprisonment for not more than 5 years or a fine of not more than $75,000.00, or both.
(5) If the department has revoked, suspended, or refused to renew a license, relocation services must be provided to adults who were being served by the formerly licensed facility, upon the department's determination that the adult or the adult's designated representative is unable to relocate the adult in another facility without assistance. The relocation services must be provided by the responsible agency, as defined in administrative rules, or, if the adult has no agency designated as responsible, by the department of health and human services.
(6) The department may immediately suspend, revoke, modify, or refuse to renew a license or deny an application for a license without providing written notice of the grounds for the proposed action or giving the licensee or applicant 30 days to appeal if the licensee or applicant agrees in writing to do all of the following:
(a) Waive the requirement that the department provide written notice of the grounds for the proposed action.
(b) Waive the 30-day time frame in which to submit a written appeal to the proposed action.
(c) Waive the right to a contested case hearing under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.
Sec. 15. (1) The department may issue a temporary license to operate an APRTF if both of the following conditions are met:
(a) The department determines that the closing of or the need to remove residents from another APRTF has created an emergency situation requiring immediate removal of residents and an insufficient APRTF availability.
(b) The APRTF applying for a temporary license meets standards established for a temporary license in rules promulgated under this act.
(2) A temporary license is valid for 90 days and may be renewed by the director no more than twice. A proceeding initiated to deny an application for or to revoke a temporary license issued under this section is not subject to the provisions of section 13.
Sec. 17. (1) The following individuals may enter an APRTF at any time:
(a) A department employee designated by the director.
(b) An employee of a community mental health services program if the community mental health services program has an individual residing in the facility and receiving residential psychiatric services.
(2) An APRTF shall give the individuals specified in subsection (1) access to examine and copy all records, accounts, and documents relating to operating the APRTF, including, but not limited to, records pertaining to residents.
(3) For the purpose of investigation, an employee of the department may enter an institution, residence, facility, or other structure that has been reported to the department as, or that the department has reasonable cause to believe is, operating as an APRTF without a valid license.
Sec. 19. (1) The department may withhold the source of a complaint reported as a violation of this act if the department determines that disclosure could be detrimental to the department's purposes or could jeopardize the investigation. The department may disclose the source of a complaint if the complainant agrees in writing to disclosure and must disclose the source upon order by a court.
(2) A person who makes a complaint under this act, or a person who participates in an administrative or judicial proceeding resulting from a complaint under this act, is immune from civil liability and is not subject to criminal prosecution, other than for perjury, unless the person has acted in bad faith or with malicious purpose.
Sec. 21. (1) The director may petition the court of the county in which an APRTF is located for an order enjoining a person from operating an APRTF without a license if, in the director's judgment, there is a present danger to the health or safety of any of the program participants. The court has jurisdiction to grant injunctive relief upon a showing that the respondent named in the petition is operating an APRTF without a license or there is a present danger to the health or safety of any of the residents.
(2) When the court grants injunctive relief in the case of an APRTF operating without a license, the court shall issue, at a minimum, an order enjoining the APRTF from admitting new residents and an order requiring the APRTF to assist with the safe and orderly relocation of the APRTF's residents.
(3) If injunctive relief is granted against an APRTF for operating without a license and the APRTF continues to operate without a license, the director shall refer the case to the attorney general for further action.
Sec. 23. (1) Subject to subsections (3) and (4), the department shall promulgate rules to implement this act according to the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.
(2) The director may fine a person for violating this act. The fine must be $500.00 for a first offense and $1,000.00 for each subsequent offense.
(3) Rules promulgated by the department must include provisions addressing all of the following:
(a) Mandatory residential psychiatric program components.
(b) Periodic assessments and their components.
(c) Required individual treatment plans and their components.
(d) Treatment protocols and supportive services.
(e) Length of stay considerations.
(f) Discharge planning requirements.
(g) Required staffing levels.
(h) Clinical documentation requirements.
(i) Safety and emergency protocols.
(j) Pharmacy service requirements.
(k) Medication administration protocols.
(l) Reporting requirements.
(4) In promulgating rules as described under subsection (1), the department shall also seek input from adult psychiatric residential providers, relevant professional associations, and consumer groups.
Sec. 25. (1) Upon petition by the director, the court may appoint a receiver to take possession of and operate an APRTF licensed under this act when conditions existing at the APRTF present a substantial risk of physical or mental harm to residents and no other remedies of law are adequate to protect the health, safety, and welfare of the residents.
(2) Petitions filed under this section must include all of the following:
(a) A description of the specific conditions that present a substantial risk of physical or mental harm to residents.
(b) A statement of the absence of other adequate remedies of
law.
(c) The number of residents at the APRTF.
(d) A statement that the facts have been brought to the attention of the licensee and that conditions have not been remedied within a reasonable period of time or that the conditions, though remedied periodically, habitually exist at the APRTF as a pattern or practice.
(e) The name and address of the person holding the license for the APRTF.
(3) A court in which a petition is filed under this section shall give notice regarding the filing to the person holding the license for the APRTF. The department shall send notice of the filing to all of the following, as appropriate:
(a) The licensee.
(b) The APRTF owner.
(c) The APRTF operator.
(d) The APRTF residents.
(e) The APRTF residents' families and guardians.
(4) The court must provide a hearing on the petition not later than 5 business days after the time the petition was filed, except that the court may appoint a receiver before the time the court determines that the circumstances necessitate appointing a receiver.
(5) Following a hearing on the petition, and upon a determination that the appointment of a receiver is warranted, the court shall appoint a receiver and notify the department and appropriate persons of this action.
(6) In setting forth the powers of the receiver, the court may generally authorize the receiver to do all that is prudent and necessary to safely and efficiently operate the APRTF within the requirements of state and federal law but shall require the receiver to obtain court approval before making a single expenditure of more than $5,000.00 to correct deficiencies in the structure or furnishings of an APRTF. The court shall closely review the conduct of the receiver and shall require regular and detailed reports.
(7) A receivership established under this section must be terminated, following notification of the appropriate parties and a hearing, if the court determines either of the following:
(a) The APRTF has been closed and the former residents have been relocated to an appropriate facility.
(b) Circumstances no longer exist at the APRTF that present a substantial risk of physical or mental harm to residents and there is no deficiency in the residential psychiatric program that is likely to create a future risk of harm.
(8) Notwithstanding subsection (7)(b), the court shall not terminate a receivership for an APRTF that has previously operated under another receivership unless the responsibility for the operation of the APRTF is transferred to another person approved by the court and the department.
(9) Except for the department, no party or person interested in an action must be appointed a receiver under this section. To assist the court in identifying a person qualified to be named as a receiver, the director shall maintain a list of the names of qualified receivers. The department shall provide technical assistance to a receiver appointed under this section.
(10) Before entering upon the duties of receiver, the receiver must be sworn to perform the duties faithfully, and, with surety approved by the court, judge, or clerk, execute a bond to the person, and in a sum as the court directs, to the effect that the receiver will faithfully discharge the duties of receiver in the action, and obey the order of the court.
(11) Under the control of the appointing court, a receiver may do both of the following:
(a) Bring and defend an action in the appointee's name as receiver.
(b) Take and keep possession of property.
(12) The court shall authorize the receiver to do all of the following:
(a) Collect payment for all goods and services provided to the residents or others during the period of the receivership at the same rate as was charged by the licensee at the time the petition for receivership was filed, unless a different rate is set by the court.
(b) Honor all leases, mortgages, and secured transactions governing all buildings, goods, and fixtures of which the receiver has taken possession, but, in the case of a rental agreement, only to the extent of payments that are for the use of the property during the period of the receivership, or, in the case of a purchase agreement, only to the extent that payments become due during the period of the receivership.
(c) If a transfer of residents is necessary, provide for the orderly transfer of residents by doing any of the following:
(i) Cooperating with all appropriate state and local agencies in carrying out the transfer of residents to alternative community placements.
(ii) Providing for the transportation of residents' belongings and records.
(iii) Helping to locate alternative placements and develop plans for transfer.
(iv) Encouraging residents or guardians to participate in transfer planning except if an emergency exists and immediate transfer is necessary.
(d) Make periodic reports on the status of the APRTF to the court and the appropriate state agencies. Each report must be made available to residents, their guardians, and their families.
(e) Compromise demands or claims.
(f) Generally perform acts respecting the APRTF as the court authorizes.
(13) Notwithstanding any other provision of law, a contract necessary to carry out the powers and duties of the receiver does not need to be competitively bid.
Enacting section 1. This act takes effect 90 days after the date it is enacted into law.
