SB 969

SENATE BILL NO. 969
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 20173a and 20173b (MCL 333.20173a
and 333.20173b), section 20173a as amended by 2017 PA 167 and section 20173b as
amended by 2014 PA 66.
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 the
individual's sentencing, parole, and probation for that conviction
before 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 the
individual's 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 under an
investigation conducted in accordance with 42 USC 1395i-3 or 1396r.
(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 the individual 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 the individual is no longer exempt and shall must 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 the individual is
not under the facility's control and the services for which he or she the individual 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 the individual 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 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 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 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 must 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
according 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. Except as otherwise provided in this
subsection, 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. After October 1, 2018, 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 the charge up to
40 criminal history checks per year for a covered facility that is a home for
the aged with fewer than 100 beds and 50 criminal history checks per year for a
home for the aged with 100 beds or more. 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 must 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 must be paid in the manner required under this
subsection. The notice shall must 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 the individual's employment
eligibility based on the criminal history check. The notice shall must 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 the individual 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 the individual is not the subject of
an order or disposition described in subsection (1)(h).
(iii) That he or
she the individual has not been the
subject of a substantiated finding as described in subsection (1)(i).
(iv) That he or
she 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) to (iii), his or her the individual's 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 the individual understands that the
conditions described in subparagraphs (i) to (iv) may result in the termination of his or
her the individual's 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 the individual 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 the individual's 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 the applicant 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 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 department of state police can participate with the Federal Bureau of
Investigation's 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 the applicant 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) The department
of state police and the Federal Bureau of Investigation shall store and retain
all fingerprints submitted under this section and provide for an automatic
notification if and when subsequent criminal information 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 must 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) "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)
"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.
(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.
(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.
(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.
(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:
(i) nursing Nursing services. , therapeutic
(ii) Therapeutic services. , social
(iii) Social work services. , homemaker
(iv) Homemaker services. , home
(v) Home health aide services. , or other
(vi) Other related services.
(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.
(h)
"Medicare" means benefits under the federal Medicare program
established under title XVIII of the social security act, 42 USC 1395 to 1395lll.1395mmm.
(i) "Mental
health facility" means a psychiatric facility or other facility defined in
42 USC 1396d(d) as described under the mental health code, 1974 PA 258, MCL
330.1001 to 330.2106.
(j) "Staffing
agency" means an entity that recruits candidates and provides temporary
and permanent qualified staffing for covered facilities, including independent
contractors.
(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 the individual's
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 the individual's
duties.
(F) The conditions
under which the individual performs his or her the individual's duties.
Sec. 20173b. (1) An individual who has
been disqualified from or denied employment by a health facility or agency that
is a nursing home, county medical care facility, hospice, hospital that provides swing bed services, home
for the aged, or home health agency or by a psychiatric facility or other
facility defined in 42 USC 1396d(d) based on a criminal history check conducted
pursuant to section 20173 or 20173a or
pursuant to section 134a of the mental health code, 1974 PA 258, MCL 330.1134a,
respectively, may appeal to the department if he or
she the individual believes that the
criminal history report is inaccurate, and the appeal shall must be
conducted as a contested case hearing pursuant to the administrative procedures
act of 1969. The individual shall file the appeal with the director of the
department within 15 business days after receiving the written report of the
criminal history check unless the conviction contained in the criminal history
report is one that may be expunged or set aside. If an individual has been
disqualified or denied employment based on a conviction that may be expunged or
set aside, then he or she the individual shall file the appeal on a form
provided by the department within 15 business days after a court order granting
or denying his or her the individual's application to expunge or set aside
that conviction is granted. If the order is granted and the conviction is
expunged or set aside, then the individual shall must not be disqualified or denied employment based
solely on that conviction. The director shall review the appeal and issue a
written decision within 30 business days after receiving the appeal. The decision
of the director is final.
(2) Beginning February 17, 2007 and each year thereafter for
the next 3 years, the department shall provide the legislature with a written
report regarding the appeals process implemented under this section for
employees subject to criminal history checks. The report shall include, but is
not limited to, for the immediately preceding year the number of applications
for appeal received, the number of inaccuracies found and appeals granted with
regard to the criminal history checks conducted under section 20173a, the
average number of days necessary to complete the appeals process for each
appeal, and the number of appeals rejected without a hearing and a brief
explanation of the denial.
(2) (3) As
used in this section, "business day" means a day other than a
Saturday, Sunday, or any legal holiday.
Enacting section 1.
This amendatory act does not take effect unless Senate Bill No. ____ (request
no. S03074'25) or House Bill No. ____ (request no. H03074'25) of the 103rd
Legislature is enacted into law.