Bill Text: MI HB5526 | 2019-2020 | 100th Legislature | Introduced
Bill Title: Human services; adult foster care; adult foster care facility licensing act; amend to reflect amendments to the public health code. Amends secs. 5 & 34b of 1979 PA 218 (MCL 400.705 & 400.734b). TIE BAR WITH: HB 5510'19
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2020-02-25 - Bill Electronically Reproduced 02/25/2020 [HB5526 Detail]
Download: Michigan-2019-HB5526-Introduced.html
HOUSE BILL NO. 5526
February 20, 2020, Introduced by Rep. Reilly
and referred to the Committee on Health Policy.
A bill to amend 1979 PA 218, entitled
"Adult foster care facility licensing act,"
by amending sections 5 and 34b (MCL 400.705 and 400.734b), section 5 as amended by 2018 PA 557 and section 34b as amended by 2018 PA 558.
the people of the state of michigan enact:
Sec. 5. (1) "Good moral character" means
good moral character as defined in 1974 PA 381, MCL 338.41 to 338.47.
(2) "Licensed
hospice program" means a health care program that provides a coordinated
set of services rendered at home or in an outpatient or institutional setting
for individuals suffering from a disease or condition with a terminal prognosis
and that is licensed under article 17 of the public health code, 1978 PA 368,
MCL 333.20101 to 333.22260.333.21925.
(3) "Licensee"
means the agency, association, corporation, organization, person, or department
or agency of the state, county, city, or other political subdivision, that has
been issued a license to operate an adult foster care facility.
(4) "Licensee
designee" means the individual designated in writing by the owner or
person with legal authority to act on behalf of the company or organization on
licensing matters. The licensee designee must meet the licensee qualification
requirements of this act and rules promulgated under this act. The licensee
designee who is not an owner, partner, or director of the applicant shall not
sign the original license application or amendments to the application.
(5) "Mental
illness" means a substantial disorder of thought or mood that
significantly impairs judgment, behavior, capacity to recognize reality, or
ability to cope with the ordinary demands of life.
(6) "New
construction" means a newly constructed facility or a facility that has
been completely renovated for use as an adult foster care facility.
Sec. 34b. (1) In addition to the restrictions prescribed
in sections 13, 22, and 31, and except as otherwise provided in subsection (2),
an adult foster care facility shall not employ or independently contract with
an individual who regularly has direct access to or provides direct services to
residents of the adult foster care 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 before the date of application for
employment 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
before the date of application for employment 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 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 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 the date of the execution
of the independent contract:
(i) A misdemeanor for
assault if there was no use of a firearm or dangerous weapon and no intent to
commit murder or inflict great bodily injury.
(ii) A misdemeanor of
retail fraud in the third degree unless otherwise provided under subdivision
(g).
(iii) A misdemeanor
under part 74 of the public health code, 1978 PA 368, MCL 333.7401 to 333.7461,
unless otherwise provided under subdivision (g).
(g) Has been convicted of any of the following misdemeanors,
other than a misdemeanor for a relevant crime described under 42 USC
1320a-7(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 the date of the execution
of the independent contract:
(i) A misdemeanor
under part 74 of the public health code, 1978 PA 368, MCL 333.7401 to 333.7461,
if the individual, at the time of conviction, is under the age of 18.
(ii) A misdemeanor for
larceny or retail fraud in the second or third degree if the individual, at the
time of conviction, is under the age of 16.
(h) Is the subject of an order or disposition under section
16b of chapter IX of the code of criminal procedure, 1927 PA 175, MCL 769.16b.
(i) Engages in conduct that becomes the subject of a
substantiated finding of neglect, abuse, or misappropriation of property by a
state or federal agency according to an investigation conducted in accordance
with 42 USC 1395i-3 or 1396r.
(2) Except as otherwise provided in this subsection or
subsection (6), an adult foster care facility shall not employ or independently
contract with an individual who has direct access to residents until the adult
foster care facility or staffing agency has conducted a criminal history check
in compliance with this section or has received criminal history record information
in compliance with subsections (3) and (11). This subsection and subsection (1)
do not apply to an individual who is employed by or under contract to an adult
foster care facility before April 1, 2006. On or before April 1, 2011, an
individual who is exempt under this subsection 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 a set of fingerprints and the department
of state police shall input those fingerprints into the automated fingerprint
identification system database established under subsection (14). An individual
who is exempt under this subsection is not limited to working within the adult
foster care facility with which he or she is employed by or under independent
contract with on April 1, 2006 but may transfer to another adult foster care
facility, mental health facility, or covered health facility. If an individual
who is exempt under this subsection is subsequently convicted of a crime or
offense 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), he or she is
no longer exempt and shall be terminated from employment or denied employment.
(3) An individual who applies for employment either as an
employee or as an independent contractor with an adult foster care facility or
staffing agency 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 individual has been the subject of a
criminal history check conducted in compliance with this section, the
individual shall give written consent at the time of application for the adult
foster care facility or staffing agency to obtain the criminal history record
information as prescribed in subsection (4) or (5) 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
(11) 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 individual is necessary, along with identification acceptable to the
department of state police. Upon
On receipt
of the written consent to obtain the criminal history record information and
identification required under this subsection, the adult foster care facility
or staffing agency that has made a good-faith offer of employment or an
independent contract to the individual shall request the criminal history
record information from the relevant licensing or regulatory department and
shall make a request regarding that individual 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 (11) 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 individual is necessary, the adult foster care facility or
staffing agency shall proceed in the manner required in subsection (5). A
staffing agency that employs an individual who regularly has direct access to
or provides direct services to residents under an independent contract with an
adult foster care facility shall submit information regarding the criminal
history check conducted by the staffing agency to the adult foster care
facility that has made a good-faith offer of independent contract to that
applicant.
(4) Upon On receipt of the
written consent to conduct a criminal history check and identification required
under subsection (3), the adult foster care facility or staffing agency that
has made a good-faith offer of employment or independent contract to the
individual shall make a request to the department of state police to conduct a
criminal history check on the individual and input the individual's
fingerprints into the automated fingerprint identification system database, and
shall make a request to the relevant licensing or regulatory department to
perform 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. The request shall must be made in a manner prescribed by the
department of state police and the relevant licensing or regulatory department
or agency. The adult foster care facility or staffing agency shall make the
written consent and identification available to the department of state police
and the relevant licensing or regulatory department or agency. Until June 30,
2020, if the department of state police or the Federal Bureau of Investigation
charges a fee for conducting the criminal history check, the charge shall be
paid by or reimbursed by the department. Until June 30, 2020, the adult foster
care facility or staffing agency shall not seek reimbursement for a charge
imposed by the department of state police or the federal bureau of investigation Federal Bureau of Investigation from
the individual who is the subject of the criminal history check. Beginning July
1, 2020, if the department of state police or the Federal Bureau of
Investigation charges a fee for conducting the criminal history check, the
charge shall be paid by the adult foster care facility, the staffing agency, or
the individual. The department of state police shall conduct a criminal history
check on the individual 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 individual maintained by the department of state police.
(5) Upon On receipt of the
written consent to conduct a criminal history check and identification required
under subsection (3), if the individual has applied for employment either as an
employee or as an independent contractor with an adult foster care facility or
staffing agency, the adult foster care facility or staffing agency that has
made a good-faith offer of employment or independent contract shall comply with
subsection (4) and shall make a request to the department of state police to
forward the individual'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 individual. An individual described in this
subsection shall provide the department of state police with a set of
fingerprints. The department of state police shall complete the criminal
history check under subsection (4) and, except as otherwise provided in this
subsection, provide the results of its determination under subsection (4) and
the results of the Federal Bureau of Investigation determination to the
department within 30 days after the request is made. If the requesting adult
foster care facility or staffing agency 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 adult foster
care facility or staffing agency and the individual 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. The notification shall
must inform
the adult foster care facility or staffing agency and the applicant regarding
the appeal process in section 34c and shall must include a statement that the individual
has a right to appeal the information relied upon by the adult foster care
facility or staffing agency in making its decision regarding his or her
employment eligibility based on the criminal history check. 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 subsection (4).
(6) If an adult foster care facility determines it necessary
to employ or independently contract with an individual before receiving the
results of the individual's criminal history check or criminal history record
information required under this section, the adult foster care facility may
conditionally employ the individual if all of the following apply:
(a) The adult foster care facility requests the criminal
history check or criminal history record information required under this
section, upon on conditionally
employing the individual.
(b) The individual signs a written statement indicating 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 subsection
(1)(a) to (g).
(ii) That he or she is
not the subject of an order or disposition described in subsection (1)(h).
(iii) That he or she
has not been the subject of a substantiated finding as described in subsection
(1)(i).
(iv) The individual
agrees that, if the information in the criminal history check conducted under
this section does not confirm the individual's statement under subparagraphs (i) to (iii), his or her
employment will be terminated by the adult foster care facility as required
under subsection (1) unless and until the individual can prove that the
information is incorrect.
(v) That he or she
understands the conditions described in subparagraphs (i) to (iv) that result in
the termination of his or her employment and that those conditions are good
cause for termination.
(c) Except as otherwise provided in this subdivision, the
adult foster care facility does not permit the individual to have regular
direct access to or provide direct services to residents in the adult foster
care facility without supervision until the criminal history check or criminal
history record information is obtained and the individual is eligible for that
employment. If required under this subdivision, the adult foster care facility
shall provide on-site supervision of an individual in the facility on a
conditional basis under this subsection by an individual who has undergone a
criminal history check conducted in compliance with this section. An adult
foster care facility may permit an individual in the facility on a conditional
basis under this subsection to have regular direct access to or provide direct
services to residents in the adult foster care facility without supervision if
all of the following conditions are met:
(i) The adult foster
care facility, at its own expense and before the individual has direct access
to or provides direct services to residents of the 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 residents under this section.
(ii) Before the
individual has direct access to or provides direct services to residents of the
adult foster care 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 under this subsection.
(7) The department shall develop and distribute the model
form for the statements required under subsection (6)(b) and (c). The
department shall make the model form available to adult foster care facilities upon on request at no
charge.
(8) If an individual is conditionally employed under
subsection (6), and the information under subsection (3) or report under
subsection (4) or (5), if applicable, does not confirm the individual's
statement under subsection (6)(b)(i) to (iii), the adult foster care facility shall terminate the
individual's employment as required by subsection (1).
(9) An individual who knowingly provides false information
regarding his or her identity, criminal convictions, or substantiated findings
on a statement described in subsection (6)(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.
(10) An adult foster care facility or staffing agency shall
use criminal history record information obtained under subsection (3), (4), or
(5) only for the purpose of evaluating an individual's qualifications for
employment in the position for which he or she has applied and for the purposes
of subsections (6) and (8). An adult foster care facility or staffing agency or
an employee of the adult foster care facility or staffing agency shall not
disclose criminal history record information obtained under this section to a
person who is not directly involved in evaluating the individual's
qualifications for employment or independent contract. An individual who
knowingly uses or disseminates the criminal history record information obtained
under subsection (3), (4), or (5) 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, an adult foster care facility or staffing agency 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.
(11) Upon On consent of an
individual as required in subsection (3) and upon on request from an adult foster care facility
or staffing agency that has made a good-faith offer of employment or an
independent contract to the individual, the relevant licensing or regulatory
department shall review the criminal history record information, if any, and
notify the requesting adult foster care facility or staffing agency of the
information in the manner prescribed in subsection (4) or (5). Until the
Federal Bureau of Investigation implements an automatic notification system
similar to the system required of the state police under subsection (14) and
federal regulations allow the federal criminal record to be used for subsequent
authorized uses, as determined in an order issued by the department, an adult
foster care facility or staffing agency 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 individual is not necessary if all of the following
requirements are met:
(a) The criminal history check was conducted during the
immediately preceding 24-month period.
(b) The individual has been continuously employed by an adult
foster care facility, mental health facility, or covered health facility, or
the staffing agency 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 an
adult foster care facility, mental health facility, or covered health facility.
(c) The individual 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.
(12) As a condition of continued employment, each employee or
independent contractor shall do both of the following:
(a) Agree in writing to report to the adult foster care
facility or staffing agency immediately upon being arraigned on 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 becoming the subject of a substantiated finding described
under 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.
(13) In addition to sanctions set forth in this act, a
licensee, owner, administrator, or operator of an adult foster care facility or
staffing agency 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.
(14) 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 at
the time a subsequent criminal arrest fingerprint card submitted into the
system matches a set of fingerprints previously submitted under this section. Upon On notification, the
department of state police shall immediately notify the department and the
department shall immediately contact each respective adult foster care facility
or staffing agency 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.
(15) If an individual independently contracts with an adult
foster care facility, subsections (1) and (2) do not apply if the individual is
not under the adult foster care facility's control and the contractual work
performed by the individual is not directly related to the clinical, health
care, or personal services delivered by the adult foster care facility or if
the individual's duties are not performed on an ongoing basis with direct
access to residents. This exception includes, but is not limited to, an
individual who independently contracts with the adult foster care facility to
provide utility, maintenance, construction, or communication services.
(16) The department shall maintain an electronic web-based
system to assist the adult foster care facilities and staffing agencies
required to check relevant registries and conduct criminal history checks of
its employees and independent contractors and to provide for an automated
notice to the adult foster care facilities and staffing agencies for the
individuals entered 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.
(17) As used in this section:
(a) "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.
(b) "Covered health facility" means a nursing home,
county medical care facility, hospice, hospital that provides swing bed
services, home for the aged, or home health agency licensed under article 17 of
the public health code, 1978 PA 368, MCL 333.20101 to 333.22260.333.21925.
(c) "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 20173a of the public health code, 1978 PA 368, MCL
333.20173a.
(d) "Direct access" means access to a resident or
resident's property, financial information, medical records, treatment
information, or any other identifying information.
(e) "Home health agency" means that term as defined
in section 20173a of the public health code, 1978 PA 368, MCL 333.20173a.
(f) "Independent contract" means a contract entered
into by an adult foster care facility with an individual who provides the
contracted services independently or a contract entered into by an adult foster
care facility with a staffing agency that complies with the requirements of
this section to provide the contracted services to the adult foster care
facility on behalf of the staffing agency.
(g) "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.
(h) "Staffing agency" means an entity that recruits
candidates and provides temporary and permanent qualified staffing for adult
foster care facilities, including independent contractors.
(i) "Title XIX" means title XIX of the social
security act, 42 USC 1396 to 1396w-5.
(i) (j) "Under the adult foster care facility's
control" means an individual employed by or under independent contract
with an adult foster care facility for whom the adult foster care facility does
both of the following:
(i) Determines
whether the individual who has access to residents may provide care, treatment,
or other similar support service functions to residents served by the adult
foster care 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 takes effect 90 days after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect unless Senate Bill No.____ or House Bill No. 5510 (request no. 04667'19) of the 100th Legislature is enacted into law.