Bill Text: MI HB6039 | 2017-2018 | 99th Legislature | Introduced

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Bill Title: Mental health; other; criminal history background check on prospective employees; clarify the home health agencies subject to requirement. Amends sec. 134a of 1974 PA 258 (MCL 330.1134a).

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2018-05-22 - Bill Electronically Reproduced 05/17/2018 [HB6039 Detail]

Download: Michigan-2017-HB6039-Introduced.html

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HOUSE BILL No. 6039

 

 

May 17, 2018, Introduced by Reps. Yanez, Faris, Green, Gay-Dagnogo, Hertel, Chirkun, Sowerby, Hornberger, Marino, Elder, Lucido and Yaroch and referred to the Committee on Law and Justice.

 

     A bill to amend 1974 PA 258, entitled

 

"Mental health code,"

 

by amending section 134a (MCL 330.1134a), as amended by 2014 PA 72.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 134a. (1) Except as otherwise provided in subsection (2),

 

a psychiatric facility or other facility defined in 42 USC 1396d(d)

 

shall not employ, independently contract with, or grant clinical

 

privileges to an individual who regularly has direct access to or

 

provides direct services to patients or residents in the

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

if the individual satisfies 1 or more of the following:

 

     (a) Has been convicted of a relevant crime described under 42

 

USC 1320a-7(a).

 

     (b) Has been convicted of any of the following felonies, an

 

attempt or conspiracy to commit any of those felonies, or any other

 

state or federal crime that is similar to the felonies described in

 

this subdivision, other than a felony for a relevant crime

 

described under 42 USC 1320a-7(a), unless 15 years have lapsed

 

since the individual completed all of the terms and conditions of

 

his or her sentencing, parole, and probation for that conviction

 

prior to the date of application for employment or clinical

 

privileges or the date of the execution of the independent

 

contract:

 

     (i) A felony that involves the intent to cause death or

 

serious impairment of a body function, that results in death or

 

serious impairment of a body function, that involves the use of

 

force or violence, or that involves the threat of the use of force

 

or violence.

 

     (ii) A felony involving cruelty or torture.

 

     (iii) A felony under chapter XXA of the Michigan penal code,

 

1931 PA 328, MCL 750.145m to 750.145r.

 

     (iv) A felony involving criminal sexual conduct.

 

     (v) A felony involving abuse or neglect.

 

     (vi) A felony involving the use of a firearm or dangerous

 

weapon.

 

     (vii) A felony involving the diversion or adulteration of a

 

prescription drug or other medications.

 

     (c) Has been convicted of a felony or an attempt or conspiracy

 

to commit a felony, other than a felony for a relevant crime

 

described under 42 USC 1320a-7(a) or a felony described under

 

subdivision (b), unless 10 years have lapsed since the individual

completed all of the terms and conditions of his or her sentencing,

 

parole, and probation for that conviction prior to the date of

 

application for employment or clinical privileges or the date of

 

the execution of the independent contract.

 

     (d) Has been convicted of any of the following misdemeanors,

 

other than a misdemeanor for a relevant crime described under 42

 

USC 1320a-7(a), or a state or federal crime that is substantially

 

similar to the misdemeanors described in this subdivision, within

 

the 10 years immediately preceding the date of application for

 

employment or clinical privileges or the date of the execution of

 

the independent contract:

 

     (i) A misdemeanor involving the use of a firearm or dangerous

 

weapon with the intent to injure, the use of a firearm or dangerous

 

weapon that results in a personal injury, or a misdemeanor

 

involving the use of force or violence or the threat of the use of

 

force or violence.

 

     (ii) A misdemeanor under chapter XXA of the Michigan penal

 

code, 1931 PA 328, MCL 750.145m to 750.145r.

 

     (iii) A misdemeanor involving criminal sexual conduct.

 

     (iv) A misdemeanor involving cruelty or torture unless

 

otherwise provided under subdivision (e).

 

     (v) A misdemeanor involving abuse or neglect.

 

     (e) Has been convicted of any of the following misdemeanors,

 

other than a misdemeanor for a relevant crime described under 42

 

USC 1320a-7(a), or a state or federal crime that is substantially

 

similar to the misdemeanors described in this subdivision, within

 

the 5 years immediately preceding the date of application for

employment or clinical privileges or the date of the execution of

 

the independent contract:

 

     (i) A misdemeanor involving cruelty if committed by an

 

individual who is less than 16 years of age.

 

     (ii) A misdemeanor involving home invasion.

 

     (iii) A misdemeanor involving embezzlement.

 

     (iv) A misdemeanor involving negligent homicide or a violation

 

of section 601d(1) of the Michigan vehicle code, 1940 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 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 clinical privileges or the date of the execution of

 

the independent contract:

 

     (i) A misdemeanor under part 74 of the public health code,

 

1978 PA 368, MCL 333.7401 to 333.7461, if the individual, at the

 

time of conviction, is under the age of 18.

 

     (ii) A misdemeanor for larceny or retail fraud in the second

 

or third degree if the individual, at the time of conviction, is

 

under the age of 16.

 

     (h) Is the subject of an order or disposition under section

 

16b of chapter IX of the code of criminal procedure, 1927 PA 175,

 

MCL 769.16b.

 

     (i) 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 (5), a psychiatric facility or other facility defined in

 

42 USC 1396d(d) shall not employ, independently contract with, or

grant privileges to an individual who regularly has direct access

 

to or provides direct services to patients or residents in the

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

until the psychiatric facility or other facility defined in 42 USC

 

1396d(d) or staffing agency has conducted a criminal history check

 

in compliance with this section or received criminal history record

 

information in compliance with subsection (3) or (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 psychiatric

 

facility or other facility defined in 42 USC 1396d(d) 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

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

with which he or she is employed by, under independent contract to,

 

or granted clinical privileges on April 1, 2006 but may transfer to

 

another psychiatric facility or other facility defined in 42 USC

 

1396d(d), covered health facility, or adult foster care facility.

 

If an individual who is exempt under this subdivision is

 

subsequently convicted of a crime described under subsection (1)(a)

 

through (g) or found to be the subject of a substantiated finding

described under subsection (1)(i) or an order or disposition

 

described under subsection (1)(h), or is found to have been

 

convicted of a relevant crime described under subsection (1)(a),

 

then he or she is no longer exempt and shall be terminated from

 

employment or denied employment or clinical privileges.

 

     (b) An an individual who is under an independent contract with

 

a psychiatric facility or other facility defined in 42 USC 1396d(d)

 

if he or she is not under the facility's control and the services

 

for which he or she is contracted is not directly related to the

 

provision of services to a patient or resident or if the services

 

for which he or she is contracted allows for direct access to the

 

patients or residents but is not performed on an ongoing basis.

 

This exception includes, but is not limited to, an individual who

 

is under an independent contract with the psychiatric facility or

 

other facility defined in 42 USC 1396d(d) to provide utility,

 

maintenance, construction, or communications services.

 

     (3) An individual who applies for employment either as an

 

employee or as an independent contractor or for clinical privileges

 

with a psychiatric facility or other facility defined in 42 USC

 

1396d(d) or a 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 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 psychiatric facility or other facility defined

 

in 42 USC 1396d(d) 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 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 psychiatric facility or other facility defined in

 

42 USC 1396d(d) or staffing agency that has made a good-faith offer

 

of employment or an independent contract or clinical privileges to

 

the applicant shall request the criminal history record information

 

from the relevant licensing or regulatory department and shall make

 

a request regarding that applicant to the relevant licensing or

 

regulatory department to conduct a check of all relevant registries

 

in the manner required in subsection (4). If the requirements of

 

subsection (10) are not met and a request to the federal bureau of

 

investigation Federal Bureau of Investigation to make a subsequent

 

determination of the existence of any national criminal history

 

pertaining to the applicant is necessary, the psychiatric facility

 

or other facility defined in 42 USC 1396d(d) or staffing agency

 

shall proceed in the manner required in subsection (4). A staffing

 

agency that employs an applicant who regularly has direct access to

or provides direct services to patients or residents under an

 

independent contract with a psychiatric facility or other facility

 

defined in 42 USC 1396d(d) shall submit information regarding the

 

criminal history check conducted by the staffing agency to the

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

that has made a good-faith offer of independent contract to that

 

applicant.

 

     (4) Upon receipt of the written consent to conduct a criminal

 

history check and identification required under subsection (3), a

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

or staffing agency that has made a good-faith offer of employment

 

or an independent contract or clinical privileges to the applicant

 

shall make a request to the department of state police to conduct a

 

criminal history check on the applicant, to input the applicant's

 

fingerprints into the automated fingerprint identification system

 

database, and to forward the applicant's fingerprints to the

 

federal bureau of investigation. Federal Bureau of Investigation.

 

The department of state police shall request the federal bureau of

 

investigation Federal Bureau of Investigation to make a

 

determination of the existence of any national criminal history

 

pertaining to the applicant. The applicant shall provide the

 

department of state police with a set of fingerprints. The request

 

shall be made in a manner prescribed by the department of state

 

police. The psychiatric facility or other facility defined in 42

 

USC 1396d(d) or staffing agency shall make the written consent and

 

identification available to the department of state police. The

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

or staffing agency shall make a request regarding that applicant to

 

the relevant licensing or regulatory department to conduct a check

 

of all relevant registries established under federal and state law

 

and regulations for any substantiated findings of abuse, neglect,

 

or misappropriation of property. If the department of state police

 

or the federal bureau of investigation Federal Bureau of

 

Investigation charges a fee for conducting the criminal history

 

check, the psychiatric facility or other facility defined in 42 USC

 

1396d(d) or staffing agency shall pay the cost of the charge. The

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

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. A prospective

 

employee or a prospective independent contractor covered under this

 

section may not be charged for the cost of a criminal history check

 

required under this section. The department of state police shall

 

conduct a criminal history check on the applicant named in the

 

request. The department of state police shall provide the

 

department with a written report of the criminal history check

 

conducted under this subsection. The report shall contain any

 

criminal history record information on the applicant maintained by

 

the department of state police. The department of state police

 

shall provide the results of the federal bureau of investigation

 

Federal Bureau of Investigation determination to the department

 

within 30 days after the request is made. If the requesting

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

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 Federal Bureau of Investigation determination that

 

resulted in a conviction, the department shall notify the

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

or staffing agency 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 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 Federal Bureau of Investigation for

 

conducting a criminal history check or making a determination under

 

this subsection shall be paid in the manner required under this

 

subsection. The notice shall include a statement that the applicant

 

has a right to appeal the information relied upon by the

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

or staffing agency regarding his or her employment eligibility

 

based on the criminal history check. The notice shall also include

 

information regarding where to file and describing the appellate

 

procedures established under section 20173b of the public health

 

code, 1978 PA 368, MCL 333.20173b.

 

     (5) If a psychiatric facility or other facility defined in 42

 

USC 1396d(d) 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 psychiatric facility or other

facility defined in 42 USC 1396d(d) may conditionally employ or

 

grant conditional clinical privileges to the individual if all of

 

the following apply:

 

     (a) The psychiatric facility or other facility defined in 42

 

USC 1396d(d) requests the criminal history check or criminal

 

history record information under this section upon conditionally

 

employing or conditionally granting clinical privileges to the

 

individual.

 

     (b) The individual signs a statement in writing that indicates

 

all of the following:

 

     (i) That he or she has not been convicted of 1 or more of the

 

crimes that are described in subsection (1)(a) through to (g)

 

within the applicable time period prescribed by each subdivision

 

respectively.

 

     (ii) That he or she is not the subject of an order or

 

disposition described in subsection (1)(h).

 

     (iii) That he or she has not been the subject of a

 

substantiated finding as described in subsection (1)(i).

 

     (iv) The individual agrees that, if the information in the

 

criminal history check conducted under this section does not

 

confirm the individual's statements under subparagraphs (i) through

 

to (iii), his or her employment or clinical privileges will be

 

terminated by the psychiatric facility or other facility defined in

 

42 USC 1396d(d) as required under subsection (1) unless and until

 

the individual appeals and can prove that the information is

 

incorrect.

 

     (v) That he or she understands the conditions described in

subparagraphs (i) through to (iv) that result in the termination of

 

his or her employment or clinical privileges and that those

 

conditions are good cause for termination.

 

     (c) Except as otherwise provided in this subdivision, the

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

does not permit the individual to have regular direct access to or

 

provide direct services to patients or residents in the psychiatric

 

facility or other facility defined in 42 USC 1396d(d) 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 psychiatric facility or other facility defined in

 

42 USC 1396d(d) 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. A psychiatric facility or other

 

facility defined in 42 USC 1396d(d) 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 patients or

 

residents in the psychiatric facility or other facility defined in

 

42 USC 1396d(d) without supervision if all of the following

 

conditions are met:

 

     (i) The psychiatric facility or other facility defined in 42

 

USC 1396d(d), at its own expense and before the individual has

 

direct access to or provides direct services to patients or

 

residents of the psychiatric facility or other facility defined in

 

42 USC 1396d(d), 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

 

indicates 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 psychiatric

 

facility or other facility defined in 42 USC 1396d(d), the

 

individual signs a statement in writing that he or she has resided

 

in this state without interruption for at least the immediately

 

preceding 12-month period.

 

     (iii) If applicable, the individual provides to the department

 

of state police a set of fingerprints on or before the expiration

 

of 10 business days following the date the individual was

 

conditionally employed or granted conditional clinical privileges

 

under this subsection.

 

     (6) The department shall develop and distribute a model form

 

for the statements required under subsection (5)(b) and (c). The

 

department shall make the model form available to psychiatric

 

facilities or other facility defined in 42 USC 1396d(d) subject to

 

this section upon request at no charge.

 

     (7) If an individual is employed as a conditional employee or

 

is granted conditional clinical privileges under subsection (5),

 

and the information under subsection (3) or report under subsection

 

(4) does not confirm the individual's statement under subsection

 

(5)(b)(i) through to (iii), the psychiatric facility or other

facility defined in 42 USC 1396d(d) shall terminate the

 

individual's employment or clinical privileges as required by

 

subsection (1).

 

     (8) An individual who knowingly provides false information

 

regarding his or her identity, criminal convictions, or

 

substantiated findings on a statement described in subsection

 

(5)(b)(i) through 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 psychiatric facility or other facility defined in 42 USC

 

1396d(d) or staffing agency shall use criminal history record

 

information obtained under subsection (3) or (4) only for the

 

purpose of evaluating an applicant's qualifications for employment,

 

an independent contract, or clinical privileges in the position for

 

which he or she has applied and for the purposes of subsections (5)

 

and (7). A psychiatric facility or other facility defined in 42 USC

 

1396d(d) or staffing agency or an employee of the psychiatric

 

facility or other facility defined in 42 USC 1396d(d) or staffing

 

agency 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 psychiatric facility or other

 

facility defined in 42 USC 1396d(d) 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.

 

     (10) Upon consent of an applicant as required in subsection

 

(3) and upon request from a psychiatric facility or other facility

 

defined in 42 USC 1396d(d) or staffing agency that has made a good-

 

faith offer of employment or an independent contract or clinical

 

privileges to the applicant, the relevant licensing or regulatory

 

department shall review the criminal history record information, if

 

any, and notify the requesting psychiatric facility or other

 

facility defined in 42 USC 1396d(d) or staffing agency of the

 

information in the manner prescribed in subsection (4). Until the

 

federal bureau of investigation Federal Bureau of Investigation

 

implements an automatic notification system similar to the system

 

required of the state police under subsection (13) and federal

 

regulations allow the federal criminal record to be used for

 

subsequent authorized uses, as determined in an order issued by the

 

department, a covered health or staffing agency 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 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 a

 

psychiatric facility or other facility defined in 42 USC 1396d(d),

 

covered health facility, or adult foster care 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 a psychiatric facility or other facility

 

defined in 42 USC 1396d(d), covered health facility, or adult

 

foster care facility.

 

     (c) The applicant can provide evidence acceptable to the

 

relevant licensing or regulatory department that he or she has been

 

a resident of this state for the immediately preceding 12-month

 

period.

 

     (11) As a condition of continued employment, each employee,

 

independent contractor, or individual granted clinical privileges

 

shall do each of the following:

 

     (a) Agree in writing to report to the psychiatric facility or

 

other facility defined in 42 USC 1396d(d) or staffing agency

 

immediately upon being arraigned for 1 or more of the criminal

 

offenses listed in subsection (1)(a) through to (g), upon being

 

convicted of 1 or more of the criminal offenses listed in

 

subsection (1)(a) through 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 this act, a

 

licensee, owner, administrator, or operator of a psychiatric

 

facility or other facility defined in 42 USC 1396d(d) 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.

 

     (13) In collaboration with the department of state police, the

 

department of technology, management, and budget shall establish

 

and maintain an automated fingerprint identification system

 

database that would allow the department of state police to store

 

and maintain all fingerprints submitted under this section and

 

would provide for an automatic notification if and when a

 

subsequent criminal arrest fingerprint card submitted into the

 

system matches a set of fingerprints previously submitted under

 

this section. Upon notification, the department of state police

 

shall immediately notify the department and the department shall

 

immediately contact each respective psychiatric facility or other

 

facility defined in 42 USC 1396d(d) 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 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 psychiatric facilities or other facility defined

 

in 42 USC 1396d(d) and staffing agencies required to check relevant

 

registries and conduct criminal history checks of its employees and

 

independent contractors, and individuals granted privileges and to

 

provide for an automated notice to those psychiatric facilities or

 

other facility defined in 42 USC 1396d(d) and staffing agencies 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 described under

 

42 USC 1320a-7(a), 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 health facility" means a nursing home, county

 

medical care facility, hospice, hospital that provides swing bed

 

services, or home for the aged licensed under article 17 of the

 

public health code, 1978 PA 368, MCL 333.20101 to 333.22260, 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 20173a of the public health code, 1978 PA

 

3658, MCL 333.20173a, 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: nursing

 

services, therapeutic services, social work services, homemaker

 

services, home health aide services, or other related services.that

 

term as defined in section 20173a of the public health code, 1978

 

PA 368, MCL 333.20173a.

 

     (g) "Independent contract" means a contract entered into by a

 

health facility or agency with an individual who provides the

 

contracted services independently or a contract entered into by a

 

health facility or agency with a staffing agency that complies with

the requirements of this section to provide the contracted services

 

to the psychiatric facility or other facility defined in 42 USC

 

1396d(d) 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 1395kkk-1.

 

     (h) (i) "Staffing agency" means an entity that recruits

 

candidates and provides temporary and permanent qualified staffing

 

for psychiatric facilities or other facility defined in 42 USC

 

1396d(d), including independent contractors.

 

     (i) (j) "Under the facility's control" means an individual

 

employed by or under independent contract with a psychiatric

 

facility or other facility defined in 42 USC 1396d(d) for whom the

 

psychiatric facility or other facility defined in 42 USC 1396d(d)

 

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

 

psychiatric facility or other facility defined in 42 USC 1396d(d).

 

     (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.