Bill Text: MI SB0674 | 2015-2016 | 98th Legislature | Introduced

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Bill Title: Health facilities; employees; criminal history check for employment in a covered facility; modify. Amends secs. 20173a & 20173b of 1978 PA 368 (MCL 333.20173a & 333.20173b).

Spectrum: Slight Partisan Bill (Democrat 4-2)

Status: (Introduced - Dead) 2015-12-15 - Referred To Committee On Health Policy [SB0674 Detail]

Download: Michigan-2015-SB0674-Introduced.html

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SENATE BILL No. 674

 

 

December 15, 2015, Introduced by Senators HOPGOOD, MARLEAU, BIEDA, NOFS, KNEZEK and JOHNSON and referred to the Committee on Health Policy.

 

 

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending sections 20173a and 20173b (MCL 333.20173a and

 

333.20173b), 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 sentencing, parole, and probation for that conviction

 

prior to 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 sentencing,

 

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

 

of application for employment or clinical privileges or the date of

 

the execution of the independent contract.

 

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

 

other than a misdemeanor for a relevant crime described under 42

 

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

 

similar to the misdemeanors described in this subdivision, within

 

the 10 years immediately preceding the date of application for

 

employment or clinical privileges or the date of the execution of

 

the independent contract:

 

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

 

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

 

weapon that results in a personal injury, or a misdemeanor

 

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

 

force or violence.

 

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

 

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

 

     (iii) A misdemeanor involving criminal sexual conduct.

 

     (iv) A misdemeanor involving cruelty or torture unless

 

otherwise provided under subdivision (e).

 

     (v) A misdemeanor involving abuse or neglect.

 

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

 

other than a misdemeanor for a relevant crime described under 42

 

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

 

similar to the misdemeanors described in this subdivision, within

 

the 5 years immediately preceding the date of application for

 

employment or clinical privileges or the date of the execution of

 

the independent contract:

 

     (i) A misdemeanor involving cruelty if committed by an

 

individual who is less than 16 years of age.

 

     (ii) A misdemeanor involving home invasion.

 

     (iii) A misdemeanor involving embezzlement.

 

     (iv) A misdemeanor involving negligent homicide or a violation

 

of section 601d(1) of the Michigan vehicle code, 1949 PA 300, MCL

 

257.601d.

 

     (v) A misdemeanor involving larceny unless otherwise provided

 

under subdivision (g).

 

     (vi) A misdemeanor of retail fraud in the second degree unless

 

otherwise provided under subdivision (g).

 

     (vii) Any other misdemeanor involving assault, fraud, theft,

 

or the possession or delivery of a controlled substance unless

 

otherwise provided under subdivision (d), (f), or (g).

 

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

 

other than a misdemeanor for a relevant crime described under 42

 

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

 

similar to the misdemeanors described in this subdivision, within

 

the 3 years immediately preceding the date of application for

 

employment or clinical privileges or the date of the execution of

 

the independent contract:

 

     (i) A misdemeanor for assault if there was no use of a firearm

 

or dangerous weapon and no intent to commit murder or inflict great

 

bodily injury.

 

     (ii) A misdemeanor of retail fraud in the third degree unless

 

otherwise provided under subdivision (g).

 

     (iii) A misdemeanor under part 74 unless otherwise provided

 

under subdivision (g).

 

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

 

other than a misdemeanor for a relevant crime described under 42

 

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

 

similar to the misdemeanors described in this subdivision, within

 

the year immediately preceding the date of application for

 

employment or clinical privileges or the date of the execution of

 

the independent contract:

 

     (i) A misdemeanor under part 74 if the individual, at the time

 

of conviction, is under the age of 18.

 

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

 

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

 

under the age of 16.

 

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

 

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

 

MCL 769.16b.

 

     (i) Engages in conduct that becomes the subject of a

 

substantiated finding of neglect, abuse, or misappropriation of

 

property by a state or federal agency pursuant to 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).

 

(6). 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). (9). An individual who

 

is exempt under this subdivision is not limited to working within

 

the covered facility with which he or she is employed by, under

 

independent contract to, or granted clinical privileges on April 1,

 

2006 but may transfer to another covered facility, adult foster

 

care facility, or mental health facility. If an individual who is

 

exempt under this subdivision is subsequently convicted of a crime

 

described under subsection (1)(a) to (g) or found to be the subject

 

of a substantiated finding described under subsection (1)(i) or an

 

order or disposition described under subsection (1)(h), or is found

 

to have been convicted of a relevant crime described under 42 USC

 

1320a-7(a), then he or she is no longer exempt and shall be

 

terminated from employment or denied employment or clinical

 

privileges.

 

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

 

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

 

and the services for which he or she is contracted are not directly

 

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

 

the services for which he or she is contracted allow for direct

 

access to the patients or residents but are not performed on an

 

ongoing basis. This exception includes, but is not limited to, an

 

individual who is under an independent contract with the covered

 

facility to provide utility, maintenance, construction, or

 

communications services.

 

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

 

employee or as an independent contractor or for clinical privileges

 

with a staffing agency or covered facility and who has not been the

 

subject of a criminal history check conducted in compliance with

 

this section shall give written consent at the time of application

 

for the department of state police to conduct a criminal history

 

check under this section, along with identification acceptable to

 

the department of state police. If the applicant has been the

 

subject of a criminal history check conducted in compliance with

 

this section, the applicant shall give written consent at the time

 

of application for the covered facility or staffing agency to

 

obtain the criminal history record information as prescribed in

 

subsection (4) from the relevant licensing or regulatory department

 

and for the department of state police to conduct a criminal

 

history check under this section if the requirements of subsection

 

(10) (6) 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 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) (6) 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 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. 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 staffing

 

agency or covered facility shall make the written consent and

 

identification available to the department of state police. The

 

staffing agency or covered facility shall make a request regarding

 

that applicant to the relevant licensing or regulatory department

 

to conduct a check of all relevant registries established pursuant

 

to 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 staffing agency or

 

covered facility shall pay the cost of the charge. 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 department shall pay the cost of or

 

reimburse the charge for a covered facility that is a home for the

 

aged. The staffing agency or covered facility shall not seek

 

reimbursement for a charge imposed by the department of state

 

police or the federal bureau of investigation 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 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 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 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 on by the

 

staffing agency or covered facility in making its decision

 

regarding his or her employment eligibility based on the criminal

 

history check. The notice shall also include information regarding

 

where to file and describing the appellate procedures established

 

under section 20173b.

 

     (5) If a covered facility determines it necessary to employ or

 

grant clinical privileges to an applicant before receiving the

 

results of the applicant's criminal history check or criminal

 

history record information under this section, the covered facility

 

may conditionally employ or grant conditional clinical privileges

 

to the individual if all of the following apply:

 

     (a) The covered facility requests the criminal history check

 

or criminal history record information under this section upon

 

conditionally employing or conditionally granting clinical

 

privileges to the individual.

 

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

 

all of the following:

 

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

 

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

 

applicable time period prescribed by each subdivision respectively.

 

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

 

disposition described in subsection (1)(h).

 

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

 

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

 

     (iv) That he or she agrees that, if the information in the

 

criminal history check conducted under this section does not

 

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

 

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

 

terminated by the covered facility as required under subsection (1)

 

unless and until the individual appeals and can prove that the

 

information is incorrect.

 

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

 

in subparagraphs (i) to (iv) may result in the termination of his

 

or her employment or clinical privileges and that those conditions

 

are good cause for termination.

 

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

 

covered facility does not permit the individual to have regular

 

direct access to or provide direct services to patients or

 

residents in the covered facility without supervision until the

 

criminal history check or criminal history record information is

 

obtained and the individual is eligible for that employment or

 

clinical privileges. If required under this subdivision, the

 

covered facility shall provide on-site supervision of an individual

 

in the covered facility on a conditional basis under this

 

subsection by an individual who has undergone a criminal history

 

check conducted in compliance with this section. A covered facility

 

may permit an individual in the covered facility on a conditional

 

basis under this subsection to have regular direct access to or

 

provide direct services to patients or residents in the covered

 

facility without supervision if all of the following conditions are

 

met:

 

     (i) The covered facility, at its own expense and before the

 

individual has direct access to or provides direct services to

 

patients or residents of the covered facility, conducts a search of

 

public records on that individual through the internet criminal

 

history access tool maintained by the department of state police

 

and the results of that search do not uncover any information that

 

would indicate that the individual is not eligible to have regular

 

direct access to or provide direct services to patients or

 

residents under this section.

 

     (ii) Before the individual has direct access to or provides

 

direct services to patients or residents of the covered facility,

 

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

 

resided in this state without interruption for at least the

 

immediately preceding 12-month period.

 

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

 

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

 

of 10 business days following the date the individual was

 

conditionally employed or granted conditional clinical privileges

 

under this subsection.

 

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

 

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

 

department shall make the model form available to covered

 

facilities upon request at no charge.

 

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

 

is granted conditional clinical privileges under subsection (5),

 

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

 

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

 

(5)(b)(i) to (iii), the covered facility shall terminate the

 

individual's employment or clinical privileges as required by

 

subsection (1).

 

     (8) An individual who knowingly provides false information

 

regarding his or her identity, criminal convictions, or

 

substantiated findings on a statement described in subsection

 

(5)(b)(i) to (iii) is guilty of a misdemeanor punishable by

 

imprisonment for not more than 93 days or a fine of not more than

 

$500.00, or both.

 

     (5) (9) A staffing agency or covered facility shall use

 

criminal history record information obtained under subsection (3)

 

or (4) only for the purpose of evaluating an applicant's

 

qualifications for employment, an independent contract, or clinical

 

privileges in the position for which he or she has applied. and for

 

the purposes of subsections (5) and (7). A staffing agency or

 

covered facility or an employee of the staffing agency or covered

 

facility shall not disclose criminal history record information

 

obtained under subsection (3) or (4) to a person who is not

 

directly involved in evaluating the applicant's qualifications for

 

employment, an independent contract, or clinical privileges. An

 

individual who knowingly uses or disseminates the criminal history

 

record information obtained under subsection (3) or (4) in

 

violation of this subsection is guilty of a misdemeanor punishable

 

by imprisonment for not more than 93 days or a fine of not more

 

than $1,000.00, or both. Except for a knowing or intentional

 

release of false information, a staffing agency or covered facility

 

has no liability in connection with a criminal history check

 

conducted in compliance with this section or the release of

 

criminal history record information under this subsection.

 

     (6) (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 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) (9) 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 Federal Bureau of

 

Investigation to make a subsequent determination of the existence

 

of any national criminal history pertaining to the applicant is not

 

necessary if all of the following requirements are met:

 

     (a) The criminal history check was conducted during the

 

immediately preceding 12-month period.

 

     (b) The applicant has been continuously employed by the

 

staffing agency or a covered facility, adult foster care facility,

 

or mental health facility since the criminal history check was

 

conducted in compliance with this section or meets the continuous

 

employment requirement of this subdivision other than being on

 

layoff status for less than 1 year from a covered facility, adult

 

foster care facility, or mental health facility.

 

     (c) The applicant can provide evidence acceptable to the

 

relevant licensing or regulatory department that he or she has been

 

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

 

period.

 

     (7) (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.

 

     (8) (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.

 

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

 

the department of technology, management, and budget shall

 

establish and maintain an automated fingerprint identification

 

system database that would allow the department of state police to

 

store and maintain all fingerprints submitted under this section

 

and would provide for an automatic notification if and when a

 

subsequent criminal arrest fingerprint card submitted into the

 

system matches a set of fingerprints previously submitted under

 

this section. Upon such receiving that notification, the department

 

of state police shall immediately notify the department and the

 

department shall immediately contact each respective staffing

 

agency or covered facility with which that individual is

 

associated. Information in the database established under this

 

subsection is confidential, is not subject to disclosure under the

 

freedom of information act, 1976 PA 442, MCL 15.231 to 15.246, and

 

shall not be disclosed to any person except for purposes of this

 

act or for law enforcement purposes.

 

     (10) (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.

 

     (11) (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

 

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.

 

     (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

 

Medicare program established under title XVIII of the social

 

security act, 42 USC 1395 to 1395kkk-1.1395lll.

 

     (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 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.

 

     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 under section 20173 or 20173a or pursuant to under section 134a

 

of the mental health code, 1974 PA 258, MCL 330.1134a,

 

respectively, may appeal to the department if he or she believes

 

that the criminal history report is inaccurate, and the appeal

 

shall be conducted as a contested case hearing pursuant to under

 

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 a conviction 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 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 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 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 takes effect 90 days

 

after the date it is enacted into law.