Bill Text: MI SB0806 | 2013-2014 | 97th Legislature | Introduced
Bill Title: Human services; adult foster care; reference to mentally retarded and mental retardation; modify. Amends sec. 34b of 1979 PA 218 (MCL 400.734b).
Spectrum: Slight Partisan Bill (Republican 17-7)
Status: (Passed) 2014-04-22 - Assigned Pa 0073'14 With Immediate Effect [SB0806 Detail]
Download: Michigan-2013-SB0806-Introduced.html
SENATE BILL No. 806
February 20, 2014, Introduced by Senators CASWELL, WARREN, HOPGOOD, MARLEAU, BOOHER, ROBERTSON, SCHUITMAKER, CASPERSON, ROCCA, ANDERSON, COLBECK, JANSEN, JONES, WHITMER, ANANICH, HANSEN, NOFS, EMMONS, PAPPAGEORGE, BIEDA, HILDENBRAND, KOWALL, MOOLENAAR and JOHNSON and referred to the Committee on Health Policy.
A bill to amend 1979 PA 218, entitled
"Adult foster care facility licensing act,"
by amending section 34b (MCL 400.734b), as amended by 2010 PA 292.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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
prior to 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 prior to 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 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 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 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. 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. 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 from the individual who is the subject of the
criminal history check. 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 contain any
criminal history record information on the individual maintained by
the department of state police.
(5) Upon 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 inform the adult
foster care facility or staffing agency and the applicant regarding
the appeal process in section 34c and shall 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 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 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 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 consent of an individual as required in subsection
(3) and upon 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 12-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 such 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 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) An adult foster care facility, staffing agency, or a
prospective employee covered under this section may not be charged
for the cost of a criminal history check required under this act.
(18) 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.
(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
intermediate
care facility for people with mental retardation 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.
(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.
