SB-1253, As Passed Senate, May 25, 2010

 

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

SENATE BILL NO. 1253

 

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending section 20173a (MCL 333.20173a), as amended by 2008 PA

 

444.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 20173a. (1) Except as otherwise provided in subsection

 

(2), a health covered 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 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 health covered

 

facility or agency after April 1, 2006 if the individual satisfies

 


1 or more of the following:

 

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

 

USC 1320a-7 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 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 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 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 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 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 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) Has been 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 an investigation

 

conducted in accordance with 42 USC 1395i-3 or 1396r.

 

     (2) Except as otherwise provided in this subsection or

 


subsection (5), a health covered 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 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 health

 

covered facility or agency after April 1, 2006 until the health

 

covered facility or staffing agency conducts has a criminal history

 

check conducted in compliance with subsection (4) this section or

 

has received criminal history record information in compliance with

 

subsections (3) and (10). This subsection and subsection (1) do not

 

apply to any of the following:

 

     (a) An individual who is employed by, under independent

 

contract to, or granted clinical privileges in a health covered

 

facility or agency before April 1, 2006. Beginning 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 (12) (13). An individual who is exempt under this

 

subdivision is not limited to working within the health covered

 

facility or agency with which he or she is employed by, under

 

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

 

2006 . That individual but may transfer to another health covered

 

facility, or agency that is under the same ownership with which he

 


or she was employed, under contract, or granted privileges. If that

 

individual wishes to transfer to another health facility or agency

 

that is not under the same ownership, he or she may do so provided

 

that a criminal history check is conducted by the new health

 

facility or agency in accordance with subsection (4) 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

 

subsection (1)(a) 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 contractor

 

contract with a health covered 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 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

 

independently contracts is under an independent contract with the

 

health covered facility or agency 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 health staffing agency or covered 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 and who has received a good faith offer of employment, an

 

independent contract, or clinical privileges from the health

 

facility or agency 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 an initial a criminal history check under this

 

section, along with identification acceptable to the department of

 

state police. If the applicant has been the subject of a criminal

 

history check conducted in compliance with this section, the

 

applicant shall give written consent at the time of application for

 

the covered facility or staffing agency to obtain the criminal

 

history record information as prescribed in subsection (4) from the

 

relevant licensing or regulatory department and for the department

 

of state police to conduct a criminal history check under this

 

section if the requirements of subsection (10) are not met and a

 

request to the federal bureau of investigation to make a

 

determination of the existence of any national criminal history

 

pertaining to the applicant is necessary, along with identification

 

acceptable to the department of state police. Upon receipt of the

 

written consent to obtain the criminal history record information

 

and identification required under this subsection, the staffing

 

agency or covered facility that has made a good faith offer of

 


employment or an independent contract or clinical privileges to the

 

applicant shall request the criminal history record information

 

from the relevant licensing or regulatory department and shall make

 

a request regarding that applicant to the relevant licensing or

 

regulatory department to conduct a check of all relevant registries

 

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

 

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

 

investigation to make a subsequent determination of the existence

 

of any national criminal history pertaining to the applicant is

 

necessary, the covered facility or staffing agency shall proceed in

 

the manner required in subsection (4). A staffing agency that

 

employs an individual who regularly has direct access to or

 

provides direct services to patients or residents under an

 

independent contract with a covered facility shall submit

 

information regarding the criminal history check conducted by the

 

staffing agency to the covered facility that has made a good faith

 

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

 

health staffing agency or covered 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 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. The department of state police

 

shall request the federal bureau of investigation to make a

 

determination of the existence of any national criminal history

 

pertaining to the applicant. The applicant shall provide the

 

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

 

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

 

police. The health staffing agency or covered facility or agency

 

shall make the written consent and identification available to the

 

department of state police. The health staffing agency or covered

 

facility or agency 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 federal and

 

state law and regulations for any substantiated findings of abuse,

 

neglect, or misappropriation of property. If the department of

 

state police or the federal bureau of investigation charges a fee

 

for conducting the initial criminal history check, a health the

 

staffing agency or covered facility or agency that is a nursing

 

home, county medical care facility, hospice, hospital that provides

 

swing bed services, or home health agency shall pay the cost of the

 

charge. If the department of state police or the federal bureau of

 

investigation charges a fee for conducting the initial criminal

 

history check, the department shall pay the cost of or reimburse

 

the charge for a health covered facility or agency that is a home

 

for the aged. The health staffing agency or covered facility or

 

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 initial criminal

 

history check. A prospective employee or a prospective independent

 

contractor covered under this section may not be charged for the

 

cost of an initial 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. if

 

the criminal history check contains any criminal history record

 

information. 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 determination to the department

 

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

 

staffing agency or covered facility or agency is not a state

 

department or agency and if a criminal conviction 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

 

health staffing agency or covered facility or 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 determination without disclosing the details of the

 

crime. Any charges imposed by the department of state police or the

 

federal bureau of investigation for conducting an initial 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 a decision made the information relied upon

 

by the health staffing agency or covered facility or agency in

 

making its decision regarding his or her employment eligibility

 

based on the criminal background history check. The notice shall

 

also include information regarding where to file and describing the

 

appellate procedures established under section 20173b.

 

     (5) If a health covered 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

 

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 health covered facility or agency may

 

conditionally employ or grant conditional clinical privileges to

 

the individual if all of the following apply:

 

     (a) The health covered facility or agency 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 health covered facility or agency 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 statement statements required under subsection (5)(b) and

 

(c). The department shall make the model form available to health

 

covered facilities or agencies 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 described in

 

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

 

under subsection (5)(b)(i) to (iii), the health covered facility or

 

agency 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.

 

     (9) A health staffing agency or covered 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 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 health staffing agency or covered facility or agency or

 

an employee of the health staffing agency or covered facility or

 

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. Upon written request from another health

 

facility or agency, psychiatric facility or intermediate care

 

facility for people with mental retardation, or adult foster care

 

facility that is considering employing, independently contracting

 

with, or granting clinical privileges to an individual, a health

 

facility or agency that has obtained criminal history record

 

information under this section on that individual shall, with the

 

consent of the applicant, share the information with the requesting

 

health facility or agency, psychiatric facility or intermediate

 

care facility for people with mental retardation, or adult foster

 

care facility. Except for a knowing or intentional release of false

 

information, a health staffing agency or covered facility or agency

 

has no liability in connection with a criminal background history

 

check conducted under in compliance with this section or the

 

release of criminal history record information under this

 

subsection.

 

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

 

(3) and upon request from a staffing agency or covered facility

 

that has made a good faith 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 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 staffing agency or covered health

 

facility may rely on the criminal history record information

 

provided by the relevant licensing or regulatory department under

 

this subsection and a request to the federal bureau of

 

investigation to make a subsequent determination of the existence

 

of any national criminal history pertaining to the applicant is not

 

necessary if all of the following requirements are met:

 

     (a) The criminal history check was conducted during the

 

immediately preceding 12-month period.

 

     (b) The applicant has been continuously employed by the

 

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

 

or mental health facility since the criminal history check was

 

conducted in compliance with this section or meets the continuous

 

employment requirement of this subdivision other than being on

 

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

 

foster care facility, or mental health facility.

 

     (c) The applicant can provide evidence acceptable to the

 

relevant licensing or regulatory department that he or she has been

 

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

 

period.

 

     (11) (10) 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 health staffing agency

 

or covered facility or agency immediately upon being arraigned for

 

1 or more of the criminal offenses listed in subsection (1)(a) to

 

(g), upon being convicted of 1 or more of the criminal offenses

 

listed in subsection (1)(a) to (g), upon becoming the subject of an

 

order or disposition described under subsection (1)(h), and upon

 

being the subject of a substantiated finding of neglect, abuse, or

 

misappropriation of property as described in subsection (1)(i).

 

Reporting of an arraignment under this subdivision is not cause for

 

termination or denial of employment.

 

     (b) If a set of fingerprints is not already on file with the

 

department of state police, provide the department of state police

 

with a set of fingerprints.

 

     (12) (11) In addition to sanctions set forth in section 20165,

 

a licensee, owner, administrator, or operator of a nursing home,

 

county medical care facility, hospice, hospital that provides swing

 

bed services, home for the aged, or home health agency staffing

 

agency or covered facility who knowingly and willfully fails to

 

conduct the criminal history checks as required under this section

 

is guilty of a misdemeanor punishable by imprisonment for not more

 

than 1 year or a fine of not more than $5,000.00, or both.

 

     (13) (12) In collaboration with the department of state

 

police, the department of information 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 in

 

accordance with under this section. Upon such notification, the

 

department of state police shall immediately notify the department

 

and the department shall immediately contact the each respective

 

health staffing agency or covered facility or 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.

 

     (13) On or before April 1, 2009, the department shall submit a

 

written report to the legislature outlining a plan to cover the

 

costs of the criminal history checks required under this section if

 

federal funding is no longer available or is inadequate to cover

 

those costs.

 

     (14) The department and the department of state police shall

 

maintain an electronic web-based system to assist those health

 

staffing agencies and covered facilities and 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 health

 

staffing agencies and covered facilities or 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, 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) (b) "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) (c) "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.

 

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

 

by a health covered facility or agency with an individual who

 

provides the contracted services independently or a contract

 

entered into by a health covered facility or agency with an

 

organization or agency that employs or contracts with an individual

 

after complying a staffing agency that complies with the

 

requirements of this section to provide the contracted services to

 

the health covered facility or agency on behalf of the organization

 

or staffing agency.

 

     (h) (e) "Medicare" means benefits under the federal medicare

 

program established under title XVIII of the social security act,

 

42 USC 1395 to 1395hhh 1395iii.

 

     (i) "Mental health facility" means a psychiatric facility or

 

intermediate care facility for people with mental retardation 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.

 

     Enacting section 1. This amendatory act does not take effect

 

unless all of the following bills of the 95th Legislature are

 

enacted into law:

 

     (a) Senate Bill No. 1254.

 

     (b) Senate Bill No. 1255.