H03662'03 (H-2)

HB-5184, As Passed House, November 12, 2003

SUBSTITUTE FOR

HOUSE BILL NO. 5184

A bill to amend 1979 PA 218, entitled

"Adult foster care facility licensing act,"

by amending sections 13, 22, and 36 (MCL 400.713, 400.722, and

400.736), sections 13 and 22 as amended by 1994 PA 150 and

section 36 as added by 1984 PA 140, and by adding section 34a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1 Sec. 13. (1) A person, partnership, corporation,

2 association, or a department or agency of the state, county,

3 city, or other political subdivision shall not establish or

4 maintain an adult foster care facility unless licensed by the

5 department.

6 (2) Application for a license shall be made on forms provided

7 and in the manner prescribed by the department. The application

8 shall be accompanied by the fee prescribed in section 13a.

9 (3) Before issuing or renewing a license, the department

1 shall investigate the activities and standards of care of the

2 applicant and shall make an on-site evaluation of the facility.

3 On-site inspections conducted in response to the application may

4 be conducted without prior notice to the applicant. Subject to

5 subsections (9), (10), and (11), the department shall issue or

6 renew a license if satisfied as to all of the following:

7 (a) The financial stability of the facility.

8 (b) The applicant's compliance with this act and rules

9 promulgated under this act.

10 (c) The good moral character of the applicant, or owners,

11 partners, or directors of the facility, if other than an

12 individual. Each of these persons shall be not less than 18

13 years of age.

14 (d) The physical and emotional ability of the applicant, and

15 the person responsible for the daily operation of the facility to

16 operate an adult foster care facility.

17 (e) The good moral character of the person responsible for

18 the daily operations of the facility and all employees of the

19 facility. The applicant shall be responsible for assessing the

20 good moral character of the employees of the facility. The

21 person responsible for the daily operation of the facility shall

22 be not less than 18 years of age.

23 (4) The department shall require an applicant or a licensee

24 to disclose the names, addresses, and official positions of all

25 persons who have an ownership interest in the adult foster care

26 facility. If the adult foster care facility is located on or in

27 real estate that is leased, the applicant or licensee shall

1 disclose the name of the lessor of the real estate and any direct

2 or indirect interest that the applicant or licensee has in the

3 lease other than as lessee.

4 (5) Each license shall state the maximum number of persons to

5 be received for foster care at 1 time.

6 (6) If applicable, a license shall state the type of

7 specialized program for which certification has been received

8 from the department of ~~mental health~~ consumer and industry

9 services.

10 (7) A license shall be issued to a specific person for a

11 facility at a specific location, shall be nontransferable, and

12 shall remain the property of the department. The prohibition

13 against transfer of a license to another location does not apply

14 if a licensee's adult foster care facility or home is closed as a

15 result of eminent domain proceedings, if the facility or home, as

16 relocated, otherwise meets the requirements of this act and the

17 rules promulgated under this act.

18 (8) An applicant or licensee proposing a sale of an adult

19 foster care facility or home to another owner shall provide the

20 department with advance notice of the proposed sale in writing.

21 The applicant or licensee and other parties to the sale shall

22 arrange to meet with specified department representatives and

23 shall obtain before the sale a determination of the items of

24 noncompliance with applicable law and rules that shall be

25 corrected. The department shall notify the respective parties of

26 the items of noncompliance before the change of ownership, shall

27 indicate that the items of noncompliance shall be corrected as a

1 condition of issuance of a license to the new owner, and shall

2 notify the prospective purchaser of all licensure requirements.

3 (9) The department shall not issue a license to or renew the

4 license of a person who has been convicted of a felony under this

5 act or under chapter XXA of the Michigan penal code, ~~Act No. 328~~

6 ~~of the Public Acts of 1931, being sections 750.145m to 750.145r~~

7 ~~of the Michigan Compiled Laws~~ 1931 PA 328, MCL 750.145m to

8 750.145r. The department shall not issue a license to or renew

9 the license of a person who has been convicted of a misdemeanor

10 under this act or under chapter XXA of ~~Act No. 328 of the Public~~

11 ~~Acts of 1931~~ the Michigan penal code, 1931 PA 328, MCL 750.145m

12 to 750.145r, for a period of 5 10 years after the conviction.

13 (10) If the department has revoked, suspended, or refused to

14 renew a person's license for an adult foster care facility

15 ~~pursuant~~ according to section 22, the department may refuse to

16 issue a license to or renew a license of that person for a period

17 of 5 years after the suspension, revocation, or nonrenewal of the

18 license.

19 (11) The department may refuse to issue a license to or renew

20 the license of an applicant if the department determines that the

21 applicant has a relationship with a former licensee whose license

22 under this act has been suspended, revoked, or nonrenewed under

23 subsection (9) or section 22 or a convicted person to whom a

24 license has been denied under subsection (9). This subsection

25 applies for 5 years after the suspension, revocation, or

26 nonrenewal of the former licensee's license or the denial of the

27 convicted person's license. For purposes of this subsection, an

1 applicant has a relationship with a former licensee or convicted

2 person if the former licensee or convicted person is involved

3 with the facility in 1 or more of the following ways:

4 (a) Participates in the administration or operation of the

5 facility.

6 (b) Has a financial interest in the operation of the

7 facility.

8 (c) Provides care to residents of the facility.

9 (d) Has contact with residents or staff on the premises of

10 the facility.

11 (e) Is employed by the facility.

12 (f) Resides in the facility.

13 (12) If the department determines that an unlicensed facility

14 is an adult foster care facility, the department shall notify the

15 owner or operator of the facility that it is required to be

16 licensed under this act. A person receiving the notification

17 required under this section who does not apply for a license

18 within 30 days is subject to the penalties described in

19 subsection (13).

20 (13) Subject to subsection (12), a person who violates

21 subsection (1) is guilty of a misdemeanor, punishable by

22 imprisonment for not more than 2 years or a fine of not more than

23 $50,000.00, or both. A person who has been convicted of a

24 violation of subsection (1) who commits a second or subsequent

25 violation is guilty of a felony, punishable by imprisonment for

26 not more than 5 years or a fine of not more than $75,000.00, or

27 both.

1 Sec. 22. (1) The department may deny, suspend, revoke, or

2 refuse to renew a license, or modify a regular license to a

3 provisional license, if the licensee falsifies information on the

4 application for license or willfully and substantially violates

5 this act, the rules promulgated under this act, or the terms of

6 the license.

7 (2) The department may suspend, revoke, or modify a license

8 of an applicant if the department determines that the applicant

9 has a relationship with a former licensee whose license under

10 this act has been suspended, revoked, or nonrenewed under this

11 section or section 13(9) or a convicted person to whom a license

12 has been denied under section 13(9). This subsection applies for

13 5 10 years after the suspension, revocation, or nonrenewal of

14 the former licensee's license or the denial of the convicted

15 person's license. As used in this subsection, an applicant has a

16 relationship with a former licensee or convicted person if the

17 former licensee or convicted person is involved with the facility

18 in 1 or more of the following ways:

19 (a) Participates in the administration or operation of the

20 facility.

21 (b) Has a financial interest in the operation of the

22 facility.

23 (c) Provides care to residents of the facility.

24 (d) Has contact with residents or staff on the premises of

25 the facility.

26 (e) Is employed by the facility.

27 (f) Resides in the facility.

1 (3) A license shall not be denied, suspended, or revoked, a

2 renewal shall not be refused, and a regular license shall not be

3 modified to a provisional license unless the department gives the

4 licensee or applicant written notice of the grounds of the

5 proposed denial, revocation, refusal to renew, or modification.

6 If the licensee or applicant appeals the denial, revocation,

7 refusal to renew, or modification by filing a written appeal with

8 the director within 30 days after receipt of the written notice,

9 the director or the director's designated representative shall

10 conduct a hearing at which the licensee or applicant may present

11 testimony and confront witnesses. Notice of the hearing shall be

12 given to the licensee or applicant by personal service or

13 delivery to the proper address by registered mail not less than 2

14 weeks before the date of the hearing. The decision of the

15 director shall be made and forwarded to the protesting party by

16 registered mail not more than 30 days after the hearing. If the

17 proposed denial, revocation, refusal to renew, or modification is

18 not protested within 30 days, the license shall be denied,

19 revoked, refused, or modified.

20 (4) If the department has revoked, suspended, or refused to

21 renew a license, the former licensee shall not receive or

22 maintain in that facility an adult who requires foster care. A

23 person who violates this subsection is guilty of a felony,

24 punishable by imprisonment for not more than 5 years or a fine of

25 not more than $75,000.00, or both.

26 (5) If the department has revoked, suspended, or refused to

27 renew a license, relocation services shall be provided to adults

1 who were being served by the formerly licensed facility, upon the

2 department's determination that the adult or his or her

3 designated representative is unable to relocate the adult in

4 another facility without assistance. The relocation services

5 shall be provided by the responsible agency, as defined in

6 administrative rules, or, if the adult has no agency designated

7 as responsible, by the department.

8 (6) In the case of facilities that are operated under lease

9 with ~~the~~ a state department ~~of mental health~~ or a ~~county~~

10 community mental health services board, the department may issue

11 an emergency license for a 90-day period to avoid relocation of

12 residents following the revocation, suspension, or nonrenewal of

13 a license, if all of the following requirements are met:

14 (a) The leased physical plant is in substantial compliance

15 with all licensing requirements.

16 (b) The applicant for the emergency license is a licensee who

17 is in compliance with all applicable regulations under this act

18 and under contract with ~~the~~ a state department ~~of mental~~

19 ~~health~~ or a ~~county~~ community mental health services board to

20 operate the leased physical plant temporarily.

21 (c) The former licensee's access to the facility ~~pursuant~~

22 according to a lease, sublease, or contract has been lawfully

23 terminated by the owner or lessee of the facility.

24 Sec. 34a. (1) In addition to the restrictions prescribed in

25 sections 13, 22, and 31, and except as otherwise provided in

26 subsection (2), an adult foster care facility shall not employ or

27 independently contract with an individual who regularly provides

1 direct services to residents of the adult foster care facility

2 after the effective date of the amendatory act that added this

3 section if the individual has been convicted of 1 or more of the

4 following:

5 (a) A felony or an attempt or conspiracy to commit a felony

6 within the 15 years immediately preceding the date of application

7 for employment or the date of the execution of the independent

8 contract.

9 (b) A misdemeanor involving abuse, neglect, assault, battery,

10 or criminal sexual conduct or involving fraud or theft against a

11 vulnerable adult as that term is defined in section 145m of the

12 Michigan penal code, 1931 PA 328, MCL 750.145m, or a state or

13 federal crime that is substantially similar to a misdemeanor

14 described in this subdivision within the 10 years immediately

15 preceding the date of application for employment or the date of

16 the execution of the contract.

17 (c) An offense listed under R 400.1152 of the Michigan

18 administrative code.

19 (2) Except as otherwise provided in this subsection and

20 subsection (7), an adult foster care facility shall not employ or

21 independently contract with an individual who regularly provides

22 direct services to residents after the effective date of the

23 amendatory act that added this section until the adult foster

24 care facility complies with subsection (4), (5), or (6). This

25 subsection and subsection (1) do not apply to an individual who

26 is employed by or under contract to an adult foster care facility

27 before the effective date of the amendatory act that added this

1 subsection.

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

3 employee or as an independent contractor with an adult foster

4 care facility and has received a good faith offer of employment

5 or independent contract from the adult foster care facility shall

6 give written consent at the time of application for the

7 department of state police to conduct a criminal history check

8 under this section, along with identification acceptable to the

9 department of state police. If the department of state police or

10 equivalent state agency under subsection (6) has conducted a

11 criminal history check on the individual within the 24 months

12 immediately preceding the date of application and the individual

13 provides written consent for release of information for the

14 purposes of this section, the adult foster care facility may use

15 a copy of that criminal history check instead of obtaining

16 written consent and requesting a new criminal history check under

17 this section. If the individual is using a prior criminal

18 history check as described in this subsection, the adult foster

19 care facility shall accept the copy of the results of the

20 criminal history check only from the adult foster care facility

21 or health facility or agency that previously employed or

22 independently contracted with the individual.

23 (4) Upon receipt of the written consent and identification

24 required under subsection (3), if the individual has resided in

25 this state for 3 or more years preceding the good faith offer of

26 employment or independent contract, the adult foster care

27 facility that has made a good faith offer of employment or

1 independent contract shall make a request to the department of

2 state police to conduct a criminal history check on the

3 individual. The request shall be made in a manner prescribed by

4 the department of state police. The adult foster care facility

5 shall make the written consent and identification available to

6 the department of state police. If there is a charge for

7 conducting the criminal history check, the adult foster care

8 facility requesting the criminal history check shall pay the cost

9 of the charge. The adult foster care facility shall not seek

10 reimbursement for the charge from the individual who is the

11 subject of the criminal history check. The department of state

12 police shall conduct a criminal history check on the individual

13 named in the request. The department of state police shall

14 provide the adult foster care facility with a written report of

15 the criminal history check. The report shall contain any

16 criminal history record information on the individual maintained

17 by the department of state police. As a condition of employment,

18 an individual shall sign a written statement that he or she has

19 been a resident of this state for 3 or more years preceding the

20 good faith offer of employment or independent contract.

21 (5) Upon receipt of the written consent and identification

22 required under subsection (3), if the individual has applied for

23 employment either as an employee or as an independent contractor

24 with an adult foster care facility licensed for more than 6

25 persons and has resided in this state for less than 3 years

26 preceding the good faith offer of employment or independent

27 contract, the adult foster care facility that has made a good

1 faith offer of employment or independent contract shall comply

2 with subsection (4) and shall make a request to the department of

3 state police to forward the individual's fingerprints to the

4 federal bureau of investigation. The department of state police

5 shall request the federal bureau of investigation to make a

6 determination of the existence of any national criminal history

7 pertaining to the individual. An individual described in this

8 subsection shall provide the department of state police with 2

9 sets of fingerprints. The department of state police shall

10 complete the criminal history check under subsection (4) and,

11 except as otherwise provided in this subsection, provide the

12 results of its determination under subsection (4) to the adult

13 foster care facility and the results of the federal bureau of

14 investigation determination to the department of consumer and

15 industry services within 30 days after the request is made. If

16 the requesting adult foster care facility is not a state

17 department or agency and if a crime is disclosed on the federal

18 bureau of investigation determination, the department shall

19 notify the adult foster care facility in writing of the type of

20 crime disclosed on the federal bureau of investigation

21 determination without disclosing the details of the crime. The

22 charges for fingerprinting or a federal bureau of investigation

23 determination under this subsection shall be paid in the manner

24 required under subsection (4).

25 (6) Upon receipt of the written consent and identification

26 required under subsection (3), if the individual has applied for

27 employment either as an employee or as an independent contractor

1 with an adult foster care facility licensed for 6 persons or less

2 and has resided in this state for less than 3 years preceding the

3 good faith offer of employment or independent contract, the adult

4 foster care facility that has made the good faith offer of

5 employment or independent contract shall comply with subsection

6 (4) and shall make a request to the department of state police or

7 state agency responsible for maintaining statewide criminal

8 history information of all the states in which the individual

9 resided during the preceding 5 years to conduct a criminal

10 history check on the individual.

11 (7) If an adult foster care facility determines it necessary

12 to employ or independently contract with an individual before

13 receiving the results of the individual's criminal history check

14 required under this section, the adult foster care facility may

15 conditionally employ the individual if both of the following

16 apply:

17 (a) The adult foster care facility requests the criminal

18 history check required under this section, upon conditionally

19 employing the individual.

20 (b) The individual signs a written statement indicating all

21 of the following:

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

23 crimes that are described in subsection (1)(a) and (b) within the

24 applicable time period prescribed by subsection (1)(a) and (b).

25 (ii) The individual agrees that, if the information in the

26 criminal history check conducted under this section does not

27 confirm the individual's statement under subparagraph (i), his or

1 her employment will be terminated by the adult foster care

2 facility as required under subsection (1) unless and until the

3 individual can prove that the information is incorrect. The

4 adult foster care facility shall provide a copy of the results of

5 the criminal history check conducted under this section, to the

6 individual upon request.

7 (iii) That he or she understands the conditions described in

8 subparagraphs (i) and (ii) that result in the termination of his

9 or her employment and that those conditions are good cause for

10 termination.

11 (8) On the effective date of the amendatory act that added

12 this subsection, the department of consumer and industry services

13 shall develop and distribute a model form for the statement

14 required under subsection (7)(b). The department of consumer and

15 industry services shall make the model form available to adult

16 foster care facilities upon request at no charge.

17 (9) If an individual is conditionally employed under

18 subsection (7), and the report described in subsection (4), (5),

19 or (6), if applicable, does not confirm the individual's

20 statement under subsection (7)(b)(i), the adult foster care

21 facility shall terminate the individual's employment as required

22 by subsection (1).

23 (10) An individual who knowingly provides false information

24 regarding a criminal conviction on a statement described in

25 subsection (7)(b)(i) is guilty of a misdemeanor punishable by

26 imprisonment for not more than 90 days or a fine of not more than

27 $500.00, or both.

1 (11) An adult foster care facility shall use criminal history

2 record information obtained under subsection (4), (5), or (6)

3 only for the purpose of evaluating an individual's qualifications

4 for employment in the position for which he or she has applied

5 and for the purposes of subsections (7) and (9). An adult foster

6 care facility or an employee of the adult foster care facility

7 shall not disclose criminal history record information obtained

8 under this section to a person who is not directly involved in

9 evaluating the individual's qualifications for employment or

10 independent contract. Upon written request from another adult

11 foster care facility or health facility or agency that is

12 considering employing or independently contracting with an

13 individual, an adult foster care facility that has obtained

14 criminal history record information under this section on that

15 individual shall share the information with the requesting adult

16 foster care facility or health facility or agency. Except for a

17 knowing or intentional release of false information, an adult

18 foster care facility has no liability in connection with a

19 background check conducted under this section or the release of

20 criminal history record information under this subsection.

21 (12) As a condition of continued employment, each employee or

22 independent contractor shall agree in writing to report to the

23 adult foster care facility immediately upon being arrested for or

24 convicted of 1 or more of the criminal offenses listed in

25 subsection (1)(a) and (b).

26 (13) As used in this section:

27 (a) "Health facility or agency" means a health facility or

1 agency as defined in section 20106 of the public health code,

2 1978 PA 368, MCL 333.20106.

3 (b) "Independent contract" means a contract entered into by

4 an adult foster care facility with an individual who provides the

5 contracted services independently or a contract entered into by

6 an adult foster care facility with an organization or agency that

7 employs or contracts with an individual after complying with the

8 requirements of this section to provide the contracted services

9 to the adult foster care facility on behalf of the organization

10 or agency.

11 Sec. 36. (1) An adult foster care family home may be

12 concurrently licensed as a foster family home or a foster family

13 group home. ~~Additional~~ Except as provided in subsection (2),

14 additional minor children who are not related to a resident of

15 the adult foster care family home shall not be received in the

16 adult foster care family home after the filing of an application

17 for a license ~~pursuant to~~ under this act.

18 (2) A licensee may receive a minor child placed in foster

19 care under the laws of this state after filing an application for

20 a license under this act. A placement under this subsection

21 shall be approved at the discretion of the director or his or her

22 designee and shall be based upon a recommendation by a licensed

23 child placing agency or an approved governmental unit and shall

24 be subject to appropriate terms and conditions determined by the

25 department.

26 (3) ~~(2)~~ As used in this section:

27 (a) "Foster family home" means that term as defined in

1 section 1 of ~~Act No. 116 of the Public Acts of 1973, being~~

2 ~~section 722.111 of the Michigan Compiled Laws~~ 1973 PA 116, MCL

3 722.111.

4 (b) "Foster family group home" means that term as defined in

5 section 1 of ~~Act No. 116 of the Public Acts of 1973, being~~

6 ~~section 722.111 of the Michigan Complied Laws~~ 1973 PA 116, MCL

7 722.111.