HB-5168, As Passed House, December 6, 2005

SUBSTITUTE FOR

HOUSE BILL NO. 5168

     A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 16146, 16174, and 16245 (MCL 333.16146,

333.16174, and 333.16245), section 16146 as amended by 1988 PA 462,

section 16174 as amended by 2002 PA 643, and section 16245 as

amended by 1998 PA 109, and by adding sections 20173a and 20173b;

and to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 16146. (1) A board shall grant a license or registration

to an applicant meeting the requirements for the license or

registration as prescribed in this article and the rules

promulgated under this article.

     (2) A board which grants licenses may:

     (a) Certify licensees in those health profession specialty

fields within its scope of practice which are established in this

article.

     (b) Reclassify licenses on the basis of a determination that

the addition or removal of conditions or restrictions is

appropriate.

     (c) Upon good cause, request that a licensee or registrant

have a criminal history check conducted in accordance with section

16174(3).

     Sec. 16174. (1) An individual who is licensed or registered

under this article shall meet all of the following requirements:

     (a) Be 18 or more years of age.

     (b) Be of good moral character.

     (c) Have a specific education or experience in the health

profession or in a health profession subfield or health profession

specialty field of the health profession, or training equivalent,

or both, as prescribed by this article or rules of a board

necessary to promote safe and competent practice and informed

consumer choice.

     (d) Have a working knowledge of the English language as

determined in accordance with minimum standards established for

that purpose by the department.

     (e) Pay the appropriate fees as prescribed in this article.

     (2) In addition to the requirements of subsection (1), an

applicant for licensure, registration, specialty certification, or

a health profession specialty subfield license under this article

shall meet all of the following requirements:

     (a) Establish that disciplinary proceedings before a similar

licensure, registration, or specialty licensure or specialty

certification board of this or any other state, of the United

States military, of the federal government, or of another country

are not pending against the applicant.

     (b) Establish that if sanctions have been imposed against the

applicant by a similar licensure, registration, or specialty

licensure or specialty certification board of this or any other

state, of the United States military, of the federal government, or

of another country based upon grounds that are substantially

similar to those set forth in this article or article 7 or the

rules promulgated under this article or article 7, as determined by

the board or task force to which the applicant applies, the

sanctions are not in force at the time of application.

     (c) File with the board or task force a written, signed

consent to the release of information regarding a disciplinary

investigation involving the applicant conducted by a similar

licensure, registration, or specialty licensure or specialty

certification board of this or any other state, of the United

States military, of the federal government, or of another country.

     (3) In addition to the requirements of subsections (1) and

(2), beginning January 1, 2006, an applicant for initial licensure

or registration or for renewal of a license or registration shall

submit a nominal fee as determined by the department but not to

exceed $2.00 for the processing of criminal history background

checks. Beginning January 1, 2006, an applicant for initial

licensure or registration shall submit his or her fingerprints to

the department of state police to have a criminal history check

conducted and request that the department of state police forward

his or her fingerprints to the federal bureau of investigation for

a national criminal history check. The department of state police

shall conduct a criminal history check and request the federal

bureau of investigation to make a determination of the existence of

any national criminal history pertaining to the applicant. The

department of state police shall provide the board and the

applicant with a written report of the criminal history check

including any criminal history record information on the applicant

maintained by the department of state police. The department of

state police shall forward the results of the federal bureau of

investigation determination to the board and the applicant. If

there are any charges for fingerprinting, conducting the criminal

history check, or a federal bureau of investigation determination

under this subsection, the applicant requesting the criminal

history check shall pay those charges. The criminal history record

information obtained under this subsection shall be used only for

the purpose of evaluating an applicant's qualifications for

licensure or registration for which he or she has applied. A member

of the board shall not disclose the report or its contents to any

person who is not directly involved in evaluating the applicant's

qualifications for licensure or registration.

(4)  (3) Before granting a license, registration, specialty

certification, or a health profession specialty field license to an

applicant, the board or task force to which the applicant applies

may do 1 of the following:

     (a) Make an independent inquiry into the applicant's

compliance with the requirements described in subsection (2). If a

licensure or registration board or task force determines under

subsection (2)(b) that sanctions have been imposed and are in force

at the time of application, the board or task force shall not grant

a license or registration or specialty certification or health

profession specialty field license to the applicant.

     (b) Require the applicant to secure from a national

association or federation of state professional licensing boards

certification of compliance with the requirements described in

subsection (2).

(5)  (4) If, after issuing a license, registration, specialty

certification, or health profession specialty field license, a

board or task force or the department determines that sanctions

have been imposed against the licensee or registrant by a similar

licensure or registration or specialty licensure or specialty

certification board as described in subsection (2)(b), the

disciplinary subcommittee may impose appropriate sanctions upon the

licensee or registrant. The licensee or registrant may request a

show cause hearing before a hearing examiner to demonstrate why the

sanctions should not be imposed.

(6)  (5) An applicant for licensure, registration, specialty

certification, or a health profession specialty field license who

is or has been licensed, registered, or certified in a health

profession or specialty by another state or country shall disclose

that fact on the application form.

     Sec. 16245. (1) An individual whose license is limited,

suspended, or revoked under this part may apply to his or her board

or task force for a reinstatement of a revoked or suspended license

or reclassification of a limited license pursuant to section 16247

or 16249.

     (2) An individual whose registration is suspended or revoked

under this part may apply to his or her board for a reinstatement

of a suspended or revoked registration pursuant to section 16248.

     (3) A board or task force shall reinstate a license or

registration suspended for grounds stated in section  16221(i)

16221(j) upon payment of the installment.

     (4) Except as otherwise provided in this subsection, in case

of a revoked license or registration, an applicant shall not apply

for reinstatement before the expiration of 3 years after the

effective date of the revocation. In the case of a license or

registration that was revoked for a violation of section

16221(b)(vii), a violation of section 16221(c)(iv) consisting of a

felony conviction, any other felony conviction involving a

controlled substance, or a violation of section  16221(p)

16221(q), an applicant shall not apply for reinstatement before the

expiration of 5 years after the effective date of the revocation.

The department shall return an application for reinstatement

received before the expiration of the applicable time period under

this subsection.

     (5) The department shall provide an opportunity for a hearing

before final rejection of an application for reinstatement.

     (6) Based upon the recommendation of the disciplinary

subcommittee for each health profession, the department shall adopt

guidelines to establish specific criteria to be met by an applicant

for reinstatement under this article or article 7. The criteria may

include corrective measures or remedial education as a condition of

reinstatement. If a board or task force, in reinstating a license

or registration, deviates from the guidelines adopted under this

subsection, the board or task force shall state the reason for the

deviation on the record.

     (7) An individual who seeks reinstatement or reclassification

of a license or registration pursuant to this section shall pay the

application processing fee as a reinstatement or reclassification

fee. If approved for reinstatement or reclassification, the

individual shall pay the per year license or registration fee for

the applicable license or registration period.

     (8) An individual who seeks reinstatement of a revoked or

suspended license or reclassification of a limited license pursuant

to this section shall have a criminal history check conducted in

accordance with section 16174 and submit a copy of the results of

the background check to the board with his or her application for

reinstatement or reclassification.

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

(2), 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 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 facility or

agency after the effective date of the amendatory act that added

this section if the individual satisfies 1 or more of the

following:

(a) 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, 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.

(b) Has been convicted of a misdemeanor, other than a

misdemeanor for a relevant crime described under 42 USC 1320a-7,

involving abuse, neglect, assault, battery, or criminal sexual

conduct or involving fraud or theft, a misdemeanor under part 74,

or a state or federal crime that is substantially similar to a

misdemeanor 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.

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

USC 1320a-7.

     (d) Has been the subject of a substantiated finding of

neglect, abuse, or misappropriation of property by the department

pursuant to an investigation conducted in accordance with 42 USC

1395i-3 or 1396r.

     (e) 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.

(2) Except as otherwise provided in this subsection and

subsection (5), 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 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 facility or agency

after the effective date of the amendatory act that added this

section until the health facility or agency complies with

subsection (4). This subsection and subsection (1) do not apply to

any of the following:

     (a) Except as otherwise provided under this subdivision, an

individual who is employed by, under independent contract to, or

granted clinical privileges in a health facility or agency before

the effective date of the amendatory act that added this section.

An individual who is exempt under this subdivision is not limited

to working within the health facility or agency with which he or

she is employed by, under independent contract to, or granted

clinical privileges on the effective date of the amendatory act

that added this section. That individual may transfer to another

health facility or agency provided that a criminal history check

being conducted in accordance with subsections (1) and (2) does not

indicate a prohibited offense as described under subsection (1). If

an individual who is exempt under this subdivision is subsequently

convicted of a crime described under subsection (1)(a) or (b) or

found to be the subject of a substantiated finding described under

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

subsection (1)(e), or is found to have been convicted of a relevant

crime described under subsection (1)(c), then he or she is subject

to the requirements of subsections (1) and (2) and may be denied

employment or may be terminated from employment.

     (b) An individual who is an independent contractor with 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 if 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 do 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, independent contractors

who 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 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 has received

a good faith offer of employment, an independent contract, or

clinical privileges from the health facility or agency shall give

written consent at the time of application for the department of

state police to conduct a criminal history check under subsection

(4), along with identification acceptable to the department of

state police.

(4) Upon receipt of the written consent and identification

required under subsection (3), 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 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 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 facility or agency

shall make the written consent and identification available to the

department of state police. The health facility or agency shall

make a request to the department to conduct a check of all relevant

registries established pursuant to federal regulations for any

substantiated findings of abuse, neglect, or misappropriation of

property. If there is a charge for conducting the criminal history

check, the charge shall be paid by or reimbursed by the department

with medicaid and medicare funding as appropriate. The health

facility or agency shall not seek reimbursement for the charge 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 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

report 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 facility

or agency is not a state department or agency and if a criminal

conviction is disclosed on the federal bureau of investigation

determination, the department shall notify the health facility or

agency and the applicant in writing of the type of crime disclosed

on the federal bureau of investigation determination without

disclosing the details of the crime. Any charges for fingerprinting

or a federal bureau of investigation 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 by the health facility or

agency regarding his or her employment eligibility based on the

criminal background check. The notice shall also include

information regarding where to file and describing the appellate

procedures established under section 20173b.

(5) If 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 determines

it necessary to employ or grant clinical privileges to an applicant

before receiving the results of the applicant's criminal history

check under subsection (4), the health facility or agency may

conditionally employ or grant conditional clinical privileges to

the individual if all of the following apply:

     (a) The health facility or agency requests the criminal

history check under subsection (4) 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), (b), and (c) within

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

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

finding as described in subsection (1)(d) or an order or

disposition as described under subsection (1)(e).

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

criminal history check conducted under subsection (4) does not

confirm the individual's statements under subparagraphs (i) and (ii),

his or her employment or clinical privileges will be terminated by

the health facility or agency as required under subsection (1)

unless and until the individual appeals and can prove that the

information is incorrect. The health facility or agency shall

provide a copy of the results of the criminal history check

conducted under subsection (4) to the applicant.

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

subparagraphs (i), (ii), and (iii) that result in the termination of

his or her employment or clinical privileges and that those

conditions are good cause for termination.

(6) On the effective date of the amendatory act that added

this section, the department shall develop and distribute a model

form for the statement required under subsection (5)(b). The

department shall make the model form available to health facilities

or agencies subject to this section upon request at no charge.

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

an independent contractor, or is granted conditional clinical

privileges under subsection (5), and the report described in

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

subsection (5)(b)(i) and (ii), the health 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 criminal convictions or substantiated findings on a

statement described in subsection (5)(b)(i) or (ii) 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 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 (4)

or (5) 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 facility or

agency or an employee of the health facility or agency shall not

disclose criminal history record information obtained under

subsection (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 (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. A person who suffers injury as a result of a violation of

this subsection may bring a civil cause of action for damages

against the person who violates this subsection. Upon written

request from another health facility or agency or adult foster care

facility that is considering employing, independently contracting

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

facility or agency or adult foster care facility that has obtained

criminal history record information under this section on that

individual shall share, with the consent of the applicant, the

information with the requesting health facility or agency or adult

foster care facility. Except for a knowing or intentional release

of false information, a health facility or agency or adult foster

care facility has no liability in connection with the release of

criminal history record information under this subsection.

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

independent contractor, or individual granted clinical privileges

shall agree in writing to report to the health facility or agency

immediately upon either of the following:

     (a) Being convicted of 1 or more of the criminal offenses

listed in subsection (1)(a), (b), and (c).

     (b) Being the subject of a substantiated finding of neglect,

 House Bill No. 5168 (H-2) as amended December 6, 2005

abuse, or misappropriation of property as described in subsection

(1)(d).

     (c) Being the subject of an order or disposition described

under subsection (1)(e).

     (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] 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.

(12) Within 1 year after the effective date of the amendatory

act that added this section, the department shall submit a written

report to the legislature regarding each of the following:

     (a) The impact and effectiveness of this amendatory act.

     (b) The feasibility of implementing criminal history checks on

volunteers who work in those health facilities or agencies and on

state agency employees who are involved in the licensing of those

health facilities or agencies and regulation of those employees.

     (c) The amount of medicaid and medicare funding utilized to

pay for or reimburse charges for conducting criminal history checks

in accordance with this section and the amount remaining of those

funds.

     (13) Within 3 years after the effective date of this section,

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) 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) "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.

     (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.

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

health facility or agency with an individual who provides the

contracted services independently or a contract entered into by a

health facility or agency with an organization or agency that

employs or contracts with an individual after complying with the

requirements of this section to provide the contracted services to

the health facility or agency on behalf of the organization or

agency.

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

program established under title XVIII of the social security act,

42 USC 1395 to 1395ggg.

     Sec. 20173b. (1) The department shall establish an employment

eligibility appeal board. The appeal board shall consist of the

following members appointed by the governor:

     (a) Two representatives of the department's bureau of health

systems who deal primarily with the licensing of health facilities.

     (b) Two representatives of the department of human services

who deal primarily with the licensing of adult foster care

facilities and homes for the aged.

     (c) Two members representing the public.

     (d) One member representing providers.

     (e) One member representing organized labor groups.

     (f) One member representing consumers of long-term care

services.

     (2) Except as otherwise provided under subsection (4), the

appeal board shall hear and decide applications for appeal from

individuals who have been disqualified from or denied employment by

a health facility or agency that is a nursing home, county medical

care facility, hospice, hospital that provides swing bed services,

home for the aged, or home health agency, or by an adult foster

care facility, based on a criminal background check conducted

pursuant to section 20173 or 20173a.

     (3) Members of the appeal board shall serve for terms of 3

years or until a successor is appointed, whichever is later, except

that of the members first appointed 3 shall serve 3 years, 3 shall

serve 2 years, and 3 shall serve 1 year. If a vacancy occurs on the

appeal board, the governor shall make an appointment for the

unexpired term in the same manner as the original appointment.

Members of the appeal board shall serve without compensation.

However, members of the appeal board may be reimbursed for their

actual and necessary expenses incurred in the performance of their

official duties as members of the appeal board.

     (4) An individual who has been convicted of a relevant crime

as described under section 20173a(1)(c) does not have a right to

appeal a denial of his or her employment with 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. An individual who has been convicted

of a felony, other than that described under section 20173a(1)(c),

involving abuse, neglect, assault, battery, or criminal sexual

conduct or involving fraud or theft against a vulnerable adult as

that term is defined in section 145m of the Michigan penal code,

1931 PA 328, MCL 750.145m, or a state or federal crime that is

substantially similar to a felony described in this subdivision,

does not have the right to appeal a denial of his or her employment

with a health facility described under this subsection unless 3

years have lapsed since he or she completed all of the sentencing

requirements, including probation, parole, and restitution for that

conviction.

     (5) The department may charge a fee to cover the cost of the

appeal.

     (6) The department shall promulgate rules to implement this

section. The department may promulgate rules to provide for an

expedited administrative appeals process for certain nonviolent

crimes. The appeal board shall hear all appeals within 60 days of

receiving the application. If the appeal board finds upon clear and

convincing evidence that the individual was wrongfully disqualified

from or denied employment, the appeal board may grant the appellant

a certificate of employability. The appeal board may impose any

conditions or limitations on that certificate as it determines

necessary to protect the health and safety of patients or residents

within those facilities described under subsection (2).

     Enacting section 1. (1) Section 20173 of the public health

code, 1978 PA 368, MCL 333.20173, is repealed effective 60 days

after the department secures the necessary federal approval or

waiver, and files a written notice, as provided under subsection

(2).

     (2) Section 20173a of the public health code, 1978 PA 368, MCL

333.20173a, as added by this amendatory act, takes effect 60 days

after the department secures the necessary federal approval or

waiver to utilize federal funds to enable the department to pay for

or reimburse for the costs incurred by those facilities for

requesting a national criminal history check to be conducted by the

federal bureau of investigation and files with the secretary of

state a written notice that the federal approval or waiver has been

secured.

     (3) Section 20173b of the public health code, 1978 PA 368, MCL

333.20173b, as added by this amendatory act, takes effect the date

this amendatory act is enacted.