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HB-4936, As Passed Senate, August 31, 2005

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4936

A bill to amend 1973 PA 116, entitled

"An act to provide for the protection of children through the

licensing and regulation of child care organizations; to provide

for the establishment of standards of care for child care

organizations; to prescribe powers and duties of certain

departments of this state and adoption facilitators; to provide

penalties; and to repeal acts and parts of acts,"

by amending section 5 (MCL 722.115), as amended by 2004 PA 315, and

by adding sections 5c, 5d, and 5e.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 5. (1) A person, partnership, firm, corporation,

association, or nongovernmental organization shall not establish or

maintain a child care organization unless licensed or registered by

the department. Application for a license or certificate of

registration shall be made on forms provided, and in the manner

prescribed, by the department. Before issuing or renewing a

license, the department shall investigate the applicant's

activities and proposed standards of care and shall make an on-site

visit of the proposed or established organization. If the

department is satisfied as to the need for a child care

organization, its financial stability, the applicant's good moral

character, and that the services and facilities are conducive to

the welfare of the children, the department shall issue or renew

the license. As used in this subsection, "good moral character"

means that term as defined in and determined under 1974 PA 381, MCL

338.41 to 338.47. If a county juvenile agency as defined in section

2 of the county juvenile agency act, 1998 PA 518, MCL 45.622,

certifies to the department that it intends to contract with an

applicant for a new license, the department shall issue or deny the

license within 60 days after it receives a complete application as

provided in section 5b.

(2) The department shall issue a certificate of registration

to a person who has successfully completed an orientation session

offered by the department and who certifies to the department that

the family day care home has complied with and will continue to

comply with the rules promulgated under this act and will provide

services and facilities, as determined by the department, conducive

to the welfare of children. The department shall make available to

applicants for registration an orientation session to applicants

for registration regarding this act, the rules promulgated under

this act, and the needs of children in family day care before

issuing a certificate of registration. The department shall issue a

certificate of registration to a specific person at a specific

location. A certificate of registration is nontransferable and

remains the property of the department. Within 90 days after

initial registration, the department shall make an on-site visit of

the family day care home.

(3) The department may authorize a licensed child placing

agency or an approved governmental unit to investigate a foster

family home or a foster family group home according to subsection

(1) and to certify that the foster family home or foster family

group home meets the licensing requirements prescribed by this act.

A foster family home or a foster family group home shall be

certified for licensing by the department by only 1 child placing

agency or approved governmental unit. Other child placing agencies

may place children in a foster family home or foster family group

home only upon the approval of the certifying agency or

governmental unit.

(4) The department may authorize a licensed child placing

agency or an approved governmental unit to place a child who is 16

or 17 years of age in his or her own unlicensed residence, or in

the unlicensed residence of an adult who has no supervisory

responsibility for the child, if a child placing agency or

governmental unit retains supervisory responsibility for the child.

(5) A licensed child placing agency, child caring institution,

and an approved governmental unit shall provide the state court

administrative office and a local foster care review board

established under 1984 PA 422, MCL 722.131 to 722.139a, those

records requested pertaining to children in foster care placement

for more than 6 months.

(6) The department may authorize a licensed child placing

agency or an approved governmental unit to place a child who is 16

or 17 years old in an adult foster care family home or an adult

foster care small group home licensed under the adult foster care

facility licensing act, 1979 PA 218, MCL 400.701 to 400.737, if a

licensed child placing agency or approved governmental unit retains

supervisory responsibility for the child and certifies to the

department all of the following:

(a) The placement is in the best interests of the child.

(b) The child's needs can be adequately met by the adult

foster care family home or small group home.

adult foster care family home or small group home.

(d) The child placing agency or approved governmental unit

will periodically reevaluate the placement of a child under this

subsection to determine that the criteria for placement in

subdivisions (a) through (c) continue to be met.

(7) On an exception basis, the director of the department, or

his or her designee, may authorize a licensed child placing agency

or an approved governmental unit to place an adult in a foster

family home if a licensed child placing agency or approved

governmental unit certifies to the department all of the following:

(a) The adult is a person with a developmental disability as

defined by section 100a of the mental health code, 1974 PA 258, MCL

330.1100a, or a person who is otherwise neurologically disabled and

is also physically limited to a degree that requires complete

physical assistance with mobility and activities of daily living.

(b) The placement is in the best interests of the adult and

will not adversely affect the interests of the foster child or

children residing in the foster family home.

family home.

(d) The adult will be compatible with other residents of the

foster family home.

(e) The child placing agency or approved governmental unit

will periodically reevaluate the placement of an adult under this

subsection to determine that the criteria for placement in

subdivisions (a) through (d) continue to be met and document that

the adult is receiving care consistent with the administrative

rules for a child placing agency.

(8) On an exception basis, the director of the department, or

his or her designee, may authorize a licensed child placing agency

or an approved governmental unit to place a child in an adult

foster care family home or an adult foster care small group home

licensed under the adult foster care licensing act, 1979 PA 218,

MCL 400.701 to 400.737, if the licensed child placing agency or

approved governmental unit certifies to the department all of the

following:

(a) The placement is in the best interests of the child.

(b) The placement has the concurrence of the parent or

guardian of the child.

the adult foster care family home or small group home.

(d) The child's psychosocial and clinical needs are compatible

with those of other residents of the adult foster care family home

or small group home.

(e) The clinical treatment of the child's condition is similar

to that of the other residents of the adult foster care family home

or small group home.

(f) The child's cognitive level is consistent with the

cognitive level of the other residents of the adult foster care

family home or small group home.

(g) The child is neurologically disabled and is also

physically limited to such a degree as to require complete physical

assistance with mobility and activities of daily living.

(h) The child placing agency or approved governmental unit

will periodically reevaluate the placement of a child under this

subsection to determine that the criteria for placement in

subdivisions (a) to (g) continue to be met.

(9) Beginning ~~the effective date of the amendatory act that~~

~~added this subsection~~ October 1, 2007, except as provided in

subsection (1) and section 5b, the department shall issue an

initial or renewal license or registration under this act for child

care centers, group day care homes, and family day care homes not

later than 6 months after the applicant files a completed

application. Receipt of the application is considered the date the

application is received by any agency or department of this state.

If the application is considered incomplete by the department, the

department shall notify the applicant in writing or make notice

electronically available within 30 days after receipt of the

incomplete application, describing the deficiency and requesting

additional information. This subsection does not affect the time

period within which an on-site visit to a family day care home

shall be made. If the department identifies a deficiency or

requires the fulfillment of a corrective action plan, the 6-month

period is tolled until either of the following occurs:

(a) Upon notification by the department of a deficiency, until

the date the requested information is received by the department.

(b) Upon notification by the department that a corrective

action plan is required, until the date the department determines

the requirements of the corrective action plan have been met.

(10) The determination of the completeness of an application

is not an approval of the application for the license and does not

confer eligibility on an applicant determined otherwise ineligible

for issuance of a license.

(11) Except as provided in subsection (1) and section 5b, if

the department fails to issue or deny a license or registration to

a child care center, group day care home, or family day care home

within the time required by this section, the department shall

return the license or registration fee and shall reduce the license

or registration fee for the applicant's next renewal application,

if any, by 15%. Failure to issue or deny a license to a child care

center, group day care home, or family day care home within the

time period required under this section does not allow the

department to otherwise delay the processing of the application. A

completed application shall be placed in sequence with other

completed applications received at that same time. The department

shall not discriminate against an applicant in the processing of an

application based on the fact that the application fee was refunded

or discounted under this subsection.

(12) If, on a continual basis, inspections performed by a

local health department delay the department in issuing or denying

licenses or registrations for child care centers, group day care

homes, and family day care homes under this act within the 6-month

period, the department may use department staff to complete the

inspections instead of the local health department causing the

delays.

(13) Beginning October 1, 2008, the director of the department

shall submit a report by December 1 of each year to the standing

committees and appropriations subcommittees of the senate and house

of representatives concerned with human services and children's

issues. The director shall include all of the following information

regarding applications for licenses and registrations only for

child care centers, group day care homes, and family day care homes

filed under this act in the report concerning the preceding fiscal

year:

(a) The number of initial and renewal applications the

department received and completed within the 6-month time period

described in subsection (9).

(b) The number of applications requiring a request for

additional information.

(d) The number of licenses and registrations not issued within

the 6-month period.

(e) The average processing time for initial and renewal

licenses and registrations granted after the 6-month period.

(14) As used in this section, "completed application" means an

application complete on its face and submitted with any applicable

licensing or registration fees as well as any other information,

records, approval, security, or similar item required by law or

rule from a local unit of government, a federal agency, or a

private entity but not from another department or agency of this

state. A completed application does not include a health inspection

performed by a local health department.

(15) The department shall not issue to or renew the license of

a child care center or day care center under this act without

requesting a criminal history check and criminal records check as

required by section 5c. If a criminal history check or criminal

records check performed under section 5c reveals that an applicant

for a license under this act has been convicted of a listed

offense, the department shall not issue a license to that

applicant. If a criminal history check or criminal records check

performed under section 5c reveals that an applicant for renewal of

a license under this act has been convicted of a listed offense,

the department shall not renew that license. If a criminal history

check or criminal records check performed under section 5c reveals

that a current licensee has been convicted of a listed offense, the

department shall revoke the license of that licensee.

(16) The department shall not issue or renew a certificate of

registration to a family day care home or a license to a group day

care home under this act without requesting a criminal history

check and criminal records check as required by section 5f and a

department of state police ICHAT check required by section 5g. If a

criminal history check or criminal records check performed under

section 5f or an ICHAT check performed under section 5g reveals

that an applicant for a certificate of registration or license

under this act or a person over 18 years of age residing in that

applicant's home has been convicted of a listed offense, the

department shall not issue a certificate of registration or license

to that applicant. If a criminal history check or criminal records

check performed under section 5f or an ICHAT check performed under

section 5g reveals that an applicant for renewal of a certificate

of registration or license under this act or a person over 18 years

of age residing in that applicant's home has been convicted of a

listed offense, the department shall not renew a certificate of

registration or license to that applicant. If a criminal history

check or criminal records check performed under section 5f or an

ICHAT check performed under section 5g reveals that a current

registrant or licensee under this act or a person over 18 years of

age residing in that registrant's or licensee's home has been

convicted of a listed offense, the department shall revoke that

registrant's certificate of registration or licensee's license.

Sec. 5c. (1) When a person, partnership, firm, corporation,

association, or nongovernmental organization applies for or to

renew a license for a child care center or day care center under

section 5, the department shall request the department of state

police to perform both of the following on the person or each

partner, officer, or manager of the child care center or day care

center applying for the license:

(a) Conduct a criminal history check on the person.

(b) Conduct a criminal records check through the federal

bureau of investigation on the person.

(2) Each person applying for a license to operate a child care

center or day care center shall give written consent at the time of

the license application for the department of state police to

conduct the criminal history check and criminal records check

required under this section. The department shall require the

person to submit his or her fingerprints to the department of state

police for the criminal history check and criminal records check

described in subsection (1).

(3) The department shall request a criminal history check and

criminal records check required under this section on a form and in

the manner prescribed by the department of state police.

(4) Within a reasonable time after receiving a complete

request by the department for a criminal history check on a person

under this section, the department of state police shall conduct

the criminal history check and provide a report of the results to

the department. The report shall contain any criminal history

record information on the person maintained by the department of

state police.

(5) Within a reasonable time after receiving a proper request

by the department for a criminal records check on a person under

this section, the department of state police shall initiate the

criminal records check. After receiving the results of the criminal

records check from the federal bureau of investigation, the

department of state police shall provide a report of the results to

House Bill No. 4936 as amended August 31, 2005

the department.

(6) The department of state police may charge the department a

fee for a criminal history check or a criminal records check

required under this section that does not exceed the actual and

reasonable cost of conducting the check. The department may pass

along to the licensee or applicant the actual cost or fee charged

by the department of state police for performing a criminal history

check or a criminal records check required under this section.

(7) As used in this section and sections <<5,>> 5d, 5e, 5f, and 5g:

(a) "Criminal history record information" means that term as

defined in section 1a of 1925 PA 289, MCL 28.241a.

(b) "Listed offense" means that term as defined in section 2

of the sex offenders registration act, 1994 PA 295, MCL 28.722.

Sec. 5d. (1) Before a child care center or day care center

makes an offer of employment to a person or allows a person to

regularly and continuously work under contract at the child care

center or day care center, the child care center or day care center

shall perform a criminal history check on that person using the

department of state police's internet criminal history access tool

(ICHAT).

(2) If a search of the department of state police's ICHAT

reveals that the person described in subsection (1) has been

convicted of a listed offense, the child care center or day care

center shall not make an offer of employment to that person or

allow that person to regularly and continuously work under contract

at the child care center or day care center. If a search of the

department of state police's ICHAT reveals that a current employee

House Bill No. 4936 as amended August 31, 2005

has been convicted of a listed offense, the child care center or

day care center shall not continue to employ that person. If a

search of the department of state police's ICHAT reveals that a

person who regularly and continuously works under contract at the

child care center or day care center has been convicted of a listed

offense, the child care center or day care center shall not allow

that person to regularly or continuously work under contract at the

child care center or day care center.

(3) Not later than 1 year after the effective date of the

amendatory act that added this section, the child care center or

day care center shall conduct a criminal history check on all

current employees using the department of state police's ICHAT.

(4) A child care center or day care center may pass along the

actual cost of a search of the department of state police's ICHAT

to the employee or applicant on whom the search is being performed.

Sec. 5e. (1) <<A CHILD CARE CENTER OR DAY CARE CENTER

LICENSEE>> shall report to the department and an employee of a child

care center or day care center shall report to that child care

center or day care center within 3 business days after he or she

has been arraigned for 1 or more of the following crimes:

(a) Any felony.

(b) Any of the following misdemeanors:

(i) Criminal sexual conduct in the fourth degree or an attempt

to commit criminal sexual conduct in the fourth degree.

(ii) Child abuse in the third or fourth degree or an attempt to

commit child abuse in the third or fourth degree.

(iii) A misdemeanor involving cruelty, torture, or indecent

exposure involving a child.

(iv) A misdemeanor violation of section 7410 of the public

health code, 1978 PA 368, MCL 333.7410.

(v) A violation of section 115, 141a, 145a, 335a, or 359 of

the Michigan penal code, 1931 PA 328, MCL 750.115, 750.141a,

750.145a, 750.335a, and 750.359, or a misdemeanor violation of

section 81, 81a, or 145d of the Michigan penal code, 1931 PA 328,

MCL 750.81, 750.81a, and 750.145d.

(vi) A misdemeanor violation of section 701 of the Michigan

liquor control code of 1998, 1998 PA 58, MCL 436.1701.

(vii) Any misdemeanor that is a listed offense.

state, of a political subdivision of this state or another state,

or of the United States.

(2) A person who violates subsection (1) is guilty of a crime

as follows:

(a) If the person violates subsection (1) and the crime

involved in the violation is a misdemeanor that is a listed offense

or is a felony, the person is guilty of a felony punishable by

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

$2,000.00, or both.

(b) If the person violates subsection (1) and the crime

involved in the violation is a misdemeanor that is not a listed

offense, the person is guilty of a misdemeanor punishable by

imprisonment for not more than 1 year or a fine of not more than

$1,000.00, or both.

(3) The department shall delete from the licensee's records

all information relating to an arraignment required to be reported

under subsection (1) if the department receives documentation that

the licensee is subsequently not convicted of any crime after the

completion of judicial proceedings resulting from that arraignment.

(4) A child care center or day care center shall delete from

the employee's records all information relating to an arraignment

required to be reported under subsection (1) if it receives

documentation that the employee is subsequently not convicted of

any crime after the completion of judicial proceedings resulting

from that arraignment.

(5) Not later than 30 days after the effective date of the

amendatory act that added this section, the department shall inform

all licensees and applicants for licenses of the requirement under

this section to report when he or she is arraigned for certain

crimes and the penalty for not reporting.

(6) Not later than 30 days after the effective date of the

amendatory act that added this section, a child care center or day

care center shall inform all current employees and all persons who

work regularly and continuously under contract at the child care

center or day care center of the requirement under this section to

report when he or she is arraigned for certain crimes and the

penalty for not reporting.

(7) At the time a child care center or day care center makes

an offer of employment to a person or allows a person to regularly

and continuously work under contract at the child care center or

day care center, the child care center or day care center shall

notify that person of the requirement under this section to report

when he or she is arraigned for certain crimes and the penalty for

not reporting.

Enacting section 1. This amendatory act takes effect January

1, 2006.

Enacting section 2. This amendatory act does not take effect

unless Senate Bill No. 615 of the 93rd Legislature is enacted into

law.