SB-0621, As Passed House, February 1, 2006
HOUSE SUBSTITUTE FOR
SENATE BILL NO. 621
A bill to amend 1978 PA 368, entitled
"Public health code,"
(MCL 333.1101 to 333.25211) by adding sections 20173a and 20173b;
and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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 this section if the individual
satisfies 1 or more of the following:
(a) Has been convicted of a relevant crime described under 42
USC 1320a-7.
(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, 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
Senate Bill No. 621 (H-2) as amended January 31, 2006
to commit a felony, other than a felony for a relevant crime
described under 42 USC 1320a-7 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, 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, 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.
(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 subdivisions (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, 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, 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 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 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 this section until the health facility or agency conducts a
criminal history check in compliance with subsection (4). 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 facility or
agency before the effective date of this section. Within 24 months
after the effective date of this section, an individual who is
exempt under this subdivision 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). 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 this section.
That individual may transfer to another health 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). If an individual who is exempt
under this subdivision is subsequently convicted of a crime
described under subsection (1)(a) through (g) or found to be the
Senate Bill No. 621 (H-2) as amended January 31, 2006
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), then he or she is no longer
exempt and shall be terminated from employment or denied
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 is not directly related to the provision of
services to a patient or resident or if the services for which he
or she is contracted allows for direct access to the patients or
residents but is not performed on an ongoing basis. This exception
includes, but is not limited to, an individual who independently
contracts with the health 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 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 an initial criminal history check under
[this section], 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, 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 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
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, the charge shall
be paid by or reimbursed by the department with federal funds as
Senate Bill No. 621 (H-2) as amended January 31, 2006
provided to implement a pilot program for national and state
background checks on direct patient access employees of long-term
care facilities or providers in accordance with section 307 of the
medicare prescription drug, improvement, and modernization act of
2003, Public Law 108-173. The health 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 health
facility or agency, a prospective employee, or a prospective
independent contractor covered under this section may not be
charged for the cost of an initial 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 facility or agency is not a state
department or agency and if a criminal conviction is disclosed on [the
written report of the criminal history check or]
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 written report of the
criminal history check or] the federal bureau of
investigation determination without disclosing the details of the
Senate Bill No. 621 (H-2) as amended January 31, 2006
crime. Any charges imposed by the department of state police or the
federal bureau of investigation for conducting an initial 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 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 [this section], 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 [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) through (g) within
the applicable time period prescribed by each [subdivision]
respectively.
Senate Bill No. 621 (H-2) as amended January 31, 2006
(ii) That he or she is not the subject of an order or
disposition described in subsection (1)(h).
(iii) That he or she has not been the subject of a substantiated
finding as described in subsection (1)(i).
(iv) The individual agrees that, if the information in the
criminal history check conducted under [this section] does not
confirm the individual's statements under subparagraphs (i) through
(iii), 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. [
]
(v) That he or she understands the conditions described in
subparagraphs (i) through (iv) that result in the termination of his
or her employment or clinical privileges and that those conditions
are good cause for termination.
(6) [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
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) through (iii), the
health facility or agency shall terminate the individual's
Senate Bill No. 621 (H-2) as amended January 31, 2006
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) through (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 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)
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. 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
Senate Bill No. 621 (H-2) as amended January 31, 2006
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 facility or agency has no liability
in connection with a criminal background check conducted under this
section or 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 do each of the following:
(a) Agree in writing to report to the health facility or
agency immediately upon being arraigned for 1 or more of the
criminal offenses listed in subsection (1)(a) through (g), upon
being convicted of 1 or more of the criminal offenses listed in
subsection (1)(a) through (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.
(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) In collaboration with the department of state police, the
department of information technology shall establish 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 this section. Upon such
notification, the department of state police shall immediately
notify the department and the department shall immediately contact
the respective health 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) 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 federal funds provided to implement a pilot
program for national and state background checks on direct access
employees of long-term care facilities or providers, the amount of
those funds expended to date, and the amount of those funds
remaining.
(14) 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.
(15) By March 1, 2007, the department and the department of
state police shall develop and implement an electronic web-based
system to assist those health facilities and agencies required to
check relevant registries and conduct criminal history checks of
its employees and independent contractors and to provide for an
automated notice to those health facilities or agencies for those
individuals inputted in the system who, since the initial check,
have been convicted of a disqualifying offense or have been the
subject of a substantiated finding of abuse, neglect, or
misappropriation of property.
(16) 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,
Senate Bill No. 621 (H-2) as amended January 31, 2006
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) An individual who has 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 a psychiatric facility or intermediate care facility for
people with mental retardation] based on a criminal history check conducted pursuant to
section 20173 or 20173a [or pursuant to section 134a of the mental health
code, 1974 PA 258, MCL 330.1134a, respectively,] may appeal to the department if he or she
believes that the criminal history report is inaccurate, and the
appeal shall be conducted as a contested case hearing pursuant to
the administrative procedures act of 1969. The individual shall
file the appeal with the director of the department within 15
business days after receiving the written report of the criminal
history check unless the conviction contained in the criminal
history report is one that may be expunged or set aside. If an
individual has been disqualified or denied employment based on a
conviction that may be expunged or set aside, then he or she shall
file the appeal on a form provided by the department within 15
business days after a court order granting or denying his or her
application to expunge or set aside that conviction is granted. If
the order is granted and the conviction is expunged or set aside,
then the individual shall not be disqualified or denied employment
based solely on that conviction. The director shall review the
appeal and issue a written decision within 30 business days after
receiving the appeal. The decision of the director is final.
(2) One year after the effective date of this section and each
year thereafter for the next 3 years, the department shall provide
the legislature with a written report regarding the appeals process
implemented under this section for employees subject to criminal
history checks. The report shall include, but is not limited to,
for the immediately preceding year the number of applications for
appeal received, the number of inaccuracies found and appeals
granted with regard to the criminal history checks conducted under
section 20173a, the average number of days necessary to complete
the appeals process for each appeal, and the number of appeals
rejected without a hearing and a brief explanation of the denial.
(3) As used in this section, "business day" means a day other
Senate Bill No. 621 (H-2) as amended January 31, 2006
than a Saturday, Sunday, or any legal holiday.
Enacting section 1. (1) Section 20173 of the public health
code, 1978 PA 368, MCL 333.20173, is repealed effective [April 1, 2006.
]
(2) Section 20173a of the public health code, 1978 PA 368, MCL
333.20173a, as added by this amendatory act, takes effect [April 1, 2006,
since the department has secured the necessary federal approval to
utilize federal funds to reimburse those facilities for the costs
incurred for requesting a national criminal history check to be conducted
by the federal bureau of investigation and the department has filed
written notice of that approval with the secretary of state. The
department shall issue a medicaid policy bulletin regarding the payment
and reimbursement for the criminal history checks by April 1, 2006.
]
(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.
Enacting section 2. This amendatory act does not take effect
unless all of the following bills of the 93rd Legislature are
enacted into law:
(a) Senate Bill No. 622.
(b) House Bill No. 5168.
(c) House Bill No. 5448.