SB-0621, As Passed Senate, December 13, 2005
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 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 under part 74, a
misdemeanor, other than a misdemeanor for a relevant crime
described under 42 USC 1320a-7, involving abuse, neglect, assault,
battery, criminal sexual conduct, fraud, or theft, 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) 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.
(e) 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
provided that a criminal history check being conducted in
accordance with this subdivision 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)(e) or an
order or disposition described under subsection (1)(d), or is found
to have been convicted of a relevant crime described under
subsection (1)(c), then he or she is no longer exempt 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 work for which he
or she is contracted is not directly related to the provision of
services to a patient or resident or if the work 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
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, 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. 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 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 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 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 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 is not the subject of an order or
disposition described in subsection (1)(d).
(iii) That he or she has not been the subject of a substantiated
finding as described in subsection (1)(e).
(iv) 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) 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. The health facility or
agency shall provide a copy of the results of the criminal history
check conducted under subsection (4) to the applicant.
(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) 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
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
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. 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 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 has no
liability in connection with a criminal background check conducted
under this section or the release of criminal history record
Senate Bill No. 621 as amended December 13, 2005
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), (b), and (c), upon
being convicted of 1 or more of the criminal offenses listed in
subsection (1)(a), (b), and (c), upon becoming the subject of an
order or disposition described under subsection (1)(d), and upon
being the subject of a substantiated finding of neglect, abuse, or
misappropriation of property as described in subsection (1)(e).
(b) 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<<, AND MAY BE SUBJECT TO CIVIL LIABILITY
FOR PERSONAL INJURY OR DEATH OF ANOTHER RESIDENT CAUSED BY AN INDIVIDUAL EMPLOYED, INDEPENDENTLY CONTRACTED WITH, OR GRANTED CLINICAL PRIVILEGES WITHIN A HEALTH FACILITY OR AGENCY WHO WOULD HAVE BEEN TERMINATED OR DENIED EMPLOYMENT IF THE LICENSEE, OWNER, ADMINISTRATOR, OR OPERATOR OF THAT FACILITY WOULD HAVE CONDUCTED THE CRIMINAL HISTORY CHECK AS REQUIRED UNDER THIS SECTION>>.
(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.
(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 medicaid and medicare funding utilized to
pay for and reimburse charges for conducting criminal history
checks in accordance with this section and the amount remaining of
those funds.
(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) 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. 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 based
on a criminal history check conducted pursuant to section 20173 or
20173a may appeal to the department if he or she believes that the
criminal history report is inaccurate. The individual shall file
the appeal with the director of the department within 15 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 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 days after receiving the appeal. The
decision of the director is final.
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 reimburse those facilities for
the costs incurred 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, if necessary, has been secured and written
notice that the department has issued a medicaid policy bulletin
regarding the payment and reimbursement for the criminal history
checks.
(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.