HOUSE BILL No. 5762

 

February 28, 2006, Introduced by Reps. Vander Veen, Shaffer, Garfield, Taub, Brandenburg, Zelenko, Clack, Amos, Kooiman and Marleau and referred to the Committee on Senior Health, Security, and Retirement.

 

      A bill to protect and promote long-term health care; to

 

codify, revise, consolidate, classify, and add to the laws

 

relating to long-term health care; to provide for the

 

classification, administration, regulation, financing, and

 

maintenance of personal and other long-term health services and

 

activities; to create or continue, and prescribe the powers and

 

duties of, departments, boards, commissions, councils,

 

committees, task forces, and other agencies; to prescribe the

 

powers and duties of governmental entities and officials; to

 

regulate occupations, facilities, and agencies affecting long-

 

term health care and adult foster care; to provide for the

 


imposition of a regulatory fee; to promote the efficient and

 

economical delivery of long-term health care and adult foster

 

care services; to provide for the appropriate utilization of

 

long-term health care facilities and services and adult foster

 

care facilities and services; to provide for the collection and

 

use of data and information; to provide for the implementation of

 

federal law; to provide for penalties and remedies; to provide

 

for sanctions for violations of this act and local ordinances;

 

and to repeal acts and parts of acts.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

 1                            ARTICLE I

 

 2                        GENERAL PROVISIONS

 

 3                              PART 1

 

 4       SHORT TITLE, GENERAL DEFINITIONS, AND ADMINISTRATION

 

 5        Sec. 101. This act shall be known and may be cited as the

 

 6  "long-term health care continuum act".

 

 7        Sec. 103. (1) As used in this act:

 

 8        (a) "Act" means the long-term health care continuum act.

 

 9        (b) "Administrative procedures act of 1969" means 1969 PA

 

10  306, MCL 24.201 to 24.328.

 

11        (c) "Commission" means the long-term care commission created

 

12  under part 4.

 

13        (d) "Consumer" means an individual seeking or receiving

 

14  public assistance for long-term care.

 

15        (e) "Department" means the department of community health

 

16  unless otherwise provided under this act.

 

17        (f) "Director" means the director of the department.

 


 1        (g) "Long-term care" means those services and supports

 

 2  provided to an individual in a setting of his or her choice that

 

 3  are evaluative, preventative, rehabilitative, or health related

 

 4  in nature.

 

 5        (h) "Medicaid" or "title XIX" means the program for medical

 

 6  assistance established under title XIX of the social security

 

 7  act, 42 USC 1396 to 1396u, and administered by the department of

 

 8  human services under the social welfare act, 1939 PA 280, MCL

 

 9  400.1 to 400.119b.

 

10        (i) "Medicare" or "title XVIII" means benefits under the

 

11  federal medicare program established under title XVIII of the

 

12  social security act, 42 USC 1395 to 1395hhh.

 

13        (j) "Person" means an individual, partnership, cooperative,

 

14  association, private corporation, personal representative,

 

15  receiver, trustee, assignee, or other legal entity.

 

16        (k) "Public health code" means 1978 PA 368, MCL 333.1101 to

 

17  333.25211.

 

18        (l) "Primary consumer" means the actual user of long-term

 

19  care services.

 

20        (m) "Rule" means a rule promulgated pursuant to the

 

21  administrative procedures act of 1969.

 

22        (n) "Secondary consumer" means a family member or unpaid

 

23  caregiver of consumers.

 

24        (2) Unless otherwise provided in this act, the words defined

 

25  in subsection (1) apply to use of the defined term throughout

 

26  this act. Other definitions applicable to specific articles,

 

27  parts, or sections of this act are found in those articles,

 


 1  parts, or sections.

 

 2        Sec. 105. This act is intended to be consistent with

 

 3  applicable federal and state laws, rules, and regulations and

 

 4  shall be construed, when necessary, to achieve that consistency.

 

 5  This act shall be liberally construed for the protection of the

 

 6  health, safety, and welfare of the people of this state.

 

 7        Sec. 107. A heading or title of an article or part of this

 

 8  act shall not be considered as a part of this act or be used to

 

 9  construe the act more broadly or narrowly than the text of the

 

10  act sections would indicate, but shall be considered as inserted

 

11  for convenience to users of this act.

 

12        Sec. 109. The director may promulgate rules as necessary or

 

13  appropriate to implement and carry out the duties or functions

 

14  vested by law in the department. Rules promulgated by the

 

15  department or the director under the former public health code

 

16  with regard to parts 173, 213, 214, and 217 and in effect on the

 

17  effective date of this act continue in effect to the extent that

 

18  they do not conflict with this part and shall continue to be

 

19  enforced. The rules may be amended or rescinded by the director.

 

20                              PART 3

 

21                    LONG-TERM CARE COMMISSION

 

22        Sec. 301. (1) There is created within the department a long-

 

23  term care commission appointed by the governor to reflect the

 

24  geographic and cultural diversity of this state. The commission

 

25  shall be appointed as follows:

 

26        (a) Twenty-five voting members as follows:

 

27        (i) Fourteen consumers of which 50% shall be primary

 


 1  consumers and of those primary consumers 50% shall be users of

 

 2  medicaid services. The remainder of the 14 consumers shall be

 

 3  secondary consumers and representatives of consumer

 

 4  organizations.

 

 5        (ii) Seven providers of long-term health care or

 

 6  representatives of provider organizations.

 

 7        (iii) Three direct care workers.

 

 8        (iv) One individual from a state university who has expertise

 

 9  in long-term care research.

 

10        (b) Five nonvoting ex officio members as follows:

 

11        (i) State long-term care ombudsman.

 

12        (ii) Director of the department or his or her designated

 

13  representative.

 

14        (iii) Director of the department of human services or his or

 

15  her designated representative.

 

16        (iv) Director of the department of labor and economic growth

 

17  or his or her designated representative.

 

18        (v) A representative of the designated protection and

 

19  advocacy system.

 

20        (2) Voting members of the commission shall serve for terms

 

21  of 3 years or until a successor is appointed, whichever is later,

 

22  except that of the members first appointed 9 shall serve for 1

 

23  year, 8 shall serve for 2 years, and 8 shall serve for 3 years.

 

24  If a vacancy occurs on the commission, the governor shall make an

 

25  appointment for the unexpired term in the same manner as the

 

26  original appointment.

 

27        (3) The commission shall meet at least 6 times per year. A

 


 1  majority of the voting members serving constitute a quorum for

 

 2  the transaction of business as long as at least 8 of those voting

 

 3  members are consumer members. Members of the commission are

 

 4  entitled to receive per diem compensation and reimbursement of

 

 5  actual and necessary expenses while acting as an official

 

 6  representative of the commission as defined by commission

 

 7  policies and rules. The per diem compensation of the commission

 

 8  and the schedule for reimbursement of expenses shall be as

 

 9  established and appropriated annually by the legislature.

 

10        (4) The governor shall designate 1 person from among the

 

11  consumer membership to serve as chairperson of the commission.

 

12  The chairperson shall serve in that position at the pleasure of

 

13  the governor.

 

14        Sec. 303. (1) The commission shall do all of the following:

 

15        (a) Serve as an effective and visible advocate for all

 

16  consumers of long-term care supports and services.

 

17        (b) Participate in the preparation and review, prior to the

 

18  submission to the governor, of an ongoing, comprehensive

 

19  statewide plan and budget for long-term care services and

 

20  supports design, allocations, and strategies to address and meet

 

21  identified consumer preferences and needs.

 

22        (c) Ensure the broadest possible ongoing public

 

23  participation in statewide planning as part of subdivision (b).

 

24        (d) Ensure broad, culturally competent, and effective public

 

25  education initiatives are ongoing on long-term care issues,

 

26  choices, and opportunities for direct involvement by the public.

 

27        (e) Advise the governor and legislature regarding changes in

 


 1  federal and state programs, statutes, and policies.

 

 2        (f) Establish additional advisory committees, councils, or

 

 3  workgroups as deemed helpful or necessary in pursuit of the

 

 4  commission's mission.

 

 5        (2) The commission may consult with staff from the medical

 

 6  services administration and the office of services to the aging

 

 7  as necessary.

 

 8        Sec. 313. (1) The commission may appoint task forces and

 

 9  advisory committees composed of individuals in a number the

 

10  commission determines is appropriate when the commission

 

11  determines that either of the following exists:

 

12        (a) A task force or advisory committee is appropriate to

 

13  provide professional or technical expertise related to a

 

14  department or commission function under this act.

 

15        (b) A task force or advisory committee is appropriate to

 

16  provide additional public participation in a department or

 

17  commission function under this act.

 

18        (2) The department may request that the commission establish

 

19  a task force or advisory committee when the department determines

 

20  that the task force or advisory committee is appropriate to the

 

21  functions vested in the department by this act.

 

22        Sec. 315. (1) An advisory committee to the department

 

23  created in this act or task force created under section 313 shall

 

24  terminate 2 years after the date of its creation or renewal

 

25  unless the commission not later than 90 days before an advisory

 

26  committee or task force is to terminate reviews the need for the

 

27  continued existence of the advisory committee or task force and

 


 1  thereafter recommends its continuance.

 

 2        (2) Upon the recommendation of the commission, the director

 

 3  may reappoint or request reappointment of an advisory committee

 

 4  or task force which would have been otherwise terminated pursuant

 

 5  to subsection (1). Subsection (1) does not apply to advisory

 

 6  councils, commissions, boards, task forces, or other advisory

 

 7  bodies that are not specifically designated as advisory

 

 8  committees.

 

 9        (3) Not later than 2 years after the effective date of this

 

10  act, and biennially thereafter, the commission shall review and

 

11  advise the director on the need for, and alternatives to, each

 

12  advisory council, commission, board, task force, or body

 

13  established in the department.

 

14                           ARTICLE III

 

15                    LONG-TERM CARE FACILITIES

 

16                             PART 31

 

17                        GENERAL PROVISIONS

 

18        Sec. 3101. (1) As used in this article:

 

19        (a) "Adult foster care facility" means a governmental or

 

20  nongovernmental establishment that provides foster care to

 

21  adults. Subject to section 3526a(1), adult foster care facility

 

22  includes facilities and foster care family homes for adults who

 

23  are aged, mentally ill, developmentally disabled, or physically

 

24  disabled who require supervision on an ongoing basis but who do

 

25  not require continuous nursing care. Adult foster care facility

 

26  does not include any of the following:

 

27        (i) A nursing home.

 


 1        (ii) A home for the aged.

 

 2        (iii) A hospital licensed under article 17 of the public

 

 3  health code.

 

 4        (iv) A hospital for the mentally ill or a facility for the

 

 5  developmentally disabled operated by the department of community

 

 6  health under the mental health code, 1974 PA 258, MCL 330.1001 to

 

 7  330.2106.

 

 8        (v) A county infirmary operated by a county department of

 

 9  human services under section 55 of the social welfare act, 1939

 

10  PA 280, MCL 400.55.

 

11        (vi) A child caring institution, children's camp, foster

 

12  family home, or foster family group home licensed or approved

 

13  under 1973 PA 116, MCL 722.111 to 722.128, if the number of

 

14  residents who become 18 years of age while residing in the

 

15  institution, camp, or home does not exceed the following:

 

16        (A) Two, if the total number of residents is 10 or fewer.

 

17        (B) Three, if the total number of residents is not less than

 

18  11 and not more than 14.

 

19        (C) Four, if the total number of residents is not less than

 

20  15 and not more than 20.

 

21        (D) Five, if the total number of residents is 21 or more.

 

22        (vii) A foster family home licensed or approved under 1973 PA

 

23  116, MCL 722.111 to 722.128, that has a person who is 18 years of

 

24  age or older placed in the foster family home under section 5(7)

 

25  of 1973 PA 116, MCL 722.115.

 

26        (viii) An establishment commonly described as an alcohol or a

 

27  substance abuse rehabilitation center, a residential facility for

 


 1  persons released from or assigned to adult correctional

 

 2  institutions, a maternity home, or a hotel or rooming house that

 

 3  does not provide or offer to provide foster care.

 

 4        (ix) A facility created by 1885 PA 152, MCL 36.1 to 36.12.

 

 5        (b) "County medical care facility" means a nursing care

 

 6  facility, other than a hospital long-term care unit, which

 

 7  provides organized nursing care and medical treatment to 7 or

 

 8  more unrelated individuals who are suffering or recovering from

 

 9  illness, injury, or infirmity and which is owned by a county or

 

10  counties.

 

11        (c) "Home for the aged" means a supervised personal care

 

12  facility, other than a hotel, adult foster care facility,

 

13  hospital, nursing home, or county medical care facility that

 

14  provides room, board, and supervised personal care to 21 or more

 

15  unrelated, nontransient individuals 60 years of age or older.

 

16  Home for the aged includes a supervised personal care facility

 

17  for 20 or fewer individuals 60 years of age or older if the

 

18  facility is operated in conjunction with and as a distinct part

 

19  of a licensed nursing home.

 

20        (d) "Hospice" means a health care program that provides a

 

21  coordinated set of services rendered at home or in an outpatient

 

22  or institutional setting for individuals suffering from a disease

 

23  or condition with a terminal prognosis.

 

24        (e) "License" means an authorization, annual or as otherwise

 

25  specified, granted by the appropriate department and evidenced by

 

26  a certificate of licensure granting permission to a person to

 

27  establish or maintain and operate, or both, a long-term care

 


 1  facility.

 

 2        (f) "Licensee" means the holder of a license to establish or

 

 3  maintain and operate, or both, a long-term care facility.

 

 4        (g) "Long-term care facility" means a county medical care

 

 5  facility, home for the aged, hospice, and nursing home.

 

 6        (h) "Nursing home" means a nursing care facility, including

 

 7  a county medical care facility, that provides organized nursing

 

 8  care and medical treatment to 7 or more unrelated individuals

 

 9  suffering or recovering from illness, injury, or infirmity.

 

10  Nursing home does not include a unit in a state correctional

 

11  facility. Nursing home does not include 1 or more of the

 

12  following:

 

13        (i) A hospital licensed under article 17 of the public health

 

14  code.

 

15        (ii) A veterans facility created under 1885 PA 152, MCL 36.1

 

16  to 36.12.

 

17        (iii) A hospice residence that is licensed under this article.

 

18        (iv) A hospice that is certified under 42 CFR 418.100.

 

19        (2) In addition, article I contains general definitions

 

20  applicable to all articles in this act.

 

21        Sec. 3103. (1) Except as otherwise provided in this article,

 

22  the department shall utilize the comprehensive system of

 

23  licensure established pursuant to part 201 of the public health

 

24  code for the licensure of long-term care facilities under this

 

25  act.

 

26        (2) A person shall not establish or maintain and operate a

 

27  long-term care facility without holding a license from the

 


 1  appropriate department as required by this act. A long-term care

 

 2  facility license issued under former part 213, 214, or 217 of the

 

 3  public health code is a license issued under this article on the

 

 4  effective date of this act until that license expires and then

 

 5  the long-term care facility may renew the license pursuant to

 

 6  this article.

 

 7        (3) Unless otherwise provided by law, the licensing and

 

 8  certification records required by this article are public

 

 9  records.

 

10        Sec. 3105. (1) A long-term care facility shall apply for

 

11  licensure or certification on a form authorized and provided by

 

12  the department. The application shall include attachments,

 

13  additional data, and information required by the department.

 

14        (2) An applicant shall certify the accuracy of information

 

15  supplied in the application and supplemental statements.

 

16        (3) An applicant or a licensee under part 32 or 33 shall

 

17  disclose the names, addresses, principal occupations, and

 

18  official positions of all persons who have an ownership interest

 

19  in that long-term care facility. If that long-term care facility

 

20  is located on or in leased real estate, the applicant or licensee

 

21  shall disclose the name of the lessor and any direct or indirect

 

22  interest the applicant or licensee has in the lease other than as

 

23  lessee. A change in ownership shall be reported to the director

 

24  not less than 15 days before the change occurs, except that a

 

25  person purchasing stock of a company registered pursuant to the

 

26  securities exchange act of 1934, 15 USC 78a to 78kk, is exempt

 

27  from disclosing ownership in the facility. A person required to

 


 1  file a beneficial ownership report pursuant to section 16(a) of

 

 2  the securities exchange act of 1934, 15 USC 78p, shall file with

 

 3  the department information relating to securities ownership

 

 4  required by department rule or order. An applicant or licensee

 

 5  proposing a sale of a nursing home to another person shall

 

 6  provide the department with written, advance notice of the

 

 7  proposed sale. The applicant or licensee and the other parties to

 

 8  the sale shall arrange to meet with specified department

 

 9  representatives and shall obtain before the sale a determination

 

10  of the items of noncompliance with applicable law and rules which

 

11  shall be corrected. The department shall notify the respective

 

12  parties of the items of noncompliance prior to the change of

 

13  ownership and shall indicate that the items of noncompliance must

 

14  be corrected as a condition of issuance of a license to the new

 

15  owner. The department may accept reports filed with the

 

16  securities and exchange commission relating to the filings. A

 

17  person who violates this subsection is guilty of a misdemeanor

 

18  punishable by a fine of not more than $1,000.00 for each

 

19  violation.

 

20        (4) An applicant or licensee under part 32 shall disclose

 

21  the names and business addresses of suppliers who furnish goods

 

22  or services to an individual nursing home or a group of nursing

 

23  homes under common ownership, the aggregate charges for which

 

24  exceed $5,000.00 in a 12-month period which includes a month in a

 

25  nursing home's current fiscal year. An applicant or licensee

 

26  shall disclose the names, addresses, principal occupations, and

 

27  official positions of all persons who have an ownership interest

 


 1  in a business which furnishes goods or services to an individual

 

 2  nursing home or to a group of nursing homes under common

 

 3  ownership, if both of the following apply:

 

 4        (a) The person, or the person's spouse, parent, sibling, or

 

 5  child, has an ownership interest in the nursing home purchasing

 

 6  the goods or services.

 

 7        (b) The aggregate charges for the goods or services

 

 8  purchased exceed $5,000.00 in a 12-month period which includes a

 

 9  month in the nursing home's current fiscal year.

 

10        (5) An applicant or licensee who makes a false statement in

 

11  an application or statement required by the department pursuant

 

12  to this article is guilty of a felony punishable by imprisonment

 

13  for not more than 4 years or a fine of not more than $30,000.00,

 

14  or both.

 

15        Sec. 3106. (1) A licensee shall certify to the department,

 

16  as part of its application for licensing and certification, that

 

17  all phases of its operation, including its training programs,

 

18  comply with state and federal laws prohibiting discrimination.

 

19  The applicant shall direct the administrator of the long-term

 

20  care facility to take the necessary action to assure that the

 

21  facility is, in fact, so operated.

 

22        (2) This section does not prohibit a long-term care facility

 

23  from developing facilities and programs of care that are for

 

24  specific ages or sexes or rating individuals for purposes of

 

25  determining appropriate reimbursement for care and services.

 

26        Sec. 3107. (1) Except as otherwise provided in this section,

 

27  the department shall make annual and other visits to each long-

 


 1  term care facility licensed under this article for the purposes

 

 2  of survey, evaluation, and consultation. A visit made pursuant to

 

 3  a complaint shall be unannounced. The department shall assure

 

 4  that each newly hired nursing home surveyor, as part of his or

 

 5  her basic training, is assigned full-time to a licensed nursing

 

 6  home for at least 10 days within a 14-day period to observe

 

 7  actual operations outside of the survey process before the

 

 8  trainee begins oversight responsibilities. A member of a survey

 

 9  team shall not be employed by a licensed nursing home or a

 

10  nursing home management company doing business in this state at

 

11  the time of conducting a survey under this section. The

 

12  department shall not assign an individual to be a member of a

 

13  survey team for purposes of a survey, evaluation, or consultation

 

14  visit at a nursing home in which he or she was an employee within

 

15  the preceding 5 years.

 

16        (2) The department shall make at least a biennial visit to

 

17  each long-term care facility for the purposes of survey,

 

18  evaluation, and consultation. The department shall semiannually

 

19  provide for joint training with nursing home surveyors and

 

20  providers on at least 1 of the 10 most frequently issued federal

 

21  citations in this state during the past calendar year. The

 

22  department shall adopt the protocols for the review of citation

 

23  patterns compared to regional outcomes and standards and

 

24  complaints regarding the nursing home survey process as developed

 

25  under the public health code. The review will result in a report

 

26  provided to the legislature. Each member of a department nursing

 

27  home survey team who is a health professional licensee under the

 


 1  public health code shall earn not less than 50% of his or her

 

 2  required continuing education credits, if any, in geriatric care.

 

 3  If a member of a nursing home survey team is a pharmacist

 

 4  licensed under article 15 of the public health code, he or she

 

 5  shall earn not less than 30% of his or her required continuing

 

 6  education credits in geriatric care.

 

 7        (3) This section does not prohibit the department from

 

 8  citing a violation of this part during a survey, conducting

 

 9  investigations or inspections pursuant to section 3109, or

 

10  conducting surveys of long-term care facilities for the purpose

 

11  of complaint investigations or federal certification. This

 

12  section does not prohibit the state fire marshal from conducting

 

13  annual surveys of long-term care facilities.

 

14        (4) The department or a local health department shall

 

15  conduct investigations or inspections, other than inspections of

 

16  financial records, of long-term care facilities without prior

 

17  notice to the long-term care facility. An employee of a state

 

18  agency charged with investigating or inspecting the long-term

 

19  care facility or an employee of a local health department who

 

20  directly or indirectly gives prior notice regarding an

 

21  investigation or an inspection, other than an inspection of the

 

22  financial records, to the long-term care facility or to an

 

23  employee of the long-term care facility is guilty of a

 

24  misdemeanor. Consultation visits that are not for the purpose of

 

25  annual or follow-up inspection or survey may be announced.

 

26        (5) The department shall maintain a record indicating

 

27  whether a visit and inspection are announced or unannounced.

 


 1  Information gathered at each visit and inspection, whether

 

 2  announced or unannounced, shall be taken into account in

 

 3  licensure decisions.

 

 4        (6) The department shall require periodic reports, and a

 

 5  long-term care facility shall give the department access to

 

 6  books, records, and other documents maintained by a long-term

 

 7  care facility to the extent necessary to carry out the purpose of

 

 8  this article and the rules promulgated under this article. The

 

 9  department shall respect the confidentiality of a patient's

 

10  clinical record and shall not divulge or disclose the contents of

 

11  the records in a manner that identifies an individual except

 

12  under court order. The department may copy long-term care

 

13  facility records as required to document findings.

 

14        (7) The department may delegate survey, evaluation, or

 

15  consultation functions to another state agency or to a local

 

16  health department qualified to perform those functions. However,

 

17  the department shall not delegate survey, evaluation, or

 

18  consultation functions to a local health department that owns or

 

19  operates a hospice or hospice residence licensed under this

 

20  article. The delegation shall be by cost reimbursement contract

 

21  between the department and the state agency or local health

 

22  department. Survey, evaluation, or consultation functions shall

 

23  not be delegated to nongovernmental agencies, except as provided

 

24  in this section.

 

25        (8) If, upon investigation, the department or a state agency

 

26  determines that an individual licensed to practice a profession

 

27  in this state has violated the applicable licensure statute or

 


 1  the rules promulgated under that statute, the department, state

 

 2  agency, or local health department shall forward the evidence it

 

 3  has to the appropriate licensing agency.

 

 4        (9) The department shall report to the appropriations

 

 5  subcommittees, the senate and house of representatives standing

 

 6  committees having jurisdiction over issues involving senior

 

 7  citizens, and the fiscal agencies on March 1 of each year on the

 

 8  initial and follow-up surveys conducted on all nursing homes in

 

 9  this state. The report shall include all of the following

 

10  information:

 

11        (a) The number of surveys conducted.

 

12        (b) The number requiring follow-up surveys.

 

13        (c) The number referred to the Michigan public health

 

14  institute for remediation.

 

15        (d) The number of citations per nursing home.

 

16        (e) The number of night and weekend complaints filed.

 

17        (f) The number of night and weekend responses to complaints

 

18  conducted by the department.

 

19        (g) The average length of time for the department to respond

 

20  to a complaint filed against a nursing home.

 

21        (h) The number and percentage of citations appealed.

 

22        (i) The number and percentage of citations overturned or

 

23  modified, or both.

 

24        (10) The department shall report annually to the standing

 

25  committees on appropriations and the standing committees having

 

26  jurisdiction over issues involving senior citizens in the senate

 

27  and the house of representatives on the percentage of nursing

 


 1  home citations that are appealed and the percentage of nursing

 

 2  home citations that are appealed and amended through the informal

 

 3  deficiency dispute resolution process.

 

 4        (11) The department shall adopt the terms, the

 

 5  clarifications of those terms, and the clinical process

 

 6  guidelines and compliance protocols with outcome measures in

 

 7  applying those terms as developed and provided by the

 

 8  clarification workgroup established under section 20155 of the

 

 9  public health code.

 

10        (12) A long-term care facility shall post the facility's

 

11  survey report in a conspicuous place within the facility for

 

12  public review.

 

13        Sec. 3109. (1) A representative of the department or the

 

14  state fire marshal division of the department of labor and

 

15  economic growth, upon presentation of proper identification, may

 

16  enter the premises of an applicant or licensee at any reasonable

 

17  time to determine whether the applicant or licensee meets the

 

18  requirements of this article and the rules promulgated under this

 

19  article. The director, the director of human services, the state

 

20  fire marshal, the director of the office of services to the

 

21  aging, or the director of a local health department, or an

 

22  authorized representative of the director, the director of human

 

23  services, the state fire marshal, the director of the office of

 

24  services to the aging, or the director of a local health

 

25  department, may enter on the premises of an applicant or licensee

 

26  under this article at any time in the course of carrying out

 

27  program responsibilities.

 


 1        (2) The state fire marshal division of the department of

 

 2  labor and economic growth shall enforce rules promulgated by the

 

 3  state fire safety board for long-term care facilities to assure

 

 4  that physical facilities owned, maintained, or operated by a

 

 5  long-term care facility are planned, constructed, and maintained

 

 6  in a manner to protect the health, safety, and welfare of

 

 7  patients.

 

 8        (3) The department shall not issue a license or certificate

 

 9  to a long-term care facility until it receives an appropriate

 

10  certificate of approval from the state fire marshal division of

 

11  the department of labor and economic growth. For purposes of this

 

12  section, a decision of the state fire marshal division of the

 

13  department of labor and economic growth to issue a certificate

 

14  controls over that of a local fire department.

 

15        Sec. 3111. (1) Upon a determination that a long-term care

 

16  facility is in compliance with this article and the rules

 

17  promulgated under this article, the department shall issue an

 

18  initial license within 6 months after the applicant files a

 

19  completed application. Receipt of the application is considered

 

20  the date the application is received by any agency or department

 

21  of this state. If the application is considered incomplete by the

 

22  department, the department shall notify the applicant in writing

 

23  or make the notice electronically available within 30 days after

 

24  receipt of the incomplete application, describing the deficiency

 

25  and requesting additional information. If the department

 

26  identifies a deficiency or requires the fulfillment of a

 

27  corrective action plan, the 6-month period is tolled until either

 


 1  of the following occurs:

 

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

 

 3  until the date the requested information is received by the

 

 4  department.

 

 5        (b) Upon notification by the department that a corrective

 

 6  action plan is required, until the date the department determines

 

 7  the requirements of the corrective action plan have been met.

 

 8        (2) The determination of the completeness of an application

 

 9  does not operate as an approval of the application for the

 

10  license and does not confer eligibility of an applicant

 

11  determined otherwise ineligible for issuance of a license.

 

12        (3) Except as otherwise provided in this subsection, if the

 

13  department fails to issue or deny a license within the time

 

14  period required by this section, the department shall return the

 

15  license fee and shall reduce the license fee for the applicant's

 

16  next licensure application, if any, by 15%. Failure to issue or

 

17  deny a license within the time period required under this section

 

18  does not allow the department to otherwise delay processing an

 

19  application. The completed application shall be placed in

 

20  sequence with other completed applications received at that same

 

21  time. The department shall not discriminate against an applicant

 

22  in the processing of the application based upon the fact that the

 

23  application fee was refunded or discounted under this subsection.

 

24  The department may issue a nonrenewable temporary permit for not

 

25  more than 6 months if additional time is needed to make a proper

 

26  investigation or to permit the applicant to undertake remedial

 

27  action related to operational or procedural deficiencies or items

 


 1  of noncompliance. A temporary permit shall not be issued to cover

 

 2  deficiencies in physical plant requirements.

 

 3        (4) Except as provided in part 32, the department may issue

 

 4  a provisional license for not more than 3 consecutive years to an

 

 5  applicant who temporarily is unable to comply with the rules as

 

 6  to the physical plant owned, maintained, or operated by a long-

 

 7  term care facility except as otherwise provided in this article.

 

 8  A provisional license shall not be issued to a new long-term care

 

 9  facility or a long-term care facility whose ownership is

 

10  transferred after the effective date of this act, unless the

 

11  long-term care facility was licensed and operating under this

 

12  article or a prior law for not less than 5 years. Provisional

 

13  licensure under acts repealed by this act shall be counted

 

14  against the 3-year maximum for licensure.

 

15        (5) The department, in order to protect the people of this

 

16  state, shall provide a procedure for the orderly closing of a

 

17  long-term care facility if it is unable to maintain its license

 

18  under this section.

 

19        (6) Except as provided in part 32, the department, upon

 

20  finding that a long-term care facility is not operating in accord

 

21  with the requirements of its license, may do the following:

 

22        (a) Issue an order directing the licensee to:

 

23        (i) Discontinue admissions.

 

24        (ii) Transfer selected patients out of the facility.

 

25        (iii) Reduce its licensed capacity.

 

26        (iv) Comply with specific requirements for licensure or

 

27  certification as appropriate.

 


 1        (b) Through the office of the attorney general, initiate

 

 2  misdemeanor proceedings against the licensee as provided in

 

 3  section 3143.

 

 4        (7) An order issued under subsection (6) shall be governed

 

 5  by the notice and hearing requirements of section 3119(1) and the

 

 6  status requirements of section 3119(2).

 

 7        (8) As used in this section, "completed application" means

 

 8  an application complete on its face and submitted with any

 

 9  applicable licensing fees as well as any other information,

 

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

 

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

 

12  private entity but not from another department or agency of this

 

13  state.

 

14        Sec. 3113. (1) A license, certification, provisional

 

15  license, or limited license is valid for not more than 1 year

 

16  after the date of issuance. A license or certification is not

 

17  transferable and shall state the persons, buildings, and

 

18  properties to which it applies.

 

19        (2) If ownership is not voluntarily transferred, the

 

20  department shall be notified immediately and the new owner shall

 

21  apply for a license and certification not later than 30 days

 

22  after the transfer.

 

23        Sec. 3115. (1) Except as otherwise provided in this section,

 

24  after notice of intent to an applicant or licensee to deny,

 

25  limit, suspend, or revoke the applicant's or licensee's license

 

26  or certification and an opportunity for a hearing, the department

 

27  may deny, limit, suspend, or revoke the license or certification

 


 1  or impose an administrative fine on a licensee if 1 or more of

 

 2  the following exist:

 

 3        (a) Fraud or deceit in obtaining or attempting to obtain a

 

 4  license or certification or in the operation of the licensed

 

 5  long-term care facility.

 

 6        (b) A violation of this article or a rule promulgated under

 

 7  this article.

 

 8        (c) False or misleading advertising.

 

 9        (d) Negligence or failure to exercise due care, including

 

10  negligent supervision of employees and subordinates.

 

11        (e) Permitting a license or certificate to be used by an

 

12  unauthorized long-term care facility.

 

13        (f) Evidence of abuse regarding a patient's health, welfare,

 

14  or safety or the denial of a patient's rights.

 

15        (2) The department may deny an application for a license or

 

16  certification based on a finding of a condition or practice that

 

17  would constitute a violation of this article if the applicant

 

18  were a licensee.

 

19        Sec. 3117. (1) Notice of intent to deny, limit, suspend, or

 

20  revoke a license or certification shall be given by certified

 

21  mail or personal service, shall set forth the particular reasons

 

22  for the proposed action, and shall fix a date, not less that 30

 

23  days after the date of service, on which the applicant or

 

24  licensee shall be given the opportunity for a hearing before the

 

25  director or the director's authorized representative. The hearing

 

26  shall be conducted in accordance with the administrative

 

27  procedures act of 1969 and rules promulgated by the department. A

 


 1  full and complete record shall be kept of the proceeding and

 

 2  shall be transcribed when requested by an interested party, who

 

 3  shall pay the cost of preparing the transcript.

 

 4        (2) On the basis of a hearing or on the default of the

 

 5  applicant or licensee, the department may issue, deny, limit,

 

 6  suspend, or revoke a license or certification. A copy of the

 

 7  determination shall be sent by certified mail or served

 

 8  personally upon the applicant or licensee. The determination

 

 9  becomes final 30 days after it is mailed or served, unless the

 

10  applicant or licensee within the 30 days appeals the decision to

 

11  the circuit court in the county of jurisdiction or to the Ingham

 

12  county circuit court.

 

13        (3) The department may establish procedures, hold hearings,

 

14  administer oaths, issue subpoenas, or order testimony to be taken

 

15  at a hearing or by deposition in a proceeding pending at any

 

16  stage of the proceeding. A person may be compelled to appear and

 

17  testify and to produce books, papers, or documents in a

 

18  proceeding.

 

19        (4) In case of disobedience of a subpoena, a party to a

 

20  hearing may invoke the aid of the circuit court of the

 

21  jurisdiction in which the hearing is held to require the

 

22  attendance and testimony of witnesses. The circuit court may

 

23  issue an order requiring an individual to appear and give

 

24  testimony. Failure to obey the order of the circuit court may be

 

25  punished by the court as a contempt.

 

26        (5) The department shall not deny, limit, suspend, or revoke

 

27  a license on the basis of an applicant's or licensee's failure to

 


 1  show a need for a long-term care facility.

 

 2        Sec. 3119. (1) Upon a finding that a deficiency or violation

 

 3  of this article or the rules promulgated under this article

 

 4  seriously affect the health, safety, and welfare of individuals

 

 5  receiving care or services in or from a licensed long-term care

 

 6  facility, the department may issue an emergency order limiting,

 

 7  suspending, or revoking the license of the long-term care

 

 8  facility. If the department issues an emergency order affecting

 

 9  the license of a nursing home, the department may request the

 

10  department of human services to limit reimbursements or payments

 

11  authorized under section 3218. The department shall provide an

 

12  opportunity for a hearing within 5 working days after issuance of

 

13  the order.

 

14        (2) An order shall incorporate the department's findings.

 

15  The conduct of a hearing under this section shall not suspend the

 

16  department's order.

 

17        Sec. 3121. If the department is directed to promulgate rules

 

18  by this act and rules exist pursuant to former part 213, 214, or

 

19  217 of the public health code or to the former adult foster care

 

20  facility licensing act, 1979 PA 218, MCL 400.701 to 400.737, on

 

21  the date the requirement to promulgate takes effect, then those

 

22  rules continue in effect and shall apply to the long-term care

 

23  facilities licensed under this act to the extent that they do not

 

24  conflict with this act and shall continue to be enforced. The

 

25  rules may be amended or rescinded by the director.

 

26        Sec. 3123. If a board, committee, council, task force, or

 

27  other agency created by or pursuant to this act was preceded by

 


 1  an agency with the same or similar name and functions under the

 

 2  public health code, former parts of the public health code, or

 

 3  the former adult foster care facility licensing act, 1979 PA 218,

 

 4  MCL 400.701 to 400.737, members of the predecessor agency shall

 

 5  continue in office for the duration of the terms of office for

 

 6  which they were appointed and with the new members appointed

 

 7  shall constitute the new agency. Members shall be appointed under

 

 8  this act only as terms of the former members expire or vacancies

 

 9  occur. Members of the predecessor agency may be appointed to the

 

10  new agency to succeed themselves subject to the limits for the

 

11  total period of service set forth in this act.

 

12        Sec. 3125. (1) Except as otherwise provided in subsection

 

13  (2), a long-term care facility shall not employ, independently

 

14  contract with, or grant clinical privileges to an individual who

 

15  regularly has direct access to or provides direct services to

 

16  patients or residents in the health facility or agency after the

 

17  effective date of this act if the individual satisfies 1 or more

 

18  of the following:

 

19        (a) Has been convicted of a relevant crime described under

 

20  42 USC 1320a-7.

 

21        (b) Has been convicted of any of the following felonies, an

 

22  attempt or conspiracy to commit any of those felonies, or any

 

23  other state or federal crime that is similar to the felonies

 

24  described in this subdivision, other than a felony for a relevant

 

25  crime described under 42 USC 1320a-7, unless 15 years have lapsed

 

26  since the individual completed all of the terms and conditions of

 

27  his or her sentencing, parole, and probation for that conviction

 


 1  prior to the date of application for employment or clinical

 

 2  privileges or the date of the execution of the independent

 

 3  contract:

 

 4        (i) A felony that involves the intent to cause death or

 

 5  serious impairment of a body function, that results in death or

 

 6  serious impairment of a body function, that involves the use of

 

 7  force or violence, or that involves the threat of the use of

 

 8  force or violence.

 

 9        (ii) A felony involving cruelty or torture.

 

10        (iii) A felony under chapter XXA of the Michigan penal code,

 

11  1931 PA 328, MCL 750.145m to 750.145r.

 

12        (iv) A felony involving criminal sexual conduct.

 

13        (v) A felony involving abuse or neglect.

 

14        (vi) A felony involving the use of a firearm or dangerous

 

15  weapon.

 

16        (vii) A felony involving the diversion or adulteration of a

 

17  prescription drug or other medications.

 

18        (c) Has been convicted of a felony or an attempt or

 

19  conspiracy to commit a felony, other than a felony for a relevant

 

20  crime described under 42 USC 1320a-7 or a felony described under

 

21  subdivision (b), unless 10 years have lapsed since the individual

 

22  completed all of the terms and conditions of his or her

 

23  sentencing, parole, and probation for that conviction prior to

 

24  the date of application for employment or clinical privileges or

 

25  the date of the execution of the independent contract.

 

26        (d) Has been convicted of any of the following misdemeanors,

 

27  other than a misdemeanor for a relevant crime described under 42

 


 1  USC 1320a-7, or a state or federal crime that is substantially

 

 2  similar to the misdemeanors described in this subdivision, within

 

 3  the 10 years immediately preceding the date of application for

 

 4  employment or clinical privileges or the date of the execution of

 

 5  the independent contract:

 

 6        (i) A misdemeanor involving the use of a firearm or dangerous

 

 7  weapon with the intent to injure, the use of a firearm or

 

 8  dangerous weapon that results in a personal injury, or a

 

 9  misdemeanor involving the use of force or violence or the threat

 

10  of the use of force or violence.

 

11        (ii) A misdemeanor under chapter XXA of the Michigan penal

 

12  code, 1931 PA 328, MCL 750.145m to 750.145r.

 

13        (iii) A misdemeanor involving criminal sexual conduct.

 

14        (iv) A misdemeanor involving cruelty or torture unless

 

15  otherwise provided under subdivision (e).

 

16        (v) A misdemeanor involving abuse or neglect.

 

17        (e) Has been convicted of any of the following misdemeanors,

 

18  other than a misdemeanor for a relevant crime described under 42

 

19  USC 1320a-7, or a state or federal crime that is substantially

 

20  similar to the misdemeanors described in this subdivision, within

 

21  the 5 years immediately preceding the date of application for

 

22  employment or clinical privileges or the date of the execution of

 

23  the independent contract:

 

24        (i) A misdemeanor involving cruelty if committed by an

 

25  individual who is less than 16 years of age.

 

26        (ii) A misdemeanor involving home invasion.

 

27        (iii) A misdemeanor involving embezzlement.

 


 1        (iv) A misdemeanor involving negligent homicide.

 

 2        (v) A misdemeanor involving larceny unless otherwise

 

 3  provided under subdivision (g).

 

 4        (vi) A misdemeanor of retail fraud in the second degree

 

 5  unless otherwise provided under subdivision (g).

 

 6        (vii) Any other misdemeanor involving assault, fraud, theft,

 

 7  or the possession or delivery of a controlled substance unless

 

 8  otherwise provided under subdivision (d), (f), or (g).

 

 9        (f) Has been convicted of any of the following misdemeanors,

 

10  other than a misdemeanor for a relevant crime described under 42

 

11  USC 1320a-7, or a state or federal crime that is substantially

 

12  similar to the misdemeanors described in this subdivision, within

 

13  the 3 years immediately preceding the date of application for

 

14  employment or clinical privileges or the date of the execution of

 

15  the independent contract:

 

16        (i) A misdemeanor for assault if there was no use of a

 

17  firearm or dangerous weapon and no intent to commit murder or

 

18  inflict great bodily injury.

 

19        (ii) A misdemeanor of retail fraud in the third degree unless

 

20  otherwise provided under subdivision (g).

 

21        (iii) A misdemeanor under part 74 unless otherwise provided

 

22  under subdivision (g).

 

23        (g) Has been convicted of any of the following misdemeanors,

 

24  other than a misdemeanor for a relevant crime described under 42

 

25  USC 1320a-7, or a state or federal crime that is substantially

 

26  similar to the misdemeanors described in this subdivision, within

 

27  the year immediately preceding the date of application for

 


 1  employment or clinical privileges or the date of the execution of

 

 2  the independent contract:

 

 3        (i) A misdemeanor under part 74 if the individual, at the

 

 4  time of conviction, is under the age of 18.

 

 5        (ii) A misdemeanor for larceny or retail fraud in the second

 

 6  or third degree if the individual, at the time of conviction, is

 

 7  under the age of 16.

 

 8        (h) Is the subject of an order or disposition under section

 

 9  16b of chapter IX of the code of criminal procedure, 1927 PA 175,

 

10  MCL 769.16b.

 

11        (i) Has been the subject of a substantiated finding of

 

12  neglect, abuse, or misappropriation of property by a state or

 

13  federal agency pursuant to an investigation conducted in

 

14  accordance with 42 USC 1395i-3 or 1396r.

 

15        (2) Except as otherwise provided in subsection (5), a long-

 

16  term care facility shall not employ, independently contract with,

 

17  or grant privileges to an individual who regularly has direct

 

18  access to or provides direct services to patients or residents in

 

19  the long-term care facility after the effective date of this act

 

20  until the long-term care facility conducts a criminal history

 

21  check in compliance with subsection (4). This subsection and

 

22  subsection (1) do not apply to any of the following:

 

23        (a) An individual who is employed by, under independent

 

24  contract to, or granted clinical privileges in a long-term care

 

25  facility before the effective date of this act. Within 24 months

 

26  after the effective date of this act, an individual who is exempt

 

27  under this subdivision shall provide the department of state

 


 1  police with a set of fingerprints and the department of state

 

 2  police shall input those fingerprints into the automated

 

 3  fingerprint identification system database established under

 

 4  subsection (12). An individual who is exempt under this

 

 5  subdivision is not limited to working within the long-term care

 

 6  facility with which he or she is employed by, under independent

 

 7  contract to, or granted clinical privileges on the effective date

 

 8  of this act. That individual may transfer to another long-term

 

 9  care facility that is under the same ownership with which he or

 

10  she was employed, under contract, or granted privileges. If that

 

11  individual wishes to transfer to another long-term care facility

 

12  that is not under the same ownership, he or she may do so

 

13  provided that a criminal history check is conducted by the new

 

14  long-term care facility in accordance with subsection (4). If an

 

15  individual who is exempt under this subdivision is subsequently

 

16  convicted of a crime described under subsection (1)(a) through

 

17  (g) or found to be the subject of a substantiated finding

 

18  described under subsection (1)(i) or an order or disposition

 

19  described under subsection (1)(h), or is found to have been

 

20  convicted of a relevant crime described under subsection (1)(a),

 

21  then he or she is no longer exempt and shall be terminated from

 

22  employment or denied employment.

 

23        (b) An individual who is an independent contractor with a

 

24  long-term care facility if the services for which he or she is

 

25  contracted is not directly related to the provision of services

 

26  to a patient or resident or if the services for which he or she

 

27  is contracted allows for direct access to the patients or

 


 1  residents but is not performed on an ongoing basis. This

 

 2  exception includes, but is not limited to, an individual who

 

 3  independently contracts with the health facility or agency to

 

 4  provide utility, maintenance, construction, or communications

 

 5  services.

 

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

 

 7  employee or as an independent contractor or for clinical

 

 8  privileges with a long-term care facility and has received a good

 

 9  faith offer of employment, an independent contract, or clinical

 

10  privileges from the health facility or agency shall give written

 

11  consent at the time of application for the department of state

 

12  police to conduct an initial criminal history check under this

 

13  section, along with identification acceptable to the department

 

14  of state police.

 

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

 

16  required under subsection (3), a long-term care facility that has

 

17  made a good faith offer of employment or an independent contract

 

18  or clinical privileges to the applicant shall make a request to

 

19  the department of state police to conduct a criminal history

 

20  check on the applicant, to input the applicant's fingerprints

 

21  into the automated fingerprint identification system database,

 

22  and to forward the applicant's fingerprints to the federal bureau

 

23  of investigation. The department of state police shall request

 

24  the federal bureau of investigation to make a determination of

 

25  the existence of any national criminal history pertaining to the

 

26  applicant. The applicant shall provide the department of state

 

27  police with a set of fingerprints. The request shall be made in a

 


 1  manner prescribed by the department of state police. The long-

 

 2  term care facility shall make the written consent and

 

 3  identification available to the department of state police. The

 

 4  long-term care facility shall make a request to the relevant

 

 5  licensing or regulatory department to conduct a check of all

 

 6  relevant registries established pursuant to federal and state law

 

 7  and regulations for any substantiated findings of abuse, neglect,

 

 8  or misappropriation of property. If the department of state

 

 9  police or the federal bureau of investigation charges a fee for

 

10  conducting the initial criminal history check, the charge shall

 

11  be paid by or reimbursed by the department with federal funds as

 

12  provided to implement a pilot program for national and state

 

13  background checks on direct patient access employees of long-term

 

14  care facilities or providers in accordance with section 307 of

 

15  the medicare prescription drug, improvement, and modernization

 

16  act of 2003, Public Law 108-173. The long-term care facility

 

17  shall not seek reimbursement for a charge imposed by the

 

18  department of state police or the federal bureau of investigation

 

19  from the individual who is the subject of the initial criminal

 

20  history check. A long-term care facility, a prospective employee,

 

21  or a prospective independent contractor covered under this

 

22  section may not be charged for the cost of an initial criminal

 

23  history check required under this section. The department of

 

24  state police shall conduct a criminal history check on the

 

25  applicant named in the request. The department of state police

 

26  shall provide the department with a written report of the

 

27  criminal history check conducted under this subsection if the

 


 1  criminal history check contains any criminal history record

 

 2  information. The report shall contain any criminal history record

 

 3  information on the applicant maintained by the department of

 

 4  state police. The department of state police shall provide the

 

 5  results of the federal bureau of investigation determination to

 

 6  the department within 30 days after the request is made. If the

 

 7  requesting long-term care facility is not a state department or

 

 8  agency and if a criminal conviction is disclosed on the written

 

 9  report of the criminal history check or the federal bureau of

 

10  investigation determination, the department shall notify the

 

11  long-term care facility and the applicant in writing of the type

 

12  of crime disclosed on the written report of the criminal history

 

13  check or the federal bureau of investigation determination

 

14  without disclosing the details of the crime. Any charges imposed

 

15  by the department of state police or the federal bureau of

 

16  investigation for conducting an initial criminal history check or

 

17  making a determination under this subsection shall be paid in the

 

18  manner required under this subsection. The notice shall include a

 

19  statement that the applicant has a right to appeal a decision

 

20  made by the long-term care facility regarding his or her

 

21  employment eligibility based on the criminal background check.

 

22  The notice shall also include information regarding where to file

 

23  and describing the appellate procedures established under section

 

24  20173b.

 

25        (5) If a long-term care facility determines it necessary to

 

26  employ or grant clinical privileges to an applicant before

 

27  receiving the results of the applicant's criminal history check

 


 1  under this section, the health facility or agency may

 

 2  conditionally employ or grant conditional clinical privileges to

 

 3  the individual if all of the following apply:

 

 4        (a) The long-term care facility requests the criminal

 

 5  history check under this section upon conditionally employing or

 

 6  conditionally granting clinical privileges to the individual.

 

 7        (b) The individual signs a statement in writing that

 

 8  indicates all of the following:

 

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

 

10  crimes that are described in subsection (1)(a) through (g) within

 

11  the applicable time period prescribed by each subdivision

 

12  respectively.

 

13        (ii) That he or she is not the subject of an order or

 

14  disposition described in subsection (1)(h).

 

15        (iii) That he or she has not been the subject of a

 

16  substantiated finding as described in subsection (1)(i).

 

17        (iv) The individual agrees that, if the information in the

 

18  criminal history check conducted under this section does not

 

19  confirm the individual's statements under subparagraphs (i)

 

20  through (iii), his or her employment or clinical privileges will be

 

21  terminated by the long-term care facility as required under

 

22  subsection (1) unless and until the individual appeals and can

 

23  prove that the information is incorrect.

 

24        (v) That he or she understands the conditions described in

 

25  subparagraphs (i) through (iv) that result in the termination of

 

26  his or her employment or clinical privileges and that those

 

27  conditions are good cause for termination.

 


 1        (6) The department shall develop and distribute a model form

 

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

 

 3  department shall make the model form available to long-term care

 

 4  facilities subject to this section upon request at no charge.

 

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

 

 6  or is granted conditional clinical privileges under subsection

 

 7  (5), and the report described in subsection (4) does not confirm

 

 8  the individual's statement under subsection (5)(b)(i) through

 

 9  (iii), the long-term care facility shall terminate the individual's

 

10  employment or clinical privileges as required by subsection (1).

 

11        (8) An individual who knowingly provides false information

 

12  regarding his or her identity, criminal convictions, or

 

13  substantiated findings on a statement described in subsection

 

14  (5)(b)(i) through (iii) is guilty of a misdemeanor punishable by

 

15  imprisonment for not more than 93 days or a fine of not more than

 

16  $500.00, or both.

 

17        (9) A long-term care facility shall use criminal history

 

18  record information obtained under subsection (4) only for the

 

19  purpose of evaluating an applicant's qualifications for

 

20  employment, an independent contract, or clinical privileges in

 

21  the position for which he or she has applied and for the purposes

 

22  of subsections (5) and (7). A long-term care facility or an

 

23  employee of the long-term care facility shall not disclose

 

24  criminal history record information obtained under subsection (4)

 

25  to a person who is not directly involved in evaluating the

 

26  applicant's qualifications for employment, an independent

 

27  contract, or clinical privileges. An individual who knowingly

 


 1  uses or disseminates the criminal history record information

 

 2  obtained under subsection (4) in violation of this subsection is

 

 3  guilty of a misdemeanor punishable by imprisonment for not more

 

 4  than 93 days or a fine of not more than $1,000.00, or both. Upon

 

 5  written request from another long-term care facility, health

 

 6  facility or agency, psychiatric facility or intermediate care

 

 7  facility for people with mental retardation, or adult foster care

 

 8  facility that is considering employing, independently contracting

 

 9  with, or granting clinical privileges to an individual, a long-

 

10  term care facility that has obtained criminal history record

 

11  information under this section on that individual shall, with the

 

12  consent of the applicant, share the information with the

 

13  requesting long-term care facility, health facility or agency,

 

14  psychiatric facility or intermediate care facility for people

 

15  with mental retardation, or adult foster care facility. Except

 

16  for a knowing or intentional release of false information, a

 

17  health facility or agency has no liability in connection with a

 

18  criminal background check conducted under this section or the

 

19  release of criminal history record information under this

 

20  subsection.

 

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

 

22  independent contractor, or individual granted clinical privileges

 

23  shall do each of the following:

 

24        (a) Agree in writing to report to the long-term care

 

25  facility immediately upon being arraigned for 1 or more of the

 

26  criminal offenses listed in subsection (1)(a) through (g), upon

 

27  being convicted of 1 or more of the criminal offenses listed in

 


 1  subsection (1)(a) through (g), upon becoming the subject of an

 

 2  order or disposition described under subsection (1)(h), and upon

 

 3  being the subject of a substantiated finding of neglect, abuse,

 

 4  or misappropriation of property as described in subsection

 

 5  (1)(i). Reporting of an arraignment under this subdivision is not

 

 6  cause for termination or denial of employment.

 

 7        (b) If a set of fingerprints is not already on file with the

 

 8  department of state police, provide the department of state

 

 9  police with a set of fingerprints.

 

10        (11) In addition to sanctions set forth in section 20165, a

 

11  licensee, owner, administrator, or operator of a long-term care

 

12  facility who knowingly and willfully fails to conduct the

 

13  criminal history checks as required under this section is guilty

 

14  of a misdemeanor punishable by imprisonment for not more than 1

 

15  year or a fine of not more than $5,000.00, or both.

 

16        (12) In collaboration with the department of state police,

 

17  the department of information technology shall establish an

 

18  automated fingerprint identification system database that would

 

19  allow the department of state police to store and maintain all

 

20  fingerprints submitted under this section and would provide for

 

21  an automatic notification if and when a subsequent criminal

 

22  arrest fingerprint card submitted into the system matches a set

 

23  of fingerprints previously submitted in accordance with this

 

24  section. Upon such notification, the department of state police

 

25  shall immediately notify the department and the department shall

 

26  immediately contact the respective health facility or agency with

 

27  which that individual is associated. Information in the database

 


 1  established under this subsection is confidential, is not subject

 

 2  to disclosure under the freedom of information act, 1976 PA 442,

 

 3  MCL 15.231 to 15.246, and shall not be disclosed to any person

 

 4  except for purposes of this act or for law enforcement purposes.

 

 5        (13) By March 1, 2007, the department and the department of

 

 6  state police shall develop and implement an electronic web-based

 

 7  system to assist those long-term care facilities required to

 

 8  check relevant registries and conduct criminal history checks of

 

 9  its employees and independent contractors and to provide for an

 

10  automated notice to those long-term care facilities for those

 

11  individuals inputted in the system who, since the initial check,

 

12  have been convicted of a disqualifying offense or have been the

 

13  subject of a substantiated finding of abuse, neglect, or

 

14  misappropriation of property.

 

15        (14) As used in this section:

 

16        (a) "Adult foster care facility" means an adult foster care

 

17  facility licensed under the adult foster care facility licensing

 

18  act, 1979 PA 218, MCL 400.701 to 400.737.

 

19        (b) "Direct access" means access to a patient or resident or

 

20  to a patient's or resident's property, financial information,

 

21  medical records, treatment information, or any other identifying

 

22  information.

 

23        (c) "Independent contract" means a contract entered into by

 

24  a health facility or agency with an individual who provides the

 

25  contracted services independently or a contract entered into by a

 

26  health facility or agency with an organization or agency that

 

27  employs or contracts with an individual after complying with the

 


 1  requirements of this section to provide the contracted services

 

 2  to the health facility or agency on behalf of the organization or

 

 3  agency.

 

 4        (d) "Medicare" means benefits under the federal medicare

 

 5  program established under title XVIII of the social security act,

 

 6  42 USC 1395 to 1395ggg.

 

 7        Sec. 3125a. (1) An individual who has been disqualified from

 

 8  or denied employment by a long-term care facility based on a

 

 9  criminal history check conducted pursuant to section 3125 may

 

10  appeal to the department if he or she believes that the criminal

 

11  history report is inaccurate, and the appeal shall be conducted

 

12  as a contested case hearing pursuant to the administrative

 

13  procedures act of 1969. The individual shall file the appeal with

 

14  the director of the department within 15 business days after

 

15  receiving the written report of the criminal history check unless

 

16  the conviction contained in the criminal history report is one

 

17  that may be expunged or set aside. If an individual has been

 

18  disqualified or denied employment based on a conviction that may

 

19  be expunged or set aside, then he or she shall file the appeal on

 

20  a form provided by the department within 15 business days after a

 

21  court order granting or denying his or her application to expunge

 

22  or set aside that conviction is granted. If the order is granted

 

23  and the conviction is expunged or set aside, then the individual

 

24  shall not be disqualified or denied employment based solely on

 

25  that conviction. The director shall review the appeal and issue a

 

26  written decision within 30 business days after receiving the

 

27  appeal. The decision of the director is final.

 


 1        (2) As used in this section, "business day" means a day

 

 2  other than a Saturday, Sunday, or any legal holiday.

 

 3        Sec. 3127. (1) A long-term care facility shall keep and

 

 4  maintain a record for each patient including a full and complete

 

 5  record of observations made and treatments provided. Departmental

 

 6  officers and employees shall respect the confidentiality of

 

 7  patient clinical records and shall not divulge or disclose the

 

 8  contents of records in a manner that identifies an individual

 

 9  except pursuant to court order.

 

10        (2) A long-term care facility that employs, contracts with,

 

11  or grants privileges to a health professional licensed or

 

12  registered under article 15 of the public health code shall

 

13  report the following to the department not more than 30 days

 

14  after it occurs:

 

15        (a) Disciplinary action taken by the long-term care facility

 

16  against a health professional licensed or registered under

 

17  article 15 of the public health code based on the licensee's or

 

18  registrant's professional competence, disciplinary action that

 

19  results in a change of employment status, or disciplinary action

 

20  based on conduct that adversely affects the licensee's or

 

21  registrant's clinical privileges for a period of more than 15

 

22  days. As used in this subdivision, "adversely affects" means the

 

23  reduction, restriction, suspension, revocation, denial, or

 

24  failure to renew the clinical privileges of a licensee or

 

25  registrant by a long-term care facility.

 

26        (b) Restriction or acceptance of the surrender of the

 

27  clinical privileges of a health professional licensed or

 


 1  registered under article 15 of the public health code under

 

 2  either of the following circumstances:

 

 3        (i) The licensee or registrant is under investigation by the

 

 4  long-term care facility.

 

 5        (ii) There is an agreement in which the long-term care

 

 6  facility agrees not to conduct an investigation into the

 

 7  licensee's or registrant's alleged professional incompetence or

 

 8  improper professional conduct.

 

 9        (c) A case in which a health professional resigns or

 

10  terminates a contract or whose contract is not renewed instead of

 

11  the long-term care facility taking disciplinary action against

 

12  the health professional.

 

13        (3) Upon request by another long-term care facility seeking

 

14  a reference for purposes of changing or granting staff

 

15  privileges, credentials, or employment, a long-term care facility

 

16  that employs, contracts with, or grants privileges to health

 

17  professionals licensed or registered under article 15 of the

 

18  public health code shall notify the requesting long-term care

 

19  facility of any disciplinary or other action reportable under

 

20  subsection (2) that it has taken against a health professional

 

21  licensed or registered under article 15 of the public health code

 

22  and employed by, under contract to, or granted privileges by the

 

23  long-term care facility.

 

24        (4) For the purpose of reporting disciplinary actions under

 

25  this section, a long-term care facility shall include only the

 

26  following in the information provided:

 

27        (a) The name of the health professional licensed or

 


 1  registered under article 15 of the public health code against

 

 2  whom disciplinary action has been taken.

 

 3        (b) A description of the disciplinary action taken.

 

 4        (c) The specific grounds for the disciplinary action taken.

 

 5        (d) The date of the incident that is the basis for the

 

 6  disciplinary action.

 

 7        Sec. 3129. (1) A person may notify the department of a

 

 8  violation of this article or of a rule promulgated under this

 

 9  article that the person believes exists. The department shall

 

10  investigate each written complaint received and shall notify the

 

11  complainant in writing of the results of a review or

 

12  investigation of the complaint and any action proposed to be

 

13  taken. Except as otherwise provided in sections 3135, 3243(1)(d),

 

14  and 3299a, the name of the complainant and the charges contained

 

15  in the complaint are a matter of public record.

 

16        (2) Except as otherwise provided in section 3299a, a

 

17  complainant who is aggrieved by the decision of the department

 

18  under this section may appeal to the director. After review of an

 

19  appeal under this subsection, the director may order the

 

20  department to reinvestigate the complaint.

 

21        Sec. 3129a. (1) A long-term care facility shall not

 

22  discharge or discipline, threaten to discharge or discipline, or

 

23  otherwise discriminate against an employee regarding the

 

24  employee's compensation, terms, conditions, location, or

 

25  privileges of employment because the employee or an individual

 

26  acting on behalf of the employee does either or both of the

 

27  following:

 


 1        (a) In good faith reports or intends to report, verbally or

 

 2  in writing, the malpractice of a health professional or a

 

 3  violation of this article, article 7, or article 15 of the public

 

 4  health code or a rule promulgated under this act or the public

 

 5  health code.

 

 6        (b) Acts as an expert witness in a civil action involving

 

 7  medical malpractice or in an administrative action.

 

 8        (2) In addition to the sanctions set forth in section 3115,

 

 9  a long-term care facility that violates subsection (1) is subject

 

10  to an administrative fine of not more than $10,000.00 for each

 

11  violation.

 

12        Sec. 3131. Notwithstanding the existence and pursuit of any

 

13  other remedy, the director, without posting a bond, may request

 

14  the prosecuting attorney or attorney general to bring an action

 

15  in the name of the people of this state to restrain, enjoin, or

 

16  prevent the establishment, maintenance, or operation of a long-

 

17  term care facility in violation of this article or rules

 

18  promulgated under this article.

 

19        Sec. 3133. (1) A long-term care facility that is not a

 

20  hospice that represents to the public that it provides inpatient

 

21  care or services or residential care or services, or both, to

 

22  persons with Alzheimer's disease or a related condition shall

 

23  provide to each prospective patient, resident, or surrogate

 

24  decision maker a written description of the services provided by

 

25  the long-term care facility to patients or residents with

 

26  Alzheimer's disease or a related condition. A written description

 

27  shall include, but not be limited to, all of the following:

 


 1        (a) The overall philosophy and mission reflecting the needs

 

 2  of patients or residents with Alzheimer's disease or a related

 

 3  condition.

 

 4        (b) The process and criteria for placement in or transfer or

 

 5  discharge from a program for patients or residents with

 

 6  Alzheimer's disease or a related condition.

 

 7        (c) The process used for assessment and establishment of a

 

 8  plan of care and its implementation.

 

 9        (d) Staff training and continuing education practices.

 

10        (e) The physical environment and design features appropriate

 

11  to support the function of patients or residents with Alzheimer's

 

12  disease or a related condition.

 

13        (f) The frequency and types of activities for patients or

 

14  residents with Alzheimer's disease or a related condition.

 

15        (g) Identification of supplemental fees for services

 

16  provided to patients or residents with Alzheimer's disease or a

 

17  related condition.

 

18        (2) As used in this section, "represents to the public"

 

19  means advertises or markets the facility as providing specialized

 

20  Alzheimer's or dementia care services.

 

21        Sec. 3135. (1) A person employed by or under contract to a

 

22  long-term care facility or any other person acting in good faith

 

23  who makes a report or complaint including, but not limited to, a

 

24  report or complaint of a violation of this article or a rule

 

25  promulgated under this article; who assists in originating,

 

26  investigating, or preparing a report or complaint; or who assists

 

27  the department in carrying out its duties under this article is

 


 1  immune from civil or criminal liability that might otherwise be

 

 2  incurred and is protected under the whistleblowers' protection

 

 3  act, 1980 PA 469, MCL 15.361 to 15.369. A person described in

 

 4  this subsection who makes or assists in making a report or

 

 5  complaint, or who assists the department as described in this

 

 6  subsection, is presumed to have acted in good faith. The immunity

 

 7  from civil or criminal liability granted under this subsection

 

 8  extends only to acts done pursuant to this article.

 

 9        (2) Unless a person described in subsection (1) otherwise

 

10  agrees in writing, the department shall keep the person's

 

11  identity confidential until disciplinary proceedings under this

 

12  article are initiated against the subject of the report or

 

13  complaint and the person making or assisting in originating,

 

14  investigating, or preparing the report or complaint is required

 

15  to testify in the disciplinary proceedings. If disclosure of the

 

16  person's identity is considered by the department to be essential

 

17  to the disciplinary proceedings and if the person is the

 

18  complainant, the department shall give the person an opportunity

 

19  to withdraw the complaint before disclosure.

 

20        Sec. 3137. A long-term care facility shall not require the

 

21  execution of a do-not-resuscitate order under the Michigan do-

 

22  not-resuscitate procedure act as a condition for admission or

 

23  receipt of services.

 

24        Sec. 3139. (1) Subject to subsections (2), (3), and (4), a

 

25  long-term care facility shall conspicuously display in the

 

26  patient waiting areas or other common areas of the long-term care

 

27  facility copies of a pamphlet developed by the department

 


 1  outlining the procedure for filing a complaint against a long-

 

 2  term care facility with the department and the procedure for

 

 3  filing a complaint against an individual who is licensed or

 

 4  registered under article 15 of the public health code and

 

 5  employed by, under contract to, or granted privileges by the

 

 6  long-term care facility. The pamphlet shall be developed and

 

 7  distributed by the department after consultation with appropriate

 

 8  professional associations.

 

 9        (2) The department shall develop the pamphlets required

 

10  under subsection (1) in languages that are appropriate to the

 

11  ethnic composition of the patient population where the pamphlet

 

12  will be displayed. The department shall use large, easily

 

13  readable type and nontechnical, easily understood language in the

 

14  pamphlet. The department shall periodically distribute copies of

 

15  the pamphlet to each long-term care facility.

 

16        (3) The department shall include a model standardized

 

17  complaint form in the pamphlet described in subsection (1). The

 

18  department may develop a separate model standardized complaint

 

19  form that is specific to a particular long-term care facility or

 

20  category of long-term care facilities. The department shall

 

21  develop a model standardized complaint form that is specific to

 

22  nursing homes. The department shall include on the model

 

23  standardized complaint form, at a minimum, simple instructions on

 

24  how to file a complaint, including with the nursing home as

 

25  required under section 3223, the department, the state long-term

 

26  care ombudsman, the Michigan protection and advocacy service,

 

27  inc., and the health care fraud unit of the department of

 


 1  attorney general. The department shall distribute copies of the

 

 2  model standardized complaint form simultaneously with copies of

 

 3  the pamphlet as required under subsection (2). The nursing home

 

 4  shall conspicuously display and make available multiple copies of

 

 5  the pamphlet and model standardized complaint form with the

 

 6  complaint information required to be posted under section 3223 in

 

 7  the patient waiting areas or other common areas of the nursing

 

 8  home that are easily accessible to nursing home patients and

 

 9  their visitors, as described in subsection (1), and shall provide

 

10  a copy of the pamphlet and complaint form to each nursing home

 

11  resident or the resident's surrogate decision maker upon

 

12  admission to the nursing home. The department shall include on

 

13  the model standardized complaint form a telephone number for the

 

14  receipt of oral complaints.

 

15        (4) The department may continue to distribute the complaint

 

16  pamphlets within its possession on the effective date of this act

 

17  until the department's stock is exhausted or until 6 months after

 

18  the effective date of this act, whichever is sooner. Beginning 6

 

19  months after the effective date of this act, the department shall

 

20  only distribute the complaint pamphlets and model standardized

 

21  complaint forms that are in compliance with subsections (2) and

 

22  (3).

 

23        (5) The department shall make the complaint pamphlet and the

 

24  model standardized complaint form available to the public on the

 

25  department's internet website. The department shall take

 

26  affirmative action toward the development and implementation of

 

27  an electronic filing system that would allow an individual to

 


 1  file a complaint through the website.

 

 2        Sec. 3141. (1) Subject to subsection (3), an individual

 

 3  shall not enter upon the premises of a long-term care facility

 

 4  that is a residential facility for the purpose of engaging in an

 

 5  activity that would cause a reasonable person to feel terrorized,

 

 6  frightened, intimidated, threatened, harassed, or molested and

 

 7  that actually causes a long-term care facility employee, patient,

 

 8  resident, or visitor to feel terrorized, frightened, intimidated,

 

 9  threatened, harassed, or molested. This subsection does not

 

10  prohibit constitutionally protected activity or conduct that

 

11  serves a legitimate purpose.

 

12        (2) An individual who violates subsection (1) is guilty of a

 

13  misdemeanor punishable by imprisonment for not more than 1 year

 

14  or a fine of not less than $1,000.00 or more than $10,000.00, or

 

15  both.

 

16        (3) Subsections (1) and (2) do not apply to a nursing home

 

17  covered under sections 3263(5) and 3299c(1)(c).

 

18        Sec. 3143. Except as otherwise provided in section 3105, a

 

19  person who violates this article or a rule promulgated or an

 

20  order issued under this article is guilty of a misdemeanor

 

21  punishable by fine of not more than $1,000.00 for each day the

 

22  violation continues.

 

23        Sec. 3145. (1) A long-term care facility that provides

 

24  services directly to patients or residents and is licensed under

 

25  this article shall adopt a policy describing the rights and

 

26  responsibilities of patients or residents admitted to the long-

 

27  term care facility. The policy shall be posted at a public place

 


 1  in the long-term care facility and shall be provided to each

 

 2  member of the long-term care facility staff. Patients or

 

 3  residents shall be treated in accordance with the policy.

 

 4        (2) The policy describing the rights and responsibilities of

 

 5  patients or residents required under subsection (1) shall

 

 6  include, as a minimum, all of the following:

 

 7        (a) A patient or resident shall not be denied appropriate

 

 8  care on the basis of race, religion, color, national origin, sex,

 

 9  age, disability, marital status, sexual preference, or source of

 

10  payment.

 

11        (b) An individual who is or has been a patient or resident

 

12  is entitled to inspect, or receive for a reasonable fee, a copy

 

13  of his or her medical record upon request. A third party shall

 

14  not be given a copy of the patient's or resident's medical record

 

15  without prior authorization of the patient or resident.

 

16        (c) A patient or resident is entitled to confidential

 

17  treatment of personal and medical records and may refuse their

 

18  release to a person outside the long-term care facility except as

 

19  required because of a transfer to another long-term care facility

 

20  or as required by law or third party payment contract.

 

21        (d) A patient or resident is entitled to privacy, to the

 

22  extent feasible, in treatment and in caring for personal needs

 

23  with consideration, respect, and full recognition of his or her

 

24  dignity and individuality.

 

25        (e) A patient or resident is entitled to receive adequate

 

26  and appropriate care, and to receive, from the appropriate

 

27  individual within the long-term care facility, information about

 


 1  his or her medical condition, proposed course of treatment, and

 

 2  prospects for recovery, in terms that the patient or resident can

 

 3  understand, unless medically contraindicated as documented by the

 

 4  attending physician in the medical record.

 

 5        (f) A patient or resident is entitled to refuse treatment to

 

 6  the extent provided by law and to be informed of the consequences

 

 7  of that refusal. If a refusal of treatment prevents a long-term

 

 8  care facility or its staff from providing appropriate care

 

 9  according to ethical and professional standards, the relationship

 

10  with the patient or resident may be terminated upon reasonable

 

11  notice.

 

12        (g) A patient or resident is entitled to exercise his or her

 

13  rights as a patient or resident and as a citizen, and to this end

 

14  may present grievances or recommend changes in policies and

 

15  services on behalf of himself or herself or others to the long-

 

16  term care facility staff, to governmental officials, or to

 

17  another person of his or her choice within or outside the long-

 

18  term care facility, free from restraint, interference, coercion,

 

19  discrimination, or reprisal. A patient or resident is entitled to

 

20  information about the long-term care facility's policies and

 

21  procedures for initiation, review, and resolution of patient or

 

22  resident complaints.

 

23        (h) A patient or resident is entitled to information

 

24  concerning an experimental procedure proposed as a part of his or

 

25  her care and has the right to refuse to participate in the

 

26  experimental procedure without jeopardizing his or her continuing

 

27  care.

 


 1        (i) A patient or resident is entitled to receive and examine

 

 2  an explanation of his or her bill regardless of the source of

 

 3  payment and to receive, upon request, information relating to

 

 4  financial assistance available through the long-term care

 

 5  facility.

 

 6        (j) A patient or resident is entitled to know who is

 

 7  responsible for and who is providing his or her direct care, is

 

 8  entitled to receive information concerning his or her continuing

 

 9  health needs and alternatives for meeting those needs, and is

 

10  entitled to be involved in his or her discharge planning, if

 

11  appropriate.

 

12        (k) A patient or resident is entitled to associate and have

 

13  private communications and consultations with his or her

 

14  physician, attorney, or any other person of his or her choice and

 

15  to send and receive personal mail unopened on the same day it is

 

16  received at the long-term care facility, unless medically

 

17  contraindicated as documented by the attending physician in the

 

18  medical record. A patient's or resident's civil and religious

 

19  liberties, including the right to independent personal decisions

 

20  and the right to knowledge of available choices, shall not be

 

21  infringed and the long-term care facility shall encourage and

 

22  assist in the fullest possible exercise of these rights. A

 

23  patient or resident may meet with, and participate in, the

 

24  activities of social, religious, and community groups at his or

 

25  her discretion, unless medically contraindicated as documented by

 

26  the attending physician in the medical record.

 

27        (l) A patient or resident is entitled to be free from mental

 


 1  and physical abuse and from physical and chemical restraints,

 

 2  except those restraints authorized in writing by the attending

 

 3  physician for a specified and limited time or as are necessitated

 

 4  by an emergency to protect the patient or resident from injury to

 

 5  self or others, in which case the restraint may only be applied

 

 6  by a qualified professional who shall set forth in writing the

 

 7  circumstances requiring the use of restraints and who shall

 

 8  promptly report the action to the attending physician. In case of

 

 9  a chemical restraint, a physician shall be consulted within 24

 

10  hours after the commencement of the chemical restraint.

 

11        (m) A patient or resident is entitled to be free from

 

12  performing services for the long-term care facility that are not

 

13  included for therapeutic purposes in the plan of care.

 

14        (n) A patient or resident is entitled to information about

 

15  the long-term care facility rules and regulations affecting

 

16  patient or resident care and conduct.

 

17        (o) A patient or resident is entitled to adequate and

 

18  appropriate pain and symptom management as a basic and essential

 

19  element of his or her medical treatment.

 

20        (3) The following additional requirements for the policy

 

21  described in subsection (2) apply to licensees under parts 32 and

 

22  33:

 

23        (a) The policy shall be provided to each nursing home

 

24  patient or home for the aged resident upon admission, and the

 

25  staff of the facility shall be trained and involved in the

 

26  implementation of the policy.

 

27        (b) Each nursing home patient may associate and communicate

 


 1  privately with persons of his or her choice. Reasonable, regular

 

 2  visiting hours, which shall be not less than 8 hours per day, and

 

 3  which shall take into consideration the special circumstances of

 

 4  each visitor, shall be established for patients to receive

 

 5  visitors. A patient may be visited by the patient's attorney or

 

 6  by representatives of the departments named in section 3109,

 

 7  during other than established visiting hours. Reasonable privacy

 

 8  shall be afforded for visitation of a patient who shares a room

 

 9  with another patient. Each patient shall have reasonable access

 

10  to a telephone. A married nursing home patient or home for the

 

11  aged resident is entitled to meet privately with his or her

 

12  spouse in a room that assures privacy. If both spouses are

 

13  residents in the same facility, they are entitled to share a room

 

14  unless medically contraindicated and documented by the attending

 

15  physician in the medical record.

 

16        (c) A nursing home patient or home for the aged resident is

 

17  entitled to retain and use personal clothing and possessions as

 

18  space permits, unless to do so would infringe upon the rights of

 

19  other patients or residents, or unless medically contraindicated

 

20  as documented by the attending physician in the medical record.

 

21  Each nursing home patient or home for the aged resident shall be

 

22  provided with reasonable space. At the request of a patient, a

 

23  nursing home shall provide for the safekeeping of personal

 

24  effects, funds, and other property of a patient in accordance

 

25  with section 3267, except that a nursing home is not required to

 

26  provide for the safekeeping of a property that would impose an

 

27  unreasonable burden on the nursing home.

 


 1        (d) A nursing home patient or home for the aged resident is

 

 2  entitled to the opportunity to participate in the planning of his

 

 3  or her medical treatment. A nursing home patient shall be fully

 

 4  informed by the attending physician of the patient's medical

 

 5  condition unless medically contraindicated as documented by a

 

 6  physician in the medical record. Each nursing home patient shall

 

 7  be afforded the opportunity to discharge himself or herself from

 

 8  the nursing home.

 

 9        (e) A home for the aged resident may be transferred or

 

10  discharged only for medical reasons, for his or her welfare or

 

11  that of other residents, or for nonpayment of his or her stay,

 

12  except as provided by title XVIII or title XIX. A nursing home

 

13  patient may be transferred or discharged only as provided in

 

14  sections 3273 to 3277. A nursing home patient or home for the

 

15  aged resident is entitled to be given reasonable advance notice

 

16  to ensure orderly transfer or discharge. Those actions shall be

 

17  documented in the medical record.

 

18        (f) A nursing home patient or home for the aged resident is

 

19  entitled to be fully informed before or at the time of admission

 

20  and during stay of services available in the facility, and of the

 

21  related charges including any charges for services not covered

 

22  under title XVIII, or not covered by the facility's basic per

 

23  diem rate. The statement of services provided by the facility

 

24  shall be in writing and shall include those required to be

 

25  offered on an as-needed basis.

 

26        (g) A nursing home patient or home for the aged resident is

 

27  entitled to manage his or her own financial affairs, or to have

 


 1  at least a quarterly accounting of personal financial

 

 2  transactions undertaken in his or her behalf by the facility

 

 3  during a period of time the patient or resident has delegated

 

 4  those responsibilities to the facility. In addition, a patient or

 

 5  resident is entitled to receive each month from the facility an

 

 6  itemized statement setting forth the services paid for by or on

 

 7  behalf of the patient and the services rendered by the facility.

 

 8  The admission of a patient to a nursing home does not confer on

 

 9  the nursing home or its owner, administrator, employees, or

 

10  representatives the authority to manage, use, or dispose of a

 

11  patient's property.

 

12        (h) A nursing home patient or a person authorized by the

 

13  patient in writing may inspect and copy the patient's personal

 

14  and medical records. The records shall be made available for

 

15  inspection and copying by the nursing home within a reasonable

 

16  time, not exceeding 1 week, after the receipt of a written

 

17  request.

 

18        (i) If a nursing home patient desires treatment by a

 

19  licensed member of the healing arts, the treatment shall be made

 

20  available unless it is medically contraindicated, and the medical

 

21  contraindication is justified in the patient's medical record by

 

22  the attending physician.

 

23        (j) A nursing home patient has the right to have his or her

 

24  parents, if a minor, or his or her spouse, next of kin, or

 

25  patient's representative, if an adult, stay at the facility 24

 

26  hours a day if the patient is considered terminally ill by the

 

27  physician responsible for the patient's care.

 


 1        (k) Each nursing home patient shall be provided with meals

 

 2  that meet the recommended dietary allowances for that patient's

 

 3  age and sex and that may be modified according to special dietary

 

 4  needs or ability to chew.

 

 5        (l) Each nursing home patient has the right to receive

 

 6  representatives of approved organizations as provided in section

 

 7  21763.

 

 8        (4) A nursing home, its owner, administrator, employee, or

 

 9  representative shall not discharge, harass, or retaliate or

 

10  discriminate against a patient because the patient has exercised

 

11  a right protected under this section.

 

12        (5) In the case of a nursing home patient, the rights

 

13  enumerated in subsection (2)(c), (g), and (k) and subsection

 

14  (3)(d), (g), and (h) may be exercised by the patient's

 

15  representative.

 

16        (6) A nursing home patient or home for the aged resident is

 

17  entitled to be fully informed, as evidenced by the patient's or

 

18  resident's written acknowledgment, before or at the time of

 

19  admission and during stay, of the policy required by this

 

20  section. The policy shall provide that if a patient or resident

 

21  is adjudicated incompetent and not restored to legal capacity,

 

22  the rights and responsibilities set forth in this section shall

 

23  be exercised by a person designated by the patient or resident.

 

24  The long-term care facility shall provide proper forms for the

 

25  patient or resident to provide for the designation of this person

 

26  at the time of admission.

 

27        (7) This section does not prohibit a long-term care facility

 


 1  from establishing and recognizing additional patients' rights.

 

 2        (8) As used in this section, "patient's representative"

 

 3  means that term as defined in section 3203.

 

 4        Sec. 3147. (1) A patient or resident is responsible for

 

 5  following the long-term care facility rules and regulations

 

 6  affecting patient or resident care and conduct.

 

 7        (2) A patient or resident is responsible for providing a

 

 8  complete and accurate medical history.

 

 9        (3) A patient or resident is responsible for making it known

 

10  whether he or she clearly comprehends a contemplated course of

 

11  action and the things he or she is expected to do.

 

12        (4) A patient or resident is responsible for following the

 

13  recommendations and advice prescribed in a course of treatment by

 

14  the physician.

 

15        (5) A patient or resident is responsible for providing

 

16  information about unexpected complications that arise in an

 

17  expected course of treatment.

 

18        (6) A patient or resident is responsible for being

 

19  considerate of the rights of other patients or residents and

 

20  long-term care facility personnel and property.

 

21        (7) A patient or resident is responsible for providing the

 

22  long-term care facility with accurate and timely information

 

23  concerning his or her sources of payment and ability to meet

 

24  financial obligations.

 

25        Sec. 3149. (1) The rights and responsibilities prescribed in

 

26  sections 3145 and 3147 are guidelines for long-term care

 

27  facilities, facility staff, facility employees, patients, and

 


 1  residents. An individual shall not be civilly or criminally

 

 2  liable for failure to comply with those sections.

 

 3        (2) Sections 3145 and 3147 shall not be construed to expand

 

 4  or diminish other remedies at law available to a patient or

 

 5  resident under this act or the statutory and common law of this

 

 6  state.

 

 7        (3) The department shall develop guidelines to assist long-

 

 8  term care facilities in the implementation of sections 3145 and

 

 9  3147.

 

10        Sec. 3151. (1) Every 6 months, the department shall issue a

 

11  summary of its activities in relation to licensing and regulation

 

12  and shall cause the information to be made available to the news

 

13  media and all persons who make a written request to receive

 

14  copies of the information.

 

15        (2) The list and current inspection reports shall be

 

16  available for inspection and copying.

 

17                             PART 32

 

18                          NURSING HOMES

 

19        Sec. 3201. (1) For purposes of this part, the words and

 

20  phrases defined in sections 3202 to 3203 have the meanings

 

21  ascribed to them in those sections.

 

22        (2) In addition, article I contains general definitions and

 

23  principles of construction applicable to all articles in this act

 

24  and part 31 contains definitions applicable to this part.

 

25        Sec. 3202. (1) "Discharge" means the voluntary or

 

26  involuntary movement of a patient out of a nursing home

 

27  regardless of the individual's destination or reason for the

 


 1  movement.

 

 2        (2) "Full-time" means being usually present in the nursing

 

 3  home or conducting or participating in activities directly

 

 4  related to the nursing home during the normal 40-hour business

 

 5  week.

 

 6        (3) "Involuntary transfer" means a transfer not agreed to in

 

 7  writing by the patient or, in the case of a plenary guardianship,

 

 8  by the patient's legal guardian.

 

 9        (4) "Medicaid" means that term as defined in section 103.

 

10        (5) "Medical reasons" means a medical justification for

 

11  either of the following:

 

12        (a) The transfer or discharge of a patient in accord with

 

13  the written orders of the attending physician that is written

 

14  into the patient's clinical record by the physician in the

 

15  progress notes.

 

16        (b) The transfer or discharge of a patient who is a medicaid

 

17  recipient due to a change in level of care required by the

 

18  patient and the fact that the nursing home or nursing care

 

19  facility is not certified to provide the needed level of care.

 

20        (6) "Medicare" means that term as defined in section 103.

 

21        (7) "Modification of a license" means an action by the

 

22  department to alter the number of beds, the levels of care, or

 

23  the portions of the physical plant that may be operated or

 

24  maintained by a licensee in a particular nursing home, or to

 

25  restrict the nursing home from engaging in activity that violates

 

26  this article or a rule promulgated under this article.

 

27        (8) "Negative case action" means an action taken by the

 


 1  department of human services to deny an application for medical

 

 2  assistance, cancel medical assistance, or reduce medical

 

 3  assistance coverage.

 

 4        (9) "Nonpayment" means:

 

 5        (a) Failure to collect from the patient or any other source

 

 6  the full amount of the facility charges to a nonmedicaid patient

 

 7  based on a written contract signed on or after that patient's

 

 8  admission to the facility.

 

 9        (b) Failure to collect a medicaid patient's stipulated

 

10  contribution toward his or her care.

 

11        (10) "Private pay rate" means the amount charged by a

 

12  nursing home for the care of a patient who is not entitled to

 

13  state or federal benefits for that patient's nursing home care.

 

14        Sec. 3203. (1) "Patient" means a person who receives care or

 

15  services at a nursing home.

 

16        (2) "Patient's representative" means a person, other than

 

17  the licensee or an employee or person having a direct or indirect

 

18  ownership interest in the nursing home, designated in writing by

 

19  a patient or a patient's guardian for a specific, limited purpose

 

20  or for general purposes, or, if a written designation of a

 

21  representative is not made, the guardian of the patient.

 

22        (3) "Relocation" means the movement of a patient from 1 bed

 

23  to another or from 1 room to another within the same nursing home

 

24  or within a certified distinct part of a nursing home.

 

25        (4) "Transfer" means the movement of a patient from 1

 

26  nursing home to another nursing home or from 1 certified distinct

 

27  part of a nursing home to another certified distinct part of the

 


 1  same nursing home.

 

 2        (5) "Welfare" means, with reference to a patient, the

 

 3  physical, emotional, or social well-being of a patient in a

 

 4  nursing home, including a patient awaiting transfer or discharge,

 

 5  as documented in the patient's clinical record by a licensed or

 

 6  certified health care professional.

 

 7        Sec. 3207. (1) The course of medical treatment provided to a

 

 8  patient in a nursing home shall be prescribed by the patient's

 

 9  physician.

 

10        (2) This part does not do the following:

 

11        (a) Authorize the supervision, regulation, or control of the

 

12  practice of any method of healing.

 

13        (b) Authorize the medical supervision, regulation, or

 

14  control of the remedial care or nonmedical nursing care of

 

15  patients in a nursing home operated for the adherents of a bona

 

16  fide church or religious denomination who rely upon treatment by

 

17  prayer or spiritual means only in accordance with the creed or

 

18  tenets of that church or denomination. The residents, patients,

 

19  personnel, or employees, other than food handlers, of the home

 

20  are not required to submit to a medical or physical examination.

 

21  However, the nursing home shall be inspected and licensed under

 

22  laws pertaining to fire, safety, sanitation, and building

 

23  construction.

 

24        Sec. 3211. (1) A nursing home shall be licensed under this

 

25  article.

 

26        (2) "Nursing home", "nursing center", "convalescent center",

 

27  "extended care facility", or a similar term or abbreviation shall

 


 1  not be used to describe or refer to a long-term care facility

 

 2  unless the long-term care facility is licensed as a nursing home

 

 3  by the department under this article.

 

 4        (3) A person shall not purport to provide formal or informal

 

 5  nursing care services of the kind normally provided in a nursing

 

 6  home without obtaining a license as provided in this article.

 

 7  This subsection does not apply to a hospital or a facility

 

 8  created by 1885 PA 152, MCL 36.1 to 36.12.

 

 9        Sec. 3212. (1) A nursing home shall use the name that

 

10  appears on the license for its premises. A nursing home shall not

 

11  change its name without the approval of the department.

 

12        (2) A nursing home shall not use the terms "hospital" or

 

13  "sanitarium" or a term conveying a meaning that is substantially

 

14  similar to those terms in the name of the nursing home. However,

 

15  a nursing home may use the term "health center" or "health care

 

16  center" or "rehabilitation center" or a term conveying a meaning

 

17  substantially similar to those terms as long as those terms do

 

18  not conflict with the terms prohibited by this subsection.

 

19        (3) If a nursing home uses the term "rehabilitation center"

 

20  in its name as allowed under subsection (2), the nursing home

 

21  shall have the capacity to provide rehabilitation services that

 

22  include, at a minimum, all of the following:

 

23        (a) Physical therapy services.

 

24        (b) Occupational therapy services.

 

25        (c) Speech therapy services.

 

26        (4) A nursing home shall not include in its name the name of

 

27  a religious, fraternal, or charitable corporation, organization,

 


 1  or association unless the corporation, organization, or

 

 2  association is an owner of the nursing home.

 

 3        Sec. 3213. The owner, operator, and governing body of a

 

 4  nursing home licensed under this article:

 

 5        (a) Are responsible for all phases of the operation of the

 

 6  nursing home and quality of care rendered in the home.

 

 7        (b) Shall cooperate with the department in the enforcement

 

 8  of this article and require that the physicians and other

 

 9  personnel working in the nursing home and for whom a license or

 

10  registration is required be currently licensed or registered.

 

11        Sec. 3215. (1) A nursing home shall provide a program of

 

12  planned and continuing medical care under the charge of

 

13  physicians.

 

14        (2) Nursing care and medical care shall consist of services

 

15  given to individuals who are subject to prolonged suffering from

 

16  illness or injury or who are recovering from illness or injury.

 

17  The services shall be within the ability of the home to provide

 

18  and shall include the functions of medical care such as diagnosis

 

19  and treatment of an illness; nursing care via assessment,

 

20  planning, and implementation; evaluation of a patient's health

 

21  care needs; and the carrying out of required treatment prescribed

 

22  by a physician.

 

23        Sec. 3216. A nursing home shall offer each resident, or

 

24  shall provide each resident with information and assistance in

 

25  obtaining, an annual vaccination against influenza in accordance

 

26  with the most recent recommendations of the advisory committee on

 

27  immunization practices of the federal centers for disease control

 


 1  and prevention, as approved by the department of community

 

 2  health.

 

 3        Sec. 3217. An individual shall not be admitted or retained

 

 4  for care in a nursing home who requires special medical or

 

 5  surgical treatment, or treatment for acute mental illness, mental

 

 6  retardation, communicable tuberculosis, or a communicable

 

 7  disease, unless the home is able to provide an area and a program

 

 8  for the care. The department shall approve both the area and the

 

 9  program, including the programs providing treatment for mental

 

10  illness and mental retardation.

 

11        Sec. 3218. (1) Except as provided in subsections (3) and

 

12  (4), as a condition of skilled nursing facility certification and

 

13  participation in the title XIX program, a nursing home shall be

 

14  concurrently certified for and give evidence of active

 

15  participation in the title XVIII program. A nursing facility that

 

16  is not concurrently certified for the title XVIII program on

 

17  March 30, 1979 shall make application for concurrent

 

18  certification not later than its next application for licensure

 

19  and certification. A failure to make application shall result in

 

20  the skilled nursing facility being decertified or refused

 

21  certification as a provider in the title XIX program. Nursing

 

22  home or nursing care facility participation in the title XVIII

 

23  program under the requirements for concurrent certification shall

 

24  be effective not later than the beginning of the first accounting

 

25  year following the home's or facility's title XVIII

 

26  certification.

 

27        (2) As a condition of skilled nursing facility

 


 1  certification, a nursing home shall obtain concurrent

 

 2  certification under title XIX, for each bed which is certified to

 

 3  provide skilled care under title XVIII. Skilled care

 

 4  certification shall not be renewed unless the requirements of

 

 5  this subsection are met.

 

 6        (3) An exception may be made from the requirements of

 

 7  subsection (1) for a nursing facility that is currently certified

 

 8  as a skilled nursing facility by the director for title XIX

 

 9  participation but has been determined, after making application,

 

10  to be ineligible for title XVIII certification by the secretary

 

11  of the United States department of health, education, and

 

12  welfare.

 

13        (4) A home or facility, or a distinct part of a home or

 

14  facility, certified by the director as a special mental

 

15  retardation or special mental illness nursing home or nursing

 

16  care facility shall be exempt from the requirements of subsection

 

17  (1).

 

18        Sec. 3219. A nursing home shall not be licensed under this

 

19  part unless the nursing home has formulated, and is prepared to

 

20  implement, insofar as possible, a plan to provide immediate

 

21  access to acute care facilities for the emergency care of

 

22  patients.

 

23        Sec. 3220. (1) The department shall not license a nursing

 

24  home under this part unless that nursing home is under the

 

25  direction of a nursing home administrator licensed under article

 

26  5.

 

27        (2) Each nursing home having 50 beds or more shall have a

 


 1  full-time licensed nursing home administrator. If a nursing home

 

 2  changes nursing home administrators, the nursing home immediately

 

 3  shall notify the department of the change.

 

 4        Sec. 3220a. (1) A nursing home shall not be licensed under

 

 5  this part unless that nursing home has on its staff at least 1

 

 6  registered nurse with specialized training or relevant experience

 

 7  in the area of gerontology, who shall serve as the director of

 

 8  nursing and who shall be responsible for planning and directing

 

 9  nursing care. The nursing home shall have at least 1 licensed

 

10  nurse on duty at all times and shall employ additional registered

 

11  and licensed practical nurses in accordance with subsection (2).

 

12        (2) A nursing home shall employ nursing personnel sufficient

 

13  to provide continuous 24-hour nursing care and services

 

14  sufficient to meet the needs of each patient in the nursing home.

 

15  Nursing personnel employed in the nursing home shall be under the

 

16  supervision of the director of nursing. A licensee shall maintain

 

17  a nursing home staff sufficient to provide not less than 2.25

 

18  hours of nursing care by employed nursing care personnel per

 

19  patient per day. The ratio of patients to nursing care personnel

 

20  during a morning shift shall not exceed 8 patients to 1 nursing

 

21  care personnel; the ratio of patients to nursing care personnel

 

22  during an afternoon shift shall not exceed 12 patients to 1

 

23  nursing care personnel; and the ratio of patients to nursing care

 

24  personnel during a nighttime shift shall not exceed 15 patients

 

25  to 1 nursing care personnel and there shall be sufficient nursing

 

26  care personnel available on duty to assure coverage for patients

 

27  at all times during the shift. An employee designated as a member

 


 1  of the nursing staff shall not be engaged in providing basic

 

 2  services such as food preparation, housekeeping, laundry, or

 

 3  maintenance services, except in an instance of natural disaster

 

 4  or other emergency reported to and concurred in by the

 

 5  department. In a nursing home having 30 or more beds, the

 

 6  director of nursing shall not be included in counting the minimum

 

 7  ratios of nursing personnel required by this subsection.

 

 8        (3) In administering this section, the department shall take

 

 9  into consideration a natural disaster or other emergency.

 

10        Sec. 3220b. A nursing home shall not be licensed under this

 

11  part unless that nursing home has entered into an agreement with

 

12  the county community mental health program, if available, that

 

13  will service the mental health needs of the patients of the

 

14  nursing home.

 

15        Sec. 3221. (1) Before issuance or renewal of a nursing home

 

16  license under this article, the owner, operator, or governing

 

17  body of the nursing home shall give a bond and provide evidence

 

18  of a patient trust fund in an amount consistent with subsection

 

19  (2) and with the surety the department approves. The bond shall

 

20  be conditioned that the applicant shall hold separately in the

 

21  trust fund all patients' funds deposited with the applicant,

 

22  shall administer the funds on behalf of the patient in the manner

 

23  directed by the depositor, and shall render a true and complete

 

24  account to the patient not less than once each 3 months, to the

 

25  depositor when requested, and to the department and the

 

26  department of human services, when requested. Upon termination of

 

27  the deposit, the applicant shall account for all funds received,

 


 1  expended, and held on hand. The bond shall insure the department

 

 2  for the benefit of the patients.

 

 3        (2) The bond shall be in an amount equal to not less than 1-

 

 4  1/4 times the average balance of patient funds held during the

 

 5  previous year. The department may require an additional bond, or

 

 6  permit the filing of a bond in a lower amount, if the department

 

 7  determines a change in the average balance has occurred or may

 

 8  occur. An applicant for a new license shall file a bond in an

 

 9  amount which the department estimates as 1-1/4 times the average

 

10  amount of patient funds which the applicant, upon the issuance of

 

11  the license, is likely to hold during the first year of

 

12  operation.

 

13        Sec. 3223. (1) A nursing home shall post in an area

 

14  accessible to residents, employees, and visitors the name, title,

 

15  location, and telephone number of the individual in the nursing

 

16  home who is responsible for receiving complaints and conducting

 

17  complaint investigations and a procedure for communicating with

 

18  that individual.

 

19        (2) An individual responsible for receiving complaints and

 

20  conducting complaint investigations in a nursing home shall be on

 

21  duty and on site not less than 24 hours per day, 7 days a week.

 

22        (3) The individual described in subsection (2) who receives

 

23  a complaint, inquiry, or request from a nursing home resident or

 

24  the resident's surrogate decision maker shall respond using the

 

25  nursing home's established procedures pursuant to R 325.20113 of

 

26  the Michigan administrative code.

 

27        (4) To assist the individual described in subsection (2) in

 


 1  performing his or her duties, the department shall post on its

 

 2  internet website all of the following information:

 

 3        (a) Links to federal and state regulations and rules

 

 4  governing the nursing home industry.

 

 5        (b) The scheduling of any training or joint training

 

 6  sessions concerning nursing home or elderly care issues being put

 

 7  on by the department.

 

 8        (c) A list of long-term care contact telephone numbers

 

 9  including, but not limited to, the department's complaint

 

10  hotline, the department's nursing home licensing division, any

 

11  commonly known nursing home provider groups, the state long-term

 

12  care ombudsman, and any commonly known nursing home patient care

 

13  advocacy groups.

 

14        (d) When it becomes available, information on the

 

15  availability of electronic mail access to file a complaint

 

16  concerning nursing home violations directly with the department.

 

17        (e) Any other information that the department believes is

 

18  helpful in responding to complaints, requests, and inquiries of a

 

19  nursing home resident or his or her surrogate decision maker.

 

20        (5) A nursing home receiving reimbursement pursuant to the

 

21  medicaid program shall designate 1 or more current employees to

 

22  fulfill the duties and responsibilities outlined in this section.

 

23  This section does not constitute a basis for increasing nursing

 

24  home staffing levels.

 

25        Sec. 3231. A licensee of a nursing home operated for profit

 

26  is considered to be the consumer, and not the retailer, of the

 

27  tangible personal property purchased and used or consumed in the

 


 1  operation of the home.

 

 2        Sec. 3233. (1) A nursing home licensed under this article

 

 3  shall adopt a policy regulating the smoking of tobacco on the

 

 4  nursing home premises.

 

 5        (2) A nursing home policy regulating smoking at a minimum

 

 6  shall provide that:

 

 7        (a) Upon admission each patient or person responsible for

 

 8  the patient's admission shall be asked if there is a preference

 

 9  for placement with smokers or nonsmokers.

 

10        (b) Smoking by patients shall be restricted to private

 

11  rooms, rooms shared with other smokers only, or other designated

 

12  smoking areas.

 

13        (c) Visitors shall not be permitted to smoke in rooms or

 

14  wards occupied by patients who do not smoke.

 

15        (d) Visitors shall be permitted to smoke only in designated

 

16  areas.

 

17        (e) Staff shall be permitted to smoke in designated areas

 

18  only.

 

19        (f) Staff shall not be permitted to smoke in patients' rooms

 

20  or while performing their duties in the presence of patients.

 

21        (g) Eating areas shall have sections for smokers and

 

22  nonsmokers.

 

23        (h) Cigarettes, cigars, and pipe tobacco shall not be sold

 

24  or dispensed within the nursing home except as provided for by

 

25  the owner or governing board.

 

26        (i) A sign indicating that smoking is prohibited in the

 

27  nursing home except in designated areas shall be posted at each

 


 1  entrance to the nursing home. Each designated smoking area shall

 

 2  be posted as such by sign.

 

 3        (3) A nursing home licensed under this article shall retain

 

 4  a copy of the smoking policy which will be available to the

 

 5  public upon request.

 

 6        Sec. 3234. (1) Notwithstanding section 3145(2)(l), a nursing

 

 7  home shall give each resident who uses a hospital-type bed or the

 

 8  resident's legal guardian, patient advocate, or other legal

 

 9  representative the option of having bed rails. A nursing home

 

10  shall offer the option to new residents upon admission and to

 

11  other residents upon request. Upon receipt of a request for bed

 

12  rails, the nursing home shall inform the resident or the

 

13  resident's legal guardian, patient advocate, or other legal

 

14  representative of alternatives to and the risks involved in using

 

15  bed rails. A resident or the resident's legal guardian, patient

 

16  advocate, or other legal representative has the right to request

 

17  and consent to bed rails for the resident. A nursing home shall

 

18  provide bed rails to a resident only upon receipt of a signed

 

19  consent form authorizing bed rail use and a written order from

 

20  the resident's attending physician that contains statements and

 

21  determinations regarding medical symptoms and that specifies the

 

22  circumstances under which bed rails are to be used. For purposes

 

23  of this subsection, "medical symptoms" includes the following:

 

24        (a) A concern for the physical safety of the resident.

 

25        (b) Physical or psychological need expressed by a resident.

 

26  A resident's fear of falling may be the basis of a medical

 

27  symptom.

 


 1        (2) A nursing home that provides bed rails under subsection

 

 2  (1) shall do all of the following:

 

 3        (a) Document that the requirements of subsection (1) have

 

 4  been met.

 

 5        (b) Monitor the resident's use of the bed rails.

 

 6        (c) In consultation with the resident, resident's family,

 

 7  resident's attending physician, and individual who consented to

 

 8  the bed rails, periodically reevaluate the resident's need for

 

 9  the bed rails.

 

10        (3) The department shall develop clear and uniform

 

11  guidelines to be used in determining what constitutes each of the

 

12  following:

 

13        (a) Acceptable bed rails for use in a nursing home in this

 

14  state. The department shall consider the recommendations of the

 

15  hospital bed safety work group established by the United States

 

16  food and drug administration, if those are available, in

 

17  determining what constitutes an acceptable bed rail.

 

18        (b) Proper maintenance of bed rails.

 

19        (c) Properly fitted mattresses.

 

20        (d) Other hazards created by improperly positioned bed

 

21  rails, mattresses, or beds.

 

22        (4) A nursing home that complies with subsections (1) and

 

23  (2) and the guidelines developed under this section in providing

 

24  bed rails to a resident is not subject to administrative

 

25  penalties imposed by the department based solely on providing the

 

26  bed rails. Nothing in this subsection precludes the department

 

27  from citing specific state or federal deficiencies for improperly

 


 1  maintained bed rails, improperly fitted mattresses, or other

 

 2  hazards created by improperly positioned bed rails, mattresses,

 

 3  or beds.

 

 4        Sec. 3235. (1) A nursing home licensed under this article

 

 5  shall have, at a minimum, an emergency generator system that

 

 6  complies with existing state and federal law, including state and

 

 7  federal rules and regulations.

 

 8        (2) A nursing home that fails to comply with this section is

 

 9  subject to a civil penalty as provided under existing state and

 

10  federal law, including state and federal rules and regulations.

 

11        Sec. 3241. (1) The department, after seeking advice and

 

12  consultation from the department of human services, appropriate

 

13  consumer and professional organizations, and concerned agencies,

 

14  shall promulgate rules to implement and administer this part.

 

15        (2) In addition to the rules prescribed under section 20171

 

16  of the public health code, rules for nursing homes shall include

 

17  the establishment of standards relating to:

 

18        (a) Complaint procedures.

 

19        (b) Discharges and transfers.

 

20        (c) Emergency procedures.

 

21        (d) Medical audit procedures.

 

22        (e) Patients' rights.

 

23        (f) Standards of patient care to be provided in nursing

 

24  homes.

 

25        (g) Training, educational, and competency requirements of

 

26  nursing home personnel other than licensed personnel.

 

27        (h) Utilization and quality control review procedures.

 


 1        Sec. 3243. (1) In addition to public records subject to

 

 2  disclosure under section 3127, the following information is

 

 3  subject to disclosure from the department or the department of

 

 4  human services:

 

 5        (a) Ownership of nursing homes, ownership of buildings

 

 6  occupied by nursing homes, and the names and addresses of

 

 7  suppliers and the ownership of suppliers of goods and services to

 

 8  nursing homes required to be reported under section 3105.

 

 9        (b) Records of license and certification inspections,

 

10  surveys, and evaluations of nursing homes, other reports of

 

11  inspections, surveys, and evaluations of patient care, and

 

12  reports concerning a nursing home prepared pursuant to titles

 

13  XVIII and XIX.

 

14        (c) Cost and reimbursement reports submitted by a nursing

 

15  home, reports of audits of nursing homes, and other public

 

16  records concerning costs incurred by, revenues received by, and

 

17  reimbursement of nursing homes.

 

18        (d) Complaints filed against a nursing home and complaint

 

19  investigation reports. A complaint or complaint investigation

 

20  report shall not be disclosed to a person other than the

 

21  complainant or complainant's representative before it is

 

22  disclosed to a nursing home under section 5299a, and a

 

23  complainant's or patient's name shall not be disclosed except as

 

24  provided in section 5299a.

 

25        (2) The department, the department of human services, and

 

26  the nursing home shall respect the confidentiality of a patient's

 

27  clinical record as provided in section 3127 and shall not divulge

 


 1  or disclose the contents of a record in a manner which identifies

 

 2  a patient, except upon a patient's death to a relative or

 

 3  guardian, or under judicial proceedings. This subsection shall

 

 4  not be construed to limit the right of a patient or a patient's

 

 5  representative to inspect or copy the patient's clinical record.

 

 6        (3) Confidential medical, social, personal, or financial

 

 7  information identifying a patient shall not be available for

 

 8  public inspection in a manner which identifies a patient.

 

 9        Sec. 3244. The department shall provide to the applicant or

 

10  licensee professional advice and consultation related to the

 

11  quality of institutional or agency aspects of health care and

 

12  services provided by the applicant or licensee.

 

13        Sec. 3251. (1) When the department has concluded a

 

14  proceeding under sections 71 to 106 of the administrative

 

15  procedures act of 1969, or when the department has suspended or

 

16  revoked the license of a nursing home, the department, a patient

 

17  in the facility, or a patient's representative may file an

 

18  emergency petition with the circuit court to place the nursing

 

19  home under the control of a receiver if necessary to protect the

 

20  health or safety of patients in the nursing home. The court may

 

21  grant the petition upon a finding that the health or safety of

 

22  the patients in the nursing home would be seriously threatened if

 

23  a condition existing at the time the petition was filed is

 

24  permitted to continue.

 

25        (2) The court shall appoint as receiver the director of the

 

26  department of human services, the director of the department, or

 

27  another state agency or person designated by the director of

 


 1  community health. The receiver appointed by the court shall use

 

 2  the income and assets of the nursing home to maintain and operate

 

 3  the home and to attempt to correct the conditions which

 

 4  constitute a threat to the patients. A major structural

 

 5  alteration shall not be made to the nursing home, unless the

 

 6  alteration is necessary to bring the nursing home into compliance

 

 7  with licensing requirements.

 

 8        (3) To assist in the implementation of the mandate of the

 

 9  court, the receiver may request and receive reasonable

 

10  consultation from the available personnel of the department.

 

11        (4) The receivership shall be terminated when the receiver

 

12  and the court certify that the conditions which prompted the

 

13  appointment have been corrected, when the license is restored,

 

14  when a new license is issued, or, in the case of a discontinuance

 

15  of operation, when the patients are safely placed in other

 

16  facilities, whichever occurs first.

 

17        (5) Upon the termination of the receivership, the receiver

 

18  shall render a complete accounting to the court and shall dispose

 

19  of surplus funds as the court directs.

 

20        Sec. 3255. The department may refuse to issue a license to

 

21  establish or maintain and operate, or both, a nursing home to an

 

22  applicant:

 

23        (a) Whose occupational, professional, or health agency

 

24  license has been revoked during the 5 years preceding the date of

 

25  application.

 

26        (b) Whom the department finds is not suitable to operate a

 

27  nursing home because of financial incapacity or a lack of good

 


 1  moral character or appropriate business or professional

 

 2  experience. As used in this subdivision, "good moral character"

 

 3  means that term as defined in 1974 PA 381, MCL 338.41 to 338.47.

 

 4        Sec. 3257. (1) The department may issue a 1-year provisional

 

 5  license, renewable for not more than 1 additional year, to an

 

 6  applicant whose services are needed in the community but who is

 

 7  temporarily unable to comply with the rules related to the

 

 8  physical plant of the facilities, excluding maintenance problems.

 

 9  At the time a provisional license is granted, specific deadlines

 

10  for the correction of each physical plant violation shall be

 

11  established.

 

12        (2) A provisional license shall not be issued for a nursing

 

13  home constructed, established, or changing corporate ownership or

 

14  management after March 30, 1979 unless it is shown that unusual

 

15  hardship would result to the public or to the applicant for the

 

16  provisional license and the nursing home was licensed and

 

17  operating under a prior licensing act for not less than 5 years.

 

18        Sec. 3261. (1) In addition to the requirements of section

 

19  3106, a licensee shall certify annually to the department, as

 

20  part of its application for licensure and certification, that all

 

21  phases of its operation, including its training program, are

 

22  without discrimination against persons or groups of persons on

 

23  the basis of race, religion, color, national origin, sex, age,

 

24  disability, marital status, sexual preference, or the exercise of

 

25  rights guaranteed by law, including freedom of speech and

 

26  association. If the department finds a violation of rights

 

27  enumerated in this section, the department shall direct the

 


 1  administrator of the nursing home to take the necessary action to

 

 2  assure that the nursing home is, in fact, operated in accordance

 

 3  with the rights listed in this section.

 

 4        (2) This section shall not be construed to prevent a nursing

 

 5  home operated, supervised, or controlled by a religious or

 

 6  fraternal institution or organization from giving preference to

 

 7  applicants who are members of that religious or fraternal

 

 8  institution or organization.

 

 9        Sec. 3263. (1) A nursing home shall permit a representative

 

10  of an approved organization, who is known by the nursing home

 

11  administration to be authorized to represent the organization or

 

12  who carries identification showing that the representative is

 

13  authorized to represent the organization, a family member of a

 

14  patient, or a legal representative of a patient, to have access

 

15  to nursing home patients for 1 or more of the following purposes:

 

16        (a) Visit, talk with, and make personal, social, and legal

 

17  services available to the patients.

 

18        (b) Inform patients of their rights and entitlements, and

 

19  their corresponding obligations, under federal and state laws by

 

20  means of the distribution of educational materials and discussion

 

21  in groups and with individual patients.

 

22        (c) Assist patients in asserting their legal rights

 

23  regarding claims for public assistance, medical assistance, and

 

24  social services benefits, as well as in all matters in which

 

25  patients are aggrieved. Assistance may be provided individually

 

26  or on a group basis and may include organizational activity and

 

27  counseling and litigation.

 


 1        (d) Engage in other methods of assisting, advising, and

 

 2  representing patients so as to extend to them the full enjoyment

 

 3  of their rights.

 

 4        (2) Access as prescribed in subsection (1) shall be

 

 5  permitted during regular visiting hours each day. A

 

 6  representative of an approved organization entering a nursing

 

 7  home under this section promptly shall advise the nursing home

 

 8  administrator or the acting administrator or other available

 

 9  agent of the nursing home of the representative's presence. A

 

10  representative shall not enter the living area of a patient

 

11  without identifying himself or herself to the patient and without

 

12  receiving the patient's permission to enter. A representative

 

13  shall use only patient areas of the home to carry out the

 

14  activities described in subsection (1).

 

15        (3) A patient may terminate a visit by a representative

 

16  permitted access under subsection (1). Communications between a

 

17  patient and the representative are confidential, unless otherwise

 

18  authorized by the patient.

 

19        (4) If a nursing home administrator or employee believes

 

20  that an individual or organization permitted access under this

 

21  section is acting or has acted in a manner detrimental to the

 

22  health or safety of patients in the nursing home, the nursing

 

23  home administrator or employee may file a complaint with the task

 

24  force established under section 20127 of the public health code.

 

25  Upon receipt of a complaint, department staff shall investigate

 

26  the allegations made in the complaint. The task force shall make

 

27  a determination regarding proper resolution of the complaint

 


 1  based on the results of the investigation. Written notification

 

 2  of the task force determination and of recommendations adopted by

 

 3  the task force shall be given to the complainant and the

 

 4  individual or organization against whom the complaint was made.

 

 5        (5) An individual shall not enter upon the premises of a

 

 6  nursing home for the purpose of engaging in an activity that

 

 7  would cause a reasonable person to feel terrorized, frightened,

 

 8  intimidated, threatened, harassed, or molested and that actually

 

 9  causes a nursing home employee, patient, or visitor to feel

 

10  terrorized, frightened, intimidated, threatened, harassed, or

 

11  molested. This subsection does not prohibit constitutionally

 

12  protected activity or conduct that serves a legitimate purpose

 

13  including, but not limited to, activities or conduct allowed

 

14  under subsection (1).

 

15        Sec. 3264. (1) The director, with the advice of the nursing

 

16  home task force, shall approve or disapprove a nonprofit

 

17  corporation which has as 1 of its primary purposes the rendering

 

18  of assistance, without charge to nursing home patients for the

 

19  purpose of obtaining access to nursing homes and their patients

 

20  under section 5263.

 

21        (2) Upon receipt of a written application for approval under

 

22  subsection (1), the director shall notify all persons who have

 

23  made a written request for notice of applications made under this

 

24  section.

 

25        (3) The director shall approve the organization making the

 

26  request if the organization is a bona fide community organization

 

27  or legal aid program, is capable of providing 1 or more of the

 


 1  services listed in section 5263, and is likely to utilize the

 

 2  access provided under section 5263 to enhance the welfare of

 

 3  nursing home patients. The director shall approve or disapprove

 

 4  the organization within 30 days after receiving the application.

 

 5        (4) A person aggrieved by the decision of the director may

 

 6  appeal the decision to the nursing home task force. A decision of

 

 7  the task force shall be binding on the director.

 

 8        Sec. 3265. (1) A nursing home shall establish written

 

 9  policies and procedures to implement the rights protected under

 

10  section 3145. The policies shall include a procedure for the

 

11  investigation and resolution of patient complaints. The policies

 

12  and procedures shall be subject to approval by the department.

 

13  The policies and procedures shall be clear and unambiguous, shall

 

14  be printed in not less than 12-point type, shall be available for

 

15  inspection by any person, shall be distributed to each patient

 

16  and representative, and shall be available for public inspection.

 

17        (2) Each patient shall be given a copy of the rights

 

18  enumerated in section 3145 at the time of admission to a nursing

 

19  home. A patient of a nursing home at the time of the

 

20  implementation of this section shall be given a copy of the

 

21  rights enumerated in section 3145 as specified by rule.

 

22        (3) A copy shall be given to a person who executes a

 

23  contract pursuant to section 3266 and to any other person who

 

24  requests a copy.

 

25        (4) If a patient is unable to read the form, it shall be

 

26  read to the patient in a language the patient understands. In the

 

27  case of a mentally retarded individual, the rights shall be

 


 1  explained in a manner which that person is able to understand and

 

 2  the explanation witnessed by a third person. In the case of a

 

 3  minor or a person having a legal guardian, both the patient and

 

 4  the parent or legal guardian shall be fully informed of the

 

 5  policies and procedures.

 

 6        (5) A nursing home shall ensure that its staff is familiar

 

 7  with and observes the rights enumerated in section 3145 and the

 

 8  policies and procedures established under this section.

 

 9        Sec. 3265a. (1) A nursing home shall not require an

 

10  applicant, as a condition of admission, to waive his or her right

 

11  to benefits under medicare or medicaid, to give oral or written

 

12  assurance that the applicant is not eligible for medicare or

 

13  medicaid, or to give oral or written assurance that the applicant

 

14  will not apply for benefits under medicare or medicaid.

 

15        (2) A nursing home shall not require any of the following as

 

16  a condition of an applicant's admission or a patient's continued

 

17  residency at that nursing home:

 

18        (a) That an applicant or patient remain a private pay

 

19  patient for a specified period of time before applying for

 

20  medicaid.

 

21        (b) That a person pay on behalf of an applicant or patient

 

22  the private pay rate for a specified period of time before the

 

23  applicant or patient applies for medicaid.

 

24        (c) That an applicant, patient, or other person make a gift

 

25  or donation on behalf of that applicant or patient.

 

26        (3) As of April 11, 1994, a contract provision or agreement

 

27  in conflict with subsection (1) or (2), whether made before, on,

 


 1  or after April 11, 1994, is unenforceable.

 

 2        (4) Not later than 30 days after April 11, 1994, a nursing

 

 3  home that participates in medicaid shall provide written notice

 

 4  to each private pay patient subject to a contract provision or

 

 5  agreement in conflict with subsection (1) or (2) that the

 

 6  contract provision or agreement is no longer a bar to the patient

 

 7  applying for medicaid.

 

 8        Sec. 3266. (1) A nursing home shall execute a written

 

 9  contract solely with an applicant or patient or that applicant's

 

10  or patient's guardian or legal representative authorized by law

 

11  to have access to those portions of the patient's or applicant's

 

12  income or assets available to pay for nursing home care, at each

 

13  of the following times:

 

14        (a) At the time an individual is admitted to a nursing home.

 

15        (b) At the expiration of the term of a previous contract.

 

16        (c) At the time the source of payment for the patient's care

 

17  changes.

 

18        (2) A nursing home shall not discharge or transfer a patient

 

19  at the expiration of the term of a contract, except as provided

 

20  in section 3273.

 

21        (3) A nursing home shall specifically notify in writing an

 

22  applicant or patient or that applicant's or patient's guardian or

 

23  legal representative of the availability or lack of availability

 

24  of hospice care in the nursing home. This written notice shall be

 

25  by way of a specific paragraph located in the written contract

 

26  described in subsection (1) and shall require the applicant or

 

27  patient or that applicant's or patient's guardian or legal

 


 1  representative to sign or initial the paragraph before execution

 

 2  of the written contract. As used in this subsection, "hospice"

 

 3  means that term as defined in section 3101.

 

 4        (4) A nursing home shall provide a copy of the contract to

 

 5  the patient, the patient's representative, or the patient's legal

 

 6  representative or legal guardian at the time the contract is

 

 7  executed.

 

 8        (5) For a patient supported by funds other than the

 

 9  patient's own funds, a nursing home shall make a copy of the

 

10  contract available to the person providing the funds for the

 

11  patient's support.

 

12        (6) For a patient whose care is reimbursed with public funds

 

13  administered by the department, a nursing home shall maintain a

 

14  copy of the contract in the patient's file at the nursing home

 

15  and upon request shall make a copy of the contract available to

 

16  the department.

 

17        (7) The nursing home shall ensure that the contract is

 

18  written in clear and unambiguous language and is printed in not

 

19  less than 12-point type. The form of the contract shall be

 

20  prescribed by the department.

 

21        (8) The contract shall specify all of the following:

 

22        (a) The term of the contract.

 

23        (b) The services to be provided under the contract,

 

24  including the availability of hospice or other special care, and

 

25  the charges for the services.

 

26        (c) The services that may be provided to supplement the

 

27  contract and the charges for the services.

 


 1        (d) The sources liable for payments due under the contract.

 

 2        (e) The amount of deposit paid and the general and

 

 3  foreseeable terms upon which the deposit will be held and

 

 4  refunded.

 

 5        (f) The rights, duties, and obligations of the patient,

 

 6  except that the specification of a patient's rights may be

 

 7  furnished on a separate document that complies with the

 

 8  requirements of section 3145.

 

 9        (9) The nursing home may require a patient's or applicant's

 

10  guardian or legal representative who is authorized by law to have

 

11  access to those portions of the patient's or applicant's income

 

12  or assets available to pay for nursing home care to sign a

 

13  contract without incurring personal financial liability other

 

14  than for funds received in his or her legal capacity on behalf of

 

15  the patient.

 

16        (10) A nursing home employee may request the appointment of

 

17  a guardian for an individual applicant or patient only if the

 

18  nursing home employee reasonably believes that the individual

 

19  meets the legal requirements for the appointment of a guardian.

 

20        Sec. 3267. (1) A nursing home, or an owner, administrator,

 

21  employee, or representative of a nursing home shall not act as

 

22  guardian, trustee, conservator, patient's representative, or

 

23  protective payee for a patient, except as provided in subsection

 

24  (2).

 

25        (2) Subject to the bonding requirements of section 3221,

 

26  money or other property belonging or due a patient which is

 

27  received by a nursing home shall be received as trust funds or

 


 1  property, shall be kept separate from the funds and property of

 

 2  the nursing home and other patients, and shall be disbursed only

 

 3  as directed by the patient. A written receipt shall be given to a

 

 4  patient whose money or other property is received by a nursing

 

 5  home. Upon request, but not less than once every 3 months, the

 

 6  nursing home shall furnish the patient a complete and verified

 

 7  statement of the funds or other property received by the nursing

 

 8  home. The statement shall contain the amounts and items received,

 

 9  the sources, the disposition, and the date of each transaction.

 

10  The nursing home shall furnish a final statement not later than

 

11  10 days after the discharge of a patient.

 

12        Sec. 3271. (1) A licensee, nursing home administrator, or

 

13  employee of a nursing home shall not physically, mentally, or

 

14  emotionally abuse, mistreat, or harmfully neglect a patient.

 

15        (2) A nursing home employee who becomes aware of an act

 

16  prohibited by this section immediately shall report the matter to

 

17  the nursing home administrator or nursing director. A nursing

 

18  home administrator or nursing director who becomes aware of an

 

19  act prohibited by this section immediately shall report the

 

20  matter by telephone to the department of community health, which

 

21  in turn shall notify the department of human services.

 

22        (3) Any person may report a violation of this section to the

 

23  department.

 

24        (4) A physician or other licensed health care personnel of a

 

25  long-term care facility to which a patient is transferred who

 

26  becomes aware of an act prohibited by this section shall report

 

27  the act to the department.

 


 1        (5) Upon receipt of a report made under this section, the

 

 2  department shall make an investigation. The department may

 

 3  require the person making the report to submit a written report

 

 4  or to supply additional information, or both.

 

 5        (6) A licensee or nursing home administrator shall not

 

 6  evict, harass, dismiss, or retaliate against a patient, a

 

 7  patient's representative, or an employee who makes a report under

 

 8  this section.

 

 9        Sec. 3272. The owner, administrator, employee, or

 

10  representative of a nursing home shall not interfere with the

 

11  right of a person to bring a civil or criminal action or to file

 

12  a complaint with the department or other governmental agency with

 

13  respect to the operation of the nursing home, nor discharge,

 

14  harass, or retaliate against a person who does so or on whose

 

15  behalf the action is taken.

 

16        Sec. 3273. (1) A nursing home shall not involuntarily

 

17  transfer or discharge a patient except for 1 or more of the

 

18  following purposes:

 

19        (a) Medical reasons.

 

20        (b) The patient's welfare.

 

21        (c) The welfare of other patients or nursing home employees.

 

22        (d) Nonpayment for the patient's stay except as prohibited

 

23  by title XIX.

 

24        (2) A licensed nursing home shall provide written notice at

 

25  least 30 days before a patient is involuntarily transferred or

 

26  discharged. The 30-day requirement of this subsection does not

 

27  apply in any of the following instances:

 


 1        (a) If an emergency transfer or discharge is mandated by the

 

 2  patient's health care needs and is in accord with the written

 

 3  orders and medical justification of the attending physician.

 

 4        (b) If the transfer or discharge is mandated by the physical

 

 5  safety of other patients and nursing home employees as documented

 

 6  in the clinical record.

 

 7        (c) If the transfer or discharge is subsequently agreed to

 

 8  by the patient or the patient's legal guardian, and notification

 

 9  is given to the next of kin and the person or agency responsible

 

10  for the patient's placement, maintenance, and care in the nursing

 

11  home.

 

12        (3) The notice required by subsection (2) shall be on a form

 

13  prescribed by the department and shall contain all of the

 

14  following:

 

15        (a) The stated reason for the proposed transfer.

 

16        (b) The effective date of the proposed transfer.

 

17        (c) A statement in not less than 12-point type that reads:

 

18  "You have a right to appeal the nursing home's decision to

 

19  transfer you. If you think you should not have to leave this

 

20  facility, you may file a request for a hearing with the

 

21  department of community health within 10 days after receiving

 

22  this notice. If you request a hearing, it will be held at least 7

 

23  days after your request, and you will not be transferred during

 

24  that time. If you lose the hearing, you will not be transferred

 

25  until at least 30 days after you received the original notice of

 

26  the discharge or transfer. A form to appeal the nursing home's

 

27  decision and to request a hearing is attached. If you have any

 


 1  questions, call the department of community health at the number

 

 2  listed below.".

 

 3        (d) A hearing request form, together with a postage paid,

 

 4  preaddressed envelope to the department of community health.

 

 5        (e) The name, address, and telephone number of the

 

 6  responsible official in the department.

 

 7        (4) A request for a hearing made under subsection (3) shall

 

 8  stay a transfer pending a hearing or appeal decision.

 

 9        (5) A copy of the notice required by subsection (3) shall be

 

10  placed in the patient's clinical record, and a copy shall be

 

11  transmitted to the department, the patient, the patient's next of

 

12  kin, patient's representative, or legal guardian, and the person

 

13  or agency responsible for the patient's placement, maintenance,

 

14  and care in the nursing home.

 

15        (6) If the basis for an involuntary transfer or discharge is

 

16  the result of a negative action by the department with respect to

 

17  a medicaid client and a hearing request is filed with the

 

18  department, the 21-day written notice period of subsection (2)

 

19  does not begin until a final decision in the matter is rendered

 

20  by the department or a court of competent jurisdiction and notice

 

21  of that final decision is received by the patient and the nursing

 

22  home.

 

23        (7) If nonpayment is the basis for involuntary transfer or

 

24  discharge, the patient may redeem up to the date that the

 

25  discharge or transfer is to be made and then may remain in the

 

26  nursing home.

 

27        (8) The nursing home administrator or other appropriate

 


 1  nursing home employee designated by the nursing home

 

 2  administrator shall discuss an involuntary transfer or discharge

 

 3  with the patient, the patient's next of kin or legal guardian,

 

 4  and person or agency responsible for the patient's placement,

 

 5  maintenance, and care in the nursing home. The discussion shall

 

 6  include an explanation of the reason for the involuntary transfer

 

 7  or discharge. The content of the discussion and explanation shall

 

 8  be summarized in writing and shall include the names of the

 

 9  individuals involved in the discussions and made a part of the

 

10  patient's clinical record.

 

11        (9) The nursing home shall provide the patient with

 

12  counseling services before the involuntary transfer or discharge,

 

13  and the department shall assure that counseling services are

 

14  available after the involuntary transfer or discharge to minimize

 

15  the possible adverse effect of the involuntary transfer or

 

16  discharge.

 

17        (10) If a nursing home voluntarily withdraws from

 

18  participation in the state plan for medicaid funding, but

 

19  continues to provide services, the nursing home shall not, except

 

20  as provided in subsection (1), involuntarily transfer or

 

21  discharge a patient, whether or not the patient is eligible for

 

22  medicaid benefits, who resided in the nursing home on the day

 

23  before the effective date of the nursing home's withdrawal from

 

24  participation. The prohibition against transfer or discharge

 

25  imposed by this subsection continues unless the patient falls

 

26  within 1 or more of the exceptions described in subsection (1).

 

27        (11) If an individual becomes a patient of a nursing home

 


 1  after the date the nursing home withdraws from participation in

 

 2  the state plan for medicaid funding, the nursing home, on or

 

 3  before the date the individual signs a contract with the nursing

 

 4  home, shall provide to the patient oral and written notice of

 

 5  both of the following:

 

 6        (a) That the nursing home is not participating in the state

 

 7  plan for medicaid funding.

 

 8        (b) That the facility may involuntarily transfer or

 

 9  discharge the patient for nonpayment under subsection (1)(d) even

 

10  if the patient is eligible for medicaid benefits.

 

11        Sec. 3274. (1) A patient subject to involuntary transfer or

 

12  discharge from a licensed nursing home shall have the opportunity

 

13  to file a request for a hearing with the department within 10

 

14  days following receipt of the written notice of the involuntary

 

15  transfer or discharge by the nursing home.

 

16        (2) The department, when the basis for involuntary transfer

 

17  or discharge is other than a negative action by the department of

 

18  human services with respect to a medicaid client, shall hold an

 

19  informal hearing in the matter at the patient's facility not

 

20  sooner than 7 days after a hearing request is filed and render a

 

21  decision in the matter within 14 days after the filing of the

 

22  hearing request.

 

23        (3) In a determination as to whether a transfer or discharge

 

24  is authorized, the burden of proof rests on the party requesting

 

25  the transfer or discharge. The hearing shall be in accordance

 

26  with fair hearing procedures prescribed by rule.

 

27        (4) If the department determines that a transfer or

 


 1  discharge is authorized under section 3273, the patient shall not

 

 2  be required to leave the facility before the thirty-fourth day

 

 3  following receipt of the notice required under section 3273(2),

 

 4  or the tenth day following receipt of the department's decision,

 

 5  whichever is later.

 

 6        Sec. 3275. The department of human services shall continue

 

 7  medicaid funding during the appeal, transfer, or discharge period

 

 8  as provided in section 3274 for those medicaid patients affected

 

 9  by section 3273.

 

10        Sec. 3276. The licensee, with the approval of the

 

11  department, shall develop a plan to effectuate the orderly and

 

12  safe transfer or discharge of a patient. The patient and the

 

13  patient's family or representative shall be consulted in choosing

 

14  another facility. The patient shall receive counseling services

 

15  before the move to minimize the adverse effects of transfer

 

16  trauma. The department shall assure that counseling will be

 

17  available if the patient requires counseling after transfer or

 

18  discharge.

 

19        Sec. 3277. (1) If a patient is temporarily absent from a

 

20  nursing home for emergency medical treatment, the nursing home

 

21  shall hold the bed open for 10 days for that patient in the

 

22  patient's absence, if there is a reasonable expectation that the

 

23  patient will return within that period of time and the nursing

 

24  home receives payment for each day during the absent period.

 

25        (2) If a patient is temporarily absent from a nursing home

 

26  for therapeutic reasons as approved by a physician, the nursing

 

27  home shall hold the bed open for 18 days, if there is a

 


 1  reasonable expectation that the patient will return within that

 

 2  period of time and the nursing home receives payment for each day

 

 3  during the absent period. Temporary absences for therapeutic

 

 4  reasons are limited to 18 days per year.

 

 5        (3) When a patient's absence is longer than specified under

 

 6  subsection (1) or (2), or both, the patient has the option to

 

 7  return to the nursing home for the next available bed.

 

 8        (4) For title XIX patients, the department shall continue

 

 9  funding for the temporary absence as provided under subsections

 

10  (1) and (2) if the nursing home is at 98% or more occupancy

 

11  except for any bed being held open under subsection (1) or (2).

 

12        Sec. 3281. A licensee shall conspicuously post in an area of

 

13  its offices accessible to patients, employees, and visitors:

 

14        (a) A current license.

 

15        (b) A complete copy of the most recent inspection report of

 

16  the nursing home received from the department.

 

17        (c) A description, provided by the department, of complaint

 

18  procedures established under this act and the name, address, and

 

19  telephone number of a person authorized by the department to

 

20  receive complaints.

 

21        (d) A copy of a notice of a pending hearing or order

 

22  pertaining to the nursing home issued by the department or a

 

23  court under the authority of this article or rules promulgated

 

24  under this article.

 

25        (e) A complete list of materials available for public

 

26  inspection as required by section 3282.

 

27        Sec. 3282. A licensee shall retain for public inspection:

 


 1        (a) A complete copy of each inspection report of the nursing

 

 2  home received from the department during the past 5 years.

 

 3        (b) A copy of each notice of a hearing or order pertaining

 

 4  to the nursing home issued by the department or a court under the

 

 5  authority of this article or rules promulgated under this article

 

 6  after March 30, 1979. The copy of the notice or order shall be

 

 7  retained for not less than 3 years after its date of issuance or

 

 8  not less than 3 years after the date of the resolution of the

 

 9  subject matter of the notice or order, whichever is later.

 

10        (c) A description of the services provided by the nursing

 

11  home and the rates charged for those services and items for which

 

12  a patient may be separately charged.

 

13        (d) A list of the name, address, principal occupation, and

 

14  official position of each person who, as a stockholder or

 

15  otherwise, has a proprietary interest in the nursing home as

 

16  required by section 3105, of each officer and director of a

 

17  nursing home which is a corporation, and of each trustee or

 

18  beneficiary of a nursing home which is a trust.

 

19        (e) A list of licensed personnel employed or retained by the

 

20  nursing home.

 

21        (f) A copy of the standard form contract utilized under

 

22  section 3266.

 

23        Sec. 3284. If a patient's life is threatened by his or her

 

24  medical condition, the nursing home shall immediately notify the

 

25  patient's next of kin, patient's representative, and physician.

 

26  The nursing home shall secure emergency medical treatment for the

 

27  patient when the patient's physician is not available. A nursing

 


 1  home shall take all reasonable measures to ensure the comfort of

 

 2  a patient in the terminal stages of an illness.

 

 3        Sec. 3285. (1) If a nursing home proposes to discontinue

 

 4  operation, the licensee shall notify the department and the

 

 5  department of human services of the impending discontinuance of

 

 6  operation. The licensee shall notify the patient and the

 

 7  patient's next of kin, patient's representative, and the party

 

 8  executing the contract under section 3266 of the proposed date of

 

 9  the discontinuance. The notice shall be sufficient to make

 

10  suitable arrangements for the transfer and care of the patient.

 

11        (2) The notices required by this section shall be given not

 

12  less than 30 days before the discontinuance.

 

13        (3) The licensee and the department of human services shall

 

14  be responsible for securing a suitable relocation of a patient

 

15  who does not have a relative or legal representative to assist in

 

16  his or her relocation before the discontinuance of operation. The

 

17  licensee and the department of human services shall keep the

 

18  department informed of their efforts and activities in carrying

 

19  out this responsibility. The department of human services shall

 

20  make available to the licensee and the department assistance

 

21  necessary to assure the effectiveness of efforts to secure a

 

22  suitable relocation.

 

23        Sec. 3286. In the case of an emergency closing of a nursing

 

24  home, or when it is determined by the department that a nursing

 

25  home is suddenly no longer able to provide adequate patient care,

 

26  the department shall do both of the following:

 

27        (a) Assure that the department of human services has been

 


 1  notified to make arrangements for the orderly and safe discharge

 

 2  and transfer of the patients to another facility.

 

 3        (b) Place a representative of the department in a facility

 

 4  on a daily basis to do each of the following:

 

 5        (i) Monitor the discharge of patients to other facilities or

 

 6  locations.

 

 7        (ii) Ensure that the rights of patients are protected.

 

 8        (iii) Discuss the discharge and relocation with each patient

 

 9  and next of kin or legal guardian, person, or agency responsible

 

10  for the patient's placement, maintenance, and care in the

 

11  facility. The content of the explanation and discussion shall be

 

12  summarized in writing and shall be made a part of the patient's

 

13  clinical record.

 

14        Sec. 3287. The department may consult and work with the

 

15  Michigan public health institute created under section 2611 of

 

16  the public health code in performing the department's regulatory

 

17  and disciplinary duties under this article. The department may

 

18  also contract with the Michigan public health institute for the

 

19  performance of specific functions required or authorized by this

 

20  article, if determined necessary by the director of the

 

21  department.

 

22        Sec. 3291. A licensee shall not use false or misleading

 

23  information in the advertising of a nursing home or its name.

 

24        Sec. 3292. (1) An owner, administrator, employee, or

 

25  representative of a nursing home shall not pay, or offer to pay,

 

26  a commission, bonus, fee, or gratuity to a physician, surgeon,

 

27  organization, agency, or other person for the referral of a

 


 1  patient to a nursing home.

 

 2        (2) A person shall not offer or give a commission, bonus,

 

 3  fee, or gratuity to an owner, administrator, employee, or

 

 4  representative of a nursing home in return for the purchase of a

 

 5  drug, biological, or any other ancillary services provided for a

 

 6  patient of a nursing home.

 

 7        (3) An owner, administrator, employee, or representative of

 

 8  a nursing home shall not accept a commission, bonus, fee, or

 

 9  gratuity in return for the purchase of a drug, biological, or any

 

10  other ancillary services provided for a patient of a nursing

 

11  home.

 

12        (4) A person who violates this section is guilty of a felony

 

13  punishable by imprisonment for not more than 4 years or a fine of

 

14  not more than $30,000.00, or both.

 

15        Sec. 3295. (1) The department, in consultation and with the

 

16  advice of the Michigan board of nursing and appropriate consumer

 

17  and professional organizations, shall develop by rule minimum

 

18  criteria for the education and training for unlicensed nursing

 

19  personnel in long-term care facilities designated in this part.

 

20        (2) This section shall not be construed to be a prerequisite

 

21  for employment of unlicensed nursing personnel in a nursing home.

 

22        (3) During the annual licensing inspection, the department

 

23  shall, and during other inspections the department may, conduct

 

24  random competency examinations to determine whether the

 

25  requirements of this section are being met. The department shall

 

26  promulgate rules to administer this subsection.

 

27        Sec. 3296. The nursing home administrator and licensee shall

 


 1  be responsible for insuring that all licensed personnel employed

 

 2  by the nursing home are properly licensed.

 

 3        Sec. 3299a. (1) A person who believes that this part, a rule

 

 4  promulgated under this part, or a federal certification

 

 5  regulation applying to a nursing home may have been violated may

 

 6  request an investigation of a nursing home. The person may submit

 

 7  the request for investigation to the department as a written

 

 8  complaint, or the department shall assist a person in reducing an

 

 9  oral request made under subsection (2) to a written complaint as

 

10  provided in subsection (2). A person filing a complaint under

 

11  this subsection may file the complaint on a model standardized

 

12  complaint form developed and distributed by the department under

 

13  section 3139(3) or file the complaint as provided by the

 

14  department on the internet.

 

15        (2) The department shall provide a toll-free telephone

 

16  consumer complaint line. The complaint line shall be accessible

 

17  24 hours per day and monitored at a level to ensure that each

 

18  priority complaint is identified and that a response is initiated

 

19  to each priority complaint within 24 hours after its receipt. The

 

20  department shall establish a system for the complaint line that

 

21  includes at least all of the following:

 

22        (a) An intake form that serves as a written complaint for

 

23  purposes of subsections (1) and (5).

 

24        (b) The forwarding of an intake form to an investigator not

 

25  later than the next business day after the complaint is

 

26  identified as a priority complaint.

 

27        (c) Except for an anonymous complaint, the forwarding of a

 


 1  copy of the completed intake form to the complainant not later

 

 2  than 5 business days after it is completed.

 

 3        (3) The substance of a complaint filed under subsection (1)

 

 4  or (2) shall be provided to the licensee no earlier than at the

 

 5  commencement of the on-site inspection of the nursing home that

 

 6  takes place in response to the complaint.

 

 7        (4) A complaint filed under subsection (1) or (2), a copy of

 

 8  the complaint, or a record published, released, or otherwise

 

 9  disclosed to the nursing home shall not disclose the name of the

 

10  complainant or a patient named in the complaint unless the

 

11  complainant or patient consents in writing to the disclosure or

 

12  the investigation results in an administrative hearing or a

 

13  judicial proceeding, or unless disclosure is considered essential

 

14  to the investigation by the department. If the department

 

15  considers disclosure essential to the investigation, the

 

16  department shall give the complainant the opportunity to withdraw

 

17  the complaint before disclosure.

 

18        (5) Upon receipt of a complaint under subsection (1) or (2),

 

19  the department shall determine, based on the allegations

 

20  presented, whether this part, a rule promulgated under this part,

 

21  or a federal certification regulation for nursing homes has been,

 

22  is, or is in danger of being violated. Subject to subsection (2),

 

23  the department shall investigate the complaint according to the

 

24  urgency determined by the department. The initiation of a

 

25  complaint investigation shall commence within 15 days after

 

26  receipt of the written complaint by the department.

 

27        (6) If, at any time, the department determines that this

 


 1  part, a rule promulgated under this part, or a federal

 

 2  certification regulation for nursing homes has been violated, the

 

 3  department shall list the violation and the provisions violated

 

 4  on the state and federal licensure and certification forms for

 

 5  nursing homes. The department shall consider the violations, as

 

 6  evidenced by a written explanation, when it makes a licensure and

 

 7  certification decision or recommendation.

 

 8        (7) In all cases, the department shall inform the

 

 9  complainant of its findings unless otherwise indicated by the

 

10  complainant. Subject to subsection (2), within 30 days after

 

11  receipt of the complaint, the department shall provide the

 

12  complainant a copy, if any, of the written determination, the

 

13  correction notice, the warning notice, and the state licensure or

 

14  federal certification form, or both, on which the violation is

 

15  listed, or a status report indicating when these documents may be

 

16  expected. The department shall include in the final report a copy

 

17  of the original complaint. The complainant may request additional

 

18  copies of the documents described in this subsection and upon

 

19  receipt shall reimburse the department for the copies in

 

20  accordance with established policies and procedures.

 

21        (8) The department shall make a written determination,

 

22  correction notice, or warning notice concerning a complaint

 

23  available for public inspection, but the department shall not

 

24  disclose the name of the complainant or patient without the

 

25  complainant's or patient's consent.

 

26        (9) The department shall report a violation discovered as a

 

27  result of the complaint investigation procedure to persons

 


 1  administering sections 3299c to 3299e. The department shall

 

 2  assess a penalty for a violation, as prescribed by this article.

 

 3        (10) A complainant who is dissatisfied with the

 

 4  determination or investigation by the department may request a

 

 5  hearing. A complainant shall submit a request for a hearing in

 

 6  writing to the director within 30 days after the mailing of the

 

 7  department's findings as described in subsection (7). The

 

 8  department shall send notice of the time and place of the hearing

 

 9  to the complainant and the nursing home.

 

10        (11) As used in this section, "priority complaint" means a

 

11  complaint alleging an existing situation that involves physical,

 

12  mental, or emotional abuse, mistreatment, or harmful neglect of a

 

13  resident that requires immediate corrective action to prevent

 

14  serious injury, serious harm, serious impairment, or death of a

 

15  resident while receiving care in a facility.

 

16        Sec. 3299b. (1) If, upon investigation, the department finds

 

17  that a licensee is not in compliance with this part, a rule

 

18  promulgated under this part, or a federal law or regulation

 

19  governing nursing home certification under title XVIII or XIX,

 

20  which noncompliance impairs the ability of the licensee to

 

21  deliver an acceptable level of care and services, or in the case

 

22  of a nursing home closure, the department may issue 1 or more of

 

23  the following correction notices to the licensee:

 

24        (a) Suspend the admission or readmission of patients to the

 

25  nursing home.

 

26        (b) Reduce the licensed capacity of the nursing home.

 

27        (c) Selectively transfer patients whose care needs are not

 


 1  being met by the licensee.

 

 2        (d) Initiate action to place the home in receivership as

 

 3  prescribed in section 3251.

 

 4        (e) Require appointment at the nursing home's expense of a

 

 5  department approved temporary administrative advisor or a

 

 6  temporary clinical advisor, or both, with authority and duties

 

 7  specified by the department to assist the nursing home management

 

 8  and staff to achieve sustained compliance with required operating

 

 9  standards.

 

10        (f) Require appointment at the nursing home's expense of a

 

11  department approved temporary manager with authority and duties

 

12  specified by the department to oversee the nursing home's

 

13  achievement of sustained compliance with required operating

 

14  standards or to oversee the orderly closure of the nursing home.

 

15        (g) Issue a correction notice to the licensee and the

 

16  department describing the violation and the statute or rule

 

17  violated and specifying the corrective action to be taken and the

 

18  period of time in which the corrective action is to be completed.

 

19  Upon issuance, the director shall cause to be published in a

 

20  daily newspaper of general circulation in an area in which the

 

21  nursing home is located notice of the action taken and the

 

22  listing of conditions upon which the director's action is

 

23  predicated.

 

24        (2) Within 72 hours after receipt of a notice issued under

 

25  subsection (1), the licensee shall be given an opportunity for a

 

26  hearing on the matter. The director's notice shall continue in

 

27  effect during the pendency of the hearing and any subsequent

 


 1  court proceedings. The hearing shall be conducted in compliance

 

 2  with the administrative procedures act of 1969.

 

 3        (3) A licensee who believes that a correction notice has

 

 4  been complied with may request a verification of compliance from

 

 5  the department. Not later than 72 hours after the licensee makes

 

 6  the request, the department shall investigate to determine

 

 7  whether the licensee has taken the corrective action prescribed

 

 8  in the notice under subsection (1)(g). If the department finds

 

 9  that the licensee has taken the corrective action and that the

 

10  conditions giving rise to the notice have been alleviated, the

 

11  department may cease taking further action against the licensee

 

12  or may take other action that the director considers appropriate.

 

13        (4) The department shall report annually to the house and

 

14  senate standing committees on senior issues on the number of

 

15  times the department appointed a temporary administrative

 

16  advisor, temporary clinical advisor, and temporary manager as

 

17  described in subsection (1)(e) or (f). The report shall include

 

18  whether the nursing home closed or remained open. The department

 

19  may include this report with other reports made to fulfill

 

20  legislative reporting requirements.

 

21        (5) If the department determines that a nursing home's

 

22  patients can be safeguarded and provided with a safe environment,

 

23  the department shall make its decisions concerning the nursing

 

24  home's future operation based on a presumption in favor of

 

25  keeping the nursing home open.

 

26        Sec. 3299c. (1) A person who violates 1 of the following

 

27  sections is guilty of a misdemeanor punishable by imprisonment

 


 1  for not more than 1 year or a fine of not less than $1,000.00 or

 

 2  more than $10,000.00, or both:

 

 3        (a) Section 3211.

 

 4        (b) Section 3212.

 

 5        (c) Section 3263(5).

 

 6        (d) Section 3265a(1) or (2).

 

 7        (e) Section 3271(1) or (6).

 

 8        (f) Section 3291.

 

 9        (2) A person who violates section 3265a(1) or (2) is liable

 

10  to an applicant or patient in a civil action for treble the

 

11  amount of actual damages or $1,000.00, whichever is greater,

 

12  together with costs and reasonable attorney fees.

 

13        (3) For the purpose of computing administrative penalties

 

14  under this section, the number of patients per day is based on

 

15  the average number of patients in the nursing home during the 30

 

16  days immediately preceding the discovery of the violation.

 

17        (4) If the department finds a violation of section 3145 as

 

18  to a particular nursing home patient, the department shall issue

 

19  an order requiring the nursing home to pay to the patient $100.00

 

20  or to reimburse the patient for costs incurred or injuries

 

21  sustained as a result of the violation, whichever is greater. The

 

22  department also shall assess the nursing home an administrative

 

23  penalty that is the lesser of the following:

 

24        (a) Not more than $1,500.00.

 

25        (b) $15.00 per patient bed.

 

26        (5) The department shall promulgate rules for a quality of

 

27  care allowance formula that is consistent with the

 


 1  recommendations of the fiscal incentives subcommittee to the

 

 2  committee on nursing home reimbursement established pursuant to

 

 3  1975 PA 241, as described in the November 24, 1975 interim

 

 4  report, in the December 3, 1975 final report, and in the November

 

 5  24, 1976 report of the committee recommending appropriate changes

 

 6  in the procedures utilized.

 

 7        (6) The department shall not assess an administrative

 

 8  penalty under subsection (4) for a violation of this part for

 

 9  which a nursing home's reimbursement is withheld under subsection

 

10  (5).

 

11        Sec. 3299d. A civil penalty assessed under this part shall

 

12  be collected by the department. If the person or nursing home

 

13  against whom a civil penalty has been assessed does not comply

 

14  with a written demand for payment within 30 days, the department

 

15  shall issue an order to do 1 of the following:

 

16        (a) Direct the department of treasury to deduct the amount

 

17  of the civil penalty from amounts otherwise due from the state to

 

18  the nursing home and remit that amount to the department.

 

19        (b) Add the amount of the civil penalty to the nursing

 

20  home's licensing fee. If the licensee refuses to make the payment

 

21  at the time of application for renewal of its license, the

 

22  license shall not be renewed.

 

23        (c) Bring an action in circuit court to recover the amount

 

24  of the civil penalty.

 

25        Sec. 3299e. (1) The penalties prescribed by this part or a

 

26  rule promulgated under this part are cumulative and not

 

27  exclusive. Neither the department nor any other party is limited

 


 1  to the remedies in this part.

 

 2        (2) The remedies provided under section 3107 and sections

 

 3  3299a to 3299d are independent and cumulative. Except as provided

 

 4  in section 3299c(5), the use of 1 remedy by a person shall not be

 

 5  considered a bar to the use of other remedies by that person or

 

 6  to the use of any remedy by another person.

 

 7                             PART 33

 

 8                        HOMES FOR THE AGED

 

 9        Sec. 3301. Article I contains general definitions and

 

10  principles of construction applicable to all articles in this

 

11  act, and part 31 contains definitions applicable to this part.

 

12        Sec. 3307. This part does not authorize the medical

 

13  supervision, regulation, or control of the remedial care or

 

14  treatment of residents in a home for the aged operated for the

 

15  adherents of a bona fide church or religious denomination who

 

16  rely on treatment by prayer or spiritual means only in accordance

 

17  with the creed or tenets of that church or denomination. The

 

18  residents, personnel, or employees, other than food handlers, of

 

19  the home are not required to submit to a medical or physical

 

20  examination.

 

21        Sec. 3311. (1) A home for the aged shall be licensed under

 

22  this article.

 

23        (2) "Home for the aged" or a similar term or abbreviation

 

24  shall not be used to describe or refer to a long-term care

 

25  facility unless the long-term care facility is licensed as a home

 

26  for the aged by the department under this article.

 

27        (3) Except as otherwise provided in this subsection, a home

 


 1  for the aged shall not admit an individual under 60 years of age.

 

 2  Upon the request of a home for the aged and subject to subsection

 

 3  (4), the director shall waive the age limitation imposed by this

 

 4  subsection if the individual, the individual's guardian or other

 

 5  legal representative, if appointed, and the owner, operator, and

 

 6  governing body of the home for the aged, upon consultation with

 

 7  the individual's physician, agree on each of the following:

 

 8        (a) The home for the aged is capable of meeting all of the

 

 9  individual's medical, social, and other needs as determined in

 

10  the individual's plan of service.

 

11        (b) The individual will be compatible with the other

 

12  residents of that home for the aged.

 

13        (c) The placement in that home for the aged is in the best

 

14  interests of the individual.

 

15        (4) The owner, operator, and governing body of the home for

 

16  the aged shall submit, with its request for a waiver,

 

17  documentation to the director that supports each of the points of

 

18  agreement necessary under subsection (3). Within 5 days after

 

19  receipt of the information required under this subsection, the

 

20  director shall determine if that documentation collectively

 

21  substantiates each of the points of agreement necessary under

 

22  subsection (3) and approve or deny the waiver. If denied, the

 

23  director shall send a written notice of the denial and the

 

24  reasons for denial to the requesting party.

 

25        Sec. 3313. (1) The owner, operator, and governing body of a

 

26  home for the aged are responsible for all phases of the operation

 

27  of the home and shall assure that the home maintains an organized

 


 1  program to provide room and board, protection, supervision,

 

 2  assistance, and supervised personal care for its residents.

 

 3        (2) The owner, operator, and governing body shall assure the

 

 4  availability of emergency medical care required by a resident.

 

 5        Sec. 3321. (1) Before issuance of a license under this

 

 6  article, the owner, operator, or governing body of the applicant

 

 7  shall give a bond with a surety approved by the department. The

 

 8  bond shall insure the department for the benefit of the

 

 9  residents. The bond shall be conditioned to require the applicant

 

10  to do all of the following:

 

11        (a) Hold separately and in trust all resident funds

 

12  deposited with the applicant.

 

13        (b) Administer the funds on behalf of a resident in the

 

14  manner directed by the depositor.

 

15        (c) Render a true and complete account to the resident, the

 

16  depositor, and the department when requested.

 

17        (d) Account, on termination of the deposit, for all funds

 

18  received, expended, and held on hand.

 

19        (2) The bond shall be in an amount equal to not less than 1-

 

20  1/4 times the average balance of resident funds held during the

 

21  prior year. The department may require an additional bond or

 

22  permit filing of a bond in a lower amount, if the department

 

23  determines that a change in the average balance has occurred or

 

24  may occur. An applicant for a new license shall file a bond in an

 

25  amount which the department estimates as 1-1/4 times the average

 

26  amount of funds which the applicant, upon issuance of the

 

27  license, is likely to hold during the first year of operation.

 


 1        Sec. 3325. If a resident of a home for the aged is receiving

 

 2  care in the facility in addition to the room, board, and

 

 3  supervised personal care specified in section 3101(1)(c), as

 

 4  determined by a physician, the department shall not order the

 

 5  removal of the resident from the home for the aged if both of the

 

 6  following conditions are met:

 

 7        (a) The resident, the resident's family, the resident's

 

 8  physician, and the owner, operator, and governing body of the

 

 9  home for the aged consent to the resident's continued stay in the

 

10  home for the aged.

 

11        (b) The owner, operator, and governing body of the home for

 

12  the aged commit to assuring that the resident receives the

 

13  necessary additional services.

 

14        Sec. 3331. A licensee of a home for the aged operated for

 

15  profit is considered to be the consumer, and not the retailer, of

 

16  tangible personal property purchased and used or consumed in

 

17  operation of the home.

 

18        Sec. 3332. A home for the aged shall offer each resident, or

 

19  shall provide each resident with information and assistance in

 

20  obtaining, an annual vaccination against influenza in accordance

 

21  with the most recent recommendations of the advisory committee on

 

22  immunization practices of the federal centers for disease control

 

23  and prevention, as approved by the department.

 

24        Sec. 3333. (1) A home for the aged licensed under this

 

25  article shall adopt a policy regulating the smoking of tobacco on

 

26  the home for the aged premises.

 

27        (2) A home for the aged policy governing smoking shall at a

 


 1  minimum provide that:

 

 2        (a) Upon admission each resident or person responsible for

 

 3  the resident's admission shall be asked if there is a preference

 

 4  for placement with smokers or nonsmokers.

 

 5        (b) Smoking by residents shall be restricted to private

 

 6  rooms, rooms shared with other smokers only, or other designated

 

 7  smoking areas.

 

 8        (c) Visitors shall not be permitted to smoke in rooms or

 

 9  wards occupied by residents who do not smoke.

 

10        (d) Visitors shall be permitted to smoke only in designated

 

11  areas.

 

12        (e) Staff shall be permitted to smoke in designated areas

 

13  only.

 

14        (f) Staff shall not be permitted to smoke in residents'

 

15  rooms or while performing their duties in the presence of

 

16  residents.

 

17        (g) Eating areas shall have sections for smokers and

 

18  nonsmokers.

 

19        (h) Cigarettes, cigars, and pipe tobacco shall not be sold

 

20  or dispensed within the licensed facility except as provided for

 

21  by the owner or governing board.

 

22        (i) A sign indicating that smoking is prohibited in the

 

23  facility except in designated areas shall be posted at each

 

24  entrance to the facility. Each designated smoking area shall be

 

25  posted as such by sign.

 

26        (3) A home for the aged licensed under this article shall

 

27  retain a copy of the smoking policy which will be available to

 


 1  the public upon request.

 

 2                             PART 34

 

 3                             HOSPICES

 

 4        Sec. 3401. (1) As used in this part:

 

 5        (a) "Home care" means a level of care provided to a patient

 

 6  that is consistent with the categories "routine home care" or

 

 7  "continuous home care" described in 42 CFR 418.302(b)(1) and (2).

 

 8        (b) "Hospice residence" means a facility that meets all of

 

 9  the following:

 

10        (i) Provides 24-hour hospice care to 2 or more patients at a

 

11  single location.

 

12        (ii) Either provides inpatient care directly in compliance

 

13  with this article and with the standards set forth in 42 CFR

 

14  418.100 or provides home care as described in this article.

 

15        (iii) Is owned, operated, and governed by a hospice program

 

16  that is licensed under this article and provides aggregate days

 

17  of patient care on a biennial basis to not less than 51% of its

 

18  hospice patients in their own homes. As used in this

 

19  subparagraph, "home" does not include a residence established by

 

20  a patient in a long-term care facility licensed under this

 

21  article or a residence established by a patient in an adult

 

22  foster care facility licensed under this article.

 

23        (c) "Inpatient care" means a level of care provided to a

 

24  patient that is consistent with the categories "inpatient respite

 

25  care day" and "general inpatient care day" described in 42 CFR

 

26  418.302(b)(3) and (4).

 

27        (2) Article I contains general definitions and principles of

 


 1  construction applicable to all articles in this act, and part 31

 

 2  contains definitions applicable to this part.

 

 3        Sec. 3411. (1) Except as provided in subsection (5), a

 

 4  hospice or hospice residence shall be licensed as required under

 

 5  this article.

 

 6        (2) The term "hospice" shall not be used to describe or

 

 7  refer to a long-term care facility unless that program or agency

 

 8  is licensed as a hospice by the department as required under this

 

 9  article or is exempted from licensure as provided in subsection

 

10  (5).

 

11        (3) A person shall not represent itself as a hospice

 

12  residence unless that person is licensed as a hospice residence

 

13  by the department as required under this article.

 

14        (4) A hospital, nursing home, home for the aged, county

 

15  medical care facility, or any other long-term care facility that

 

16  operates a hospice or hospice residence shall be licensed as a

 

17  hospice or hospice residence under this article.

 

18        (5) A hospice is exempt from licensure under this article if

 

19  the hospice meets all of the following requirements:

 

20        (a) Provides services to not more than 7 patients per month

 

21  on a yearly average.

 

22        (b) Does not charge or receive fees for goods or services

 

23  provided.

 

24        (c) Does not receive third party reimbursement for goods or

 

25  services provided.

 

26        (6) If a hospice provides inpatient services that meet the

 

27  definition of a hospital, nursing home, home for the aged, county

 


 1  medical care facility, hospice residence, or other long-term care

 

 2  facility or health facility or agency, the hospice or hospice

 

 3  residence shall obtain a separate license as required under this

 

 4  article for that hospital, nursing home, home for the aged,

 

 5  county medical care facility, hospice residence, or other long-

 

 6  term care facility or health facility or agency.

 

 7        (7) This part does not restrict an activity of a long-term

 

 8  care facility or health facility or agency if the activity is

 

 9  permitted under the license held by that long-term care facility

 

10  or that health facility or agency.

 

11        (8) If separate licensure is required under this section,

 

12  the department may conduct inspections and issue the required

 

13  licenses concurrently.

 

14        (9) As used in this section:

 

15        (a) "Health facility or agency" means that term as defined

 

16  under section 20106 of the public health code.

 

17        (b) "Hospital" means that term as defined under section

 

18  20106 of the public health code and licensed under part 215 of

 

19  the public health code.

 

20        Sec. 3413. (1) The owner, operator, and governing body of a

 

21  hospice or hospice residence licensed under this article:

 

22        (a) Are responsible for all phases of the operation of the

 

23  hospice or hospice residence and for the quality of care and

 

24  services rendered by the hospice or hospice residence.

 

25        (b) Shall cooperate with the department in the enforcement

 

26  of this part, and require that the physicians and other personnel

 

27  working in the hospice or hospice residence and for whom a

 


 1  license or registration is required be currently licensed or

 

 2  registered.

 

 3        (c) Shall not discriminate because of race, religion, color,

 

 4  national origin, or sex, in the operation of the hospice or

 

 5  hospice residence including employment, patient admission and

 

 6  care, and room assignment.

 

 7        (2) As a condition of licensure as a hospice residence, an

 

 8  applicant shall have been licensed under this article as a

 

 9  hospice and in compliance with the standards set forth in 42 CFR

 

10  part 418 for not less than the 2 years immediately preceding the

 

11  date of application for licensure. A hospice residence licensed

 

12  under this article may provide both home care and inpatient care

 

13  at the same location. A hospice residence providing inpatient

 

14  care shall comply with the standards in 42 CFR 418.100.

 

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

 

16  (2) and section 3415, the owner, operator, and governing body of

 

17  a hospice residence that is licensed under this article and that

 

18  provides care only at the home care level shall do all of the

 

19  following:

 

20        (a) Provide 24-hour nursing services for each patient in

 

21  accordance with the patient's hospice care plan as required under

 

22  42 CFR part 418.

 

23        (b) Have an approved plan for infection control that

 

24  includes making provisions for isolating each patient with an

 

25  infectious disease.

 

26        (c) Obtain fire safety approval pursuant to section 3109.

 

27        (d) Equip each patient room with a device approved by the

 


 1  department for calling the staff member on duty.

 

 2        (e) Design and equip areas within the hospice residence for

 

 3  the comfort and privacy of each patient and his or her family

 

 4  members.

 

 5        (f) Permit patients to receive visitors at any hour,

 

 6  including young children.

 

 7        (g) Provide individualized meal service plans in accordance

 

 8  with 42 CFR 418.100(j).

 

 9        (h) Provide appropriate methods and procedures for the

 

10  storage, dispensing, and administering of drugs and biologicals

 

11  pursuant to 42 CFR 418.100(k).

 

12        Sec. 3415. (1) A hospice or a hospice residence shall

 

13  provide a program of planned and continuous hospice care, the

 

14  medical components of which shall be under the direction of a

 

15  physician.

 

16        (2) Hospice care shall consist of a coordinated set of

 

17  services rendered at home or in hospice residence or other

 

18  institutional settings on a continuous basis for individuals

 

19  suffering from a disease or condition with a terminal prognosis.

 

20  The coordination of services shall assure that the transfer of a

 

21  patient from 1 setting to another will be accomplished with a

 

22  minimum disruption and discontinuity of care. Hospice services

 

23  shall address the physical, psychological, social, and spiritual

 

24  needs of the individual and shall be designed to meet the related

 

25  needs of the individual's family through the periods of illness

 

26  and bereavement. These hospice services shall be provided through

 

27  a coordinated interdisciplinary team that may also include

 


 1  services provided by trained volunteers.

 

 2        Sec. 3417. An individual shall not be admitted to or

 

 3  retained for care by a hospice or a hospice residence unless the

 

 4  individual is suffering from a disease or condition with a

 

 5  terminal prognosis. An individual shall be considered to have a

 

 6  disease or condition with a terminal prognosis if, in the opinion

 

 7  of a physician, the individual's death is anticipated within 6

 

 8  months after the date of admission to the hospice or hospice

 

 9  residence. If a person lives beyond a 6-month or less prognosis,

 

10  the person is not disqualified from receiving continued hospice

 

11  care.

 

12        Sec. 3419. (1) The department may submit for a public

 

13  hearing proposed rules necessary to implement and administer this

 

14  part.

 

15        (2) The rules promulgated pursuant to subsection (1) shall

 

16  not establish standards related to the credentials of an

 

17  individual providing care in a hospice program, whether as an

 

18  employee of a program or volunteer in a program, unless, with

 

19  respect to the type of care the individual would provide in the

 

20  hospice program, a license or other credential is required by law

 

21  for an individual providing that care.

 

22        Sec. 3420. Notwithstanding any other provision of this act,

 

23  all hospices shall be exempt from license fees and certificate of

 

24  need fees for 3 years after the first hospice is licensed under

 

25  this article.

 

26                             PART 35

 

27                   ADULT FOSTER CARE FACILITIES

 


 1        Sec. 3501. (1) For the purposes of this part, the words and

 

 2  phrases defined in sections 3503 to 3507 have the meanings

 

 3  ascribed to them in those sections.

 

 4        (2) In addition, article I contains general definitions and

 

 5  principles of construction applicable to all articles in this

 

 6  act.

 

 7        Sec. 3503. (1) "Adult" means:

 

 8        (a) A person 18 years of age or older.

 

 9        (b) A person who is placed in an adult foster care family

 

10  home or an adult foster care small group home pursuant to section

 

11  5(6) or (8) of 1973 PA 116, MCL 722.115.

 

12        (2) "Adult foster care camp" or "adult camp" means an adult

 

13  foster care facility with the approved capacity to receive more

 

14  than 4 adults to be provided foster care. An adult foster care

 

15  camp is a facility located in a natural or rural environment.

 

16        (3) "Adult foster care congregate facility" means an adult

 

17  foster care facility with the approved capacity to receive more

 

18  than 20 adults to be provided with foster care.

 

19        (4) "Adult foster care facility" means a governmental or

 

20  nongovernmental establishment that provides foster care to

 

21  adults. Subject to section 3526a(1), adult foster care facility

 

22  includes facilities and foster care family homes for adults who

 

23  are aged, mentally ill, developmentally disabled, or physically

 

24  disabled who require supervision on an ongoing basis but who do

 

25  not require continuous nursing care. Adult foster care facility

 

26  does not include any of the following:

 

27        (a) A nursing home licensed under part 32 of this act.

 


 1        (b) A home for the aged licensed under part 33 of this act.

 

 2        (c) A hospital licensed under article 17 of the public

 

 3  health code.

 

 4        (d) A hospital for the mentally ill or a facility for the

 

 5  developmentally disabled operated by the department of community

 

 6  health under the mental health code, 1974 PA 258, MCL 330.1001 to

 

 7  330.2106.

 

 8        (e) A county infirmary operated by a county department of

 

 9  social services or family independence agency under section 55 of

 

10  the social welfare act, 1939 PA 280, MCL 400.55.

 

11        (f) A child caring institution, children's camp, foster

 

12  family home, or foster family group home licensed or approved

 

13  under 1973 PA 116, MCL 722.111 to 722.128, if the number of

 

14  residents who become 18 years of age while residing in the

 

15  institution, camp, or home does not exceed the following:

 

16        (i) Two, if the total number of residents is 10 or fewer.

 

17        (ii) Three, if the total number of residents is not less than

 

18  11 and not more than 14.

 

19        (iii) Four, if the total number of residents is not less than

 

20  15 and not more than 20.

 

21        (iv) Five, if the total number of residents is 21 or more.

 

22        (g) A foster family home licensed or approved under 1973 PA

 

23  116, MCL 722.111 to 722.128, that has a person who is 18 years of

 

24  age or older placed in the foster family home under section 5(7)

 

25  of 1973 PA 116, MCL 722.115.

 

26        (h) An establishment commonly described as an alcohol or a

 

27  substance abuse rehabilitation center, a residential facility for

 


 1  persons released from or assigned to adult correctional

 

 2  institutions, a maternity home, or a hotel or rooming house that

 

 3  does not provide or offer to provide foster care.

 

 4        (i) A facility created by 1885 PA 152, MCL 36.1 to 36.12.

 

 5        (5) "Adult foster care family home" means a private

 

 6  residence with the approved capacity to receive 6 or fewer adults

 

 7  to be provided with foster care for 5 or more days a week and for

 

 8  2 or more consecutive weeks. The adult foster care family home

 

 9  licensee shall be a member of the household and an occupant of

 

10  the residence.

 

11        (6) "Adult foster care large group home" means an adult

 

12  foster care facility with the approved capacity to receive at

 

13  least 13 but not more than 20 adults to be provided with foster

 

14  care.

 

15        (7) "Adult foster care small group home" means an adult

 

16  foster care facility with the approved capacity to receive 12 or

 

17  fewer adults to be provided with foster care.

 

18        (8) "Aged" means an adult whose chronological age is 60

 

19  years of age or older or whose biological age, as determined by a

 

20  physician, is 60 years of age or older.

 

21        (9) "Assessment plan" means a written statement prepared in

 

22  cooperation with a responsible agency or person that identifies

 

23  the specific care and maintenance, services, and resident

 

24  activities appropriate for each individual resident's physical

 

25  and behavioral needs and well-being and the methods of providing

 

26  the care and services taking into account the preferences and

 

27  competency of the individual.

 


 1        Sec. 3504. (1) "Council" means the adult foster care

 

 2  licensing advisory council created in section 3508.

 

 3        (2) "Department" means the department of human services.

 

 4        (3) "Developmental disability" means a disability as defined

 

 5  in section 500(h) of 1974 PA 258, MCL 330.1500.

 

 6        (4) "Director" means the director of the department.

 

 7        (5) "Do-not-resuscitate order" means a document executed

 

 8  pursuant to section 3 of the Michigan do-not-resuscitate

 

 9  procedure act, 1996 PA 193, MCL 333.1051 to 333.1067, directing

 

10  that, in the event a resident suffers cessation of both

 

11  spontaneous respiration and circulation, no resuscitation will be

 

12  initiated.

 

13        (6) "Foster care" means the provision of supervision,

 

14  personal care, and protection in addition to room and board, for

 

15  24 hours a day, 5 or more days a week, and for 2 or more

 

16  consecutive weeks for compensation.

 

17        Sec. 3505. (1) "Good moral character" means good moral

 

18  character as defined in 1974 PA 381, MCL 338.41 to 338.47.

 

19        (2) "Licensed hospice program" means a health care program

 

20  that provides a coordinated set of services rendered at home or

 

21  in an outpatient or institutional setting for individuals

 

22  suffering from a disease or condition with a terminal prognosis

 

23  and that is licensed under part 34.

 

24        (3) "Licensee" means the agency, association, corporation,

 

25  organization, person, or department or agency of the state,

 

26  county, city, or other political subdivision, that has been

 

27  issued a license to operate an adult foster care facility.

 


 1        (4) "Mental illness" means a substantial disorder of thought

 

 2  or mood that significantly impairs judgment, behavior, capacity

 

 3  to recognize reality, or ability to cope with the ordinary

 

 4  demands of life.

 

 5        (5) "New construction" means a newly constructed facility or

 

 6  a facility that has been completely renovated for use as an adult

 

 7  foster care facility.

 

 8        Sec. 3506. (1) "Personal care" means personal assistance

 

 9  provided by a licensee or an agent or employee of a licensee to a

 

10  resident who requires assistance with dressing, personal hygiene,

 

11  grooming, maintenance of a medication schedule as directed and

 

12  supervised by the resident's physician, or the development of

 

13  those personal and social skills required to live in the least

 

14  restrictive environment.

 

15        (2) "Physical disability" means a determinable physical

 

16  characteristic of an individual that may result from disease,

 

17  injury, congenital condition of birth, or functional disorder.

 

18        (3) "Physical plant" means the structure in which a facility

 

19  is located and all physical appurtenances to the facility.

 

20        (4) "Protection", subject to section 3526a(2), means the

 

21  continual responsibility of the licensee to take reasonable

 

22  action to insure the health, safety, and well-being of a

 

23  resident, including protection from physical harm, humiliation,

 

24  intimidation, and social, moral, financial, and personal

 

25  exploitation while on the premises, while under the supervision

 

26  of the licensee or an agent or employee of the licensee, or when

 

27  the resident's assessment plan states that the resident needs

 


 1  continuous supervision.

 

 2        (5) "Provisional license" means a license issued to a

 

 3  facility that has previously been licensed under this act or an

 

 4  act repealed by this act but is temporarily unable to conform to

 

 5  the requirements of a regular license prescribed in this act or

 

 6  rules promulgated under this act.

 

 7        (6) "Quality of care" means the foster care of residents of

 

 8  a facility and other similar items not related to the physical

 

 9  plant that address themselves to the general physical and mental

 

10  health, welfare, and well-being of residents.

 

11        Sec. 3507. (1) "Regular license" means a license issued to

 

12  an adult foster care facility which is in compliance with this

 

13  act and the rules promulgated under this act.

 

14        (2) "Related" means any of the following relationships by

 

15  marriage, blood, or adoption: spouse, child, parent, brother,

 

16  sister, grandparent, aunt, uncle, stepparent, stepbrother,

 

17  stepsister, or cousin.

 

18        (3) "Short-term operation" means an adult foster care

 

19  facility which operates for a period of time less than 6 months

 

20  within a calendar year.

 

21        (4) "Special license" means a license issued for the

 

22  duration of the operation of an adult foster care facility if the

 

23  licensee is a short-term operation.

 

24        (5) "Specialized program" means a program of services or

 

25  treatment provided in an adult foster care facility licensed

 

26  under this act that is designed to meet the unique programmatic

 

27  needs of the residents of that home as set forth in the

 


 1  assessment plan for each resident and for which the facility

 

 2  receives special compensation.

 

 3        (6) "Special compensation" means payment to an adult foster

 

 4  care facility to ensure the provision of a specialized program in

 

 5  addition to the basic payment for adult foster care. Special

 

 6  compensation does not include payment received by the adult

 

 7  foster care facility directly from the medicaid program for

 

 8  personal care services for a resident or payment received under

 

 9  the supplemental security income program under title XVI of the

 

10  social security act, 42 USC 1381 to 1383c.

 

11        (7) "Supervision" means guidance of a resident in the

 

12  activities of daily living, including all of the following:

 

13        (a) Reminding a resident to maintain his or her medication

 

14  schedule, as directed by the resident's physician.

 

15        (b) Reminding a resident of important activities to be

 

16  carried out.

 

17        (c) Assisting a resident in keeping appointments.

 

18        (d) Being aware of a resident's general whereabouts even

 

19  though the resident may travel independently about the community.

 

20        (8) "Temporary license" means a license issued to a facility

 

21  which has not previously been licensed pursuant to this act, to

 

22  the former adult care facility licensing act, or to former 1972

 

23  PA 287.

 

24        Sec. 3508. (1) The adult foster care licensing advisory

 

25  council is created within the department. The council shall

 

26  consist of 11 members, appointed by the director. The director

 

27  shall appoint at least 1 member of the council from appropriate

 


 1  state and local agencies, private or public organizations, adult

 

 2  foster care providers, and residents of adult foster care

 

 3  facilities or their representatives. The members of the adult

 

 4  foster care licensing advisory council created under section 8 of

 

 5  the former adult foster care licensing act, MCL 400.708, shall

 

 6  serve as the initial members of the council created in this

 

 7  section until their successors are appointed or until the

 

 8  expiration of their respective terms, whichever occurs first. A

 

 9  vacancy shall be filled for the remainder of the unexpired term

 

10  in the same manner as original appointments are made.

 

11        (2) The per diem compensation of the council members and the

 

12  schedule for reimbursement of travel and other expenses shall be

 

13  pursuant to the compensation and schedules established by the

 

14  legislature. The council shall meet not more than once each

 

15  month. The council shall advise the department on the content of

 

16  rules and their enforcement.

 

17        (3) The business which the council may perform shall be

 

18  conducted at a public meeting of the council held in compliance

 

19  with the open meetings act, 1976 PA 267, MCL 15.261 to 15.275.

 

20  Public notice of the time, date, and place of the meeting shall

 

21  be given in the manner required by the open meetings act, 1976 PA

 

22  267, MCL 15.261 to 15.275.

 

23        (4) Except as provided in section 3512, a writing prepared,

 

24  owned, used, in the possession of, or retained by the council in

 

25  the performance of an official function shall be made available

 

26  to the public in compliance with the freedom of information act,

 

27  1976 PA 442, MCL 15.231 to 15.246.

 


 1        Sec. 3509. (1) The department shall administer this part and

 

 2  shall require reports, establish procedures, make inspections,

 

 3  and conduct investigations pursuant to law to enforce the

 

 4  requirements of this part and the rules promulgated under this

 

 5  part.

 

 6        (2) The department shall provide advice and technical

 

 7  assistance to facilities covered by this part to assist

 

 8  facilities in meeting the requirements of this part and the rules

 

 9  promulgated under this part. The department shall offer

 

10  consultation, upon request, in developing methods for the

 

11  improvement of service. The department shall cooperate with other

 

12  state departments and agencies and local units of government in

 

13  administering this part.

 

14        (3) The department shall provide education to the public

 

15  regarding the requirements of this part through the ongoing use

 

16  of mass media and other methods.

 

17        Sec. 3510. (1) The department shall promulgate rules

 

18  pursuant to the administrative procedures act of 1969 in the

 

19  areas provided under subsection (4).

 

20        (2) The state fire safety board created under the fire

 

21  prevention code, 1941 PA 207, MCL 29.1 to 29.34, shall promulgate

 

22  rules providing for adequate fire prevention and safety in an

 

23  adult foster care facility licensed or proposed to be licensed

 

24  for more than 6 adults. The rules shall be promulgated in

 

25  cooperation with the department and shall provide for the

 

26  protection of the health, safety, and welfare of the adults

 

27  residing in a facility. The state fire safety board shall

 


 1  promulgate rules pursuant to the administrative procedures act of

 

 2  1969. A person may request a variance from the application of a

 

 3  rule promulgated pursuant to this subsection by application to

 

 4  the state fire marshal. The state fire marshal may make a

 

 5  variance upon a finding that the variance does not result in a

 

 6  hazard to life or property. The finding shall be transmitted to

 

 7  the person requesting the variance and shall be entered into the

 

 8  records of the department of labor and economic growth. If the

 

 9  variance requested concerns a building, the finding shall also be

 

10  transmitted to the governing body of the city, village, or

 

11  township in which the building is located. The entire state fire

 

12  safety board shall act as a hearing body in accordance with the

 

13  administrative procedures act of 1969 to review and render

 

14  decisions on a rule promulgated pursuant to this subsection or a

 

15  ruling of the state fire marshal in the marshal's interpretation

 

16  or application of these rules. After a hearing, the state fire

 

17  safety board may vary the application of a rule or may modify the

 

18  ruling or interpretation of the state fire marshal if the

 

19  enforcement of the ruling or interpretation would do manifest

 

20  injustice and would be contrary to the spirit and purpose of the

 

21  rules or the public interest. A decision of the state fire safety

 

22  board to vary the application of a rule, or to modify or change a

 

23  ruling of the state fire marshal, shall specify in what manner

 

24  the variance, modification, or change is made, the conditions

 

25  upon which it is made, and the reasons for the variance,

 

26  modification, or change.

 

27        (3) The department of community health shall promulgate

 


 1  rules for the certification of specialized programs offered in an

 

 2  adult foster care facility to a mentally ill or developmentally

 

 3  disabled resident. The rules shall include provision for an

 

 4  appeal of a denial or limitation of the terms of certification to

 

 5  the department pursuant to chapter 4 of the administrative

 

 6  procedures act of 1969.

 

 7        (4) The rules promulgated by the department under this part

 

 8  shall be restricted to the following:

 

 9        (a) The operation and conduct of adult foster care

 

10  facilities.

 

11        (b) The character, suitability, training, and qualifications

 

12  of applicants and other persons directly responsible for the care

 

13  and welfare of adults served.

 

14        (c) The general financial ability and competence of

 

15  applicants to provide necessary care for adults and to maintain

 

16  prescribed standards.

 

17        (d) The number of individuals or staff required to ensure

 

18  adequate supervision and care of the adults served.

 

19        (e) The appropriateness, safety, cleanliness, and general

 

20  adequacy of the premises, including maintenance of adequate

 

21  health standards to provide for the physical comfort, care,

 

22  protection, and well-being of the adults received and maintenance

 

23  of adequate fire protection for adult foster care facilities

 

24  licensed to receive 6 or fewer adults. Rules promulgated in the

 

25  areas provided by this subdivision shall be promulgated in

 

26  cooperation with the state fire safety board.

 

27        (f) Provisions for food, clothing, educational

 


 1  opportunities, equipment, and individual supplies to assure the

 

 2  healthy physical, emotional, and mental development of adults

 

 3  served.

 

 4        (g) The type of programs and services necessary to provide

 

 5  appropriate care to each resident admitted.

 

 6        (h) Provisions to safeguard the rights of adults served,

 

 7  including cooperation with rights protection systems established

 

 8  by law.

 

 9        (i) Provisions to prescribe the rights of licensees.

 

10        (j) Maintenance of records pertaining to admission,

 

11  progress, health, and discharge of adults. The rules promulgated

 

12  under this subdivision shall include a method by which a licensee

 

13  promptly shall notify the appropriate placement agency or

 

14  responsible agent of any indication that a resident's assessment

 

15  plan is not appropriate for that resident.

 

16        (k) Filing of reports with the department.

 

17        (l) Transportation safety.

 

18        (5) The rules shall be reviewed by the council not less than

 

19  once every 5 years.

 

20        Sec. 3511. (1) The director, the director's agent, or

 

21  personnel of another department or agency, acting at the request

 

22  of the director, may enter upon the premises of an applicant or

 

23  licensee at a reasonable time to make inspections, as permitted

 

24  by applicable law, to determine whether the applicant or licensee

 

25  is complying with this part and the rules promulgated under this

 

26  part. On-site inspections may be conducted without prior notice

 

27  to the adult foster care facility. A health and sanitation

 


 1  inspection of an adult foster care facility shall be conducted

 

 2  upon the request of the department by 1 of the following:

 

 3        (a) Department staff.

 

 4        (b) The department of community health.

 

 5        (c) A local health department.

 

 6        (2) The department of community health, the fire marshal

 

 7  division of the department of labor and economic growth, or local

 

 8  authorities, in carrying out this act, may visit an adult foster

 

 9  care facility more often than annually to advise in matters

 

10  affecting health or fire protection. Inspections shall be made as

 

11  permitted by law.

 

12        (3) An adult foster care facility shall be inspected for

 

13  fire safety by 1 of the following:

 

14        (a) Department staff, if the facility is licensed or

 

15  proposed to be licensed for 6 or fewer adults. The department may

 

16  request that a fire safety inspection be completed or caused to

 

17  be completed by the state fire marshal, for a facility licensed

 

18  or proposed to be licensed for 6 or fewer adults, when such an

 

19  inspection would result in the efficient administration of this

 

20  part.

 

21        (b) The state fire marshal or the designated representative

 

22  of the state fire marshal, if the facility is licensed or

 

23  proposed to be licensed for more than 6 adults. The state fire

 

24  marshal shall inspect or cause to be inspected for fire safety an

 

25  adult foster care facility licensed or proposed to be licensed

 

26  for 6 or fewer adults upon request by the department. The state

 

27  fire marshal may contract with the fire marshal of a city having

 


 1  a population of not less than 1,000,000 to inspect adult foster

 

 2  care facilities licensed or proposed to be licensed for more than

 

 3  6 adults if the facility is located within that city. The fire

 

 4  marshal of a city shall conduct an inspection in compliance with

 

 5  procedures established and on forms provided by the state fire

 

 6  marshal.

 

 7        (4) Except as provided in subsection (3)(b) and section

 

 8  3510(2), the inspector shall administer and enforce the rules

 

 9  promulgated by the department.

 

10        (5) Upon receipt of a request from an adult foster care

 

11  facility for certification of a specialized program for

 

12  developmentally disabled or mentally ill adults, the department

 

13  of mental health shall inspect the facility to determine whether

 

14  the proposed specialized program conforms with the requirements

 

15  of applicable law and rules. The department of community health

 

16  shall provide the department with an inspection report and a

 

17  certification, denial of certification, or certification with

 

18  limited terms for the proposed specialized program. The

 

19  department of community health shall reinspect a certified

 

20  specialized program not less than once biennially and notify the

 

21  department in the same manner as for the initial certification.

 

22  In carrying out this subsection, the department of community

 

23  health may contract with a county community mental health board

 

24  or any other agency for services.

 

25        (6) Inspection reports required by this section shall be

 

26  furnished to the department and shall be used in the evaluation

 

27  for licensing of an adult foster care facility. The department

 


 1  shall consider the reports carefully and may make special

 

 2  consultations if necessary. The department shall be responsible

 

 3  for the final determination of the issuance, denial, or

 

 4  revocation and the temporary or provisional nature of a license

 

 5  issued to an adult foster care facility. A report of the

 

 6  department's findings shall be furnished to the licensee or

 

 7  applicant.

 

 8        (7) The inspection reports required by this section shall be

 

 9  available for public inspection during reasonable business hours.

 

10        Sec. 3512. (1) The department may prescribe appropriate

 

11  records to be kept and maintained regarding each adult received

 

12  by a licensee and may require reports, upon forms furnished or

 

13  approved by the department, setting forth facts or circumstances

 

14  related to the care of adults received by the licensee.

 

15        (2) The department may examine the books, records, and

 

16  reports of a facility. Members of the department shall be

 

17  provided reasonable facilities for the thorough examination and

 

18  copying of the books, records, and reports of the facility.

 

19        (3) The records of the residents of a facility which are

 

20  required to be kept by the facility under this act or rules

 

21  promulgated under this act shall be confidential and properly

 

22  safeguarded. These materials shall be open only to the inspection

 

23  of the director, an agent of the director, another executive

 

24  department of the state pursuant to a contract between that

 

25  department and the facility, a party to a contested case

 

26  involving the facility, or on the order of a court or tribunal of

 

27  competent jurisdiction. The records of a resident of a facility

 


 1  which are required to be kept by the facility under this act or

 

 2  rules promulgated under this act shall be open to inspection by

 

 3  the resident, unless medically contraindicated, or the guardian

 

 4  of a resident.

 

 5        Sec. 3513. (1) A person, partnership, corporation,

 

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

 

 7  city, or other political subdivision shall not establish or

 

 8  maintain an adult foster care facility unless licensed by the

 

 9  department.

 

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

 

11  provided and in the manner prescribed by the department. The

 

12  application shall be accompanied by the fee prescribed in section

 

13  3513a.

 

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

 

15  shall investigate the activities and standards of care of the

 

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

 

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

 

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

 

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

 

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

 

21        (a) The financial stability of the facility.

 

22        (b) The applicant's compliance with this part and rules

 

23  promulgated under this part.

 

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

 

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

 

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

 

27  of age.

 


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

 

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

 

 3  operate an adult foster care facility.

 

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

 

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

 

 6  facility. The applicant shall be responsible for assessing the

 

 7  good moral character of the employees of the facility. The person

 

 8  responsible for the daily operation of the facility shall be not

 

 9  less than 18 years of age.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

17  lease other than as lessee.

 

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

 

19  to be received for foster care at 1 time.

 

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

 

21  specialized program for which certification has been received

 

22  from the department.

 

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

 

24  facility at a specific location, is nontransferable, and remains

 

25  the property of the department. The prohibition against transfer

 

26  of a license to another location does not apply if a licensee's

 

27  adult foster care facility or home is closed as a result of

 


 1  eminent domain proceedings, if the facility or home, as

 

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

 

 3  rules promulgated under this act.

 

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

 

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

 

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

 

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

 

 8  arrange to meet with specified department representatives and

 

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

 

10  noncompliance with applicable law and rules that shall be

 

11  corrected. The department shall notify the respective parties of

 

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

 

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

 

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

 

15  notify the prospective purchaser of all licensure requirements.

 

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

 

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

 

18  part or under chapter XXA of the Michigan penal code, 1931 PA

 

19  328, MCL 750.145m to 750.145r. The department shall not issue a

 

20  license to or renew the license of a person who has been

 

21  convicted of a misdemeanor under this act or under chapter XXA of

 

22  the Michigan penal code, 1931 PA 328, MCL 750.145m to 750.145r,

 

23  for a period of 10 years after the conviction.

 

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

 

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

 

26  according to section 3522, the department may refuse to issue a

 

27  license to or renew a license of that person for a period of 5

 


 1  years after the suspension, revocation, or nonrenewal of the

 

 2  license.

 

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

 

 4  renew the license of an applicant if the department determines

 

 5  that the applicant has a relationship with a former licensee

 

 6  whose license under this act has been suspended, revoked, or

 

 7  nonrenewed under subsection (9) or section 3522 or a convicted

 

 8  person to whom a license has been denied under subsection (9).

 

 9  This subsection applies for 5 years after the suspension,

 

10  revocation, or nonrenewal of the former licensee's license or the

 

11  denial of the convicted person's license. For purposes of this

 

12  subsection, an applicant has a relationship with a former

 

13  licensee or convicted person if the former licensee or convicted

 

14  person is involved with the facility in 1 or more of the

 

15  following ways:

 

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

 

17  facility.

 

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

 

19  facility.

 

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

 

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

 

22  the facility.

 

23        (e) Is employed by the facility.

 

24        (f) Resides in the facility.

 

25        (12) If the department determines that an unlicensed

 

26  facility is an adult foster care facility, the department shall

 

27  notify the owner or operator of the facility that it is required

 


 1  to be licensed under this part. A person receiving the

 

 2  notification required under this section who does not apply for a

 

 3  license within 30 days is subject to the penalties described in

 

 4  subsection (13).

 

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

 

 6  subsection (1) is guilty of a misdemeanor punishable by

 

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

 

 8  $50,000.00, or both. A person who has been convicted of a

 

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

 

10  violation is guilty of a felony punishable by imprisonment for

 

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

 

12  both.

 

13        (14) The department shall issue an initial or renewal

 

14  license not later than 6 months after the applicant files a

 

15  completed application. Receipt of the application is considered

 

16  the date the application is received by any agency or department

 

17  of this state. If the application is considered incomplete by the

 

18  department, the department shall notify the applicant in writing

 

19  or make notice electronically available within 30 days after

 

20  receipt of the incomplete application, describing the deficiency

 

21  and requesting additional information. If the department

 

22  identifies a deficiency or requires the fulfillment of a

 

23  corrective action plan, the 6-month period is tolled until either

 

24  of the following occurs:

 

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

 

26  until the date the requested information is received by the

 

27  department.

 


 1        (b) Upon notification by the department that a corrective

 

 2  action plan is required, until the date the department determines

 

 3  the requirements of the corrective action plan have been met.

 

 4        (15) The determination of the completeness of an application

 

 5  does not operate as an approval of the application for the

 

 6  license and does not confer eligibility of an applicant

 

 7  determined otherwise ineligible for issuance of a license.

 

 8        (16) If the department fails to issue or deny a license

 

 9  within the time required by this section, the department shall

 

10  return the license fee and shall reduce the license fee for the

 

11  applicant's next renewal application, if any, by 15%. Failure to

 

12  issue or deny a license within the time period required under

 

13  this section does not allow the department to otherwise delay

 

14  processing an application. The completed application shall be

 

15  placed in sequence with other completed applications received at

 

16  that same time. The department shall not discriminate against an

 

17  applicant in the processing of an application based on the fact

 

18  that the application fee was refunded or discounted under this

 

19  subsection.

 

20        (17) If, on a continual basis, inspections performed by a

 

21  local health department delay the department in issuing or

 

22  denying licenses under this act within the 6-month period, the

 

23  department may use department staff to complete the inspections

 

24  instead of the local health department causing the delays.

 

25        (18) The director of the department shall submit a report by

 

26  December 1 of each year to the standing committees and

 

27  appropriations subcommittees of the senate and house of

 


 1  representatives concerned with human services issues. The

 

 2  director shall include all of the following information in the

 

 3  report concerning the preceding fiscal year:

 

 4        (a) The number of initial and renewal applications the

 

 5  department received and completed within the 6-month time period

 

 6  described in subsection (14).

 

 7        (b) The number of applications requiring a request for

 

 8  additional information.

 

 9        (c) The number of applications rejected.

 

10        (d) The number of licenses not issued within the 6-month

 

11  period.

 

12        (e) The average processing time for initial and renewal

 

13  licenses granted after the 6-month period.

 

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

 

15  an application complete on its face and submitted with any

 

16  applicable licensing fees as well as any other information,

 

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

 

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

 

19  private entity but not from another department or agency of this

 

20  state. A completed application does not include a health

 

21  inspection performed by a local health department.

 

22        Sec. 3513a. (1) Application fees for an individual,

 

23  partnership, firm, corporation, association, governmental

 

24  organization, or nongovernmental organization licensed or seeking

 

25  licensure under this part are as follows:

 

26        (a) Application fee for a temporary license:

 

 


      (i)  Family home                     $ 65.00

      (ii)  Small group home (1-6)            105.00

      (iii) Small group home (7-12)           135.00

      (iv)  Large group home                  170.00

      (v)  Congregate facility               220.00

      (vi)  Camp                              40.00

 

 

 7        (b) Application fee for subsequent licenses:

 

 

      (i)  Family home                     $ 25.00

      (ii)  Small group home (1-6)            25.00

10       (iii) Small group home (7-12)           60.00

11       (iv)  Large group home                  100.00

12       (v)  Congregate facility               150.00

13       (vi)  Camp                              25.00

 

 

14        (2) Fees collected under this part shall be credited to the

 

15  general fund of the state to be appropriated by the legislature

 

16  to the department for the enforcement of this part.

 

17        Sec. 3513b. An adult foster care facility license issued

 

18  under the former adult foster care facility licensing act, 1979

 

19  PA 218, MCL 400.701 to 400.737, is a license issued under this

 

20  part on the effective date of this act until that license expires

 

21  and then the adult foster care facility may renew the license

 

22  pursuant to this part.

 

23        Sec. 3514. (1) A temporary license shall be issued to an

 

24  adult foster care facility for the first 6 months of operation if

 

25  the adult foster care facility has not previously been licensed

 

26  as an adult foster care facility. At the end of the first 6

 


 1  months of operation, the department shall issue a regular

 

 2  license, issue a provisional license, or refuse to issue a

 

 3  license in the manner provided for in section 3522. A temporary

 

 4  license shall not be renewed.

 

 5        (2) Before issuing a temporary license, the department may

 

 6  require an adult foster care facility to submit to the department

 

 7  an acceptable plan of correction for the adult foster care

 

 8  facility. The adult foster care facility shall implement the plan

 

 9  of correction within the time limitations of the temporary

 

10  license period.

 

11        Sec. 3515. The department shall not issue a temporary

 

12  license to an adult foster care congregate facility, except a

 

13  facility which is to replace an adult foster care congregate

 

14  facility licensed on March 27, 1984 and is a new construction;

 

15  satisfies all applicable state construction code requirements and

 

16  the fire safety requirements prescribed by section 3520; and the

 

17  bed capacity does not exceed that of the licensed facility which

 

18  it replaces.

 

19        Sec. 3516. (1) Unless the city, village, or township

 

20  approves a temporary license, a temporary license shall not be

 

21  granted under this part if the issuance of the license would

 

22  substantially contribute to an excessive concentration of

 

23  community residential facilities within a city, village, or

 

24  township of this state.

 

25        (2) A temporary license shall not be granted under this part

 

26  if the proposed adult foster care facility for more than 6 adults

 

27  has not obtained zoning approval or obtained a special or

 


 1  conditional use permit if required by an ordinance of the city,

 

 2  village, or township in which the proposed facility is located.

 

 3        (3) The department shall not issue a temporary license to an

 

 4  adult foster care facility which does not comply with section 16a

 

 5  of 1943 PA 183, MCL 125.216a, section 16a of 1943 PA 184, MCL