June 21, 2005, Introduced by Senators BIRKHOLZ, CROPSEY, GILBERT, PATTERSON, STAMAS, TOY and ALLEN and referred to the Committee on Senior Citizens and Veterans Affairs.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 20173 (MCL 333.20173), as added by 2002 PA 303.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 20173. (1) Except as otherwise provided in subsection
(2), a health facility or agency that is a nursing home, county
medical care facility, or home for the aged shall not employ,
independently contract with, or grant clinical privileges to an
individual
who regularly provides direct services to patients or
residents
in the health facility or agency after the effective date
of
the amendatory act that added this section if the individual has
been
convicted of satisfies 1 or more of the following:
(a) A
Has been convicted of a felony or an attempt or
conspiracy to commit a felony within the 15 years immediately
preceding the date of application for employment or clinical
privileges or the date of the execution of the independent
contract.
(b) A
Has been convicted of a misdemeanor involving abuse,
neglect,
assault, battery, or criminal sexual conduct, or
involving
fraud, or theft
against a vulnerable adult as that
term
is
defined in section 145m of the Michigan penal code, 1931 PA 328,
MCL
750.145m, or a state or federal crime that is substantially
similar to a misdemeanor described in this subdivision, within the
10 years immediately preceding the date of application for
employment or clinical privileges or the date of the execution of
the independent contract.
(c) Is the subject of an order or disposition under any of the
following:
(i) Section 464a of the mental health code, 1974 PA 258, MCL
330.1464a.
(ii) Section 5107 of the estates and protected individuals
code, 1998 PA 386, MCL 700.5107.
(iii) Sections 2950 and 2950a of the revised judicature act of
1961, 1961 PA 236, MCL 600.2950 and 600.2950a.
(iv) Section 16b of chapter IX of the code of criminal
procedure, 1927 PA 175, MCL 769.16b.
(d) Has been found not guilty but mentally ill of any crime
and has offered a plea of not guilty of, or been acquitted of, any
crime by reason of insanity.
(e) Has been subject to an order of involuntary commitment in
an inpatient or outpatient setting due to mental illness.
(f) Has a diagnosed mental illness at the time the application
is made regardless of whether he or she is receiving treatment for
that illness.
(g) Is under a court order of legal incapacity in this state
or elsewhere.
(2) Except as otherwise provided in this subsection and
subsection (5), a health facility or agency that is a nursing home,
county medical care facility, or home for the aged shall not
employ, independently contract with, or grant privileges to an
individual who
regularly provides direct services to patients or
residents
in the health facility or agency after the effective date
of
the amendatory act that added this section until the health
facility or agency complies with subsection (4) or (5), or both.
This
subsection and subsection (1) do not apply to an individual
who
is employed by, under independent contract to, or granted
clinical
privileges in a health facility or agency before the
effective
date of the amendatory act that added this section.
(3) An individual who applies for employment either as an
employee or as an independent contractor or for clinical privileges
with a health facility or agency that is a nursing home, county
medical care facility, or home for the aged and has received a good
faith offer of employment, an independent contract, or clinical
privileges from the health facility or agency shall give written
consent at the time of application for the department of state
police
to conduct a annual
criminal history check
checks under
subsection (4) or (5), or both, along with identification
acceptable to the department of state police. If the department of
state police has conducted a criminal history check on the
applicant
within the 24 12
months immediately preceding the date
of application and the applicant provides written consent for the
release of information for the purposes of this section, the health
facility or agency may use a copy of the results of that criminal
history check instead of obtaining written consent and requesting a
new criminal history check under this subsection, and under
subsections (4) and (5), or both. If the applicant is using a prior
criminal history check as described in this subsection, the health
facility or agency shall accept the copy of the results of the
criminal history check only from the health facility or agency or
adult foster care facility that previously employed or granted
clinical privileges to the applicant or from the firm or agency
that independently contracts with the applicant.
(4) Upon receipt of the written consent and identification
required under subsection (3), if an applicant has resided in this
state for 3 or more years preceding the good faith offer of
employment, an independent contract, or clinical privileges, a
health facility or agency that is a nursing home, county medical
care facility, or home for the aged that has made a good faith
offer of employment or an independent contract or clinical
privileges
to the applicant shall make a an
annual request to the
department of state police to conduct a criminal history check on
the applicant. The request shall be made in a manner prescribed by
the department of state police. The health facility or agency shall
make the written consent and identification available to the
department of state police. If there is a charge for conducting the
criminal history check, the health facility or agency requesting
the criminal history check shall pay the cost of the charge. The
health facility or agency shall not seek reimbursement for the
charge from the individual who is the subject of the criminal
history check. The department of state police shall conduct a
criminal history check on the applicant named in the request. The
department of state police shall provide the health facility or
agency with a written report of the criminal history check
conducted under this subsection. The report shall contain any
criminal history record information on the applicant maintained by
the department of state police. As a condition of employment, an
applicant shall sign a written statement that he or she has been a
resident of this state for 3 or more years preceding the good faith
offer of employment, independent contract, or clinical privileges.
(5) Upon receipt of the written consent and identification
required under subsection (3), if an applicant has resided in this
state for less than 3 years preceding the good faith offer of
employment, an independent contract, or clinical privileges, a
health facility or agency that is a nursing home, county medical
care facility, or home for the aged that has made a good faith
offer described in this subsection to the applicant shall comply
with subsection (4) and shall make a request to the department of
state police to forward the applicant's fingerprints to the federal
bureau of investigation. The department of state police shall
request the federal bureau of investigation to make a determination
of the existence of any national criminal history pertaining to the
applicant. An applicant described in this subsection shall provide
the department of state police with 2 sets of fingerprints. The
department of state police shall complete the criminal history
check under subsection (4) and, except as otherwise provided in
this subsection, provide the results of its determination under
subsection (4) to the health facility or agency and the results of
the federal bureau of investigation determination to the department
of consumer and industry services within 30 days after the request
is made. If the requesting health facility or agency is not a state
department or agency and if a crime is disclosed on the federal
bureau of investigation determination, the department shall notify
the health facility or agency in writing of the type of crime
disclosed on the federal bureau of investigation determination
without disclosing the details of the crime. Any charges for
fingerprinting or a federal bureau of investigation determination
under this subsection shall be paid in the manner required under
subsection (4).
(6) If a health facility or agency that is a nursing home,
county medical care facility, or home for the aged determines it
necessary to employ or grant clinical privileges to an applicant
before receiving the results of the applicant's criminal history
check under subsection (4) or (5), or both, the health facility or
agency may conditionally employ or grant conditional clinical
privileges to the individual if all of the following apply:
(a) The health facility or agency requests the criminal
history check under subsection (4) or (5), or both, upon
conditionally employing or conditionally granting clinical
privileges to the individual.
(b) The individual signs a statement in writing that indicates
all of the following:
(i) That he or she has not been convicted of 1 or more of the
crimes that are described in subsection (1)(a) and (b) within the
applicable time period prescribed by subsection (1)(a) and (b).
(ii) That he or she has not been the subject of an order or
disposition described in subsection (1)(c).
(iii) That he or she does not fall within any of the categories
described under subsection (1)(d), (e), (f), or (g).
(iv) (ii) The individual agrees that, if the information in
the criminal history check conducted under subsection (4) or (5),
or
both, does not confirm the individual's
statement under
subparagraph
(i) statements
under subparagraphs (i), (ii), and (iii),
his or her employment or clinical privileges will be terminated by
the health facility or agency as required under subsection (1)
unless and until the individual can prove that the information is
incorrect. The health facility or agency shall provide a copy of
the results of the criminal history check conducted under
subsection (4) or (5), or both, to the applicant upon request.
(v) (iii) That he or she understands the conditions described
in
subparagraphs (i), and
(ii), (iii), and (iv) that result in the
termination of his or her employment or clinical privileges and
that those conditions are good cause for termination.
(7)
On the effective date of the amendatory act that added
this
section May 10, 2002,
the department shall develop and
distribute a model form for the statement required under subsection
(6)(b). The department shall make the model form available to
health facilities or agencies subject to this section upon request
at no charge.
(8) If an individual is employed as a conditional employee or
is granted conditional clinical privileges under subsection (6),
and the report described in subsection (4) or (5), or both, does
not
confirm the individual's statement under subsection (6)(b)(i)
statements under subsection (6)(b)(i), (ii), and (iii), the health
facility or agency shall terminate the individual's employment or
clinical privileges as required by subsection (1).
(9) An individual who knowingly provides false information
regarding criminal convictions on a statement described in
subsection (6)(b)(i) is guilty of a misdemeanor punishable by
imprisonment for not more than 90 days or a fine of not more than
$500.00, or both.
(10) A health facility or agency that is a nursing home,
county medical care facility, or home for the aged shall use
criminal history record information obtained under subsection (4),
(5), or (6) only for the purpose of evaluating an applicant's
qualifications for employment, an independent contract, or clinical
privileges in the position for which he or she has applied and for
the purposes of subsections (6) and (8). A health facility or
agency or an employee of the health facility or agency shall not
disclose criminal history record information obtained under
subsection (4) or (5) to a person who is not directly involved in
evaluating the applicant's qualifications for employment, an
independent contract, or clinical privileges. Upon written request
from another health facility or agency or adult foster care
facility that is considering employing, independently contracting
with, or granting clinical privileges to an individual, a health
facility or agency that has obtained criminal history record
information under this section on that individual shall share the
information with the requesting health facility or agency or adult
foster care facility. Except for a knowing or intentional release
of false information, a health facility or agency has no liability
in connection with a criminal background check conducted under this
section or the release of criminal history record information under
this subsection.
(11) As a condition of continued employment, each employee,
independent contractor, or individual granted clinical privileges
shall
agree in writing to report do
each of the following:
(a) Report to the health facility or agency immediately upon
being arrested for or convicted of 1 or more of the criminal
offenses listed in subsection (1)(a) and (b) or upon becoming the
subject of an order or disposition listed in subsection (1)(c),
(d), and (e).
(b) Consent to the performance of an annual criminal history
check as provided under subsection (4).
(12) In addition to sanctions set forth in section 20165, a
licensee, owner, administrator, or operator of a nursing home,
county medical care facility, or home for the aged who fails to
conduct the criminal history checks as required under this section
is guilty of a felony punishable by imprisonment for not more than
4 years or a fine of not more than $50,000.00, or both.
(13) (12)
As used in this section:
(a) "Adult foster care facility" means an adult foster care
facility licensed under the adult foster care facility licensing
act, 1979 PA 218, MCL 400.701 to 400.737.
(b) "Independent contract" means a contract entered into by a
health facility or agency with an individual who provides the
contracted services independently or a contract entered into by a
health facility or agency with an organization or agency that
employs or contracts with an individual after complying with the
requirements of this section to provide the contracted services to
the health facility or agency on behalf of the organization or
agency.