HB-5894, As Passed Senate, May 8, 2008
March 13, 2008, Introduced by Reps. Jackson and Alma Smith and referred to the Committee on Families and Children's Services.
A bill to amend 1979 PA 218, entitled
"Adult foster care facility licensing act,"
by amending section 34b (MCL 400.734b), as added by 2006 PA 29.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 34b. (1) In addition to the restrictions prescribed in
sections 13, 22, and 31, and except as otherwise provided in
subsection (2), an adult foster care facility shall not employ or
independently contract with an individual who regularly has direct
access to or provides direct services to residents of the adult
foster
care facility after the effective date of this section April
1, 2006 if the individual satisfies 1 or more of the following:
(a) Has been convicted of a relevant crime described under 42
USC 1320a-7.
(b) Has been convicted of any of the following felonies, an
attempt or conspiracy to commit any of those felonies, or any other
state or federal crime that is similar to the felonies described in
this subdivision, other than a felony for a relevant crime
described under 42 USC 1320a-7, unless 15 years have lapsed since
the individual completed all of the terms and conditions of his or
her sentencing, parole, and probation for that conviction prior to
the date of application for employment or the date of the execution
of the independent contract:
(i) A felony that involves the intent to cause death or serious
impairment of a body function, that results in death or serious
impairment of a body function, that involves the use of force or
violence, or that involves the threat of the use of force or
violence.
(ii) A felony involving cruelty or torture.
(iii) A felony under chapter XXA of the Michigan penal code,
1931 PA 328, MCL 750.145m to 750.145r.
(iv) A felony involving criminal sexual conduct.
(v) A felony involving abuse or neglect.
(vi) A felony involving the use of a firearm or dangerous
weapon.
(vii) A felony involving the diversion or adulteration of a
prescription drug or other medications.
(c) Has been convicted of a felony or an attempt or conspiracy
to commit a felony, other than a felony for a relevant crime
described under 42 USC 1320a-7 or a felony described under
subdivision (b), unless 10 years have lapsed since the individual
completed all of the terms and conditions of his or her sentencing,
parole, and probation for that conviction prior to the date of
application for employment or the date of the execution of the
independent contract.
(d) Has been convicted of any of the following misdemeanors,
other than a misdemeanor for a relevant crime described under 42
USC 1320a-7, or a state or federal crime that is substantially
similar to the misdemeanors described in this subdivision, within
the 10 years immediately preceding the date of application for
employment or the date of the execution of the independent
contract:
(i) A misdemeanor involving the use of a firearm or dangerous
weapon with the intent to injure, the use of a firearm or dangerous
weapon that results in a personal injury, or a misdemeanor
involving the use of force or violence or the threat of the use of
force or violence.
(ii) A misdemeanor under chapter XXA of the Michigan penal
code, 1931 PA 328, MCL 750.145m to 750.145r.
(iii) A misdemeanor involving criminal sexual conduct.
(iv) A misdemeanor involving cruelty or torture unless
otherwise provided under subdivision (e).
(v) A misdemeanor involving abuse or neglect.
(e) Has been convicted of any of the following misdemeanors,
other than a misdemeanor for a relevant crime described under 42
USC 1320a-7, or a state or federal crime that is substantially
similar to the misdemeanors described in this subdivision, within
the 5 years immediately preceding the date of application for
employment or the date of the execution of the independent
contract:
(i) A misdemeanor involving cruelty if committed by an
individual who is less than 16 years of age.
(ii) A misdemeanor involving home invasion.
(iii) A misdemeanor involving embezzlement.
(iv) A misdemeanor involving negligent homicide.
(v) A misdemeanor involving larceny unless otherwise provided
under subdivision (g).
(vi) A misdemeanor of retail fraud in the second degree unless
otherwise provided under subdivision (g).
(vii) Any other misdemeanor involving assault, fraud, theft, or
the possession or delivery of a controlled substance unless
otherwise provided under subdivision (d), (f), or (g).
(f) Has been convicted of any of the following misdemeanors,
other than a misdemeanor for a relevant crime described under 42
USC 1320a-7, or a state or federal crime that is substantially
similar to the misdemeanors described in this subdivision, within
the 3 years immediately preceding the date of application for
employment or the date of the execution of the independent
contract:
(i) A misdemeanor for assault if there was no use of a firearm
or dangerous weapon and no intent to commit murder or inflict great
bodily injury.
(ii) A misdemeanor of retail fraud in the third degree unless
otherwise provided under subdivision (g).
(iii) A misdemeanor under part 74 of the public health code,
1978 PA 368, MCL 333.7401 to 333.7461, unless otherwise provided
under subdivision (g).
(g) Has been convicted of any of the following misdemeanors,
other than a misdemeanor for a relevant crime described under 42
USC 1320a-7, or a state or federal crime that is substantially
similar to the misdemeanors described in this subdivision, within
the year immediately preceding the date of application for
employment or the date of the execution of the independent
contract:
(i) A misdemeanor under part 74 of the public health code, 1978
PA 368, MCL 333.7401 to 333.7461, if the individual, at the time of
conviction, is under the age of 18.
(ii) A misdemeanor for larceny or retail fraud in the second or
third degree if the individual, at the time of conviction, is under
the age of 16.
(h) Is the subject of an order or disposition under section
16b of chapter IX of the code of criminal procedure, 1927 PA 175,
MCL 769.16b.
(i) Has been the subject of a substantiated finding of
neglect, abuse, or misappropriation of property by a state or
federal
agency pursuant according to an investigation conducted in
accordance with 42 USC 1395i-3 or 1396r.
(2) Except as otherwise provided in subsection (6), an adult
foster care facility shall not employ or independently contract
with
an individual who has direct access to residents after the
effective
date of this section April 1,
2006 until the adult foster
care facility conducts a criminal history check in compliance with
subsections (4) and (5). This subsection and subsection (1) do not
apply to an individual who is employed by or under contract to an
adult
foster care facility before the effective date of this
section.
Within 24 months after the effective date of this section
April 1, 2006. Beginning April 1, 2009, an individual who is exempt
under this subsection shall provide the department of state police
a set of fingerprints and the department of state police shall
input those fingerprints into the automated fingerprint
identification system database established under subsection (12).
An individual who is exempt under this subsection is not limited to
working within the adult foster care facility with which he or she
is
employed by or under independent contract with on the effective
date
of this section April 1, 2006. That individual may transfer to
another adult foster care facility that is under the same ownership
with which he or she was employed or under contract. If that
individual wishes to transfer to an adult foster care facility that
is not under the same ownership, he or she may do so provided that
a criminal history check is conducted by the new facility in
accordance with subsection (4). If an individual who is exempt
under this subsection is subsequently convicted of a crime or
offense
described under subsection (1)(a) through to (g) or found
to be the subject of a substantiated finding described under
subsection (1)(i) or an order or disposition described under
subsection (1)(h), or is found to have been convicted of a relevant
crime described under subsection (1)(a), he or she is no longer
exempt and shall be terminated from employment or denied
employment.
(3) An individual who applies for employment either as an
employee or as an independent contractor with an adult foster care
facility and has received a good faith offer of employment or
independent contract from the adult foster care facility shall give
written consent at the time of application for the department of
state police to conduct an initial criminal history check under
this section. The individual, at the time of initial application,
shall provide identification acceptable to the department of state
police.
(4) Upon receipt of the written consent and identification
required under subsection (3), the adult foster care facility that
has made a good faith offer of employment or independent contract
shall make a request to the department of state police to conduct a
criminal history check on the individual and input the individual's
fingerprints into the automated fingerprint identification system
database, and shall make a request to the relevant licensing or
regulatory department to perform a check of all relevant registries
established
pursuant according to federal and state law and
regulations for any substantiated findings of abuse, neglect, or
misappropriation of property. The request shall be made in a manner
prescribed by the department of state police and the relevant
licensing or regulatory department or agency. The adult foster care
facility shall make the written consent and identification
available to the department of state police and the relevant
licensing or regulatory department or agency. If the department of
state police or the federal bureau of investigation charges a fee
for conducting the initial criminal history check, the charge shall
be paid by or reimbursed by the department with federal funds as
provided to implement a pilot program for national and state
background checks on direct patient access employees of long-term
care facilities or providers in accordance with section 307 of the
medicare prescription drug, improvement, and modernization act of
2003, Public Law 108-173. The adult foster care facility shall not
seek reimbursement for a charge imposed by the department of state
police or the federal bureau of investigation from the individual
who is the subject of the initial criminal history check. The
department of state police shall conduct an initial criminal
history check on the individual named in the request. The
department of state police shall provide the department with a
written report of the criminal history check conducted under this
subsection that contains a criminal record. The report shall
contain any criminal history record information on the individual
maintained by the department of state police.
(5) Upon receipt of the written consent and identification
required under subsection (3), if the individual has applied for
employment either as an employee or as an independent contractor
with an adult foster care facility, the adult foster care facility
that has made a good faith offer of employment or independent
contract shall comply with subsection (4) and shall make a request
to the department of state police to forward the individual'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 individual. An individual described in
this subsection shall provide the department of state police with a
set 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) and the results of the federal
bureau of investigation determination to the department within 30
days after the request is made. If the requesting adult foster care
facility is not a state department or agency and if a criminal
conviction is disclosed on the written report of the criminal
history check obtained under subsection (4) or the federal bureau
of investigation determination, the department shall notify the
adult foster care facility and the individual in writing of the
type of crime disclosed on the written report of the criminal
history check obtained under subsection (4) or the federal bureau
of investigation determination without disclosing the details of
the crime. The notification shall inform the facility or agency and
the applicant regarding the appeal process in section 34c. Any
charges imposed by the department of state police or the federal
bureau of investigation for conducting an initial criminal history
check or making a determination under this subsection shall be paid
in the manner required under subsection (4).
(6) If an adult foster care facility determines it necessary
to employ or independently contract with an individual before
receiving the results of the individual's criminal history check
required under this section, the adult foster care facility may
conditionally employ the individual if both of the following apply:
(a) The adult foster care facility requests the criminal
history check required under this section, upon conditionally
employing the individual.
(b) The individual signs a written statement indicating 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) to (g) within the
applicable time period prescribed by subsection (1)(a) to (g).
(ii) That he or she is not the subject of an order or
disposition described in subsection (1)(h).
(iii) That he or she has not been the subject of a substantiated
finding as described in subsection (1)(i).
(iv) The individual agrees that, if the information in the
criminal history check conducted under this section does not
confirm the individual's statement under subparagraphs (i) to (iii),
his or her employment will be terminated by the adult foster care
facility as required under subsection (1) unless and until the
individual can prove that the information is incorrect.
(v) That he or she understands the conditions described in
subparagraphs (i) to (iv) that result in the termination of his or
her employment and that those conditions are good cause for
termination.
(7) The department shall develop and distribute the model form
for the statement required under subsection (6)(b). The department
shall make the model form available to adult foster care facilities
upon request at no charge.
(8) If an individual is conditionally employed under
subsection (6), and the report described in subsection (4) or (5),
if applicable, does not confirm the individual's statement under
subsection (6)(b)(i) to (iii), the adult foster care facility shall
terminate the individual's employment as required by subsection
(1).
(9) An individual who knowingly provides false information
regarding his or her identity, criminal convictions, or
substantiated findings on a statement described in subsection
(6)(b)(i) to (iii) is guilty of a misdemeanor punishable by
imprisonment for not more than 93 days or a fine of not more than
$500.00, or both.
(10) An adult foster care facility shall use criminal history
record information obtained under subsection (4) or (5) only for
the purpose of evaluating an individual's qualifications for
employment in the position for which he or she has applied and for
the purposes of subsections (6) and (8). An adult foster care
facility or an employee of the adult foster care facility shall not
disclose criminal history record information obtained under this
section to a person who is not directly involved in evaluating the
individual's qualifications for employment or independent contract.
An individual who knowingly uses or disseminates the criminal
history record information obtained under subsection (4) or (5) in
violation of this subsection is guilty of a misdemeanor punishable
by imprisonment for not more than 93 days or a fine of not more
than $1,000.00, or both. Upon written request from another adult
foster care facility, psychiatric facility or intermediate care
facility for people with mental retardation, or health facility or
agency that is considering employing or independently contracting
with an individual, an adult foster care facility that has obtained
criminal history record information under this section on that
individual shall, with the consent of the applicant, share the
information with the requesting adult foster care facility,
psychiatric facility or intermediate care facility for people with
mental retardation, or health facility or agency. Except for a
knowing or intentional release of false information, an adult
foster care facility has no liability in connection with a
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 or
independent contractor shall do both of the following:
(a) Agree in writing to report to the adult foster care
facility immediately upon being arraigned on 1 or more of the
criminal offenses listed in subsection (1)(a) to (g), upon being
convicted of 1 or more of the criminal offenses listed in
subsection (1)(a) to (g), upon becoming the subject of an order or
disposition described under subsection (1)(h), and upon becoming
the subject of a substantiated finding described under subsection
(1)(i). Reporting of an arraignment under this subdivision is not
cause for termination or denial of employment.
(b) If a set of fingerprints is not already on file with the
department of state police, provide the department of state police
with a set of fingerprints.
(12) In addition to sanctions set forth in this act, a
licensee, owner, administrator, or operator of an adult foster care
facility who knowingly and willfully fails to conduct the criminal
history checks as required under this section is guilty of a
misdemeanor punishable by imprisonment for not more than 1 year or
a fine of not more than $5,000.00, or both.
(13) In collaboration with the department of state police, the
department of information technology shall establish an automated
fingerprint identification system database that would allow the
department of state police to store and maintain all fingerprints
submitted under this section and would provide for an automatic
notification at the time a subsequent criminal arrest fingerprint
card submitted into the system matches a set of fingerprints
previously submitted in accordance with this section. Upon such
notification, the department of state police shall immediately
notify the department and the department shall immediately contact
the respective adult foster care facility with which that
individual is associated. Information in the database established
under this subsection is confidential, is not subject to disclosure
under the freedom of information act, 1976 PA 442, MCL 15.231 to
15.246, and shall not be disclosed to any person except for
purposes of this act or for law enforcement purposes.
(14) If an individual independently contracts with an adult
foster care facility, subsections (1) and (2) do not apply if the
contractual work performed by the individual is not directly
related to the clinical, health care, or personal services
delivered by the adult foster care facility or if the individual's
duties are not performed on an ongoing basis with direct access to
residents. This exception includes, but is not limited to, an
individual who independently contracts with the adult foster care
facility to provide utility, maintenance, construction, or
communication services.
(15)
Within 1 year after the effective date of the amendatory
act
that added this section, the department shall submit a written
report
to the legislature regarding each of the following:
(a)
The impact and effectiveness of this amendatory act.
(b)
The feasibility of implementing criminal history checks on
volunteers
who work in the adult foster care facilities and on
state
agency employees who are involved in the licensing of the
adult
foster care facilities and regulation of the employees.
(c)
The amount of federal funds provided to implement a pilot
program
for national and state criminal history checks on direct
access
employees of long-term care facilities or providers, the
amount
of those funds expended to date, and the amount of those
funds
remaining.
(15) (16)
By March 1, 2007, the The department and the
department
of state police shall develop and implement maintain an
electronic web-based system to assist the adult foster care
facilities required to check relevant registries and conduct
criminal history checks of its employees and independent
contractors and to provide for an automated notice to the adult
foster care facilities for the individuals entered in the system
who, since the initial check, have been convicted of a
disqualifying offense or have been the subject of a substantiated
finding of abuse, neglect, or misappropriation of property.
(16) (17)
The department shall submit to the
legislature not
later
than 3 years after the effective date of the amendatory act
that
added this subsection April
1, 2009 a written report regarding
the department's plan to continue performing criminal history
checks if adequate federal funding is not available to continue
performing future criminal history checks.
(17) (18)
An adult foster care facility or a
prospective
employee covered under this section may not be charged for the cost
of an initial criminal history check required under this act.
(18) (19)
As used in this section:
(a) "Direct access" means access to a resident or resident's
property, financial information, medical records, treatment
information, or any other identifying information.
(b) "Health facility or agency" means a health facility or
agency as defined in section 20106 of the public health code, 1978
PA 368, MCL 333.20106.
(c) "Independent contract" means a contract entered into by an
adult foster care facility with an individual who provides the
contracted services independently or a contract entered into by an
adult foster care facility 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 adult foster care facility on behalf of the organization or
agency.
(d) "Title XIX" means title XIX of the social security act, 42
USC 1396 to 1396r-6 and 1396r-8 to 1396v.