SB-1254, As Passed Senate, May 25, 2010

SUBSTITUTE FOR

SENATE BILL NO. 1254

A bill to amend 1979 PA 218, entitled

"Adult foster care facility licensing act,"

by amending section 34b (MCL 400.734b), as amended by 2008 PA 442.

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 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~~ 1320a-7(a).

(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~~ 1320a-7(a), 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.

to commit a felony, other than a felony for a relevant crime

described under 42 USC ~~1320a-7~~ 1320a-7(a) 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~~ 1320a-7(a), 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~~ 1320a-7(a), 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 or a ~~moving~~

~~violation causing death~~ violation of section 601d(1) of the

Michigan vehicle code, 1949 PA 300, MCL 257.601d.

(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~~ 1320a-7(a), 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~~ 1320a-7(a), 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~~ Engages in conduct that becomes the subject of a

substantiated finding of neglect, abuse, or misappropriation of

property by a state or federal agency according to an investigation

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

(2) Except as otherwise provided in this subsection or

subsection (6), an adult foster care facility shall not employ or

independently contract with an individual who has direct access to

residents ~~after April 1, 2006~~ until the adult foster care facility

~~conducts~~ or staffing agency has conducted a criminal history check

in compliance with ~~subsections (4) and (5)~~ this section or has

received criminal history record information in compliance with

subsections (3) and (11). 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 April 1, 2006. ~~Beginning~~ On or

before April 1, ~~2009~~ 2011, an individual who is exempt under this

subsection and who has not been the subject of a criminal history

check conducted in compliance with this section 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)~~ (14). 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 April 1, 2006 ~~. That individual~~ but may transfer

to another adult foster care facility, mental health facility, or

covered health 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) 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)~~ 42 USC 1320a-7(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 or staffing agency and who has ~~received a good faith offer~~

~~of employment or independent contract from the adult foster care~~

~~facility~~ not been the subject of a criminal history check conducted

in compliance with this section shall give written consent at the

time of application for the department of state police to conduct

~~an initial~~ a criminal history check under this section, along with

identification acceptable to the department of state police. ~~The~~

~~individual, at the time of initial application, shall provide~~

~~identification acceptable to the department of state police.~~ If the

individual has been the subject of a criminal history check

conducted in compliance with this section, the individual shall

give written consent at the time of application for the adult

foster care facility or staffing agency to obtain the criminal

history record information as prescribed in subsection (4) or (5)

from the relevant licensing or regulatory department and for the

department of state police to conduct a criminal history check

under this section if the requirements of subsection (11) are not

met and a request to the federal bureau of investigation to make a

determination of the existence of any national criminal history

pertaining to the individual is necessary, along with

identification acceptable to the department of state police. Upon

receipt of the written consent to obtain the criminal history

record information and identification required under this

subsection, the adult foster care facility or staffing agency that

has made a good faith offer of employment or an independent

contract to the individual shall request the criminal history

record information from the relevant licensing or regulatory

department and shall make a request regarding that individual to

the relevant licensing or regulatory department to conduct a check

of all relevant registries in the manner required in subsection

(4). If the requirements of subsection (11) are not met and a

request to the federal bureau of investigation to make a subsequent

determination of the existence of any national criminal history

pertaining to the individual is necessary, the adult foster care

facility or staffing agency shall proceed in the manner required in

subsection (5). A staffing agency that employs an individual who

regularly has direct access to or provides direct services to

residents under an independent contract with an adult foster care

facility shall submit information regarding the criminal history

check conducted by the staffing agency to the adult foster care

facility that has made a good faith offer of independent contract

to that applicant.

(4) Upon receipt of the written consent to conduct a criminal

history check and identification required under subsection (3), the

adult foster care facility or staffing agency that has made a good

faith offer of employment or independent contract to the individual

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 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 or

staffing agency 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. The adult foster care

facility or staffing agency shall not seek reimbursement for a

charge imposed by the department of state police or the federal

bureau of investigation from the individual who is the subject of

the ~~initial~~ criminal history check. The department of state police

shall conduct ~~an initial~~ a 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 to conduct a criminal

history check 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 or

staffing agency, the adult foster care facility or staffing agency

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 or staffing agency is not a state department or agency and

if a criminal ~~conviction~~ history record information is disclosed on

the written report of the criminal history check ~~obtained under~~

~~subsection (4)~~ or the federal bureau of investigation determination

that resulted in a conviction, the department shall notify the

adult foster care facility or staffing agency 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 adult

foster care facility or staffing agency and the applicant regarding

the appeal process in section 34c and shall include a statement

that the individual has a right to appeal the information relied

upon by the adult foster care facility or staffing agency in making

its decision regarding his or her employment eligibility based on

the criminal history check. Any charges imposed by the department

of state police or the federal bureau of investigation for

conducting ~~an initial~~ a 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 or

criminal history record information 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 or criminal history record information 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.

adult foster care facility does not permit the individual to have

regular direct access to or provide direct services to residents in

the adult foster care facility without supervision until the

criminal history check or criminal history record information is

obtained and the individual is eligible for that employment. If

required under this subdivision, the adult foster care facility

shall provide on-site supervision of an individual in the facility

on a conditional basis under this subsection by an individual who

has undergone a criminal history check conducted in compliance with

this section. An adult foster care facility may permit an

individual in the facility on a conditional basis under this

subsection to have regular direct access to or provide direct

services to residents in the adult foster care facility without

supervision if all of the following conditions are met:

(i) The adult foster care facility, at its own expense and

before the individual has direct access to or provides direct

services to residents of the facility, conducts a search of public

records on that individual through the internet criminal history

access tool maintained by the department of state police and the

results of that search do not uncover any information that would

indicate that the individual is not eligible to have regular direct

access to or provide direct services to residents under this

section.

(ii) Before the individual has direct access to or provides

direct services to residents of the adult foster care facility, the

individual signs a statement in writing that he or she has resided

in this state without interruption for at least the immediately

preceding 12-month period.

(iii) If applicable, the individual provides to the department

of state police a set of fingerprints on or before the expiration

of 10 business days following the date the individual was

conditionally employed under this subsection.

(7) The department shall develop and distribute the model form

for the ~~statement~~ statements required under subsection (6)(b) and

(c). 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 information under subsection (3) or report

~~described in~~ under 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 or staffing agency shall

use criminal history record information obtained under subsection

(3), (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 staffing agency or an employee of the

adult foster care facility or staffing agency 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 (3), (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 or staffing agency has no liability in

connection with a ~~background~~ criminal history check conducted ~~under~~

in compliance with this section or the release of criminal history

record information under this subsection.

(11) Upon consent of an individual as required in subsection

(3) and upon request from an adult foster care facility or staffing

agency that has made a good faith offer of employment or an

independent contract to the individual, the relevant licensing or

regulatory department shall review the criminal history record

information, if any, and notify the requesting adult foster care

facility or staffing agency of the information in the manner

prescribed in subsection (4) or (5). Until the federal bureau of

investigation implements an automatic notification system similar

to the system required of the state police under subsection (14)

and federal regulations allow the federal criminal record to be

used for subsequent authorized uses, as determined in an order

issued by the department, an adult foster care facility or staffing

agency may rely on the criminal history record information provided

by the relevant licensing or regulatory department under this

subsection and a request to the federal bureau of investigation to

make a subsequent determination of the existence of any national

criminal history pertaining to the individual is not necessary if

all of the following requirements are met:

(a) The criminal history check was conducted during the

immediately preceding 12-month period.

(b) The individual has been continuously employed by an adult

foster care facility, mental health facility, or covered health

facility, or the staffing agency since the criminal history check

was conducted in compliance with this section or meets the

continuous employment requirement of this subdivision other than

being on layoff status for less than 1 year from an adult foster

care facility, mental health facility, or covered health facility.

relevant licensing or regulatory department that he or she has been

a resident of this state for the immediately preceding 12-month

period.

(12) ~~(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 or staffing agency 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.

(13) ~~(12)~~ In addition to sanctions set forth in this act, a

licensee, owner, administrator, or operator of an adult foster care

facility or staffing agency who knowingly and willfully fails to

conduct the criminal history checks as required under this section

is guilty of a misdemeanor punishable by imprisonment for not more

than 1 year or a fine of not more than $5,000.00, or both.

(14) ~~(13)~~ In collaboration with the department of state

police, the department of ~~information~~ technology, management, and

budget shall establish and maintain 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~~ under this section. Upon such notification, the

department of state police shall immediately notify the department

and the department shall immediately contact ~~the~~ each respective

adult foster care facility or staffing agency with which that

individual is associated. Information in the database established

under this subsection is confidential, is not subject to disclosure

under the freedom of information act, 1976 PA 442, MCL 15.231 to

15.246, and shall not be disclosed to any person except for

purposes of this act or for law enforcement purposes.

(15) ~~(14)~~ If an individual independently contracts with an

adult foster care facility, subsections (1) and (2) do not apply if

the individual is not under the adult foster care facility's

control and 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.

(16) ~~(15)~~ The department ~~and the department of state police~~

shall maintain an electronic web-based system to assist the adult

foster care facilities and staffing agencies required to check

relevant registries and conduct criminal history checks of its

employees and independent contractors and to provide for an

automated notice to the adult foster care facilities and staffing

agencies for the individuals entered in the system who, since the

initial criminal history check, have been convicted of a

disqualifying offense or have been the subject of a substantiated

finding of abuse, neglect, or misappropriation of property. The

department may charge a staffing agency a 1-time set-up fee of up

to $100.00 for access to the electronic web-based system under this

section.

~~(16) The department shall submit to the legislature not later~~

~~than 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) An adult foster care facility, staffing agency, or a

prospective employee covered under this section may not be charged

for the cost of ~~an initial~~ a criminal history check required under

this act.

(18) As used in this section:

(a) "Convicted" means either of the following:

(i) For a crime that is not a relevant crime, a final

conviction, the payment of a fine, a plea of guilty or nolo

contendere if accepted by the court, or a finding of guilt for a

criminal law violation or a juvenile adjudication or disposition by

the juvenile division of probate court or family division of

circuit court for a violation that if committed by an adult would

be a crime.

(ii) For a relevant crime described under 42 USC 1320a-7(a),

convicted means that term as defined in 42 USC 1320a-7.

(b) "Covered health facility" means a nursing home, county

medical care facility, hospice, hospital that provides swing bed

services, home for the aged, or home health agency licensed under

article 17 of the public health code, 1978 PA 368, MCL 333.20101 to

333.22260.

section" includes a criminal history check conducted under this

section, under section 134a of the mental health code, 1974 PA 258,

MCL 330.1134a, or under section 20173a of the public health code,

1978 PA 368, MCL 333.20173a.

(d) ~~(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.~~

(e) "Home health agency" means that term as defined in section

20173a of the public health code, 1978 PA 368, MCL 333.20173a.

(f) ~~(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~~ a staffing

agency that ~~employs or contracts with an individual after complying~~

complies with the requirements of this section to provide the

contracted services to the adult foster care facility on behalf of

the ~~organization or~~ staffing agency.

(g) "Mental health facility" means a psychiatric facility or

intermediate care facility for people with mental retardation under

the mental health code, 1974 PA 258, MCL 330.1001 to 330.2106.

(h) "Staffing agency" means an entity that recruits candidates

and provides temporary and permanent qualified staffing for adult

foster care facilities, including independent contractors.

(i) ~~(d)~~ "Title XIX" means title XIX of the social security

act, 42 USC 1396 to ~~1396v~~ 1396w-5.

(j) "Under the adult foster care facility's control" means an

individual employed by or under independent contract with an adult

foster care facility for whom the adult foster care facility does

both of the following:

(i) Determines whether the individual who has access to

residents may provide care, treatment, or other similar support

service functions to residents served by the adult foster care

facility.

(ii) Directs or oversees 1 or more of the following:

(A) The policy or procedures the individual must follow in

performing his or her duties.

(B) The tasks performed by the individual.

(D) The supervision or evaluation of the individual's work or

job performance, including imposing discipline or granting

performance awards.

(E) The compensation the individual receives for performing

his or her duties.

(F) The conditions under which the individual performs his or

her duties.

Enacting section 1. This amendatory act does not take effect

unless all of the following bills of the 95th Legislature are

enacted into law:

(a) Senate Bill No. 1253.

(b) Senate Bill No. 1255.