April 13, 2010, Introduced by Senators STAMAS and BIRKHOLZ and referred to the Committee on Families and Human Services.
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) section 20173a of the
public health code, 1978 PA
368, MCL 333.20173a, 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: until
the adult foster care
facility complies with section 20173a of the public health code,
1978 PA 368, MCL 333.20173a, and conducts a criminal history check
as required under that section.
(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 or a
moving
violation
causing death.
(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 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 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
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 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)
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
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. 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)
The department and the department of state police shall
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)
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 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)
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 1396v.
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.