HB-5506, As Passed House, December 20, 2018

HB-5506, As Passed Senate, December 18, 2018

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 5506

A bill to amend 1979 PA 218, entitled

"Adult foster care facility licensing act,"

by amending sections 24, 25, 34b, and 34c (MCL 400.724, 400.725,

400.734b, and 400.734c), section 24 as amended by 2016 PA 492,

section 34b as amended by 2014 PA 73, and section 34c as added by

2006 PA 29; and to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 24. (1) A person who believes that this act or a rule

promulgated under this act may have been violated may request an

investigation of an adult foster care facility. The request shall

be submitted to the department in writing or the department shall

assist the person in reducing an oral complaint to writing within 7

days after the oral request is made.

(2) The substance of the complaint shall be provided to the

licensee not earlier than at the commencement of the on-site

inspection of the adult foster care facility that takes place

according to the complaint.

(3) The complaint, a copy of the complaint, or a record

published, released, or otherwise disclosed to the adult foster

care facility shall not disclose the name of the complainant or an

adult resident named in the complaint unless the complainant or an

adult resident consents in writing to the disclosure or the

investigation results in an administrative hearing or a judicial

proceeding, or unless disclosure is considered essential to the

investigation by the department. If disclosure is considered

essential to the investigation, the complainant shall be given the

opportunity to withdraw the complaint before disclosure.

(4) Upon receipt of a complaint, the department shall

determine, based on the allegations presented, whether this act or

a rule promulgated under this act has been, is, or is in danger of

being violated. The department shall investigate the complaint

according to the urgency determined by the department. The

initiation of a complaint investigation shall commence within 15

days after receipt of the written complaint by the department.

(5) The department shall inform the complainant of its

findings. Within 30 days after the receipt of complaint, the

department shall provide the complainant a copy, if any, of the

written determination or a status report indicating when these

documents may be expected. The final report shall include a copy of

the original complaint. The complainant may request additional

copies of the documents listed in this subsection and shall

reimburse the department for the copies according to ~~established~~

~~policies and procedures.~~the freedom of information act, 1976 PA

442, MCL 15.231 to 15.246.

(6) The department shall inform the licensee of the

department's findings at the same time that the department informs

the complainant under subsection (5).

(7) A written determination concerning a complaint shall be

available for public inspection, but the name of the complainant or

adult resident shall not be disclosed without the complainant's or

adult resident's consent.

(8) A complainant who is dissatisfied with the determination

or investigation by the department may request ~~a hearing.~~ an

administrative review by the department. A request ~~for a hearing~~

shall be submitted in writing to the director within 30 days after

the mailing of the department's findings as described in subsection

(5). ~~Notice of the time and place of the hearing shall be sent to~~

~~the complainant and the adult foster care facility. A complainant~~

~~who is dissatisfied with the decision of the director may appeal by~~

~~filing with the clerk of the court an affidavit setting forth the~~

~~substance of the proceedings before the department and the errors~~

~~of law upon which the person relies, and serving the director with~~

~~a copy of the affidavit. The circuit court of the county in which~~

~~the complainant resides shall have jurisdiction to hear and~~

~~determine the questions of fact or law involved in the appeal.~~The

administrative review shall be conducted based on pertinent

documentation or a verifiable statement submitted in writing by the

complainant. The department shall send the results of the

administrative review to the complainant. If the administrative

review results in reconsideration of a complaint against the adult

foster care facility, the department shall reopen the complaint

investigation.

(9) Notwithstanding subsection (3) and sections 5 and 7(2) of

the child protection law, 1975 PA 238, MCL 722.625 and 722.627,

information or records in the possession of the department of

health and human services or the department ~~of licensing and~~

~~regulatory affairs~~ may be shared to the extent necessary for the

proper functioning of the department of health and human services

or the department ~~of licensing and regulatory affairs~~ in

administering adult welfare or adult foster care licensing under

this act or in an investigation conducted under section 43b of the

social welfare act, 1939 PA 280, MCL 400.43b. Information or

records shared under this subsection shall not be released by the

department of health and human services or the department of

~~licensing and regulatory affairs~~ unless otherwise permitted under

this act or other state or federal law.

Sec. 25. A ~~person~~ party aggrieved by the decision of the

director following a contested case hearing under section 22 ~~or 23,~~

~~within 10 days after receipt of decision, may appeal to the circuit~~

~~court for the county in which the person resides by filing with the~~

~~clerk of the court an affidavit setting forth the substance of the~~

~~proceedings before the department and the errors of law upon which~~

~~the person relies, and serving the director with a copy of the~~

~~affidavit. The circuit court shall have jurisdiction to hear and~~

~~determine the questions of fact or law involved in the appeal. If~~

~~the department prevails, the circuit court shall affirm the~~

~~decision of the department; if the licensee, or applicant prevails,~~

~~the circuit court shall set aside the revocation or order the~~

~~issuance or renewal of the license.~~may seek judicial review in

accordance with chapter 6 of the administrative procedures act of

1969, 1969 PA 306, MCL 24.301 to 24.306.

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 if the individual satisfies 1 or more of the

following:

(a) Has been convicted of a relevant crime described under 42

USC 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(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~~ before 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(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~~ before 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(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(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 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(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(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) 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 until the adult foster care facility or staffing agency

has conducted a criminal history check in compliance with 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. On or before April 1, 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 (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 but may transfer to

another adult foster care facility, mental health facility, or

covered health facility. 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 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 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 a criminal history check

under this section, along with 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~~ 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~~ 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~~ 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~~ 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~~ 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 Until June 30, 2020, if the department of state police

or the ~~federal bureau of investigation~~ Federal Bureau of

Investigation charges a fee for conducting the criminal history

check, the charge shall be paid by or reimbursed by the department.

~~The~~ Until June 30, 2020, 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 criminal history

check. Beginning July 1, 2020, if the department of state police or

the Federal Bureau of Investigation charges a fee for conducting

the criminal history check, the charge shall be paid by the adult

foster care facility, the staffing agency, or the individual. The

department of state police shall conduct 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. 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~~ 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.~~

Federal Bureau of Investigation. The department of state police

shall request the ~~federal bureau of investigation~~ 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~~ 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 criminal history record

information is disclosed on the written report of the criminal

history check or the ~~federal bureau of investigation~~ 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 or the ~~federal~~

~~bureau of investigation~~ 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~~ Federal Bureau of Investigation for

conducting 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 all 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 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

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. 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

criminal history check conducted 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~~ 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~~ 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

House Bill No. 5506 as amended December 18, 2018

history record information provided by the relevant licensing or

regulatory department under this subsection and a request to the

~~federal bureau of investigation~~ 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~~24-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) 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) 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) In collaboration with the department of state police, the

department of 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 under

this section. Upon ~~such~~ notification, the department of state

police shall immediately notify the department and the department

shall immediately contact 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) 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) The department 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.

~~(17) An adult foster care facility, staffing agency, or a~~

~~prospective employee covered under this section may not be charged~~

~~for the cost of a criminal history check required under this act.~~

(17) ~~(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) "Direct access" means access to a resident or resident's

property, financial information, medical records, treatment

information, or any other identifying information.

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

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

(f) "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 a staffing agency that complies

with the requirements of this section to provide the contracted

services to the adult foster care facility on behalf of the

staffing agency.

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

other facility defined in 42 USC 1396d(d) as described 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) "Title XIX" means title XIX of the social security act, 42

USC 1396 to 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.

Sec. 34c. (1) An individual who has been disqualified from or

denied employment by an adult foster care facility based on a

criminal history check conducted ~~pursuant to~~ under section ~~34a or~~

34b may appeal to the department if he or she believes that the

criminal history report is inaccurate, and ~~the appeal shall be~~

~~conducted as a contested case hearing conducted pursuant to the~~

~~administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to~~

~~24.328.~~ the department shall conduct an administrative review. The

individual shall file the appeal with the director of the

department within 15 business days after receiving the written

report of the criminal history check unless the conviction

contained in the criminal history report is ~~one~~ a conviction that

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

disqualified or denied employment based on a conviction that may be

expunged or set aside, then he or she shall file the appeal within

15 business days after a court order granting or denying his or her

application to expunge or set aside that conviction is granted. If

the order is granted and the conviction is expunged or set aside,

~~then~~ the individual shall not be disqualified or denied employment

based solely on that conviction. The director or the director's

designee shall review the appeal, along with all pertinent

documentation, and shall issue a written decision ~~within 30~~

~~business days after receiving the appeal.~~ as soon as practicable.

The decision of the director or the director's designee is final.

~~(2) One year after the effective date of this section and each~~

~~year thereafter for the next 3 years, the department shall provide~~

~~the legislature with a written report regarding the appeals process~~

~~implemented under this section for employees subject to criminal~~

~~history checks. The report shall include, but is not limited to,~~

~~for the immediately preceding year the number of applications for~~

~~appeal received, the number of inaccuracies found and appeals~~

~~granted with regard to the criminal history checks conducted under~~

~~section 34b, the average number of days necessary to complete the~~

~~appeals process for each appeal, and the number of appeals rejected~~

~~without a hearing and a brief explanation of the denial.~~

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

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

Enacting section 1. Section 23 of adult foster care facility

licensing act, 1979 PA 218, MCL 400.723, is repealed.

Enacting section 2. This amendatory act takes effect 90 days

after the date it is enacted into law.

Enacting section 3. This amendatory act does not take effect

unless House Bill No. 5505 of the 99th Legislature is enacted into

law.