BillCam

HOUSE BILL No. 6040

May 17, 2018, Introduced by Reps. Yanez, Faris, Green, Gay-Dagnogo, Hertel, Sowerby, Hornberger, Marino, Elder and Lucido and referred to the Committee on Law and Justice.

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending section 20173a (MCL 333.20173a), as amended by 2014 PA

66.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 20173a. (1) Except as otherwise provided in subsection

(2), a covered facility shall not employ, independently contract

with, or grant clinical privileges to an individual who regularly

has direct access to or provides direct services to patients or

residents in the covered 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 clinical

privileges 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 clinical privileges 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 clinical privileges 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 clinical privileges 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 clinical privileges 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 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 clinical privileges or the date of the execution of

the independent contract:

(i) A misdemeanor under part 74 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 pursuant to under an

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

(2) Except as otherwise provided in this subsection or

subsection (5), a covered facility shall not employ, independently

contract with, or grant privileges to an individual who regularly

has direct access to or provides direct services to patients or

residents in the covered facility until the covered facility or

staffing agency has a criminal history check conducted in

compliance with this section or has received criminal history

record information in compliance with subsections (3) and (10).

This subsection and subsection (1) do not apply to any of the

following:

(a) An individual who is employed by, under independent

contract to, or granted clinical privileges in a covered facility

before April 1, 2006. On or before April 1, 2011, an individual who

is exempt under this subdivision 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 with a set of

fingerprints and the department of state police shall input those

fingerprints into the automated fingerprint identification system

database established under subsection (13). An individual who is

exempt under this subdivision is not limited to working within the

covered facility with which he or she is employed by, under

independent contract to, or granted clinical privileges on April 1,

2006 but may transfer to another covered facility, adult foster

care facility, or mental health facility. If an individual who is

exempt under this subdivision is subsequently convicted of a crime

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), then he or she is no longer exempt and shall be

terminated from employment or denied employment or clinical

privileges.

(b) An an individual who is under an independent contract with

a covered facility if he or she is not under the facility's control

and the services for which he or she is contracted are not directly

related to the provision of services to a patient or resident or if

the services for which he or she is contracted allow for direct

access to the patients or residents but are not performed on an

ongoing basis. This exception includes, but is not limited to, an

individual who is under an independent contract with the covered

facility to provide utility, maintenance, construction, or

communications services.

(3) An individual who applies for employment either as an

employee or as an independent contractor or for clinical privileges

with a staffing agency or covered facility 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 applicant has been the

subject of a criminal history check conducted in compliance with

this section, the applicant shall give written consent at the time

of application for the covered facility or staffing agency to

obtain the criminal history record information as prescribed in

subsection (4) 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

(10) are not met and a request to the federal bureau Federal Bureau

of investigation Investigation to make a determination of the

existence of any national criminal history pertaining to the

applicant 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 staffing agency or covered

facility that has made a good faith good-faith offer of employment

or an independent contract or clinical privileges to the applicant

shall request the criminal history record information from the

relevant licensing or regulatory department and shall make a

request regarding that applicant 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 (10) are not met and a request to the federal bureau

Federal Bureau of investigation Investigation to make a subsequent

determination of the existence of any national criminal history

pertaining to the applicant is necessary, the covered facility or

staffing agency shall proceed in the manner required in subsection

(4). A staffing agency that employs an individual who regularly has

direct access to or provides direct services to patients or

residents under an independent contract with a covered facility

shall submit information regarding the criminal history check

conducted by the staffing agency to the covered 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), a

staffing agency or covered facility that has made a good faith

good-faith offer of employment or an independent contract or

clinical privileges to the applicant shall make a request to the

department of state police to conduct a criminal history check on

the applicant, to input the applicant's fingerprints into the

automated fingerprint identification system database, and to

forward the applicant's fingerprints to the federal bureau Federal

Bureau of investigation. Investigation. The department of state

police shall request the federal bureau Federal Bureau of

investigation Investigation to make a determination of the

existence of any national criminal history pertaining to the

applicant. The applicant shall provide the department of state

police with a set of fingerprints. The request shall be made in a

manner prescribed by the department of state police. The staffing

agency or covered facility shall make the written consent and

identification available to the department of state police. The

staffing agency or covered facility shall make a request regarding

that applicant to the relevant licensing or regulatory department

to conduct a check of all relevant registries established pursuant

to under federal and state law and regulations for any

substantiated findings of abuse, neglect, or misappropriation of

property. If the department of state police or the federal bureau

Federal Bureau of investigation Investigation charges a fee for

conducting the criminal history check, the staffing agency or

covered facility shall pay the cost of the charge. If the

department of state police or the federal bureau Federal Bureau of

investigation Investigation charges a fee for conducting the

criminal history check, the department shall pay the cost of or

reimburse the charge for a covered facility that is a home for the

aged. The staffing agency or covered facility shall not seek

reimbursement for a charge imposed by the department of state

police or the federal bureau Federal Bureau of investigation

Investigation from the individual who is the subject of the

criminal history check. A prospective employee or a prospective

independent contractor covered under this section may not be

charged for the cost of a criminal history check required under

this section. The department of state police shall conduct a

criminal history check on the applicant named in the request. The

department of state police shall provide the 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 applicant maintained by the department of state

police. The department of state police shall provide the results of

the federal bureau Federal Bureau of investigation Investigation

determination to the department within 30 days after the request is

made. If the requesting staffing agency or covered facility 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 Federal Bureau of investigation

Investigation determination that resulted in a conviction, the

department shall notify the staffing agency or covered facility and

the applicant in writing of the type of crime disclosed on the

written report of the criminal history check or the federal bureau

Federal Bureau of investigation Investigation determination without

disclosing the details of the crime. Any charges imposed by the

department of state police or the federal bureau Federal Bureau of

investigation Investigation for conducting a criminal history check

or making a determination under this subsection shall be paid in

the manner required under this subsection. The notice shall include

a statement that the applicant has a right to appeal the

information relied upon on by the staffing agency or covered

facility in making its decision regarding his or her employment

eligibility based on the criminal history check. The notice shall

also include information regarding where to file and describing the

appellate procedures established under section 20173b.

(5) If a covered facility determines it necessary to employ or

grant clinical privileges to an applicant before receiving the

results of the applicant's criminal history check or criminal

history record information under this section, the covered facility

may conditionally employ or grant conditional clinical privileges

to the individual if all of the following apply:

(a) The covered facility requests the criminal history check

or criminal history record information under this section upon on

conditionally employing or conditionally granting clinical

privileges to the individual.

(b) The individual signs a statement in writing that indicates

all of the following:

(i) That he or she has not been convicted of 1 or more of the

crimes that are described in subsection (1)(a) to (g) within the

applicable time period prescribed by each subdivision respectively.

(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) That he or she agrees that, if the information in the

criminal history check conducted under this section does not

confirm the individual's statements under subparagraphs (i) to

(iii), his or her employment or clinical privileges will be

terminated by the covered facility as required under subsection (1)

unless and until the individual appeals and can prove that the

information is incorrect.

(v) That he or she understands that the conditions described

in subparagraphs (i) to (iv) may result in the termination of his

or her employment or clinical privileges and that those conditions

are good cause for termination.

covered facility does not permit the individual to have regular

direct access to or provide direct services to patients or

residents in the covered facility without supervision until the

criminal history check or criminal history record information is

obtained and the individual is eligible for that employment or

clinical privileges. If required under this subdivision, the

covered facility shall provide on-site supervision of an individual

in the covered facility on a conditional basis under this

subsection by an individual who has undergone a criminal history

check conducted in compliance with this section. A covered facility

may permit an individual in the covered facility on a conditional

basis under this subsection to have regular direct access to or

provide direct services to patients or residents in the covered

facility without supervision if all of the following conditions are

met:

(i) The covered facility, at its own expense and before the

individual has direct access to or provides direct services to

patients or residents of the covered 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 patients or

residents under this section.

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

direct services to patients or residents of the covered 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 or granted conditional clinical privileges

under this subsection.

(6) The department shall develop and distribute a model form

for the statements required under subsection (5)(b) and (c). The

department shall make the model form available to covered

facilities upon on request at no charge.

(7) If an individual is employed as a conditional employee or

is granted conditional clinical privileges under subsection (5),

and the information under subsection (3) or report under subsection

(4) does not confirm the individual's statement under subsection

(5)(b)(i) to (iii), the covered facility shall terminate the

individual's employment or clinical privileges as required by

subsection (1).

(8) An individual who knowingly provides false information

regarding his or her identity, criminal convictions, or

substantiated findings on a statement described in subsection

(5)(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.

(9) A staffing agency or covered facility shall use criminal

history record information obtained under subsection (3) or (4)

only for the purpose of evaluating an applicant's qualifications

for employment, an independent contract, or clinical privileges in

the position for which he or she has applied and for the purposes

of subsections (5) and (7). A staffing agency or covered facility

or an employee of the staffing agency or covered facility shall not

disclose criminal history record information obtained under

subsection (3) or (4) to a person who is not directly involved in

evaluating the applicant's qualifications for employment, an

independent contract, or clinical privileges. An individual who

knowingly uses or disseminates the criminal history record

information obtained under subsection (3) or (4) 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, a staffing agency or covered facility 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.

(10) Upon consent of an applicant as required in subsection

(3) and upon request from a staffing agency or covered facility

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

independent contract or clinical privileges to the applicant, the

relevant licensing or regulatory department shall review the

criminal history record information, if any, and notify the

requesting staffing agency or covered facility of the information

in the manner prescribed in subsection (4). Until the federal

bureau Federal Bureau of investigation Investigation implements an

automatic notification system similar to the system required of the

state police under subsection (13) and federal regulations allow

the federal criminal record to be used for subsequent authorized

uses, as determined in an order issued by the department, a

staffing agency or covered facility 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 Federal Bureau of investigation Investigation to

make a subsequent determination of the existence of any national

criminal history pertaining to the applicant 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 applicant has been continuously employed by the

staffing agency or a covered facility, adult foster care facility,

or mental health facility 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 a covered facility, adult

foster care facility, or mental 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.

(11) As a condition of continued employment, each employee,

independent contractor, or individual granted clinical privileges

shall do each of the following:

(a) Agree in writing to report to the staffing agency or

covered facility immediately upon being arraigned for 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 being the

subject of a substantiated finding of neglect, abuse, or

misappropriation of property as described in 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 section 20165, a

licensee, owner, administrator, or operator of a staffing agency or

covered 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 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 if and when a

subsequent criminal arrest fingerprint card submitted into the

system matches a set of fingerprints previously submitted under

this section. Upon such receiving that notification, the department

of state police shall immediately notify the department and the

department shall immediately contact each respective staffing

agency or covered 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) The department shall maintain an electronic web-based

system to assist staffing agencies and covered facilities required

to check relevant registries and conduct criminal history checks of

its employees, independent contractors, and individuals granted

privileges and to provide for an automated notice to those staffing

agencies and covered facilities for those individuals inputted 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.

(15) As used in this section:

(a) "Adult foster care facility" means an adult foster care

facility licensed under the adult foster care facility licensing

act, 1979 PA 218, MCL 400.701 to 400.737.

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

(i) For a crime that is not a relevant crime described under

42 USC 1320a-7(a), 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.

is a nursing home, county medical care facility, hospice, hospital

that provides swing bed services, home for the aged, or home health

agency.

(d) "Criminal history check conducted in compliance with this

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 34b of the adult foster care

facility licensing act, 1979 PA 218, MCL 400.734b.

(e) "Direct access" means access to a patient or resident or

to a patient's or resident's property, financial information,

medical records, treatment information, or any other identifying

information.

(f) "Home health agency" means a person certified by medicare

whose business is to provide services to individuals in their

places of residence other than in a hospital, nursing home, or

county medical care facility 1 or more including, but not limited

to, any of the following: services: nursing

(i) Nursing services. , therapeutic

(ii) Therapeutic services. , social

(iii) Social work services. , homemaker

(iv) Homemaker services. , home

(v) Home health aide services. , or other

(vi) Assistance with activities of daily living.

(vii) Companion care services.

(viii) Custodial care services.

(ix) Private duty care services.

(x) Continence care services.

(xi) Other related services.

(g) "Independent contract" means a contract entered into by a

covered facility with an individual who provides the contracted

services independently or a contract entered into by a covered

facility with a staffing agency that complies with the requirements

of this section to provide the contracted services to the covered

facility on behalf of the staffing agency.

(h) "Medicare" means benefits under the federal medicare

program established under title XVIII of the social security act,

42 USC 1395 to 1395kkk-1.

(h) (i) "Mental health facility" means a psychiatric facility

or other facility defined in 42 USC 1396d(d) and as described under

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

(i) (j) "Staffing agency" means an entity that recruits

candidates and provides temporary and permanent qualified staffing

for covered facilities, including independent contractors.

(j) (k) "Under the facility's control" means an individual

employed by or under independent contract with a covered facility

for whom the covered facility does both of the following:

(i) Determines whether the individual who has access to

patients or residents may provide care, treatment, or other similar

support service functions to patients or residents served by the

covered 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.