HB-5166, As Passed House, December 6, 2005
SUBSTITUTE FOR
HOUSE BILL NO. 5166
A bill to amend 1979 PA 218, entitled
"Adult foster care facility licensing act,"
(MCL 400.701 to 400.737) by adding section 34b; and to repeal acts
and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 34b. (1) In addition to the restrictions prescribed in
sections 13, 22, and 31, and except as otherwise provided in
subsection (2), an adult foster care facility shall not employ or
independently contract with an individual who regularly has direct
access to or provides direct services to residents of the adult
foster care facility after the effective date of the amendatory act
that added this section if 1 or more of the following apply:
(a) The individual 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, 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 before the date of application for employment or the
date of the execution of the independent contract.
(b) The individual has been convicted of a misdemeanor, other
than a misdemeanor for a relevant crime described under 42 USC
1320a-7, involving abuse, neglect, assault, battery, or criminal
sexual conduct or involving fraud or theft, a misdemeanor under
part 74 of the public health code, 1978 PA 368, MCL 333.7401 to
333.7461, or a state or federal crime that is substantially similar
to a misdemeanor described in this subdivision within the 10 years
immediately preceding the date of application for employment or the
date of the execution of the contract.
(c) The individual has been convicted of an offense listed
under R 400.1152 of the Michigan administrative code.
(d) The individual has been convicted of a relevant crime
described under 42 USC 1320a-7.
(e) The individual has been the subject of a substantiated
finding of neglect, abuse, or misappropriation of property by the
department under an investigation conducted in accordance with 42
USC 1395i-3 or 1396r.
(f) The individual 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.
(2) Except as otherwise provided in this subsection and
subsection (7), 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 after the
effective date of the amendatory act that added this section until
the adult foster care facility complies with subsection (4). Except
as otherwise provided, this subsection and subsection (1) do not
apply to an individual who is employed by or under contract to an
adult foster care facility before the effective date of the
amendatory act that added this section. An individual who is exempt
under this subsection is not limited to working within the adult
foster care facility with which he or she is employed by or under
independent contract with on the effective date of the amendatory
act that added this section. That individual may transfer to
another adult foster care facility provided that a criminal history
check being conducted in accordance with this subsection and
subsection (1) does not indicate a prohibited offense as described
in subsection (1). If an individual who is exempt under this
subsection is subsequently convicted of a crime or offense
described under subsection (1)(a), (b), or (c) or found to be the
subject of a substantiated finding described under subsection
(1)(e) or an order or disposition described under subsection
(1)(f), or is found to have been convicted of a relevant crime
described under subsection (1)(d), he or she is subject to the
requirements of this subsection and subsection (1) and may be
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 a criminal history check under this
section, along with 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 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. The
individual 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 adult foster care facility
shall make the written consent and identification available to the
department of state police. The adult foster care facility shall
request the department to conduct a check of all relevant
registries established according to federal regulations for any
substantiated findings of abuse, neglect, or misappropriation of
property. If there is a charge for conducting the criminal history
check, the charge shall be paid by or reimbursed by the department
with medicaid and medicare funding as appropriate. The adult foster
care facility shall not seek reimbursement for the charge from the
individual who is the subject of the criminal history check. 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 if the report contains any criminal history
record information. The report shall contain any criminal history
record information on the individual maintained by the department
of state police. The department of state police shall provide 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 federal
bureau of investigation determination, the department shall notify
the adult foster care facility and the individual who is the
subject of the federal bureau of investigation determination in
writing of the type of criminal conviction disclosed on the federal
bureau of investigation determination without disclosing the
details of the criminal conviction. The charges for fingerprinting
or a federal bureau of investigation determination under this
subsection shall be paid in the manner required under this
subsection. The notice shall include a statement that the
individual has a right to appeal a decision made by the adult
foster care facility regarding his or her employment eligibility
based on the criminal background check. The notice shall include
information regarding where to file the appeal and information
describing the appellate procedures established under section
20173b of the public health code, 1978 PA 368, MCL 333.20173b.
(5) 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), (b), (c), and (d)
within the applicable time period prescribed by subsection (1)(a)
and (b).
(ii) That he or she has not been the subject of a substantiated
finding as described in subsection (1)(e) or an order or
disposition as described under subsection (1)(f).
(iii) The individual agrees that, if the information in the
criminal history check conducted under this section does not
confirm the individual's statements under subparagraphs (i) and (ii),
his or her employment will be terminated by the adult foster care
facility as required under subsection (1) unless and until the
individual appeals and can prove that the information is incorrect.
The adult foster care facility shall provide a copy of the results
of the criminal history check conducted under this section to the
individual.
(iv) That he or she understands the conditions described in
subparagraphs (i), (ii), and (iii) that result in the termination of
his or her employment and that those conditions are good cause for
termination.
(6) On the effective date of the amendatory act that added
this section, the department shall develop and distribute a model
form for the statement required under subsection (5)(b). The
department shall make the model form available to adult foster care
facilities upon request at no charge.
(7) If an individual is employed as a conditional employee or
an independent contractor under this section and the report
described in subsection (4) does not confirm the individual's
statement under subsection (5)(b)(i) or (ii), the adult foster care
facility shall terminate the individual's employment as required by
subsection (1).
(8) An individual who knowingly provides false information
regarding a criminal conviction on a statement described in
subsection (5)(b)(i) or (ii) 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) An adult foster care facility shall use criminal history
record information obtained under this section 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 (5) and (7). 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 this section 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. An individual who suffers injury as a result of
a violation of this subsection may bring a civil cause of action
for damages against the person who violates this subsection. Upon
written request from another adult foster care facility 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 share, with the individual's consent, the
information with the requesting adult foster care facility 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 the release of criminal history record
information under this subsection.
(10) As a condition of continued employment, each employee or
independent contractor shall agree in writing to report to the
adult foster care facility immediately upon either of the
following:
(a) Being convicted of 1 or more of the criminal offenses
listed in subsection (1)(a), (b), (c), and (d).
(b) Being the subject of a substantiated finding of neglect,
abuse, or misappropriation of property as described in subsection
(1)(e).
(c) Being the subject of an order or disposition described
under subsection (1)(f).
(11) 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.
(12) Within 1 year after the effective date of the amendatory
act that added this section, the department shall submit a written
report to the legislature regarding each of the following:
(a) The impact and effectiveness of this amendatory act.
(b) The feasibility of implementing criminal history checks on
volunteers who work in those adult foster care facilities and on
state agency employees who are involved in the licensing of those
adult foster care facilities and regulation of those employees.
(c) The amount of medicaid and medicare funding utilized to
pay for or reimburse charges for conducting criminal history checks
in accordance with this section and the amount remaining of those
funds.
(13) Within 3 years after the effective date of this section,
the department shall submit a written report to the legislature
outlining a plan to cover the costs of the criminal history checks
required under this section if federal funding is no longer
available or is inadequate to cover those costs.
(14) As used in this section:
(a) "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.
(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.
Enacting section 1. Section 34a of the adult foster care
facilities licensing act, 1979 PA 218, MCL 400.734a, is repealed
effective 60 days after the department secures the necessary
federal approval or waiver, and files a written notice, as provided
under enacting section 2.
Enacting section 2. Section 34b of the adult foster care
facility licensing act, 1979 PA 218, MCL 400.734b, as added by this
amendatory act, takes effect 60 days after the department secures
the necessary federal approval or waiver to utilize federal funds
to enable the department to pay for or reimburse the costs incurred
by adult foster care facilities for requesting a national criminal
history check to be conducted by the federal bureau of
investigation and files with the secretary of state a written
notice that the federal approval or waiver has been secured.