HOUSE BILL No. 4108 January 31, 2001, Introduced by Reps. Anderson, Plakas, Schauer, Schermesser, Gieleghem, Zelenko, Bogardus, Kolb, Stewart and Frank and referred to the Committee on Senior Health, Security and Retirement. A bill to amend 1978 PA 368, entitled "Public health code," by amending sections 20165 and 20175 (MCL 333.20165 and 333.20175), section 20165 as amended by 1998 PA 108 and section 20175 as amended by 2000 PA 319, and by adding section 20173. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: 1 Sec. 20165. (1) Except as otherwise provided in this sec- 2 tion, after notice of intent to an applicant or licensee to deny, 3 limit, suspend, or revoke the applicant's or licensee's license 4 or certification and an opportunity for a hearing, the department 5 may deny, limit, suspend, or revoke the license or certification 6 or impose an administrative fine on a licensee if 1 or more of 7 the following exist: 00905'01 GWH 2 1 (a) Fraud or deceit in obtaining or attempting to obtain a 2 license or certification or in the operation of the licensed 3 health facility or agency. 4 (b) A violation of this article or a rule promulgated under 5 this article. 6 (c) False or misleading advertising. 7 (d) Negligence or failure to exercise due care, including 8 negligent supervision of employees and subordinates. 9 (e) Permitting a license or certificate to be used by an 10 unauthorized health facility or agency. 11 (f) Evidence of abuse regarding a patient's health, welfare, 12 or safety or the denial of a patient's rights. 13 (g) Failure to comply with section 10102a(7). 14 (h) Failure to comply with part 222 or a term, condition, or 15 stipulation of a certificate of need issued under part 222, or 16 both. 17 (i) A violation of section 20197(1). 18 (J) FAILURE TO MAKE A REPORT UNDER SECTION 20175(5) OR (7). 19 (2) The department may deny an application for a license or 20 certification based on a finding of a condition or practice that 21 would constitute a violation of this article if the applicant 22 were a licensee. 23 (3) Denial, suspension, or revocation of an individual emer- 24 gency medical services personnel license under part 209 is gov- 25 erned by section 20958. 26 (4) If the department determines under subsection (1) that a 27 health facility or agency has violated section 20197(1), the 00905'01 3 1 department shall impose an administrative fine of $5,000,000.00 2 on the health facility or agency. 3 SEC. 20173. (1) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION 4 (2), A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, COUNTY 5 MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL NOT EMPLOY, 6 INDEPENDENTLY CONTRACT WITH, OR GRANT CLINICAL PRIVILEGES TO AN 7 INDIVIDUAL WHO REGULARLY PROVIDES DIRECT SERVICES TO PATIENTS OR 8 RESIDENTS IN THE HEALTH FACILITY OR AGENCY AFTER THE EFFECTIVE 9 DATE OF THE AMENDATORY ACT THAT ADDED THIS SECTION IF THE INDI- 10 VIDUAL HAS BEEN CONVICTED IN THIS STATE OF 1 OR MORE OF THE 11 FOLLOWING: 12 (A) A FELONY OR AN ATTEMPT OR CONSPIRACY TO COMMIT A FELONY 13 WITHIN THE 15 YEARS IMMEDIATELY PRECEDING THE DATE OF APPLICATION 14 FOR EMPLOYMENT OR CLINICAL PRIVILEGES OR THE DATE OF THE EXECU- 15 TION OF THE CONTRACT OR WITHIN THE 15 YEARS IMMEDIATELY PRECEDING 16 THE DATE OF THE INDIVIDUAL'S MOST RECENT CRIMINAL HISTORY CHECK 17 PERFORMED UNDER THIS SECTION, IF THE INDIVIDUAL IS EMPLOYED BY, 18 UNDER CONTRACT TO, OR GRANTED CLINICAL PRIVILEGES IN THE HEALTH 19 FACILITY OR AGENCY BEFORE THE EFFECTIVE DATE OF THE AMENDATORY 20 ACT THAT ADDED THIS SECTION. 21 (B) A MISDEMEANOR INVOLVING ABUSE, NEGLECT, ASSAULT, BAT- 22 TERY, OR CRIMINAL SEXUAL CONDUCT OR INVOLVING FRAUD OR THEFT 23 AGAINST A VULNERABLE ADULT AS THAT TERM IS DEFINED IN 24 SECTION 145M OF THE MICHIGAN PENAL CODE, 1931 PA 328, 25 MCL 750.145M, WITHIN THE 10 YEARS IMMEDIATELY PRECEDING THE DATE 26 OF APPLICATION FOR EMPLOYMENT OR CLINICAL PRIVILEGES OR THE DATE 27 OF THE EXECUTION OF THE CONTRACT OR WITHIN THE 10 YEARS 00905'01 4 1 IMMEDIATELY PRECEDING THE DATE OF THE INDIVIDUAL'S MOST RECENT 2 CRIMINAL HISTORY CHECK PERFORMED UNDER THIS SECTION, IF THE INDI- 3 VIDUAL IS EMPLOYED BY, UNDER CONTRACT TO, OR GRANTED CLINICAL 4 PRIVILEGES IN THE HEALTH FACILITY OR AGENCY BEFORE THE EFFECTIVE 5 DATE OF THE AMENDATORY ACT THAT ADDED THIS SECTION. 6 (2) EXCEPT AS OTHERWISE PROVIDED IN THIS SUBSECTION AND SUB- 7 SECTION (5), A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 8 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL NOT 9 EMPLOY, INDEPENDENTLY CONTRACT WITH, OR GRANT CLINICAL PRIVILEGES 10 TO AN INDIVIDUAL AFTER THE EFFECTIVE DATE OF THE AMENDATORY ACT 11 THAT ADDED THIS SECTION UNTIL THE HEALTH FACILITY OR AGENCY COM- 12 PLIES WITH SUBSECTION (4). THIS SUBSECTION AND SUBSECTION (1) DO 13 NOT APPLY TO AN INDIVIDUAL WHO IS EMPLOYED BY, UNDER CONTRACT TO, 14 OR GRANTED CLINICAL PRIVILEGES IN A HEALTH FACILITY OR AGENCY 15 BEFORE THE EFFECTIVE DATE OF THE AMENDATORY ACT THAT ADDED THIS 16 SECTION, IF THE INDIVIDUAL HAS HAD A CRIMINAL HISTORY CHECK THAT 17 IS EQUIVALENT TO THE CRIMINAL HISTORY CHECK CONDUCTED UNDER THIS 18 SECTION OR THAT IS PERFORMED UNDER THIS SECTION WITHIN THE 2 19 YEARS IMMEDIATELY PRECEDING THE EFFECTIVE DATE OF THE AMENDATORY 20 ACT THAT ADDED THIS SECTION. 21 (3) AN INDIVIDUAL WHO APPLIES FOR EMPLOYMENT EITHER AS AN 22 EMPLOYEE OR AS AN INDEPENDENT CONTRACTOR OR FOR CLINICAL PRIVI- 23 LEGES WITH A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 24 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL GIVE 25 WRITTEN CONSENT AT THE TIME OF APPLICATION FOR THE DEPARTMENT OF 26 STATE POLICE OR ANOTHER AUTHORIZED LAW ENFORCEMENT AGENCY TO 27 CONDUCT A CRIMINAL HISTORY CHECK UNDER SUBSECTION (4). IF THE 00905'01 5 1 DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED LAW ENFORCEMENT 2 AGENCY HAS CONDUCTED A CRIMINAL HISTORY CHECK ON THE APPLICANT 3 WITHIN THE 6 MONTHS IMMEDIATELY PRECEDING THE DATE OF APPLICA- 4 TION, THE HEALTH FACILITY OR AGENCY MAY USE A CERTIFIED COPY OF 5 THAT CRIMINAL HISTORY CHECK INSTEAD OF OBTAINING WRITTEN CONSENT 6 AND REQUESTING A NEW CRIMINAL HISTORY CHECK UNDER THIS SUBSECTION 7 AND SUBSECTION (4). IF THE APPLICANT IS APPLYING FOR EMPLOYMENT 8 AS AN INDEPENDENT CONTRACTOR AND IS USING A PREVIOUS CRIMINAL 9 HISTORY CHECK AS DESCRIBED IN THIS SUBSECTION, THE HEALTH FACIL- 10 ITY OR AGENCY SHALL ACCEPT THE CERTIFIED COPY OF THE CRIMINAL 11 HISTORY CHECK ONLY FROM THE FIRM OR AGENCY THAT EMPLOYS THE INDI- 12 VIDUAL OR FROM THE DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED 13 LAW ENFORCEMENT AGENCY. 14 (4) UPON RECEIPT OF THE WRITTEN CONSENT REQUIRED UNDER SUB- 15 SECTION (3), A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 16 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL MAKE A 17 REQUEST TO THE DEPARTMENT OF STATE POLICE OR ANOTHER AUTHORIZED 18 LAW ENFORCEMENT AGENCY TO CONDUCT A CRIMINAL HISTORY CHECK ON THE 19 APPLICANT. THE REQUEST SHALL BE MADE ON A FORM AND IN A MANNER 20 PRESCRIBED BY THE DEPARTMENT OF STATE POLICE OR BY THE OTHER 21 AUTHORIZED LAW ENFORCEMENT AGENCY. IF THERE IS A CHARGE FOR CON- 22 DUCTING THE CRIMINAL HISTORY CHECK, THE HEALTH FACILITY OR AGENCY 23 REQUESTING THE CRIMINAL HISTORY CHECK SHALL PAY THE COST OF THE 24 CHARGE. THE HEALTH FACILITY OR AGENCY SHALL NOT SEEK REIMBURSE- 25 MENT FOR THE CHARGE FROM THE INDIVIDUAL WHO IS THE SUBJECT OF THE 26 CRIMINAL HISTORY CHECK. THE DEPARTMENT OF STATE POLICE OR OTHER 27 AUTHORIZED LAW ENFORCEMENT AGENCY SHALL CONDUCT A CRIMINAL 00905'01 6 1 HISTORY CHECK ON THE INDIVIDUAL NAMED IN THE REQUEST. THE 2 DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED LAW ENFORCEMENT 3 AGENCY SHALL PROVIDE THE HEALTH FACILITY OR AGENCY WITH A REPORT 4 OF THE CRIMINAL HISTORY CHECK. THE REPORT SHALL CONTAIN ANY 5 CRIMINAL HISTORY RECORD INFORMATION ON THE APPLICANT MAINTAINED 6 BY THE DEPARTMENT OF STATE POLICE OR OTHER AUTHORIZED LAW 7 ENFORCEMENT AGENCY. THE DEPARTMENT OF STATE POLICE OR OTHER 8 AUTHORIZED LAW ENFORCEMENT AGENCY SHALL CERTIFY EACH REPORT WITH 9 AN OFFICIAL SEAL OR OTHER SYMBOL OF AUTHENTICITY. 10 (5) IF A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 11 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED DETERMINES IT 12 NECESSARY TO EMPLOY OR GRANT CLINICAL PRIVILEGES TO AN APPLICANT 13 BEFORE RECEIVING THE RESULTS OF THE APPLICANT'S CRIMINAL HISTORY 14 CHECK UNDER SUBSECTION (4), THE HEALTH FACILITY OR AGENCY MAY 15 EMPLOY OR GRANT CLINICAL PRIVILEGES TO THE INDIVIDUAL AS A CONDI- 16 TIONAL EMPLOYEE OR CONDITIONAL STAFF MEMBER IF ALL OF THE FOLLOW- 17 ING APPLY: 18 (A) THE HEALTH FACILITY OR AGENCY REQUESTS THE CRIMINAL HIS- 19 TORY CHECK UNDER SUBSECTION (4) BEFORE CONDITIONALLY EMPLOYING OR 20 GRANTING CLINICAL PRIVILEGES TO THE INDIVIDUAL. 21 (B) THE INDIVIDUAL SIGNS A STATEMENT THAT HE OR SHE HAS NOT 22 BEEN CONVICTED OF 1 OR MORE OF THE CRIMES THAT ARE DESCRIBED IN 23 SUBSECTION (1), AND AGREEING THAT, IF THE CRIMINAL HISTORY CHECK 24 CONDUCTED UNDER SUBSECTION (4) IS NOT THE SAME AS THE 25 INDIVIDUAL'S STATEMENT UNDER THIS SUBDIVISION, HIS OR HER EMPLOY- 26 MENT OR CLINICAL PRIVILEGES ARE TERMINABLE AT THE OPTION OF THE 27 HEALTH FACILITY OR AGENCY. NOT LATER THAN 90 DAYS AFTER THE 00905'01 7 1 EFFECTIVE DATE OF THE AMENDATORY ACT THAT ADDED THIS SECTION, THE 2 DEPARTMENT SHALL DEVELOP AND DISTRIBUTE A MODEL FORM FOR THE 3 STATEMENT REQUIRED UNDER THIS SUBDIVISION. THE DEPARTMENT SHALL 4 MAKE THE MODEL FORM AVAILABLE TO AFFECTED HEALTH FACILITIES OR 5 AGENCIES UPON REQUEST AT NO CHARGE. 6 (6) IF AN INDIVIDUAL IS EMPLOYED AS A CONDITIONAL EMPLOYEE 7 OR IS GRANTED CONDITIONAL CLINICAL PRIVILEGES UNDER SUBSECTION 8 (5), AND THE REPORT DESCRIBED IN SUBSECTION (4) IS SUBSTANTIALLY 9 DIFFERENT FROM THE INDIVIDUAL'S STATEMENT UNDER SUBSECTION (5), 10 THE HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, COUNTY MED- 11 ICAL CARE FACILITY, OR HOME FOR THE AGED MAY TERMINATE THE 12 INDIVIDUAL'S EMPLOYMENT OR CLINICAL PRIVILEGES. AN INDIVIDUAL 13 WHO KNOWINGLY PROVIDES FALSE INFORMATION REGARDING CRIMINAL CON- 14 VICTIONS ON A STATEMENT DESCRIBED IN SUBSECTION (5) IS GUILTY OF 15 A MISDEMEANOR, PUNISHABLE BY IMPRISONMENT FOR NOT MORE THAN 90 16 DAYS OR A FINE OF NOT MORE THAN $500.00, OR BOTH. 17 (7) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (8), A HEALTH 18 FACILITY OR AGENCY THAT IS A NURSING HOME, COUNTY MEDICAL CARE 19 FACILITY, OR HOME FOR THE AGED SHALL USE CRIMINAL HISTORY RECORD 20 INFORMATION OBTAINED UNDER THIS SECTION ONLY FOR THE PURPOSE OF 21 EVALUATING AN APPLICANT'S QUALIFICATIONS FOR CLINICAL PRIVILEGES 22 OR FOR EMPLOYMENT IN THE POSITION FOR WHICH HE OR SHE HAS APPLIED 23 AND FOR THE PURPOSES OF SUBSECTIONS (5) AND (6). A HEALTH FACIL- 24 ITY OR AGENCY OR AN EMPLOYEE OF THE HEALTH FACILITY OR AGENCY 25 SHALL NOT DISCLOSE CRIMINAL HISTORY RECORD INFORMATION OBTAINED 26 UNDER THIS SECTION TO A PERSON WHO IS NOT DIRECTLY INVOLVED IN 00905'01 8 1 EVALUATING THE APPLICANT'S QUALIFICATIONS FOR EMPLOYMENT OR 2 CLINICAL PRIVILEGES. 3 (8) A HEALTH FACILITY OR AGENCY THAT IS A NURSING HOME, 4 COUNTY MEDICAL CARE FACILITY, OR HOME FOR THE AGED SHALL REPORT 5 THE CRIMINAL HISTORY RECORD INFORMATION OBTAINED UNDER THIS SEC- 6 TION AND ANY OTHER CRIMINAL HISTORY INFORMATION REGARDING AN 7 INDIVIDUAL EMPLOYED BY, UNDER CONTRACT TO, OR GRANTED CLINICAL 8 PRIVILEGES BY THE HEALTH FACILITY OR AGENCY TO THE DEPARTMENT OF 9 CONSUMER AND INDUSTRY SERVICES. 10 Sec. 20175. (1) A health facility or agency shall keep and 11 maintain a record for each patient including a full and complete 12 record of tests and examinations performed, observations made, 13 treatments provided, and in the case of a hospital, the purpose 14 of hospitalization. In addition to the sanctions set forth in 15 section 20165, a hospital that fails to comply with this subsec- 16 tion is subject to an administrative fine of $10,000.00. 17 (2) A hospital shall take precautions to assure that the 18 records required by subsection (1) are not wrongfully altered or 19 destroyed. A hospital that fails to comply with this subsection 20 is subject to an administrative fine of $10,000.00. 21 (3) Unless otherwise provided by law, the licensing and cer- 22 tification records required by this article are public records. 23 (4) Departmental officers and employees shall respect the 24 confidentiality of patient clinical records and shall not divulge 25 or disclose the contents of THOSE records in a manner that iden- 26 tifies an individual except pursuant to court order. 00905'01 9 1 (5) A health facility or agencythat employs, contracts2with, or grants privileges to a health professional licensed or3registered under article 15shall report the following to the 4 department of consumer and industry services not more than 30 5 days after it occurs: 6 (a) Disciplinary action taken by the health facility or 7 agency against a health professional WHO IS licensed or regis- 8 tered under article 15 AND EMPLOYED BY, UNDER CONTRACT TO, OR 9 GRANTED CLINICAL PRIVILEGES IN THE HEALTH FACILITY OR AGENCY 10 based on the licensee's or registrant's professional competence, 11 disciplinary action that results in a change of employment 12 status, or disciplinary action based on conduct that adversely 13 affects the licensee's or registrant's clinical privileges for a 14 period of more than 15 days. As used in this subdivision, 15 "adversely affects" means the reduction, restriction, suspension, 16 revocation, denial, or failure to renew the clinical privileges 17 of a licensee or registrant by a health facility or agency. 18 (b) Restriction or acceptance of the surrender of the clini- 19 cal privileges of alicensee or registrantHEALTH PROFESSIONAL 20 LICENSED OR REGISTERED UNDER ARTICLE 15 under either of the fol- 21 lowing circumstances: 22 (i) The licensee or registrant is under investigation by the 23 health facility or agency. 24 (ii) There is an agreement in which the health facility or 25 agency agrees not to conduct an investigation into the licensee's 26 or registrant's alleged professional incompetence or improper 27 professional conduct. 00905'01 10 1 (c) A case in which a health professional LICENSED OR 2 REGISTERED UNDER ARTICLE 15 resigns or terminates a contract or 3 whose contract is not renewed instead of the health facility 4 taking disciplinary action against the health professional. 5 (6) Upon request by another health facility or agency seek- 6 ing a reference for purposes of changing or granting staff OR 7 CLINICAL privileges, credentials, or employment, a health facil- 8 ity or agency that employs, contracts with, or grants STAFF OR 9 CLINICAL privileges to health professionals licensed or regis- 10 tered under article 15 shall notify the requesting health facil- 11 ity or agency ofanydisciplinary or other action reportable 12 under subsection (5) that it has taken against a health profes- 13 sional licensed or registered under article 15 and employed by, 14 under contract to, or granted STAFF OR CLINICAL privileges by the 15 health facility or agency. 16 (7) A HEALTH FACILITY OR AGENCY SHALL REPORT TO THE DEPART- 17 MENT OF CONSUMER AND INDUSTRY SERVICES FINAL DISCIPLINARY ACTION 18 TAKEN BY THE HEALTH FACILITY OR AGENCY AGAINST AN EMPLOYEE THAT 19 INVOLVES SEXUAL OR OTHER ABUSE, NEGLECT, PHYSICAL HARM, THEFT, OR 20 FRAUDULENT BEHAVIOR AGAINST A PATIENT OR RESIDENT OF THE HEALTH 21 FACILITY OR AGENCY AND ALL CRIMINAL HISTORY RECORD INFORMATION 22 OBTAINED UNDER OR DESCRIBED IN SECTION 20173. A REPORT REQUIRED 23 UNDER THIS SUBSECTION IS IN ADDITION TO, AND IS NOT SATISFIED BY, 24 A REPORT MADE UNDER SUBSECTION (5)(A). 25 (8) A REPORT RECEIVED BY THE DEPARTMENT OF CONSUMER AND 26 INDUSTRY SERVICES UNDER SUBSECTION (5) OR (7) IS PUBLIC 27 INFORMATION. 00905'01 11 1 (9)(7)For the purpose of reporting disciplinary actions 2 under this section, a health facility or agency shall include 3 only the following in the information provided: 4 (a) The name of the licensee or registrant OR OTHER EMPLOYEE 5 against whom disciplinary action has been taken. 6 (b) A description of the disciplinary action taken. 7 (c) The specific grounds for the disciplinary action taken. 8 (d) The date of the incident that is the basis for the dis- 9 ciplinary action. 10 (10)(8)The records, data, and knowledge collected for or 11 by individuals or committees assigned a professional review func- 12 tion in a health facility or agency, or an institution of higher 13 education in this state that has colleges of osteopathic and 14 human medicine, are confidential, shall be used only for the pur- 15 poses provided in this article, are not public records, and are 16 not subject to court subpoena. 17 Enacting section 1. This amendatory act takes effect July 18 1, 2001. 00905'01 Final page. GWH