SB-0788, As Passed Senate, February 1, 2012

SUBSTITUTE FOR

SENATE BILL NO. 788

A bill to amend 1979 PA 218, entitled

"Adult foster care facility licensing act,"

by amending section 13 (MCL 400.713), as amended by 2010 PA 380.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 13. (1) A person, partnership, corporation, association,

or a department or agency of the state, county, city, or other

political subdivision shall not establish or maintain an adult

foster care facility unless licensed by the department.

(2) Application for a license shall be made on forms provided

and in the manner prescribed by the department. The application

shall be accompanied by the fee prescribed in section 13a.

(3) Before issuing or renewing a license, the department shall

investigate the activities and standards of care of the applicant

and shall make an on-site evaluation of the facility. On-site

inspections conducted in response to the application may be

conducted without prior notice to the applicant. Subject to

subsections (9), (10), and (11), the department shall issue or

renew a license if satisfied as to all of the following:

(a) The financial stability of the facility.

(b) The applicant's compliance with this act and rules

promulgated under this act.

partners, or directors of the facility, if other than an

individual. Each of these persons shall be not less than 18 years

of age.

(d) The physical and emotional ability of the applicant, and

the person responsible for the daily operation of the facility to

operate an adult foster care facility.

(e) The good moral character of the person responsible for the

daily operations of the facility and all employees of the facility.

The applicant shall be responsible for assessing the good moral

character of the employees of the facility. The person responsible

for the daily operation of the facility shall be not less than 18

years of age.

(4) The department shall require an applicant or a licensee to

disclose the names, addresses, and official positions of all

persons who have an ownership interest in the adult foster care

facility. If the adult foster care facility is located on or in

real estate that is leased, the applicant or licensee shall

disclose the name of the lessor of the real estate and any direct

or indirect interest that the applicant or licensee has in the

lease other than as lessee.

(5) Each license shall state the maximum number of persons to

be received for foster care at 1 time.

(6) If applicable, a license shall state the type of

specialized program for which certification has been received from

the department.

(7) A license shall be issued to a specific person for a

facility at a specific location, is nontransferable, and remains

the property of the department. The prohibition against transfer of

a license to another location does not apply if a licensee's adult

foster care facility or home is closed as a result of eminent

domain proceedings, if the facility or home, as relocated,

otherwise meets the requirements of this act and the rules

promulgated under this act.

(8) An applicant or licensee proposing a sale of an adult

foster care facility or home to another owner shall provide the

department with advance notice of the proposed sale in writing. The

applicant or licensee and other parties to the sale shall arrange

to meet with specified department representatives and shall obtain

before the sale a determination of the items of noncompliance with

applicable law and rules that shall be corrected. The department

shall notify the respective parties of the items of noncompliance

before the change of ownership, shall indicate that the items of

noncompliance shall be corrected as a condition of issuance of a

license to the new owner, and shall notify the prospective

purchaser of all licensure requirements.

(9) The department shall not issue a license to or renew the

license of an owner, partner, or director of the applicant, who has

regular direct access to residents or who has on-site facility

operational responsibilities, or an applicant or the licensee

designee, if any of those individuals have been convicted of 1 or

more of the following:

(a) A felony under this act or under chapter XXA of the

Michigan penal code, 1931 PA 328, MCL 750.145m to 750.145r.

(b) A misdemeanor under this act or under chapter XXA of the

Michigan penal code, 1931 PA 328, MCL 750.145m to 750.145r, within

the 10 years immediately preceding the application.

or criminal sexual conduct or involving fraud or theft against a

vulnerable adult as that term is defined in section 145m of the

Michigan penal code, 1931 PA 328, MCL 750.145m, or a state or

federal crime that is substantially similar to a misdemeanor

described in this subdivision within the 10 years immediately

preceding the application.

(10) If the department has revoked, suspended, or refused to

renew a person's license for an adult foster care facility

according to section 22, the department may refuse to issue a

license to or renew a license of that person for a period of 5

years after the suspension, revocation, or nonrenewal of the

license.

(11) The department may refuse to issue a license to or renew

the license of an applicant if the department determines that the

applicant has a relationship with a former licensee whose license

under this act has been suspended, revoked, or nonrenewed under

subsection (9) or section 22 or a convicted person to whom a

license has been denied under subsection (9). This subsection

applies for 5 years after the suspension, revocation, or nonrenewal

of the former licensee's license or the denial of the convicted

person's license. For purposes of this subsection, an applicant has

a relationship with a former licensee or convicted person if the

former licensee or convicted person is involved with the facility

in 1 or more of the following ways:

(a) Participates in the administration or operation of the

facility.

(b) Has a financial interest in the operation of the facility.

(d) Has contact with residents or staff on the premises of the

facility.

(e) Is employed by the facility.

(f) Resides in the facility.

(12) If the department determines that an unlicensed facility

is an adult foster care facility, the department shall notify the

owner or operator of the facility that it is required to be

licensed under this act. A person receiving the notification

required under this section who does not apply for a license within

30 days is subject to the penalties described in subsection (13).

(13) Subject to subsection (12), a person who violates

subsection (1) is guilty of a misdemeanor, punishable by

imprisonment for not more than 2 years or a fine of not more than

$50,000.00, or both. A person who has been convicted of a violation

of subsection (1) who commits a second or subsequent violation is

guilty of a felony, punishable by imprisonment for not more than 5

years or a fine of not more than $75,000.00, or both.

(14) The department shall issue an initial or renewal license

not later than 6 months after the applicant files a completed

application. Receipt of the application is considered the date the

application is received by any agency or department of this state.

If the application is considered incomplete by the department, the

department shall notify the applicant in writing or make notice

electronically available within 30 days after receipt of the

incomplete application, describing the deficiency and requesting

additional information. If the department identifies a deficiency

or requires the fulfillment of a corrective action plan, the 6-

month period is tolled until either of the following occurs:

(a) Upon notification by the department of a deficiency, until

the date the requested information is received by the department.

(b) Upon notification by the department that a corrective

action plan is required, until the date the department determines

the requirements of the corrective action plan have been met.

(15) The determination of the completeness of an application

does not operate as an approval of the application for the license

and does not confer eligibility of an applicant determined

otherwise ineligible for issuance of a license.

(16) If the department fails to issue or deny a license within

the time required by this section, the department shall return the

license fee and shall reduce the license fee for the applicant's

next renewal application, if any, by 15%. Failure to issue or deny

a license within the time period required under this section does

not allow the department to otherwise delay processing an

application. The completed application shall be placed in sequence

with other completed applications received at that same time. The

department shall not discriminate against an applicant in the

processing of an application based on the fact that the application

fee was refunded or discounted under this subsection.

(17) If, on a continual basis, inspections performed by a

local health department delay the department in issuing or denying

licenses under this act within the 6-month period, the department

may use department staff to complete the inspections instead of the

local health department causing the delays.

(18) The department director ~~of the department~~ shall submit a

report by December 1 of each year to the standing committees and

appropriations subcommittees of the senate and house of

representatives concerned with human services issues. The

department director shall include all of the following information

in the report concerning the preceding fiscal year:

(a) The number of initial and renewal applications the

department received and completed within the 6-month time period

described in subsection (14).

(b) The number of applications requiring a request for

additional information.

(d) The number of licenses not issued within the 6-month

period.

(e) The average processing time for initial and renewal

licenses granted after the 6-month period.

(19) An applicant, if an individual, shall give written

consent at the time of original license application ~~for the~~

~~department of state police to conduct the criminal history check~~

~~and criminal records check required under this section. A~~ and a

licensee designee shall give written consent at the time of

appointment for the department of state police to conduct ~~the~~

~~criminal history check and criminal records check required under~~

~~this section.~~both of the following:

(a) A criminal history check.

(b) A criminal records check through the federal bureau of

investigation.

(20) Unless already submitted under subsection (19), an owner,

partner, or director of the applicant who has regular direct access

to residents or who has on-site facility operational

responsibilities shall give written consent at the time of original

license application for the department of state police to conduct

~~the criminal history check and criminal records check required~~

~~under this section.~~both of the following:

(a) A criminal history check.

(b) A criminal records check through the federal bureau of

investigation.

(21) The department shall require the applicant, if an

individual, the licensee designee, owner, partner, or director of

the applicant who has regular direct access to residents or who has

on-site facility operational responsibilities to submit his or her

fingerprints to the department of state police for the criminal

history check and criminal records check described in subsections

(19) and (20).

(22) ~~(21)~~ The department shall request a criminal history

check and criminal records check required under this section in the

manner prescribed by the department of state police. The department

of state police shall conduct the criminal history check and

provide a report of the results to the licensing or regulatory

bureau of the department. The report shall contain any criminal

history information on the person maintained by the department of

state police and the results of the criminal records check from the

federal bureau of investigation. The department of state police may

charge the person on whom the criminal history check and criminal

records check are performed under this section a fee that does not

exceed the actual and reasonable cost of conducting the checks.

(23) ~~(22)~~ Not later than 1 year after the effective date of

the ~~2010~~ 2012 amendatory act that ~~added~~ amended this subsection,

all licensees and licensee designees of facilities licensed on the

effective date of the 2012 amendatory act that ~~added~~ amended this

subsection and all persons described in subsection (20) shall

comply with the requirements of this section.

(24) ~~(23)~~ Beginning the effective date of the ~~2010~~ 2012

amendatory act that ~~added~~ amended this subsection, if an applicant

or licensee designee or person described in subsection (20) applies

for a license or to renew a license to operate an adult foster care

facility and he or she or the licensee designee previously

underwent a criminal history check and criminal records check

required under subsection (19) or (20) or under section 134a of the

mental health code, 1974 PA 258, MCL 330.1134a, and has remained

continuously licensed or continuously employed under section 34b or

under section 20173a of the public health code, 1978 PA 368, MCL

333.20173a, after the criminal history check and criminal records

check have been performed, that person is not required to submit to

another criminal history check or criminal records check upon

renewal of the license obtained under subsection (3).

(25) ~~(24)~~ The department of state police shall store and

maintain all fingerprints submitted under this act in an automated

fingerprint identification system database that provides for an

automatic notification at the time of a subsequent criminal arrest

fingerprint card submitted into the system that matches a set of

fingerprints previously submitted in accordance with this act. Upon

notification, the department of state police shall immediately

notify the department and the department shall take the appropriate

action.

(26) ~~(25)~~ A licensee, licensee designee, owner, partner, or

director of the licensee shall not be permitted on the premises of

an adult foster care facility if he or she has been convicted of

any of the following: adult abuse, neglect, or financial

exploitation; or listed offenses as defined in section 2 of the sex

offenders registration act, ~~1943~~ 1994 PA 295, MCL 28.722.

(27) ~~(26)~~ As used in this section, "completed application"

means an application complete on its face and submitted with any

applicable licensing fees as well as any other information,

records, approval, security, or similar item required by law or

rule from a local unit of government, a federal agency, or a

private entity but not from another department or agency of this

state. A completed application does not include a health inspection