October 20, 2016, Introduced by Senators SCHUITMAKER, HILDENBRAND and HOPGOOD and referred to the Committee on Families, Seniors and Human Services.
A bill to amend 1973 PA 116, entitled
"An act to provide for the protection of children through the
licensing and regulation of child care organizations; to provide
for the establishment of standards of care for child care
organizations; to prescribe powers and duties of certain
departments of this state and adoption facilitators; to provide
penalties; and to repeal acts and parts of acts,"
by amending sections 5c, 5d, 5e, 5g, 5h, 5i, 5j, 5k, and 5l (MCL
722.115c, 722.115d, 722.115e, 722.115g, 722.115h, 722.115i,
722.115j, 722.115k, and 722.115l), sections 5c and 5d as amended by
2010 PA 379, section 5e as added by 2005 PA 133, section 5g as
amended by 2007 PA 217, sections 5h, 5i, 5j, and 5k as added by
2007 PA 218, and section 5l as added by 2008 PA 15, and by adding
sections 5m, 5n, 5o, 5p, 5q, 5r, and 5s.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
5c. (1) Except as provided in subsection (8), (6), when
a
person or partnership, or licensee designee if the applicant is a
limited
liability corporation, firm, corporation, association, or
nongovernmental organization, or governmental organization applies
for
or applies to renew a license for a child care organization
under section 5, the department shall request the department of
state
police to perform both of the following a criminal history
check on the person, licensee designee, chief administrator, and
program
director of a child care organization.
:
(a)
Conduct a criminal history check on the person.
(b)
Conduct a criminal records check through the federal
bureau
of investigation on the person.
(2)
Except as provided in subsection (7), each Each person
applying for a license to operate a child care organization shall
give written consent at the time of the license application for the
department of state police to conduct the criminal history check
and
criminal records check required
under this section. The
department shall require the person to submit his or her
fingerprints to the department of state police for the criminal
history
check and criminal records check described in subsection
(1).
(3)
The department shall request a criminal history check and
criminal
records check required under this
section on a form and in
the manner prescribed by the department of state police.
(4) Within a reasonable time after receiving a complete
request by the department for a criminal history check on a person
under this section, the department of state police shall conduct
the criminal history check and provide a report of the results to
the department. The report shall contain any criminal history
record information on the person maintained by the department of
state police and the Federal Bureau of Investigation.
(5)
Within a reasonable time after receiving a proper request
by
the department for a criminal records check on a person under
this
section, the department of state police shall initiate the
criminal
records check. After receiving the results of the criminal
records
check from the federal bureau of investigation, the
department
of state police shall provide a report of the results to
the
department.
(5) (6)
The department of state police may
charge the
department
a fee for a criminal history check or a criminal records
check
required under this section that
does not exceed the actual
and reasonable cost of conducting the check. The department may
pass along to the licensee or applicant the actual cost or fee
charged by the department of state police for performing a criminal
history
check or a criminal records check required under this
section.
(7)
When a person, partnership, firm, corporation,
association,
or nongovernmental organization applies for or renews
a
license under section 5 for a child care center or day care
center
that is established and operated by an intermediate school
board,
the board of a local school district, or by the board or
governing
body of a state-approved nonpublic school, the criminal
history
check and criminal records check required under subsection
(1)
shall be performed in compliance with the provisions of
sections
1230 to 1230h of the revised school code, 1976 PA 451, MCL
380.1230
to 380.1230h. Before issuing or renewing a license to a
child
care center or day care center described in this subsection,
the
department shall verify that the intermediate school board, the
board
of a local school district, or the board or governing body of
a
state-approved nonpublic school has obtained the required
criminal
history checks and criminal records checks.
(6) (8)
If a person, licensee designee,
chief administrator,
or program director of a child care organization applying to renew
a license to operate a child care organization has previously
undergone
a criminal history check and criminal records check
required under subsection (1) and has remained continuously
licensed
after the criminal history check and criminal records
check
have has been performed and section 5k continues to apply,
that person, licensee designee, chief administrator, or program
director of a child care organization is not required to submit to
another
criminal history check or criminal records check upon
renewal of the license obtained under section 5.
(9)
As used in this section and sections 5, 5d, 5e, 5f, and
5g:
(a)
"Criminal history record information" means that term as
defined
in section 1a of 1925 PA 289, MCL 28.241a.
(b)
"Listed offense" means that term as defined in section 2
of
the sex offenders registration act, 1994 PA 295, MCL 28.722.
Sec. 5d. (1) Before a child care organization makes an offer
of employment to a person or allows a person to regularly and
continuously work under contract at the child care organization,
the child care organization shall perform a criminal history
background check on that person using the department of state
police's internet criminal history access tool (ICHAT) or
equivalent check on that person from the state or province of
residence.
(2) If a search of the department of state police's ICHAT or
equivalent check on the person from the state or province of
residence reveals that the person described in subsection (1) has
been convicted of a listed offense, the child care organization
shall not make an offer of employment to that person or allow that
person to regularly and continuously work under contract at the
child care organization. If a search of the department of state
police's ICHAT reveals that a current employee has been convicted
of a listed offense, the child care organization shall not continue
to employ that person. If a search of the department of state
police's ICHAT or equivalent check on that person from the state or
province of residence reveals that a person who regularly and
continuously works under contract at the child care organization
has been convicted of a listed offense, the child care organization
shall not allow that person to regularly or continuously work under
contract at the child care organization.
(3)
Not later than 1 year after the effective date of the 2010
amendatory
act that amended this section, the child care
organization
shall conduct a criminal history check on all current
employees
using the department of state police's ICHAT or
equivalent
check on the person from the state or province of
residence.
(3) (4)
A child care organization may pass
along the actual
cost of a search of the department of state police's ICHAT or
equivalent check on that person from the state or province of
residence to the employee or applicant on whom the search is being
performed.
Sec.
5e. (1) A child care center or day care center licensee,
licensee designee, or program director, group child care home
licensee, and family child care home licensee shall report to the
department and
an employee of a child care center or day care
center
within 3 business days after
he or she has been arraigned
for or convicted of 1 or more of the crimes listed in section 5r.
(2)
A child care staff member shall report
to that the child
care
center, or day care center group child care home, or family
child care home within 3 business days after he or she has been
arraigned
for or convicted of 1 or more of the following crimes
:listed in section 5r.
(a)
Any felony.
(b)
Any of the following misdemeanors:
(i) Criminal sexual conduct in the fourth degree or an
attempt
to
commit criminal sexual conduct in the fourth degree.
(ii) Child abuse in the third or fourth degree or an
attempt to
commit
child abuse in the third or fourth degree.
(iii) A misdemeanor involving cruelty, torture, or
indecent
exposure
involving a child.
(iv) A misdemeanor violation of section 7410 of the
public
health
code, 1978 PA 368, MCL 333.7410.
(v) A violation of section 115, 141a, 145a, 335a, or
359 of
the
Michigan penal code, 1931 PA 328, MCL 750.115, 750.141a,
750.145a,
750.335a, and 750.359, or a misdemeanor violation of
section
81, 81a, or 145d of the Michigan penal code, 1931 PA 328,
MCL
750.81, 750.81a, and 750.145d.
(vi) A misdemeanor violation of section 701 of the
Michigan
liquor
control code of 1998, 1998 PA 58, MCL 436.1701.
(vii) Any misdemeanor that is a listed offense.
(c)
A violation of a substantially similar law of another
state,
of a political subdivision of this state or another state,
or
of the United States.
(3) A child care center licensee, licensee designee, or
program director, group child care home licensee, and family child
care home licensee shall report to the department within 3 business
days after receiving a report from a child care staff member under
subsection (2).
(4) A group child care home licensee or family child care home
licensee shall report to the department within 3 business days
after he or she knows or should reasonably know that an adult
member of the household has been arraigned for or convicted of 1 or
more of the crimes listed in section 5r.
(5) (2)
A person who violates subsection
(1), (2), (3), or (4)
is guilty of a crime as follows:
(a) If the person violates subsection (1), (2), (3), or (4)
and the crime involved in the violation is a misdemeanor that is a
listed offense or is a felony, the person is guilty of a felony
punishable by imprisonment for not more than 2 years or a fine of
not more than $2,000.00, or both.
(b) If the person violates subsection (1), (2), (3), or (4)
and the crime involved in the violation is a misdemeanor that is
not a listed offense, the person is guilty of a misdemeanor
punishable by imprisonment for not more than 1 year or a fine of
not more than $1,000.00, or both.
(6) (3)
The department shall delete from
the licensee's
records all information relating to an arraignment required to be
reported
under subsection (1) this
section if the department
receives
documentation that the licensee person
arraigned for the
crime is subsequently not convicted of any crime after the
completion of judicial proceedings resulting from that arraignment.
(7) (4)
A child care center, or
day care center group child
care home, or family child care home shall delete from the
employee's
child care staff member's records all information
relating
to an arraignment required to be reported under subsection
(1)
this section if it receives documentation that the employee
child care staff member is subsequently not convicted of any crime
after the completion of judicial proceedings resulting from that
arraignment.
(5)
Not later than 30 days after the effective date of the
amendatory
act that added this section, the department shall inform
all
licensees and applicants for licenses of the requirement under
this
section to report when he or she is arraigned for certain
crimes
and the penalty for not reporting.
(6)
Not later than 30 days after the effective date of the
amendatory
act that added this section, a child care center or day
care
center shall inform all current employees and all persons who
work
regularly and continuously under contract at the child care
center
or day care center of the requirement under this section to
report
when he or she is arraigned for certain crimes and the
penalty
for not reporting.
(7)
At the time a child care center or day care center makes
an
offer of employment to a person or allows a person to regularly
and
continuously work under contract at the child care center or
day
care center, the child care center or day care center shall
notify
that person of the requirement under this section to report
when
he or she is arraigned for certain crimes and the penalty for
not
reporting.
(8) At the time a child care center, group child care home, or
family child care home allows a person to become a child care staff
member, the child care center, group child care home, or family
child care home shall notify that person of the requirement under
this section to report when he or she is arraigned for or convicted
of certain crimes and the penalty for not reporting.
Sec.
5g. (1) When a person applies for a certificate of
registration
to operate a family child care home or a license to
operate
a group child care home under section 5, the department
shall
perform a criminal history check with the department of state
police
on all persons over 18 years of age residing in the home in
which
the family child care home or group child care home is
operated.
This section does not apply to a person residing in the
home
for a period of not more than 14 days.
(2)
Not later than January 1, 2007, the department shall
perform
a criminal history check on all persons over 18 years of
age
residing in the home in which a family child care home or group
child
care home is currently operated.
(3)
If a criminal history check
reveals the department
becomes
aware
that a person over 18 years of age
residing in the member of
the household of a group child care home or family child care home
has been convicted of a listed offense, the department shall not
issue
a certificate of registration or license to the applicant,
shall
not renew a certificate of registration to the registrant or
license to the licensee applying for renewal, or shall revoke a
current
registrant's certificate of registration or current
licensee's license.
Sec.
5h. (1) Except as provided in subsection (7), (6). when
a
person applies for or to renew a license to operate a foster family
home or foster family group home under this act, the department
shall
request the department of state police to perform both of the
following
a criminal history check on that person. :
(a)
Conduct a criminal history check on the person.
(b)
Conduct a criminal records check through the federal
bureau
of investigation on the person.
(2) Each person applying for a license to operate a foster
family home or foster family group home shall give written consent
at the time of application for the department of state police to
conduct
a criminal history check and a criminal records check
required under this section. The department shall require the
person to submit his or her fingerprints to the department of state
police
for the criminal history check and criminal records check
described in subsection (1).
(3)
The department shall request a criminal history check and
criminal
records check required under this
section on a form and in
the manner prescribed by the department of state police.
(4) Within a reasonable time after receiving a complete
request by the department for a criminal history check on a person
under this section, the department of state police shall conduct
the criminal history check and provide a report of the results to
the department. The report shall contain any criminal history
record information on the person maintained by the department of
state police and the Federal Bureau of Investigation.
(5)
Within a reasonable time after receiving a proper request
by
the department for a criminal records check on a person under
this
section, the department of state police shall initiate the
criminal
records check. After receiving the results of the criminal
records
check from the federal bureau of investigation, the
department
of state police shall provide a report of the results to
the
department.
(5) (6)
The department of state police may
charge the
department
a fee for a criminal history check or a criminal records
check
required under this section that
does not exceed the actual
and reasonable cost of conducting the check.
(6) (7)
Beginning January 1, 2008, if If
a person applying to
renew a license to operate a foster family home or foster family
group home under this act has previously undergone a criminal
history
check and criminal records check required under subsection
(1) and has continuously maintained a license to operate a foster
family home or foster family group home under this act after the
criminal
history check and criminal records check have has been
performed, that person is not required to submit to another
criminal
history check or criminal records check upon renewal of
the license obtained to operate a foster family home or foster
family group home under this act.
(8)
The department shall provide written notice to all persons
currently
issued a license to operate a foster family home or
foster
family group home and all applicants applying for a license
to
operate a foster family home or foster family group home, that
upon
renewal all licensees will be required to submit fingerprints
and
undergo a criminal history check and a criminal records check
before
their licenses will be renewed. The notice provided under
this
subsection shall include information to the licensee that he
or
she may submit his or her fingerprints in advance of the time
his
or her license is up for renewal.
Sec. 5i. (1) A person to whom a license to operate a foster
family home or foster family group home has been issued under this
act shall report to the department within 3 business days after he
or she has been arraigned for or convicted of 1 or more of the
following crimes and within 3 business days after he or she knows
or
should reasonably know that a person over 18 years of age
residing
in the home an adult member
of the household has been
arraigned for or convicted of 1 or more of the following crimes:
(a) Any felony.
(b) Any of the following misdemeanors:
(i) Criminal sexual conduct in the fourth degree or an attempt
to commit criminal sexual conduct in the fourth degree.
(ii) Child abuse in the third or fourth degree or an attempt to
commit child abuse in the third or fourth degree.
(iii) A misdemeanor involving cruelty, torture, or indecent
exposure involving a child.
(iv) A misdemeanor violation of section 7410 of the public
health code, 1978 PA 368, MCL 333.7410.
(v) A violation of section 115, 141a, 145a, 335a, or 359 of
the Michigan penal code, 1931 PA 328, MCL 750.115, 750.141a,
750.145a, 750.335a, and 750.359, or a misdemeanor violation of
section 81, 81a, or 145d of the Michigan penal code, 1931 PA 328,
MCL 750.81, 750.81a, and 750.145d.
(vi) A misdemeanor violation of section 701 of the Michigan
liquor control code of 1998, 1998 PA 58, MCL 436.1701.
(vii) Any misdemeanor that is a listed offense.
(c) A violation of a substantially similar law of another
state, of a political subdivision of this state or another state,
or of the United States.
(2) A person who violates subsection (1) is guilty of a crime
as follows:
(a) If the person violates subsection (1) and the crime
involved in the violation is a misdemeanor that is a listed offense
or is a felony, the person is guilty of a felony punishable by
imprisonment for not more than 2 years or a fine of not more than
$2,000.00, or both.
(b) If the person violates subsection (1) and the crime
involved in the violation is a misdemeanor that is not a listed
offense, the person is guilty of a misdemeanor punishable by
imprisonment for not more than 1 year or a fine of not more than
$1,000.00, or both.
(3) The department shall delete from the licensee's records
all information relating to an arraignment required to be reported
under this section if the department receives documentation that
the person arraigned for the crime is subsequently not convicted of
any crime after the completion of judicial proceedings resulting
from that arraignment.
(4)
Not later than January 1, 2008, the department shall
inform
all persons currently issued a license to operate a foster
family
home or foster family group home and all applicants for a
license
to operate a foster family home or foster family group home
of
the requirement to report certain arraignments as required in
this
section and the penalty for not reporting those arraignments.
(5)
At the time the department issues a license to operate a
foster
family home or foster family group home under this act, the
department
shall notify the licensee of the requirement to report
certain
arraignments as required in this section and the penalty
for
not reporting those arraignments.
Sec. 5j. (1) When a person applies for or to renew a license
to operate a foster family home or foster family group home under
this act, the department shall perform a criminal history
background
check with the department of state
police on all persons
over
18 years of age residing in the home in which the foster
family
home or foster family group home is operated. on an adult
member of the household using the department of state police's
internet criminal history access tool (ICHAT). This section does
not apply to a person residing in the home for a period of not more
than 14 days.
(2)
Not later than January 1, 2009, the department shall
perform
a criminal history check with the department of state
police
on all persons over 18 years of age residing in the home in
which
a foster family home or foster family group home is currently
operated.
(2) (3)
If a criminal history check search of the department
of
state police's ICHAT reveals that a
person over 18 years of age
residing
in the foster family home or foster family group home an
adult member of the household has been convicted of a listed
offense, the department shall not issue a license to the applicant,
shall not renew a license to the licensee applying for renewal, or
shall revoke a current licensee's license.
Sec. 5k. (1) The department of state police shall store and
maintain
retain all fingerprints submitted under this act in an
automated fingerprint identification system database that provides
for an automatic notification at the time a subsequent criminal
arrest fingerprint card submitted into the system matches a set of
fingerprints previously submitted in accordance with this act. Upon
such
that notification, the department of state police shall
immediately notify the department and the department shall
immediately
contact the respective child care center, day care
center,
family child care home, group child care home, licensed
child
placing agency or approved governmental unit, foster family
home,
or foster family group home organization
with which that
individual is associated. Except for child placing agencies, the
criminal history record information shall only be released to the
individual to whom the criminal history record information
pertains.
Information in the database maintained
retained under
this
subsection section 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.
(2) When the department of state police is able to participate
with the Federal Bureau of Investigation's automatic notification
system similar to the system administered by the department of
state police under subsection (1), all fingerprints submitted to
the Federal Bureau of Investigation may be stored and retained.
When a subsequent criminal arrest fingerprint card submitted into
the system matches a set of fingerprints for an individual retained
in accordance with this act, the department of state police shall
immediately notify the department. The department shall immediately
contact the child care organization with which the individual is
associated if a conviction results from the arrest. Except for
child placing agencies, the criminal history record information
shall only be released to the individual to whom the criminal
history record information pertains.
Sec. 5l. (1) A person acting in good faith who makes a report,
cooperates in an investigation, or assists in any other requirement
of this act is immune from civil or criminal liability that might
otherwise be incurred by that action. A person making a report or
assisting in any other requirement of this act is presumed to have
acted in good faith. This immunity from civil or criminal liability
extends only to an act performed according to this act for
reporting a potential violation or assisting or cooperating with
the department in an investigation conducted by the department.
(2) The identity of a person making a report and cooperating
with or assisting the department relative to that report under this
act is confidential, subject only to disclosure with the consent of
that person or by judicial process.
(3) If the department receives a complaint by an individual
remaining anonymous, the department may take no action on the
complaint if the complaint does not include sufficient information
to reasonably investigate.
(4) A person who intentionally makes a false report to the
department regarding a child care organization that causes the
department to initiate a high-risk special investigation for which
the child care organization is required to send notice under
section 3f is guilty of a crime as follows:
(a) If the incident reported would not constitute a crime or
would constitute a misdemeanor if the report were true, the person
is guilty of a misdemeanor punishable by imprisonment for not more
than 93 days or a fine of not more than $100.00, or both.
(b) If the incident reported would constitute a felony if the
report were true, the person is guilty of a felony punishable by
the lesser of the following:
(i) The penalty for the incident falsely reported.
(ii) Imprisonment for not more than 4 years or a fine of not
more than $5,000.00, or both.
Sec. 5m. (1) This section and sections 5n to 5s apply only to
a child care center, group child care home, or family child care
home.
(2) A person, partnership, firm, corporation, association,
nongovernmental organization, or governmental organization shall
not establish or maintain a child care center, group child care
home, or family child care home unless licensed by the department.
Application for a child care center, group child care home, or
family child care home license shall be made on forms provided, and
in the manner prescribed, by the department. Before issuing or
renewing a child care center, group child care home, or family
child care home license, the department shall investigate the
applicant's activities and proposed standards of care and shall
make an on-site visit of the proposed or established child care
center, group child care home, or family child care home. Except as
otherwise provided in this subsection and section 5r, if the
department is satisfied as to the need for a child care center,
group child care home, or family child care home, as to its
financial stability, and that the services and facilities are
conducive to the welfare of the children, the department shall
issue or renew the child care center, group child care home, or
family child care home license.
(3) The department shall issue a group child care home or
family child care home license to a person who has successfully
completed an orientation session offered by the department and who
meets the requirements of this act. The department shall make
available to group child care home or family child care home
applicants for licensure an orientation session regarding this act,
the rules promulgated under this act, and the needs of children in
child care before issuing a group child care home or family child
care home license.
(4) Except as provided in subsection (2), the department shall
issue an original or renewal license under this act for child care
centers, group child care homes, and family child care homes 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 the department. 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.
(5) The determination of the completeness of an application is
not an approval of the application for the license and does not
confer eligibility on an applicant determined otherwise ineligible
for issuance of a license.
(6) Except as provided in subsection (2), if the department
fails to issue, deny, or refuse to renew a license to a child care
center, group child care home, or family child care home within the
time required by this section, the department shall return the
application fee and shall reduce the application fee for the
applicant's next renewal application, if any, by 15%. Failure to
issue, deny, or refuse to renew a license to a child care center,
group child care home, or family child care home within the time
period required under this section does not allow the department to
otherwise delay the processing of the application. A 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.
(7) If, on a continual basis, inspections performed by a local
health department delay the department in issuing or denying
licenses for child care centers, group child care homes, and family
child care homes 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.
(8) As used in this section, "completed application" means an
application complete on its face and submitted with any applicable
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 performed by a local health
department.
Sec. 5n. (1) Except as otherwise provided in subsection (13),
when a person, partnership, firm, corporation, association,
governmental organization, or nongovernmental organization applies
for or applies to renew a license to operate a child care center,
group child care home, or family child care home under section 5m
and before a group child care home or family child care home allows
an individual to be a member of the household, or a child care
center, group child care home, or family child care home allows an
individual to become a child care staff member, the department
shall do all of the following:
(a) Review its database of individuals with previous
disciplinary action within a child care center, group child care
home, or family child care home or an adult foster care facility.
(b) Conduct a search of the individual through the national
sex offender registry.
(c) Request a search of the individual through all state
criminal history registries equivalent to the Michigan department
of state police's internet criminal history access tool (ICHAT) for
any states of residence in the past 5 years.
(d) Request that the department of state police perform a
criminal history check on the individual, licensee designee,
program director, child care staff member, or adult member of the
household of the group child care home or family child care home.
(2) If the individual, licensee designee, program director,
child care staff member, or adult member of the household of a
group child care home or family child care home has resided out of
the United States within the preceding 5 years, equivalent
clearances of those described in subsection (1)(b) and (d) and
section 5q from each country must be provided, if available. If the
country does not have the equivalent clearance, the individual must
sign a self-certifying statement that he or she is not ineligible
to receive a license, to be an adult member of the household of a
group child care home or family child care home, or to be a child
care staff member as prescribed by sections 5q and 5r. An
individual who provides or is determined to have provided false
information or knowingly omits information in the self-
certification statement is ineligible for that application.
(3) Each individual listed in subsection (1) shall give
written consent at the time of the license application and before a
group child care home or family child care home allows an
individual to be a member of the household, or before becoming a
child care staff member to allow the department of state police to
conduct the criminal history check required under subsection (1).
The department shall require the individual to submit his or her
fingerprints to the department of state police for the criminal
history check as required in subsection (1).
(4) The department shall request a criminal history check
required under this section on a form and in the manner prescribed
by the department of state police.
(5) Within a reasonable time after receiving a complete
request for a criminal history check on a person under this
section, the department of state police shall conduct the criminal
history check and provide a report of the results to the
department. The report shall contain any criminal history record
information on the person maintained by the department of state
police and the Federal Bureau of Investigation.
(6) The department of state police may charge the department a
fee for a criminal history check required under this section that
does not exceed the actual and reasonable cost of conducting the
check. The department may pass along to the individual
fingerprinted the actual cost or fee charged by the department of
state police for performing a criminal history check required under
this section.
(7) The department shall provide whether the individual is
eligible or ineligible as provided by sections 5q and 5r within 45
days after the date on which the request was submitted.
(8) The individual may serve as a child care staff member
pending the results of the record and database checks required by
this section and section 5q if the individual is supervised at all
times.
(9) Within 45 days after the date on which the request was
submitted, the department shall provide a statement to the child
care center, group child care home, or family child care home that
indicates whether the individual is eligible or ineligible as an
adult member of the household of a group child care home or family
child care home, or to be a child care staff member as provided
under sections 5q and 5r without revealing any disqualifying crime
or other related information regarding the individual.
(10) If the individual is ineligible due to the records or
database checks required under this section and section 5q, the
department shall provide information related to each disqualifying
item in a report to the individual who has been determined
ineligible.
(11) An individual who has been determined to be ineligible as
provided under sections 5q and 5r may appeal to the department if
he or she believes that the basis for the ineligible determination
is inaccurate. The appeal shall be conducted as a contested case
hearing according to the administrative procedures act of 1969,
1969 PA 306, MCL 24.201 to 24.328. The individual shall file the
appeal with the department director, or the director's designee,
within 15 business days after receiving the written report of the
determination that the individual is ineligible, unless that
determination is based on a conviction that may be expunged or set
aside. If an individual has been determined to be ineligible based
on a conviction that may be expunged or set aside, the individual
shall file the appeal on a form provided by the department within
15 business days after the date of a court order granting or
denying his or her application to expunge or set aside that
conviction. If the court order is granted and the conviction is
expunged or set aside, the individual shall not be determined to be
ineligible based solely on that conviction. The director shall
review the appeal and issue a written decision within 30 business
days after receiving the appeal. The decision of the director is
final.
(12) Each ineligible individual shall be given instructions
about how to complete the appeals process as provided in subsection
(11).
(13) Not later than September 30, 2017, every child care
center, licensee, licensee designee, or program director; group
child care home licensee; family child care home licensee; child
care staff member; and adult member of the household of a group
child care home or family child care home shall provide his or her
fingerprints to the department of state police in order to carry
out the records and database checks required under this section and
section 5q.
(14) If a licensee, licensee designee, or program director of
a child care center, group child care home, or family child care
home applying for a new license or to renew a license to operate a
child care center, group child care home, or family child care home
has previously undergone a criminal history check required under
subsections (1) and (13) and has remained continuously licensed
after the criminal history check has been performed, that licensee,
licensee designee, or program director of a child care center,
group child care home, or family child care home is not required to
submit to another criminal history check upon renewal of, or
application for, the license obtained under this act.
(15) Upon consent of an applicant as required in subsection
(3) and upon request from a child care center, group child care
home, or family child care home, the department shall review the
information received from the criminal history check, if any, and
notify the requesting child care center, group child care home, or
family child care home of the information in the manner prescribed
in subsection (7). Until the Federal Bureau of Investigation
implements an automatic notification system as outlined in section
5k, a child care center, group child care home, or family child
care home may rely on the criminal history record information
provided by the department under this subsection and a new request
as provided under this section is not necessary if all of the
following requirements are met:
(a) The criminal history check was conducted during the
immediately preceding 5-year period.
(b) The applicant has been continuously employed by a child
care center, group child care home, or family child care home since
the criminal history check was conducted in compliance with this
section.
(c) The applicant can provide evidence acceptable to the
department that he or she has been a resident of this state for the
immediately preceding 5-year period.
(16) The checks and clearances required in subsection (1)(a)
to (c) and section 5q shall be updated at least every 5 years if
the individual has been continuously licensed, serving as a child
care staff member or an adult member of the household of a group
child care home or family child care home.
Sec. 5o. (1) Except as provided in section 5n(14), the
department shall not issue a license to operate a child care
center, group child care home, or family child care home under this
act without requesting a criminal history check as required by
section 5n.
(2) If a criminal history check performed under section 5n or
information obtained as a result of notification from the
department of state police under section 5k reveals that an
applicant for a license to operate a child care center under this
act has been convicted of a crime as described in section 5r, the
department shall not issue a license to that applicant.
(3) If a criminal history check performed under section 5n or
information obtained as a result of notification from the
department of state police under section 5k reveals that an
applicant for renewal of a license to operate a child care center
under this act has been convicted of a crime as described in
section 5r, the department shall not renew that license.
(4) If a criminal history check performed under section 5n or
information obtained as a result of notification from the
department of state police under section 5k reveals that a current
child care center licensee has been convicted of a crime as
described in section 5r, the department shall revoke the license of
that licensee.
(5) If a criminal history check performed under section 5n or
information obtained as a result of notification from the
department of state police under section 5k reveals that an
applicant for a license to operate a group child care home or
family child care home under this act or an adult member of the
household has been convicted of a crime as described in section 5r,
the department shall not issue a license to that applicant.
(6) If a criminal history check performed under section 5n or
information obtained as a result of notification from the
department of state police under section 5k reveals that an
applicant for renewal of a license to operate a group child care
home or family child care home under this act or an adult member of
the household has been convicted of a crime as described in section
5r, the department shall not renew a license to that applicant.
(7) If a criminal history check performed under section 5n or
information obtained as a result of notification from the
department of state police under section 5k reveals that a current
group child care home or family child care home licensee under this
act or an adult member of the household has been convicted of a
crime as described in section 5r, the department shall revoke that
licensee's license.
Sec. 5p. (1) Except as provided in section 5n(14) and (15), a
child care center, group child care home, or family child care home
shall not allow an individual to be a child care staff member
without requesting a criminal history check as required by section
5n.
(2) If a criminal history check performed under section 5n or
information obtained as a result of notification from the
department of state police under section 5k reveals that a
potential or current child care staff member has been convicted of
a crime as described in section 5r, the department shall notify the
child care center, group child care home, or family child care
home. The child care center, group child care home, or family child
care home shall not allow the individual to be a child care staff
member.
Sec. 5q. (1) Except as provided in section 5n(8), a licensee,
adult member of a group child care home or family child care home,
licensee designee, program director, or child care staff member may
not have contact with a child who is in the care of a child care
center, group child care home, or family child care home, until the
department obtains documentation from the department of health and
human services that he or she has not been named in a central
registry case as the perpetrator of child abuse or child neglect.
Upon request by the department, the licensee, adult member of the
household, licensee designee, program director, or child care staff
member shall provide the department with an updated authorization
for a central registry clearance. If a central registry clearance
documents that a licensee, adult member of the household, licensee
designee, program director, or child care staff member is named in
a central registry case as a perpetrator of child abuse or child
neglect, he or she is ineligible to receive a license to operate a
child care center, group child care home, or family child care
home, to be an adult household member of a group child care home or
family child care home, or to be a child care staff member.
(2) If the licensee, adult member of the household, licensee
designee, program director, or child care staff member has resided
outside of this state as an adult within the 5 years immediately
preceding the date of application for a license, hire as a child
care staff member, or residence in a group child care home or
family child care home, except as provided in section 5n(8), the
individual may not have contact with a child who is in the care of
a child care center, group child care home, or family child care
home until the department obtains documentation equivalent to the
department of health and human services central registry clearance
for the states of previous residence that he or she has not been
named in a central registry case as the perpetrator of child abuse
or child neglect. If the documentation equivalent to the department
of health and human services central registry clearance for the
states of previous residence indicates that the individual is named
as a perpetrator of child abuse or child neglect, the individual is
ineligible to receive a license to operate a child care center,
group child care home, or family child care home, to be an adult
household member of a group child care home or family child care
home, or to be a child care staff member.
(3) Each child care center, group child care home, or family
child care home that has volunteers on site shall establish and
maintain a policy regarding supervision of volunteers including
volunteers who are parents of a child receiving care at the child
care center, group child care home, or family child care home.
(4) As used in this section, "child abuse" and "child neglect"
mean those terms as defined in section 2 of the child protection
law, 1975 PA 238, MCL 722.622.
Sec. 5r. (1) An individual required to undergo a criminal
history check as described in section 5n is ineligible for that
application only, to receive a license, to be an adult member of
the household of a group child care home or family child care home,
or to be a child care staff member if the individual does either of
the following:
(a) Refuses to consent to the criminal history check or
central registry check as required under section 5q.
(b) Knowingly makes a materially false statement or knowingly
omits information in connection with a criminal history check or
central registry check as required under section 5q.
(2) An individual required to undergo a database check as
required under section 5n(1)(a) who has a confirmed history of
disciplinary action or violations as outlined in section 11(6) may
be considered ineligible to receive a license to operate a child
care center, group child care home, or family child care home, to
be an adult member of the household of a group child care home or
family child care home, or to be a child care staff member.
(3) An individual required to undergo a criminal history check
as described in section 5n is ineligible to receive a license to
operate a child care center, group child care home, or family child
care home, to be an adult member of the household of a group child
care home or family child care home, or to be a child care staff
member if the individual satisfies 1 or more of the following:
(a) Is registered, or is required to be registered, on a state
sex offender registry or repository or the national sex offender
registry.
(b) Has been convicted of a felony consisting of 1 or more of
the following or any other state or federal equivalent:
(i) Murder or homicide.
(ii) Child abuse or child neglect.
(iii) A crime against children, including, but not limited to,
child pornography.
(iv) Spousal abuse or domestic violence.
(v) A crime involving rape or sexual assault.
(vi) Kidnapping.
(vii) Arson.
(viii) Physical assault or battery.
(ix) Human trafficking or involuntary servitude.
(c) Has been convicted of a violent misdemeanor against a
child, including, but not limited to, 1 or more of the following
crimes:
(i) Child abuse.
(ii) Child endangerment.
(iii) Sexual assault.
(d) Has been convicted of a misdemeanor involving child
pornography.
(4) An individual required to undergo a criminal history check
as described in section 5n is ineligible to receive a license, to
be an adult member of the household of a group child care home or
family child care home, or to be a child care staff member if the
individual has been convicted of 1 or more of the following
felonies, an attempt or conspiracy to commit 1 or more of the
following felonies, or any other state or federal equivalent,
unless 10 years have lapsed since the conviction, prior to the date
of application or prior to the date a group child care home or
family child care home allows an individual to be an adult member
of the household, or a child care center, group child care home, or
family child care home allows an individual to be a child care
staff member:
(a) A felony involving harm or threatened harm to an
individual.
(b) A felony involving the use of a firearm or dangerous
weapon.
(c) A felony involving cruelty or torture of any person.
(d) A felony involving a substantial misrepresentation of any
material fact, bribery, fraud, larceny, embezzlement, theft, home
invasion, breaking and entering, receiving and concealing stolen
property or a crime of similar statute.
(e) A felony involving operating a motor vehicle while
intoxicated or impaired causing serious injury or death.
(f) A felony involving the use of a computer or the internet
to commit a crime.
(g) A felony involving cruelty to animals, including, but not
limited to, fighting, killing, torturing, and abandoning.
(h) A felony involving aggravated stalking, aggravated
indecent exposure, indecent exposure by a sexually delinquent
person, pandering, transporting an individual for prostitution, and
keeping, maintaining, or operating a house of ill fame.
(i) A felony as a habitual offender.
(5) An individual required to undergo a criminal history check
as described in section 5n is ineligible to receive a license, to
be an adult member of the household of a group child care home or
family child care home, or to be a child care staff member if the
individual has been convicted of a felony drug offense, an attempt
or conspiracy to commit a felony drug offense, or any other state
or federal equivalent, unless 7 years have lapsed since the
conviction prior to the date of application or prior to the date a
group child care home or family child care home allows an
individual to be an adult member of the household or a child care
center, group child care home, or family child care home allows an
individual to be a child care staff member.
(6) An individual required to undergo a criminal history check
as described in section 5n is ineligible to receive a license, to
be an adult member of the household of a group child care home or
family child care home, or to be a child care staff member if the
individual has been convicted of 1 or more of the following
misdemeanors, an attempt or conspiracy to commit any of those
misdemeanors, or any other state or federal equivalent, unless 5
years have lapsed since the conviction prior to the date of
application or prior to the date a group child care home or family
child care home allows an individual to be an adult member of the
household of a group child care home or family child care home or
to be a child care staff member:
(a) A misdemeanor involving operating under the presence of a
controlled substance, use or possession of a controlled substance,
and selling or furnishing a controlled substance to a minor.
(b) A misdemeanor involving using computers to commit a crime,
a substantial misrepresentation of a material fact, embezzlement,
breaking and entering, and any other fraudulent crime except retail
fraud in the third degree, petty theft, or shoplifting.
(c) A misdemeanor involving stalking, assault, spousal abuse,
domestic violence, weapons offense, harboring runaways, aiding and
abetting, and arson.
Sec. 5s. (1) If an individual was previously reviewed and
approved by the department as a licensee or a registrant of a child
care center, group child care home, or family child care home, as a
licensee designee or program director for a child care center, or
member of the household of a group child care home or family child
care home, before the effective date of the amendatory act that
added this section, the department may find the individual to be
eligible to receive a license under this section, to be eligible to
be a member of the household of a group child care home or family
child care home, or to be eligible to be a child care staff member
if all of the following apply:
(a) The offense was previously known and approved by the
department before the effective date of the amendatory act that
added this section.
(b) The offense is not listed in section 5r(3).
(c) The individual has remained continuously licensed under
this act or continuously employed with an active child care center
license, group child care home license, or family child care home
registration since the date of approval.
(2) An individual determined to be ineligible under section
5r, excluding section 5r(3), who was a licensee, licensee designee,
program director, child care staff member, or an adult member of
the household of a group child care home or family child care home
at the time the records and database checks required under section
5n were completed, may request a redetermination of his or her
eligibility. A redetermination must be requested in writing by the
individual determined to be ineligible within 30 days after receipt
of that determination. The request for a redetermination must
include all evidence of rehabilitation that the individual wishes
the department to consider. The department has 60 days, after all
requested information has been received by the department, to
respond in writing with the recommendation for the redetermination.
The decision of the director is final.
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.
Enacting section 2. This amendatory act does not take effect
unless all of the following bills of the 98th Legislature are
enacted into law:
(a) Senate Bill No. 1131.
(b) Senate Bill No. 1130.