BillCam

SENATE BILL No. 67

January 26, 2017, Introduced by Senators HOPGOOD, GREGORY, NOFS, BIEDA, HERTEL, JONES and O'BRIEN and referred to the Committee on Health Policy.

A bill to amend 1974 PA 258, entitled

"Mental health code,"

by amending section 134a (MCL 330.1134a), as amended by 2014 PA 72.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 134a. (1) Except as otherwise provided in subsection (2),

a psychiatric facility or other facility defined in 42 USC 1396d(d)

shall not employ, independently contract with, or grant clinical

privileges to an individual who regularly has direct access to or

provides direct services to patients or residents in the

psychiatric facility or other facility defined in 42 USC 1396d(d)

if the individual satisfies 1 or more of the following:

(a) Has been convicted of a relevant crime described under 42

USC 1320a-7(a).

(b) Has been convicted of any of the following felonies, an

attempt or conspiracy to commit any of those felonies, or any other

state or federal crime that is similar to the felonies described in

this subdivision, other than a felony for a relevant crime

described under 42 USC 1320a-7(a), unless 15 years have lapsed

since the individual completed all of the terms and conditions of

his or her sentencing, parole, and probation for that conviction

prior to before the date of application for employment or clinical

privileges or the date of the execution of the independent

contract:

(i) A felony that involves the intent to cause death or

serious impairment of a body function, that results in death or

serious impairment of a body function, that involves the use of

force or violence, or that involves the threat of the use of force

or violence.

(ii) A felony involving cruelty or torture.

(iii) A felony under chapter XXA of the Michigan penal code,

1931 PA 328, MCL 750.145m to 750.145r.

(iv) A felony involving criminal sexual conduct.

(v) A felony involving abuse or neglect.

(vi) A felony involving the use of a firearm or dangerous

weapon.

(vii) A felony involving the diversion or adulteration of a

prescription drug or other medications.

to commit a felony, other than a felony for a relevant crime

described under 42 USC 1320a-7(a) or a felony described under

subdivision (b), unless 10 years have lapsed since the individual

completed all of the terms and conditions of his or her sentencing,

parole, and probation for that conviction prior to before the date

of application for employment or clinical privileges or the date of

the execution of the independent contract.

(d) Has been convicted of any of the following misdemeanors,

other than a misdemeanor for a relevant crime described under 42

USC 1320a-7(a), or a state or federal crime that is substantially

similar to the misdemeanors described in this subdivision, within

the 10 years immediately preceding the date of application for

employment or clinical privileges or the date of the execution of

the independent contract:

(i) A misdemeanor involving the use of a firearm or dangerous

weapon with the intent to injure, the use of a firearm or dangerous

weapon that results in a personal injury, or a misdemeanor

involving the use of force or violence or the threat of the use of

force or violence.

(ii) A misdemeanor under chapter XXA of the Michigan penal

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

(iii) A misdemeanor involving criminal sexual conduct.

(iv) A misdemeanor involving cruelty or torture unless

otherwise provided under subdivision (e).

(v) A misdemeanor involving abuse or neglect.

(e) Has been convicted of any of the following misdemeanors,

other than a misdemeanor for a relevant crime described under 42

USC 1320a-7(a), or a state or federal crime that is substantially

similar to the misdemeanors described in this subdivision, within

the 5 years immediately preceding the date of application for

employment or clinical privileges or the date of the execution of

the independent contract:

(i) A misdemeanor involving cruelty if committed by an

individual who is less than 16 years of age.

(ii) A misdemeanor involving home invasion.

(iii) A misdemeanor involving embezzlement.

(iv) A misdemeanor involving negligent homicide or a violation

of section 601d(1) of the Michigan vehicle code, 1940 1949 PA 300,

MCL 257.601d.

(v) A misdemeanor involving larceny unless otherwise provided

under subdivision (g).

(vi) A misdemeanor of retail fraud in the second degree unless

otherwise provided under subdivision (g).

(vii) Any other misdemeanor involving assault, fraud, theft,

or the possession or delivery of a controlled substance unless

otherwise provided under subdivision (d), (f), or (g).

(f) Has been convicted of any of the following misdemeanors,

other than a misdemeanor for a relevant crime described under 42

USC 1320a-7(a), or a state or federal crime that is substantially

similar to the misdemeanors described in this subdivision, within

the 3 years immediately preceding the date of application for

employment or clinical privileges or the date of the execution of

the independent contract:

(i) A misdemeanor for assault if there was no use of a firearm

or dangerous weapon and no intent to commit murder or inflict great

bodily injury.

(ii) A misdemeanor of retail fraud in the third degree unless

otherwise provided under subdivision (g).

(iii) A misdemeanor under part 74 of the public health code,

1978 PA 368, MCL 333.7401 to 333.7461, unless otherwise provided

under subdivision (g).

(g) Has been convicted of any of the following misdemeanors,

other than a misdemeanor for a relevant crime described under 42

USC 1320a-7(a), or a state or federal crime that is substantially

similar to the misdemeanors described in this subdivision, within

the year immediately preceding the date of application for

employment or clinical privileges or the date of the execution of

the independent contract:

(i) A misdemeanor under part 74 of the public health code,

1978 PA 368, MCL 333.7401 to 333.7461, if the individual, at the

time of conviction, is under the age of 18.

(ii) A misdemeanor for larceny or retail fraud in the second

or third degree if the individual, at the time of conviction, is

under the age of 16.

(h) Is the subject of an order or disposition under section

16b of chapter IX of the code of criminal procedure, 1927 PA 175,

MCL 769.16b.

(i) Engages in conduct that becomes the subject of a

substantiated finding of neglect, abuse, or misappropriation of

property by a state or federal agency according to under an

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

(2) Except as otherwise provided in this subsection, or

subsection (5), a psychiatric facility or other facility defined in

42 USC 1396d(d) shall not employ, independently contract with, or

grant privileges to an individual who regularly has direct access

to or provides direct services to patients or residents in the

psychiatric facility or other facility defined in 42 USC 1396d(d)

until the psychiatric facility or other facility defined in 42 USC

1396d(d) or staffing agency has conducted a criminal history check

in compliance with this section or received criminal history record

information in compliance with subsection (3) or (10). subsections

(3) and (6). This subsection and subsection (1) do not apply to any

of the following:

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

contract to, or granted clinical privileges in a psychiatric

facility or other facility defined in 42 USC 1396d(d) before April

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

under this subdivision and who has not been the subject of a

criminal history check conducted in compliance with this section

shall provide the department of state police with a set of

fingerprints and the department of state police shall input those

fingerprints into the automated fingerprint identification system

database established under subsection (13). (9). An individual who

is exempt under this subdivision is not limited to working within

the psychiatric facility or other facility defined in 42 USC

1396d(d) with which he or she is employed by, under independent

contract to, or granted clinical privileges on April 1, 2006 but

may transfer to another psychiatric facility or other facility

defined in 42 USC 1396d(d), covered health facility, or adult

foster care facility. If an individual who is exempt under this

subdivision is subsequently convicted of a crime described under

subsection (1)(a) through to (g) or found to be the subject of a

substantiated finding described under subsection (1)(i) or an order

or disposition described under subsection (1)(h), or is found to

have been convicted of a relevant crime described under subsection

(1)(a), then he or she is no longer exempt and shall be terminated

from employment or denied employment or clinical privileges.

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

psychiatric facility or other facility defined in 42 USC 1396d(d)

if he or she is not under the facility's control and the services

for which he or she is contracted is not directly related to the

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

for which he or she is contracted allows for direct access to the

patients or residents but is not performed on an ongoing basis.

This exception includes, but is not limited to, an individual who

is under an independent contract with the psychiatric facility or

other facility defined in 42 USC 1396d(d) to provide utility,

maintenance, construction, or communications services.

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

employee or as an independent contractor or for clinical privileges

with a psychiatric facility or other facility defined in 42 USC

1396d(d) or a staffing agency and who has not been the subject of a

criminal history check conducted in compliance with this section

shall give written consent at the time of application for the

department of state police to conduct a criminal history check

under this section, along with identification acceptable to the

department of state police. If the applicant has been the subject

of a criminal history check conducted in compliance with this

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

application for the psychiatric facility or other facility defined

in 42 USC 1396d(d) or staffing agency to obtain the criminal

history record information as prescribed in subsection (4) from the

relevant licensing or regulatory department of licensing and

regulatory affairs and for the department of state police to

conduct a criminal history check under this section if the

requirements of subsection (10) (6) are not met and a request to

the federal bureau of investigation Federal Bureau of Investigation

to make a determination of the existence of any national criminal

history pertaining to the applicant is necessary, along with

identification acceptable to the department of state police. Upon

receipt of the written consent to obtain the criminal history

record information and identification required under this

subsection, the psychiatric facility or other facility defined in

42 USC 1396d(d) or staffing agency that has made a good-faith offer

of employment or an independent contract or clinical privileges to

the applicant shall request the criminal history record information

from the relevant licensing or regulatory department of licensing

and regulatory affairs and shall make a request regarding that

applicant to the relevant licensing or regulatory department of

licensing and regulatory affairs to conduct a check of all relevant

registries in the manner required in subsection (4). If the

requirements of subsection (10) (6) are not met and a request to

the federal bureau of investigation Federal Bureau of Investigation

to make a subsequent determination of the existence of any national

criminal history pertaining to the applicant is necessary, the

psychiatric facility or other facility defined in 42 USC 1396d(d)

or staffing agency shall proceed in the manner required in

subsection (4). A staffing agency that employs an applicant who

regularly has direct access to or provides direct services to

patients or residents under an independent contract with a

psychiatric facility or other facility defined in 42 USC 1396d(d)

shall submit information regarding the criminal history check

conducted by the staffing agency to the psychiatric facility or

other facility defined in 42 USC 1396d(d) that has made a good-

faith offer of independent contract to that applicant.

(4) Upon receipt of the written consent to conduct a criminal

history check and identification required under subsection (3), a

psychiatric facility or other facility defined in 42 USC 1396d(d)

or staffing agency that has made a good-faith offer of employment

or an independent contract or clinical privileges to the applicant

shall make a request to the department of state police to conduct a

criminal history check on the applicant, to input the applicant's

fingerprints into the automated fingerprint identification system

database, and to forward the applicant's fingerprints to the

federal bureau of investigation. Federal Bureau of Investigation.

The department of state police shall request the federal bureau of

investigation Federal Bureau of Investigation to make a

determination of the existence of any national criminal history

pertaining to the applicant. The applicant shall provide the

department of state police with a set of fingerprints. The request

shall be made in a manner prescribed by the department of state

police. The psychiatric facility or other facility defined in 42

USC 1396d(d) or staffing agency shall make the written consent and

identification available to the department of state police. The

psychiatric facility or other facility defined in 42 USC 1396d(d)

or staffing agency shall make a request regarding that applicant to

the relevant licensing or regulatory department of licensing and

regulatory affairs to conduct a check of all relevant registries

established under federal and state law and regulations for any

substantiated findings of abuse, neglect, or misappropriation of

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

of investigation Federal Bureau of Investigation charges a fee for

conducting the criminal history check, the psychiatric facility or

other facility defined in 42 USC 1396d(d) or staffing agency shall

pay the cost of the charge. The psychiatric facility or other

facility defined in 42 USC 1396d(d) or staffing agency shall not

seek reimbursement for a charge imposed by the department of state

police or the federal bureau of investigation Federal Bureau of

Investigation from the individual who is the subject of the

criminal history check. A prospective employee or a prospective

independent contractor covered under this section may not be

charged for the cost of a criminal history check required under

this section. The department of state police shall conduct a

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

department of state police shall provide the department of

licensing and regulatory affairs with a written report of the

criminal history check conducted under this subsection. The report

shall contain any criminal history record information on the

applicant maintained by the department of state police. The

department of state police shall provide the results of the federal

bureau of investigation Federal Bureau of Investigation

determination to the department of licensing and regulatory affairs

within 30 days after the request is made. If the requesting

psychiatric facility or other facility defined in 42 USC 1396d(d)

or staffing agency is not a state department or agency and if

criminal history record information is disclosed on the written

report of the criminal history check or the federal bureau of

investigation Federal Bureau of Investigation determination that

resulted in a conviction, the department of licensing and

regulatory affairs shall notify the psychiatric facility or other

facility defined in 42 USC 1396d(d) or staffing agency and the

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

report of the criminal history check or the federal bureau of

investigation Federal Bureau of Investigation determination without

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

department of state police or the federal bureau of investigation

Federal Bureau of Investigation for conducting a criminal history

check or making a determination under this subsection shall be paid

in the manner required under this subsection. The notice shall

include a statement that the applicant has a right to appeal the

information relied upon by the psychiatric facility or other

facility defined in 42 USC 1396d(d) or staffing agency regarding

his or her employment eligibility based on the criminal history

check. The notice shall also include information regarding where to

file and describing the appellate procedures established under

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

333.20173b.

(5) If a psychiatric facility or other facility defined in 42

USC 1396d(d) determines it necessary to employ or grant clinical

privileges to an applicant before receiving the results of the

applicant's criminal history check or criminal history record

information under this section, the psychiatric facility or other

facility defined in 42 USC 1396d(d) may conditionally employ or

grant conditional clinical privileges to the individual if all of

the following apply:

(a) The psychiatric facility or other facility defined in 42

USC 1396d(d) requests the criminal history check or criminal

history record information under this section upon conditionally

employing or conditionally granting clinical privileges to the

individual.

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

all of the following:

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

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

the applicable time period prescribed by each subdivision

respectively.

(ii) That he or she is not the subject of an order or

disposition described in subsection (1)(h).

(iii) That he or she has not been the subject of a

substantiated finding as described in subsection (1)(i).

(iv) 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) through

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

terminated by the psychiatric facility or other facility defined in

42 USC 1396d(d) as required under subsection (1) unless and until

the individual appeals and can prove that the information is

incorrect.

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

subparagraphs (i) through (iv) that result in the termination of

his or her employment or clinical privileges and that those

conditions are good cause for termination.

psychiatric facility or other facility defined in 42 USC 1396d(d)

does not permit the individual to have regular direct access to or

provide direct services to patients or residents in the psychiatric

facility or other facility defined in 42 USC 1396d(d) without

supervision until the criminal history check or criminal history

record information is obtained and the individual is eligible for

that employment or clinical privileges. If required under this

subdivision, the psychiatric facility or other facility defined in

42 USC 1396d(d) shall provide on-site supervision of an individual

in the facility on a conditional basis under this subsection by an

individual who has undergone a criminal history check conducted in

compliance with this section. A psychiatric facility or other

facility defined in 42 USC 1396d(d) may permit an individual in the

facility on a conditional basis under this subsection to have

regular direct access to or provide direct services to patients or

residents in the psychiatric facility or other facility defined in

42 USC 1396d(d) without supervision if all of the following

conditions are met:

(i) The psychiatric facility or other facility defined in 42

USC 1396d(d), at its own expense and before the individual has

direct access to or provides direct services to patients or

residents of the psychiatric facility or other facility defined in

42 USC 1396d(d), conducts a search of public records on that

individual through the internet criminal history access tool

maintained by the department of state police and the results of

that search do not uncover any information that would indicate that

the individual is not eligible to have regular direct access to or

provide direct services to patients or residents under this

section.

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

direct services to patients or residents of the psychiatric

facility or other facility defined in 42 USC 1396d(d), the

individual signs a statement in writing that he or she has resided

in this state without interruption for at least the immediately

preceding 12-month period.

(iii) If applicable, the individual provides to the department

of state police a set of fingerprints on or before the expiration

of 10 business days following the date the individual was

conditionally employed or granted conditional clinical privileges

under this subsection.

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

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

department shall make the model form available to psychiatric

facilities or other facility defined in 42 USC 1396d(d) subject to

this section upon request at no charge.

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

is granted conditional clinical privileges under subsection (5),

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

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

(5)(b)(i) through (iii), the psychiatric facility or other facility

defined in 42 USC 1396d(d) shall terminate the individual's

employment or clinical privileges as required by subsection (1).

(8) An individual who knowingly provides false information

regarding his or her identity, criminal convictions, or

substantiated findings on a statement described in subsection

(5)(b)(i) through (iii) is guilty of a misdemeanor punishable by

imprisonment for not more than 93 days or a fine of not more than

$500.00, or both.

(5) (9) A psychiatric facility or other facility defined in 42

USC 1396d(d) or staffing agency shall use criminal history record

information obtained under subsection (3) or (4) only for the

purpose of evaluating an applicant's qualifications for employment,

an independent contract, or clinical privileges in the position for

which he or she has applied. and for the purposes of subsections

(5) and (7). A psychiatric facility or other facility defined in 42

USC 1396d(d) or staffing agency or an employee of the psychiatric

facility or other facility defined in 42 USC 1396d(d) or staffing

agency shall not disclose criminal history record information

obtained under subsection (3) or (4) to a person who is not

directly involved in evaluating the applicant's qualifications for

employment, an independent contract, or clinical privileges. An

individual who knowingly uses or disseminates the criminal history

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

violation of this subsection is guilty of a misdemeanor punishable

by imprisonment for not more than 93 days or a fine of not more

than $1,000.00, or both. Except for a knowing or intentional

release of false information, a psychiatric facility or other

facility defined in 42 USC 1396d(d) or staffing agency has no

liability in connection with a criminal history check conducted in

compliance with this section or the release of criminal history

record information under this subsection.

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

subsection (3) and upon request from a psychiatric facility or

other facility defined in 42 USC 1396d(d) or staffing agency that

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

contract or clinical privileges to the applicant, the relevant

licensing or regulatory department of licensing and regulatory

affairs shall review the criminal history record information, if

any, and notify the requesting psychiatric facility or other

facility defined in 42 USC 1396d(d) or staffing agency of the

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

federal bureau of investigation Federal Bureau of Investigation

implements an automatic notification system similar to the system

required of the state police under subsection (13) (9) and federal

regulations allow the federal criminal record to be used for

subsequent authorized uses, as determined in an order issued by the

department of licensing and regulatory affairs, a covered health or

staffing agency facility may rely on the criminal history record

information provided by the relevant licensing or regulatory

department of licensing and regulatory affairs under this

subsection and a request to the federal bureau of investigation

Federal Bureau of Investigation to make a subsequent determination

of the existence of any national criminal history pertaining to the

applicant is not necessary if all of the following requirements are

met:

(a) The criminal history check was conducted during the

immediately preceding 12-month period.

(b) The applicant has been continuously employed by a

psychiatric facility or other facility defined in 42 USC 1396d(d),

covered health facility, or adult foster care facility or the

staffing agency since the criminal history check was conducted in

compliance with this section or meets the continuous employment

requirement of this subdivision other than being on layoff status

for less than 1 year from a psychiatric facility or other facility

defined in 42 USC 1396d(d), covered health facility, or adult

foster care facility.

relevant licensing or regulatory department of licensing and

regulatory affairs that he or she has been a resident of this state

for the immediately preceding 12-month period.

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

employee, independent contractor, or individual granted clinical

privileges shall do each of the following:

(a) Agree in writing to report to the psychiatric facility or

other facility defined in 42 USC 1396d(d) or staffing agency

immediately upon being arraigned for 1 or more of the criminal

offenses listed in subsection (1)(a) through to (g), upon being

convicted of 1 or more of the criminal offenses listed in

subsection (1)(a) through to (g), upon becoming the subject of an

order or disposition described under subsection (1)(h), and upon

being the subject of a substantiated finding of neglect, abuse, or

misappropriation of property as described in subsection (1)(i).

Reporting of an arraignment under this subdivision is not cause for

termination or denial of employment.

(b) If a set of fingerprints is not already on file with the

department of state police, provide the department of state police

with a set of fingerprints.

(8) (12) In addition to sanctions set forth in this act, a

licensee, owner, administrator, or operator of a psychiatric

facility or other facility defined in 42 USC 1396d(d) or staffing

agency 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.

(9) (13) In collaboration with the department of state police,

the department of technology, management, and budget shall

establish and maintain an automated fingerprint identification

system database that would allow the department of state police to

store and maintain all fingerprints submitted under this section

and would provide for an automatic notification if and when a

subsequent criminal arrest fingerprint card submitted into the

system matches a set of fingerprints previously submitted under

this section. Upon notification, the department of state police

shall immediately notify the department of licensing and regulatory

affairs and the department of licensing and regulatory affairs

shall immediately contact each respective psychiatric facility or

other facility defined in 42 USC 1396d(d) or staffing agency with

which that individual is associated. Information in the database

established under this subsection is confidential, is not subject

to disclosure under the freedom of information act, 1976 PA 442,

MCL 15.231 to 15.246, and shall not be disclosed to any person

except for purposes of this act or for law enforcement purposes.

(10) (14) The department of licensing and regulatory affairs

shall maintain an electronic web-based system to assist psychiatric

facilities or other facility defined in 42 USC 1396d(d) and

staffing agencies required to check relevant registries and conduct

criminal history checks of its employees and independent

contractors, and individuals granted privileges and to provide for

an automated notice to those psychiatric facilities or other

facility defined in 42 USC 1396d(d) and staffing agencies for those

individuals inputted in the system who, since the initial criminal

history check, have been convicted of a disqualifying offense or

have been the subject of a substantiated finding of abuse, neglect,

or misappropriation of property. The department of licensing and

regulatory affairs may charge a staffing agency a 1-time set-up fee

of up to $100.00 for access to the electronic web-based system

under this section.

(11) (15) As used in this section:

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

facility licensed under the adult foster care facility licensing

act, 1979 PA 218, MCL 400.701 to 400.737.

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

(i) For a crime that is not a relevant crime, a final

conviction, the payment of a fine, a plea of guilty or nolo

contendere if accepted by the court, or a finding of guilt for a

criminal law violation or a juvenile adjudication or disposition by

the juvenile division of probate court or family division of

circuit court for a violation that if committed by an adult would

be a crime.

(ii) For a relevant crime described under 42 USC 1320a-7(a),

convicted means that term as defined in 42 USC 1320a-7.

medical care facility, hospice, hospital that provides swing bed

services, or home for the aged licensed under article 17 of the

public health code, 1978 PA 368, MCL 333.20101 to 333.22260, or

home health agency.

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

section" includes a criminal history check conducted under this

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

3658, 368, MCL 333.20173a, or under section 34b of the adult foster

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

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

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

medical records, treatment information, or any other identifying

information.

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

Medicare whose business is to provide to individuals in their

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

county medical care facility 1 or more of the following services:

nursing services, therapeutic services, social work services,

homemaker services, home health aide services, or other related

services.

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

health facility or agency with an individual who provides the

contracted services independently or a contract entered into by a

health facility or agency with a staffing agency that complies with

the requirements of this section to provide the contracted services

to the psychiatric facility or other facility defined in 42 USC

1396d(d) on behalf of the staffing agency.

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

Medicare program established under title XVIII of the social

security act, 42 USC 1395 to 1395kkk-1.1395lll.

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

and provides temporary and permanent qualified staffing for

psychiatric facilities or other facility defined in 42 USC

1396d(d), including independent contractors.

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

employed by or under independent contract with a psychiatric

facility or other facility defined in 42 USC 1396d(d) for whom the

psychiatric facility or other facility defined in 42 USC 1396d(d)

does both of the following:

(i) Determines whether the individual who has access to

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

support service functions to patients or residents served by the

psychiatric facility or other facility defined in 42 USC 1396d(d).

(ii) Directs or oversees 1 or more of the following:

(A) The policy or procedures the individual must follow in

performing his or her duties.

(B) The tasks performed by the individual.

(D) The supervision or evaluation of the individual's work or

job performance, including imposing discipline or granting

performance awards.

(E) The compensation the individual receives for performing

his or her duties.

(F) The conditions under which the individual performs his or

her duties.

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.