BACKGROUND CHECK PILOT PROGRAM

BACKGROUND CHECK PILOT PROGRAM OPERATIONAL PROTOCOL GUIDE BACKGROUND CHECK PILOT PROGRAM OPERATIONAL PROTOCOL GUIDE State Agency: Grantee - Michigan Department of Community Health Project ID Number: Grant No. 11- P- 93042 /5-01 Final July 27, 2005

TABLE OF CONTENTS SECTIO N TOPIC PAGE PART A 1 OPERATIONAL PROTOCOL GUIDE INSTRUCTIONS 3 2 DEFINITIONS 4 3 OPERATIONAL PROTOCOL 6 4 NOTIFICATION OF SUBSTANTIAL CHANGE 7 5 PROJECT OFFICER 7 PART B 1 STATE AGENCY CONTACT 8 2 STATE AUTHORITY 8 3 BACKGROUND CHECK PROGRAM COMPONENTS 19 4 BACKGROUND CHECK PROCESS 21 5 FITNESS DETERMINATION 26 6 EMPLOYMENT/STAFFING AGENCIES 31 7 PROVISIONAL EMPLOYMENT 31 8 BACKGROUND CHECK ACCURACY 32 9 APPEALS 33 10 REHABILITATION REVIEW 34 11 BACKGROUND CHECK PROCESSFLOW 36 12 COMPLIANCE MONITORING & FEEDBACK 38 13 EDUCATION & TECHNICAL ASSISTANCE PLAN 39 14 MANAGEMENT 39 15 SYSTEM INFRASTRUCTURE 39 16 PROGRAM IMPLEMENTATION 40 17 CMS DATA REPORTING REQUIREMENTS 41 18 PILOT PHASE-DOWN PLAN 42 19 ATTACHMENTS 42

PART A 1. OPERATIONAL PROTOCOL GUIDE INSTRUCTIONS 1.1. Pilot Program Background Section 307 of the Medicare Prescription Drug, Improvement, and Modernization Act (MMA) of 2003 (PL 108-173) established the framework for a program to evaluate national and state background checks on prospective employees with direct access to patients of long- term care facilities or providers. The program s purpose is to identify efficient, effective, and economical procedures for conducting background checks. The pilot will be administered by the Centers for Medicare & Medicaid Services (CMS), in consultation with the Department of Justice. The pilot programs will operate from January 2005 through September 2007. Pilot states may phase in the implementation of their background check program, but all aspects of the program must be fully operational by March 31, 2006, to allow obtaining sufficient data for the evaluation. 1.2. Background Check Pilot Program Requirements Pilot states have established their specific background check requirements; however, each state program must include, at a minimum, the following requirements as set forth in Section 307 of the MMA: Long- term care facilities and providers must conduct background checks for all direct patient access employees prior to the applicant s employment. Long- term care facilities subject to these requirement include: o Skilled nursing facilities/ nursing facilities o Long- term care hospitals/hospitals with swing beds o Intermediate care facilities for persons with mental retardation (ICFs/MR) o Home health agencies o Home and- community- based service (HBCS) group homes over 8 beds o Personal care agencies Medicaid State Plan o Additional provider types included in the state s proposal As a condition of employment, the applicant must provide the following: o A written statement disclosing any disqualifying information o A written statement authorizing the facility or provider to request a national and state criminal history check o A set of 10 rolled fingerprints The background check must include a search of: o Any available registry (including state nurse aide registries) and databases that would likely contain disqualifying information about the applicant, and o State and national criminal records, through a 10 rolled fingerprint check, utilizing state criminal records and the Integrated Automated Fingerprint Identification System of the Federal Bureau of Investigation (FBI). The background check procedure must permit the facility to terminate the check at any stage that disqualifying information regarding the applicant is obtained. The background check results must be reviewed to determine if the applicant has any relevant crimes or offenses. States must ensure facilities only use any the background check information for the purpose of determining suitability of employment.

Long- term care facilities may not knowingly employ any direct patient access worker who as any disqualifying information. States must establish procedures to permit applicants to appeal or dispute the accuracy of the background check results. States must ensure that long- term care facilities, when denying employment to applicants and reasonably relying upon the results of the background check, are provided immunity from any action brought by the applicant due to the employment decision. States must establish a method to monitor compliance with the background check requirements. States must report the existence of any the conviction or a relevant crime to the Healthcare Integrity and Protection Data Bank (HIPDB) database regarding any employee subject to reporting requirements under section 1128E of the Social Security Act II (42 USC 1320a- 7e). 1.3. Other Program Provisions States may elect to include other background check provisions, such as: Allowing long- term care facilities/providers a period of provisional employment for direct patient access employees, pending receipt of the background check results. Supervision of the employee is required during this period, as determined by the state. Establishing procedures for conducting background checks on direct access patient applicants who are employed by employment agencies (including temporary employment or staffing agencies). 1.4. Evaluation Separate funds have been ear- marked to conduct an independent evaluation of the background check pilot. The evaluation will: Analyze the effectiveness and costs associated with conducting state and national background checks for long- term care employees Compile lessons learned from the pilot states to guide further decisions 2. DEFINITIONS Definitions used in the context of the CMS Background Check Pilot Program include the following: 2.1. Abuse Prevention Training Program A program for direct patient access employees and their managers that addresses the issues that precipitate abusive behavior and provides preventive solutions for reducing incidents of abuse and neglect and for improving the quality of care for patients with long term illnesses or disabilities. 2.2. Any Available Registries Any state- based registries or databases, in addition to the state s nurse aide registry, that identify those who have been approved by state requirements to provide care to residents or patients in long- term care facilities or by providers of long- term care

services. These registries may include, but are not limited to, those which list physicians, nurses, psychologists, and other professionals who are considered direct access employees. In addition, to the extent required by CMS, other national databases that should be checked include the Medicare Exclusion Database (MED), Fraud Investigation Database (FID), Healthcare Integrity and Protection Data Bank (HIPDB), or the National Practitioner Data Bank (NPDB), for those categories of employees that the database or registry focuses (e.g., physicians may include a check of the NPDB, but that database is unlikely to contain disqualifying information for a nurse aide). 2.3. Background Check The process by which the state- appointed agency, the provider, or the employer conducts a legislatively- approved investigation (with written approval of a direct patient access employee s personally provided information) at the time of application for employment. For the purpose of this program, a background check includes the checking of any available registries (e.g., nurse aide registry, see 2.2), and a search of state and national criminal history records through a 10- rolled fingerprint check. 2.4. Centers for Medicare and Medicaid Services (CMS) The federal agency that administers the Medicare program and works in partnership with the states to administer Medicaid, the State Children s Health Insurance Program (SCHIP), and the health insurance portability standards. CMS is responsible for the administrative standards of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and quality standards in health care facilities through its survey and certification activity. 2.5. Conviction for a Relevant Crime Any federal or state criminal conviction for any offense described in section 1128(a) of the Social Security Act (42 U.S.C. 1320a 7) and such other types of offenses a participating state may specify for purposes of conducting the pilot program in that state. 2.6. Direct Patient Access Employee Any individual (other than a volunteer) that has access to a patient or resident of a longterm care facility or provider through employment or through a contract with such facility or provider, as determined by the state. 2.7. Disqualifying Information A conviction for a relevant crime or a finding of patient or resident abuse. 2.8. Employment Agency An organization that provides temporary, part- time, or permanent staff to a requesting facility or provider organization. 2.9. Finding of Patient or Resident Abuse The term finding of patient or resident abuse means any substantiated finding by a state agency under section 1819(g)(1)(C) or 1919(g)(1)(C) of the Social Security Act (42 U.S.C. 1395i 3(g)(1)(C), 1396r(g)(1)(C)) or a federal agency that a direct patient access employee has committed (A) an act of patient or resident abuse or neglect or a misappropriation of patient or resident property; or (B) such other types of acts as a participating state may specify for purposes of conducting the pilot program in such state. 2.10. Fitness Determination

A decision made by either the state appointed agency, the provider, or the employer to either offer a position of employment or to deny a position of employment, based on the information obtained through the background check search. 2.11. Livescan and Cardscan Automated devices for generating and transmitting digitized fingerprint images. Livescan devices capture fingerprint images directly from subjects fingers, which are rolled onto glass scanning plates. Cardscan devices scan and digitize standard inked fingerprint cards and can transmit electronic images with related textual data to remote sits for printout or direct use.

2.12. Long Term Care Facility or Provider Participating states must require, at a minimum, certain long term care facilities or providers, which receive payment for services under title XVIII or XIX of the Social Security Act, in their background check program, including, skilled nursing facilities, nursing facilities, home health agencies, long- term care hospitals, providers of personal care services, residential care providers that arranges for, or directly provides, long- term care services, intermediate care facilities for the mentally retarded. States may choose to expand this list of providers. 2.13. National Criminal History Background Check The criminal history record system maintained by the Federal Bureau of Investigation based on fingerprint identification, through its Integrated Automated Fingerprint Identification System (IAFIS) and the utilization of state criminal records or other methods of positive identification. 2.14. Nurse Aide Registry A federal mandate requiring states to establish and maintain a registry which contains information on individuals who have successfully completed a nurse aide training and competency evaluation program in accordance with federal requirements and who have been found competent to perform as a nurse aide in long term care. States must also permanently maintain information on the registry regarding nurse aides who have a substantiated governmental finding of resident abuse or neglect or misappropriation of resident property. 2.15. Participating State A state issued an award agreement by CMS to participate in the Background Check Pilot Program. 2.16. Rehabilitation The reestablishment of an individual s character following conviction of a crime as defined by state statute or regulation. Rehabilitation may be demonstrated by the passage of time and by examining an individual s activities and lifestyle. 2.17. Set of Fingerprints A rolled impression of a prospective direct access employee s 10 fingertips. 3. OPERATIONAL PROTOCOL States participating in the Background Check Pilot Program, having agreed to accept the Terms and Conditions of the pilot grant, must submit an Operational Protocol. The Operational Protocol must: Describe in detail the state policies and procedures to be followed during the pilot period Detail the responsibilities of any parties included in the program, including: o The providers included in the program o Any state government personnel o Additional third parties (e.g., contractors) involved in the program As part of the application process, state agencies submitted a Project Narrative (limited to 40 pages), which provided a concise description of their proposed pilot program. While similar to the Project Narrative, the Operational Protocol must fully describe the state s detailed plan to operationalize their proposal.

Part B of this Operational Protocol Guide provides a format to ensure thoroughness and consistency for each state s Operational Protocol. Please detail your program operations in the space provided, using this guide as a template. Lengthy, narrative explanations are not recommended. As much as possible, please utilize a bullet or numbered format, flow charts and visual diagrams to describe your program. Feel free to add or enhance your Operational Guide, but every topic must be addressed. If a specific topic does not apply to your program, indicate that fact. Submit the first draft of your completed Operational Protocol as an attachment, via e- mail, to your assigned CMS Project Officer by Friday, April 29, 2005. Your CMS Background Check Pilot Program Project Officer will review your draft protocol and provide further direction if necessary. The final Operational Protocol must be reviewed and approved by CMS no later than the end of the pilot s first budget quarter (June 30, 2005). 4. NOTIFICATION OF SUBSTANTIAL CHANGE 4.1. Report Substantial Changes Any substantial change to your state s operations, as detailed in your state s approved CMS Background Check Pilot Program Operations Protocol, must be reported in writing to your CMS Background Check Pilot Project Officer. You must apply for approval by submitting the proposed change in writing to your CMS Project Officer. The change may not be implemented until CMS approves the program change. A CMS Background Check Pilot Program Substantial Change Notification tool has been developed for your convenience. 4.2. Substantial Change Examples Substantial changes include any significant change in the key components of your Background Check Pilot Program operations, including, but not limited to, the following: Change in state legislation enabling or prohibiting any requirement under Section 307 of the MMA Change in the registry and database search process Change in the state criminal record search process Change in the FBI IAFIS record search process Change in the fitness determination process Change in the background check costs and fee(s) Change in the disqualifying information Change in the appeals process Change in the rehabilitation process Change in the provision of facility immunity Change in the state monitoring and enforcement of the background check requirements Change in the data collection for the CMS evaluation Change in the name, address, telephone, fax or e- mail address for your program s CMS primary and secondary contact person 5. PROJECT OFFICER If you have any questions regarding the Operational Protocol Guide or the scope and implementation of your program, contact your CMS Background Check Pilot Project Officer (see list below). Your project officer will be scheduling monthly conference calls to discuss and assist with the implementation of your state s program.

Project Officer Phone Number E- mail Address Thomas Kress 410-786- 8533 thomas.kress@cms.hhs.gov Susan Larsen 410-786- 2640 susan.larsen@cms.hhs.gov Cindy Melanson 410-786- 0310 cindy.melanson@cms.hhs.go v Joann Perry 410-786- 3336 joann.perry@cms.hhs.gov Laura Weber 410-786- 0227 laura.weber@cms.hhs.gov

PART B OPERATIONAL PROTOCOL 1. STATE AGENCY CONTACT Provide the name, address, telephone number, fax number and e- mail address of your state s CMS Background Check Pilot Program primary and secondary contacts. Primary Contact Secondary Contact Name: Jan Christensen Name: Gloria Lanum Address: Health Policy, Regulation and Professions Administration Michigan Dept of Community Health Lewis Cass Building, 6 th Floor 320 S. Walnut Street Lansing, MI 48913 Address: Health Policy, Regulation and Professions Administration Michigan Dept of Community Health Lewis Cass Building, 6 th Floor 320 S. Walnut Street Lansing, MI 48913 Telephone 517-241- 1197 Telephone 517-241- 2066 Fax: 517-241- 1200 Fax: 517-241- 1200 E- mail: ChristensenJ@michigan.gov E- mail: LanumG@michigan.gov 2. STATE AUTHORITY 2.1. Current State Authority Describe your state s current authority to meet all aspects of the CMS Background Check Pilot Program requirements. Provide state s statutory or regulatory language and citations in the appropriate column to indicate your state authority to conform with each requirement of Section 307 of the MMA.

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(1) REQUIREMENTS. IN GENERAL. MCL 333.20173 (3) An individual who applies Under the pilot program, a long- term for employment either as an employee or as care facility or provider in a an independent contractor or for clinical participating State, prior to employing privileges with a health facility or agency that a direct patient access employee that is a nursing home, county medical care is first hired on or after the facility, or home for the aged and has received commencement date of the pilot a good faith offer of employment, an program in the State, shall conduct a independent contract, or clinical privileges background check on the employee in from the health facility or agency shall give accordance with such procedures as written consent at the time of application for the participating State shall establish. the department of state police to conduct a criminal history check under subsection (4) or (5), or both, along with identification acceptable to the department of state police. (This currently includes only those who provide direct services.) 307(b)(2)(A)(1)(i) PROCEDURES. IN GENERAL. The procedures established by a participating State under paragraph should be designed to give a prospective direct access patient employee notice that the long- term care facility or provider is required to perform background checks with respect to new employees. MCL 400.734a(3) An individual who applies for employment either as an employee or as an independent contractor with an adult foster care facility and has received a good faith offer of employment or independent contract from the adult foster care facility shall give written consent at the time of application for the department of state police to conduct a criminal history check under this section, along with identification acceptable to the department of state police. (This currently includes only those who provide direct services.) MCL 333.20173 (3) An individual who applies for employment either as an employee or as an independent contractor or for clinical privileges with a health facility or agency that is a nursing home, county medical care facility, or home for the aged and has received a good faith offer of employment, an independent contract, or clinical privileges from the health facility or agency shall give written consent at the time of application for the department of state police to conduct a criminal history check under subsection (4) or (5), or both, along with identification acceptable to the department of state police. MCL 400.734a(3) An individual who applies for employment either as an employee or as an independent contractor with an adult foster care facility and has received a good faith offer of employment or independent contract from the adult foster care facility shall give written consent at the time of application for the department of state police to conduct a criminal history check under this section, along with identification acceptable to the department of state police.

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(2)(A)(1)(ii) Require, as a condition of MCL 333.20173 (6) If a health facility or employment, that the employee agency that is a nursing home, county medical care facility, or home for the aged determines it necessary to employ or grant clinical privileges to an applicant before receiving the results of the applicant's criminal history check under subsection (4) or (5), or both, the health facility or agency may conditionally employ or grant conditional clinical privileges to the individual if all of the following apply: (a) The health facility or agency requests the criminal history check under subsection (4) or (5), or both, 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) and (b) within the applicable time period prescribed by subsection (1)(a) and (b). (ii) The individual agrees that, if the information in the criminal history check conducted under subsection (4) or (5), or both, does not confirm the individual's statement under subparagraph (i), his or her employment or clinical privileges will be terminated by the health facility or agency as required under subsection (1) unless and until the individual can prove that the information is incorrect. The health facility or agency shall provide a copy of the results of the criminal history check conducted under subsection (4) or (5), or both, to the applicant upon request. (iii) That he or she understands the conditions described in subparagraphs (i) and (ii) that result in the termination of his or her employment or clinical privileges and that those conditions are good cause for termination. MCL 400.734a(7) If an adult foster care facility determines it necessary to employ or independently contract with an individual before receiving the results of the individual's criminal history check required under this section, the adult foster care facility may conditionally employ the individual if both of the following apply: (a)the adult foster care facility requests the criminal history check required under this section, upon conditionally employing the individual. (b) The individual signs a written statement indicating all of the following:

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(2)(A)(1)(ii)(I) Provide a written statement disclosing MCL 333.20173 (6) (b) The individual signs a any disqualifying information; statement in writing that indicates all of the following: 307(b)(2)(A)(1)(ii)(II) Provide a statement signed by the employee authorizing the facility to request national and State criminal history background checks; (i) That he or she has not been convicted of 1 or more of the crimes that are described in subsection (1)(a) and (b) within the applicable time period prescribed by subsection (1)(a) and (b). MCL 400.734a(7)(b) The individual signs a written statement indicating all of the following: (i)that he or she has not been convicted of 1 or more of the crimes that are described in subsection (1)(a) and (b) within the applicable time period prescribed by subsection (1)(a) and (b). MCL 333.20173 (3) An individual who applies for employment either as an employee or as an independent contractor or for clinical privileges with a health facility or agency that is a nursing home, county medical care facility, or home for the aged and has received a good faith offer of employment, an independent contract, or clinical privileges from the health facility or agency shall give written consent at the time of application for the department of state police to conduct a criminal history check under subsection (4) or (5), or both, along with identification acceptable to the department of state police. MCL 400.734a(3) An individual who applies for employment either as an employee or as an independent contractor with an adult foster care facility and has received a good faith offer of employment or independent contract from the adult foster care facility shall give written consent at the time of application for the department of state police to conduct a criminal history check under this section, along with identification acceptable to the department of state police.

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(2)(A)(1)(i)(ii) Provide the facility with a rolled set of MCL 333.20173 (4) and shall make a request (III) the employee s fingerprints; and to the department of state police to forward the applicant's fingerprints to the federal bureau of investigation. The department of state police shall request the federal bureau of investigation to make a determination of the existence of any national criminal history pertaining to the applicant. An applicant described in this subsection shall provide the department of state police with 2 sets of fingerprints. The department of state police shall complete the criminal history check under subsection. 307(b)(2)(A)(1)(i)(ii) (IV) Provide any other identification information the participating State may require; MCL 400.734a(5) Upon receipt of the written consent and identification required under subsection (3), if the individual has applied for employment wither as an employee or as an independent contractor with an adult foster care facility license for more than 6 persons and has resided in this state for less than 3 years preceding the good faith offer of employment or independent contract the adult foster care faculty that has made a good faith offer of employment or independent contract shall comply with subsection (4) and shall make a request to the department of state police to forward the individual's fingerprints to the federal bureau of investigation. The department of state police shall request the federal bureau of investigation to make a determination of the existence of a national criminal history pertaining to the individual. An individual described in this subsection shall provide the department of state police with 2 sets of fingerprints. None

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(2)(A)(1)(iii) Require the facility or provider to The requirements include review of the facility check any available registries that policies for screening of potential hires, would be likely to contain referring the surveyor to Appendix PP State disqualifying information about a Operations Manual at 483.13(c). The wording prospective employee of a long- term of that section of the Federal Regulations care facility or provider; states: "I. Screening (SOM 483.13(c)(1)(ii)(A)&(B): Have procedures to: Screen potential employees for a history of abuse, neglect or mistreating residents as defined by the applicable requirements at 483.13(c)(1)(ii)(A) and (B). This includes attempting to obtain information from previous employers and/or current employers, and checking with the appropriate licensing boards and registries." None for Public Act 218 (re: Adult Foster Care Homes & Homes for the Aged)

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(2)(A)(1)(iv) Permit the facility or provider to MCL 333.20173 (5) Upon receipt of the obtain State and national criminal written consent and identification required history background checks on the under subsection (3), if an applicant has prospective employee through a 10- resided in this state for less than 3 years fingerprint check that utilizes State preceding the good faith offer of employment, criminal records and the Integrated an independent contract, or clinical privileges, Automated Fingerprint Identification a health facility or agency that is a nursing System of the Federal Bureau of home, county medical care facility, or home Investigation. for the aged that has made a good faith offer described in this subsection to the applicant shall comply with subsection (4) and shall make a request to the department of state police to forward the applicant's fingerprints to the federal bureau of investigation. The department of state police shall request the federal bureau of investigation to make a determination of the existence of any national criminal history pertaining to the applicant. An applicant described in this subsection shall provide the department of state police with 2 sets of fingerprints. The department of state police shall complete the criminal history check under subsection (4) and, except as otherwise provided in this subsection, provide the results of its determination under subsection (4) to the health facility or agency and the results of the federal bureau of investigation determination to the department of consumer and industry services within 30 days after the request is made. If the requesting health facility or agency is not a state department or agency and if a crime is disclosed on the federal bureau of investigation determination, the department shall notify the health facility or agency in writing of the type of crime disclosed on the federal bureau of investigation determination without disclosing the details of the crime. Any charges for fingerprinting or a federal bureau of investigation determination under this subsection shall be paid in the manner required under subsection (4). MCL 400.734a(5) Upon receipt of the written consent and identification required under subsection (3), if the individual has applied for employment whether as an employee or as an independent contractor with an adult foster care facility license for more than 6 persons and has resided in this state for less than 3 years preceding the good faith offer of employment or independent contract the adult foster care facility that has made a good faith offer of employment or independent contract shall comply with subsection (4) and shall make a request to the department of state police to forward the individual's fingerprints to the federal bureau of investigation. The department of state police shall request the

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(2)(B)(1) ELIMINATION OF UNNECESSARY None CHECKS. The procedures established by a participating State under paragraph (1) shall permit a long- term care facility or provider to terminate the background check at any stage at which the facility or provider obtains disqualifying information regarding a prospective direct patient access employee.

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(3)(A) PROHIBITION ON HIRING OF ABUSIVE MCL 333.20173 (1) Except as otherwise WORKERS. IN GENERAL. provided in subsection (2), a health facility or A long- term care facility or provider agency that is a nursing home, county medical may not knowingly employ any direct care facility, or home for the aged shall not patient access employee who has any employ, independently contract with, or grant disqualifying information. clinical privileges to an individual who regularly provides direct services to patients or residents in the health facility or agency after the effective date of the amendatory act that added this section if the individual has been convicted of 1 or more of the following: (a) A felony or an attempt or conspiracy to commit a felony within the 15 years immediately preceding the date of application for employment or clinical privileges or the date of the execution of the independent contract. (b) A misdemeanor involving abuse, neglect, assault, battery, 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 date of application for employment or clinical privileges or the date of the execution of the independent contract. MCL 400.734a(1) In addition to the restrictions prescribed in sections 13, 22, and 31, and except as otherwise provided in subsection (2), and adult foster care facility shall not employ or independently contract with an individual who regularly provides direct services to residents of the adult foster care facility after the effective date of the amendatory act that added this section if the individual has been convicted of 1 or more of the following: (a)a felony or an attempt or conspiracy to commit a felony within the 15 years immediately preceding the date of application for employment or the date of the execution of the independent contract. (b) A misdemeanor involving abuse, neglect, assault, battery, 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 date of application for employment or the date of the execution of the contract.

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(4)(A) USE OF INFORMATION. MCL 333.20173 (10) A health facility or A participating State shall ensure that agency that is a nursing home, county medical a long- term care facility or provider care facility, or home for the aged shall use that obtains information about a criminal history record information obtained direct patient access employee under subsection (4), (5), or (6) only for the pursuant to a background check uses purpose of evaluating an applicant's such information only for the purpose qualifications for employment, an of determining the suitability of the independent contract, or clinical privileges in employee for employment. the position for which he or she has applied and for the purposes of subsections (6) and (8). A health facility or agency or an employee of the health facility or agency shall not disclose criminal history record information obtained under subsection (4) or (5) to a person who is not directly involved in evaluating the applicant's qualifications for employment, an independent contract, or clinical privileges. 307(b)(4)(B) 307(c)(1) IMMUNITY FROM LIABILITY. A participating State shall ensure that a long- term care facility or provider that, in denying employment for an individual selected for hire as a direct patient access employee (including during any period of provisional employment), reasonably relies upon information obtained through a background check of the individual, shall not be liable in any action brought by the individual based on the employment determination resulting from the information. REQUIREMENTS FOR STATES. IN GENERAL. An agreement entered into under paragraph (1) shall require that a participating State - MCL 400.734a(11) An adult foster care facility shall use criminal history record information obtained under subsection (4), (5), or (6) only for the purpose of evaluation an individual's qualifications for employment in the position or which he or she has applied and for the purposes of subsections (7) and (9). An adult foster care facility or an employee of the adult foster care facility shall not disclose criminal history record information obtained under this section to a person who is not directly involved in evaluating the individual's qualifications for employment or independent contract. MCL 333.20173 (10) Except for a knowing or intentional release of false information, a health facility or agency has no liability in connection with a background check conducted under this section or the release of criminal history record information under this subsection. MCL 400.734a (11) Except for a knowing or intentional release of false information, an adult foster care facility has no liability in connection with a background check conducted under this section or the release of criminal history record information under this subsection. 307(c)(1)(A) Be responsible for monitoring compliance with the requirements of the pilot program; The State of Michigan has entered into an agreement with CMS to be responsible.

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(c)(1)(B) Have procedures by which a Refer to Public Health Act 368 (1978) and Act provisional employee or an employee 218 (1979). The appeals process will allow an may appeal or dispute the accuracy of applicant to appeal on this basis. the information obtained in a background check performed under (See Attachment 1) the pilot program; 307(c)(1)(C) 307(c)(1)(C)(i) Agree to Review the results of any State or national criminal history background checks conducted regarding a prospective direct patient access employee to determine whether the employee has any conviction for a relevant crime; MCL 333.20173 (4) to the health facility or agency and the results of the federal bureau of investigation determination to the department of consumer and industry services within 30 days after the request is made. If the requesting health facility or agency is not a state department or agency and if a crime is disclosed on the federal bureau of investigation determination, the department shall notify the health facility or agency in writing of the type of crime disclosed on the federal bureau of investigation determination without disclosing the details of the crime. Any charges for fingerprinting or a federal bureau of investigation determination under this subsection shall be paid in the manner required under subsection (4). MCL 400.734a(5) If the requesting adult foster care facility is not a state department or agency and if a crime is disclosed on the federal bureau of investigation determination, the department shall notify the adult foster care facility in writing of the type of crime disclosed on the federal bureau of investigation determination without disclosing the details of the crime.

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(c)(1)(C)(ii) Immediately report to the entity that MCL 333.20173 (4) to the health facility or requested the criminal history agency and the results of the federal bureau background checks the results of of investigation determination to the such review; and department of consumer and industry services within 30 days after the request is made. If the requesting health facility or agency is not a state department or agency and if a crime is disclosed on the federal bureau of investigation determination, the department shall notify the health facility or agency in writing of the type of crime disclosed on the federal bureau of investigation determination without disclosing the details of the crime. Any charges for fingerprinting or a federal bureau of investigation determination under this subsection shall be paid in the manner required under subsection (4). 307(c)(1)(C)(iii) In the case of an employee with a conviction for a relevant crime that is subject to reporting under section 1128E of the Social Security Act 11 (42 U.S.C. 1320a 7e), report the existence of such conviction to the database established under that section. MCL 400.734a(5) to the adult foster care facility and the results of the federal bureau of investigation determination to the department of consumer and industry services within 30 days after the request is made. If the requesting adult foster care facility is not a state department or agency and if a crime is disclosed on the federal bureau of investigation determination, the department shall notify the adult foster care facility in writing of the type of crime disclosed on the federal bureau of investigation determination without disclosing the details of the crime. The Medicaid Program Investigation Section is responsible for reporting these convictions to the Healthcare Integrity and Protection Data Bank (HIPDB).

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(g)(5)(A)(i- viii) LONG TERM CARE PROVIDER. IN MCL 333.20173 (1) Except as otherwise GENERAL. provided in subsection (2), a health facility or The term long- term care facility or agency that is a nursing home, county medical provider means the following care facility, or home for the aged shall not facilities or providers which receive employ, independently contract with, or grant payment for services under title XVIII clinical privileges to an individual who or XIX of the Social Security Act: A regularly provides direct services to patients skilled nursing facility (as defined in or residents in the health facility or agency section 1819(a) of the Social Security after the effective date of the amendatory act Act) (42 U.S.C. 1395i 3(a)); A nursing that added this section if the individual has facility (as defined in section 1919(a) been convicted of 1 or more of the following: in such Act) (42 U.S.C. 1396r(a)); A provider of hospice care (as defined in section 1861(dd)(1) of such Act) (42 U.S.C. 1395x(dd)(1)); A long- term care hospital (as described in section 1886(d)(1)(B)(iv) of such Act) (42 U.S.C. 1395ww(d)(1)(B)(iv)); A provider of personal care services; A residential care provider that arranges for, or directly provides, long- term care services; An intermediate care facility for the mentally retarded (as MCL 400.734a(1 ) In addition to the restrictions prescribed in sections 13, 22, and 31, and except as otherwise provided in subsection (2), and adult foster care facility shall not employ or independently contract with an individual who regularly provides direct services to residents of the adult foster care facility after the effective date of the amendatory act that added this section if the individual has been convicted of 1 or more of the following: defined in section 1905(d) of such Act) 42 U.S.C. 1396d(d)). Section 307, MMA Optional Provisions State Authority (Legislative, Regulatory, Other)

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(3)(B)(i) PROVISIONAL EMPLOYMENT. IN MCL 333.20173 (6) If a health facility or GENERAL. agency that is a nursing home, county medical Under the pilot program, a care facility, or home for the aged determines participating State may permit a longterm care facility or provider to privileges to an applicant before receiving the it necessary to employ or grant clinical provide for a provisional period of results of the applicant's criminal history employment for a direct patient check under subsection (4) or (5), or both, the access employee pending completion health facility or agency may conditionally of a background check, subject to employ or grant conditional clinical privileges such supervision during the to the individual if all of the following apply: employee s provisional period of employment as the participating State determines appropriate. (a) The health facility or agency requests the criminal history check under subsection (4) or (5), or both, 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) and (b) within the applicable time period prescribed by subsection (1)(a) and (b). (ii) The individual agrees that, if the information in the criminal history check conducted under subsection (4) or (5), or both, does not confirm the individual's statement under subparagraph (i), his or her employment or clinical privileges will be terminated by the health facility or agency as required under subsection (1) unless and until the individual can prove that the information is incorrect. The health facility or agency shall provide a copy of the results of the criminal history check conducted under subsection (4) or (5), or both, to the applicant upon request. (iii) That he or she understands the conditions described in subparagraphs (i) and (ii) that result in the termination of his or her employment or clinical privileges and that those conditions are good cause for termination. MCL 400.734a(7) If an adult foster care facility determines it necessary to employ or independently contract with an individual before receiving the results of the individual's criminal history check required under this section, the adult foster care facility may conditionally employ the individual if both of the following apply: (a)the adult foster care facility requests the criminal history check required under this section, upon conditionally employing the individual. (b) The individual signs a written statement indicating all of the following: (i)that he or she has not been convicted of 1

Section 307, MMA CMS Minimum Requirements State Authority (Legislative, Regulatory, Other) 307(b)(3)(B)(ii) SPECIAL CONSIDERATION FOR None CERTAIN FACILITIES AND PROVIDERS. In determining what constitutes appropriate supervision of a provisional employee, a participating State shall take into account cost or other burdens that would be imposed on small rural long- term care facilities or providers, as well as the nature of care delivered by such facilities or providers that are home health agencies or providers of hospice care. 307(b)(5) AGREEMENTS WITH EMPLOYMENT None AGENCIES. A participating State may establish procedures for facilitating the conduct of background checks on prospective direct patient access employees that are hired by a longterm care facility or provider through an employment agency (including a temporary employment agency). 307(b)(6) PENALTIES. A participating State may impose such penalties as the State determines appropriate to enforce the requirements of the pilot program conducted in that State. None 2.2. Additional State Authority Needed Describe any additional authority (e.g., law or regulation) that is needed by your state to fully implement the CMS Background Check Pilot requirements. Michigan will need additional legislative authority to: Expand background checks to Long Term Care Hospitals, ICF/MRs, Psychiatric Hospitals, Hospices, Home Health Agencies, Personal Care Agencies and Individual Personal Care Providers. Although Michigan has no HCBS Group Living, HCBS Group Homes or Personal Care Agencies under the State Medicaid Plan, legislative authority could also be sought for those types of facilities since Michigan is currently engaged in a Governor s Long Term Care Reform effort that may recommend the creation of these types of long- term care settings. Create an Employment Eligibility Appeal Board which would be empowered on appeal to approve individual exceptions for individuals whose demonstrated experience and rehabilitation warrant reconsideration. Establish a background checks funding mechanism that will offset background check costs for applicants. This mechanism could take several forms. Require FBI fingerprint checks for all background checks and Preclude federally identified, prohibited offenses and substantiated findings of abuse. Michigan will also seek health professions criminal background checks for initial licensing. (See Attachment 1)

2.3. State Authority Plan Describe your state s step- by- step plan to obtain additional state authority, including: The status of the draft language When legislation will be introduced Who will introduce legislation Anticipated time table for legislation passage Potential barriers to passing legislation Other important issues Note: CMS Background Check Pilot Program requirements may be phased in, but all components of the program must be in place no later than March 31, 2006. 1. Language has been drafted and approved by the affected interest groups and the department. The Governor s Policy and Legislative departments have reviewed and signed onto the Legislation. 2. Legislation should be introduced in the next 30 days. 3. Bi- partisan sponsorship has been obtained for the legislation. 4. We are pushing to have the bills in front of a legislative committee by September, and out of one branch of the legislature by October. It should be passed out of the second branch No. Pilot Phase- In Date I. Provider Types Facilities Begin Date Completely In 1. Skilled Nursing Facilities/Nursing Facilities 443 11/05 3/06 2. Long- Term Care Hospitals, Swing Beds 29 11/05 3/06 3. ICFs/MR 1 11/05 3/06 4. HCBS Group Homes Over 8 Beds * NA 5. Home Health Agencies 256 11/05 3/06 6. Personal Care Agencies Medicaid State Plan NA 7. Assisted Living Facilities (Adult Foster Care=4,305 & Homes for the 4,490 11/05 3/06 Aged=185) 8. Hospices 98 11/05 3/06 9. Psychiatric Hospitals 3 11/05 3/06 Total 5,320 11/05 3/06 {Individual Home Help Aides ** (Michigan Quality Community Care Council) 20,000 will be included in the program.} of the legislature by January. That will give time for conference committee if there are amendments in the second branch of the legislature. Final Passage and the Governor s signature should be accomplished by March of 2006. 5. The only issue with our timetable is the current budget negotiations. The longer the budget goes unresolved the longer it will take for the legislature to focus on other issues. The department sees no impediment to the long term goal of passing this legislation. 3. BACKGROUND CHECK PROGRAM COMPONENTS 3.1. Covered Provider Types 3.1.1.Provider Type Chart