Summary of Relevant State Laws
Vulnerable Adult Abuse Act: 1994 PA 149, MCL 750.145m – 750.145r
This law, which was enacted in 1994 as Public Act 149, MCL 750.145m – 750.145r, defines the crime of vulnerable adult abuse. A vulnerable adult is one who because of age, developmental disability, mental illness, or physical handicap requires supervision or personal care, lacks the personal or social skills to live independently, is unable to protect him/herself from abuse, neglect, or exploitation, or who is living in an adult foster care facility. The Act applies to persons who directly care for or have physical custody of a vulnerable adult. MCL 750.145m(c),(u). It covers all vulnerable adults, whether they are living in their own residence or in a facility (such as an AFC home, home for aged, or nursing home).
The Act establishes four degrees of vulnerable adult abuse: MCL 750.145n.
If a person operates an unlicensed facility (such as a room and board home) that is subject to licensure under the Adult Foster Care Licensing Act or is an employee of, or acts on behalf of, an unlicensed facility and violates a provision of that Act or the Public Health Code or the administrative rules promulgated pursuant to such Acts, and the violation causes the death of a vulnerable adult, the person is guilty of a felony with a possible sentence of up to 5 years and/or a fine of not more than $75,000.00. MCL 750.145o.
MCL 750.145p lists a number of prohibited acts by a caregiver, a person with authority over a vulnerable adult, or a person licensed to operate an AFC home which are classified as misdemeanors punishable by up to 2 years and/or a fine of not more than $25,000.00. These include co-mingling of funds by an AFC home or other licensee who is required to keep resident funds in a separate trust account, interfering with an investigation by a state agency; giving false information to a state agency, and retaliation/discrimination against a resident for making a complaint against a facility or testifying in an administrative or legal action against a facility. Second or subsequent offenses are felonies punishable by imprisonment up to 5 years and/or a fine of not more than $75,000.00.
Financial Exploitation of a Vulnerable Adult: 2000 PA 222, MCL 750.174a
This law makes it a crime for a person to obtain, use, or attempt to obtain a vulnerable adult’s money or property for his/her own direct or indirect benefit. This applies when the person knows or has reason to know that the person is a vulnerable adult, and the illegal actions involve fraud, deceit, misrepresentation, coercion, or unjust enrichment.
A vulnerable adult is someone who, because of advanced age, developmental disability, mental illness, or physical disability, requires supervision or personal care. The definition also includes those who lack the personal and social skills to live independently, or who are unable to protect themselves from abuse, neglect, or exploitation. It also extends to anyone who lives in an adult foster care facility, regardless of whether there is a court order (such as order appointing a guardian) finding the adult to be incapacitated.
The law does not apply to financial institutions or brokers (also their officers, directors, employees, or agents), provided they were performing duties in the normal course of their business. Violations are punishable under a tiered penalty structure based upon the value of the money or property involved:
If the person has one or more previous convictions under MCL 750.174a, the possible sentences for a subsequent offense are enhanced. A court may order a sentence imposed for a felony conviction of financial exploitation of a vulnerable adult to be served consecutively to any other sentence imposed for a misdemeanor or felony conviction of financial exploitation of a vulnerable adult
State Law and Regulations Governing AFCs, Nursing Homes, HFAs
Adult Foster Care Homes
State law governing AFC homes is set forth in the Adult Foster Care Facility Licensing Act, MCL 400.701 et seq. There are four categories of AFC homes, based on the number of residents in the home and whether the licensee also lives in the home. There is a separate set of administrative rules in the Michigan Administrative Code (AC) for each category. Foster care is defined as the provision of supervision, personal care, and protection in addition to room and board, for 24 hours a day, 5 or more days a week, and for 2 or more consecutive weeks for compensation provided at a single address. Providing room under a landlord tenant arrangement does not, by itself, exclude a person from the licensing requirement under the Act. MCL 400.704(8). The Bureau of Community and Health Systems, within the state Department of Licensing and Regulatory Affairs, is responsible for oversight and enforcement of the rules governing AFC homes.
- An adult foster care family home is a private residence that provides care to at least 3 and not more than 6 adults where the AFC licensee is a member of the household and an occupant of the residence. MCL 400.703(5). AC,R 400.1401 et seq*.
- An adult foster care small group home provides care to 3 to 12 adults, but the licensee is not required to live on the premises. MCL 400.703(7). AC, R 400.14101 et seq*.
- An adult foster care large group home provides care to 13 to 20 adults. MCL 400.703(6). AC, R 400.15101 et seq*.
- An adult foster care congregate facility provides care to more than 20 adults. MCL 400.703(3). AC, R 400.2401 et seq*. There is a moratorium on issuing any new licenses for congregate homes, and only a handful still exist.
AFCs serve not only elderly adults but also adults with developmental disabilities and those with mental health care needs.
Homes for the Aged
State law governing HFAs is set forth in Article 17, Part 213 of the Michigan Public Health MCL 333.21301 et seq. The administrative rules are set forth in the Michigan Administrative Code, AC, R 325.1901 et seq*. An HFA is defined as a supervised personal care facility, other than a hotel, an AFC home, a hospital, a nursing home, or a county medical care facility that provides room, board, and supervised personal care to 21 or more unrelated, nontransient persons 55 years of age or older. An HFA that is operated in conjunction with and as a distinct part of a licensed nursing home may have fewer than 21 residents. MCL 333.20106(3).
The Bureau of Community and Health Systems, within the state Department of Licensing and Regulatory Affairs, is responsible for oversight and enforcement of the rules governing Homes for the Aged.
State law governing nursing homes is set forth in Article 17, Part 217 of the Michigan Public Health Code, MCL 333.21701 et seq.
Nursing homes that participate in the Medicare and Medicaid program are also regulated under federal law. The federal law governing nursing homes is found at 42 USC 1395i-3 [for Medicare certification], and 42 USC 1396r [for Medicaid certification]. The rules for both certifications are virtually identical. The regulations are set forth in the federal Code of Federal Regulations, 42 CFR 483.1 – 483.95. Most nursing homes in Michigan are certified to participate in both the Medicare and Medicaid program. A small number of nursing homes [none in Genesee county] do not participate in either Medicare or Medicaid and accept only residents who can private pay. There is no special licensing for “memory care units” in nursing homes.
The Bureau of Community and Health Systems, within the state Department of Licensing and Regulatory Affairs, is responsible for oversight and enforcement of the rules governing nursing homes.
Special Reporting Requirements for Health Care Personnel
The Public Health Code, MCL 333.21771, requires a nursing home employee who has a reasonable suspicion of physical, mental, or emotional abuse, mistreatment, or harmful neglect of a resident to report the matter to the director of nursing or the administrator and to the Department of Licensing and Regulatory Affairs (LARA). A director of nursing or the administrator who has a reasonable suspicion of physical, mental, or emotional abuse, mistreatment, or harmful neglect of a resident must report that suspicion by telephone to LARA and to a law enforcement entity. A physician or other licensed health care professional of a facility to which a nursing home resident is transferred who has a reasonable suspicion of physical, mental, or emotional abuse, mistreatment, or harmful neglect of a resident must report this to LARA and to a law enforcement entity.
Mental Health Providers
The Mental Health Code, MCL 330.1723, requires certain mental health providers who have reasonable cause to suspect the criminal abuse of a recipient of mental health services to make an immediate verbal report to the appropriate law enforcement agency or to the state police. The required reporters are mental health professionals, persons employed by or under contract to the Department of Health and Human Services (DHHS), a licensed facility, or a community mental health services agency, and persons employed by a provider under contract to DHHS, a licensed facility, or a community mental health services agency. A written report must be filed within 72 hours of the verbal report to the law enforcement agency and the chief administrator of the facility or agency responsible for the recipient. However, a person is not required to report if the individual has knowledge that the incident has already been reported to the appropriate law enforcement agency or the suspected criminal abuse occurred more than one year before the date on which it first became known to a person required to report. Furthermore this section of the Mental Health Code does not require the disclosure of confidential information or privileged communications unless one of the exceptions in MCL 330.1723(10) is applicable. Those exceptions are where the suspected abuse is alleged to have been committed by a mental health professional or other person who is a required reporter under this section or where the suspected abuse is alleged to have been committed in a state facility, a state-licensed facility, a CMH site, the work site of a required reporter, or a place where a recipient is under the supervision of a required reporter.
The identity of a person making a report is confidential and is not subject to disclosure without the consent of the individual or by court order. An individual who acts in good faith in making a report is immune from civil or criminal liability as to acts done under this section. This immunity does not extend to a negligent act that causes personal injury or death.
Legal Protection for Whistleblowers
Whistleblowers’ Protection Act, MCL 15.361 – 15.369
The Act prohibits an employer from discharging, threatening, or discriminating against an employee because the employee reports or is about to report a suspected violation of a federal, state, or local law or rule to a public body, unless the employee knows the report is false. An employer is also prohibited from discharging, threatening or discriminating against an employee because the employee is requested by a public body to participate in an investigation or hearing by that public body or to testify at a court hearing
The employee may file a civil action within 90 days of the violation of the Act. The Court may order reinstatement of the employee, payment of back wages and fringe benefits, other actual damages, and reasonable attorney fees and costs. The Court may also order payment of a civil fine of not more than $500.00 which is paid to the State Treasurer.
Public Health Code, MCL 333.20176a
A health facility may not discharge or discipline or otherwise discriminate against an employee acting in good faith for reporting a violation of a state law or regulation governing health care facilities, health care professionals, or controlled substances, for reporting the malpractice of a health professional, or for acting as an expert witness in a lawsuit involving medical malpractice or in an administrative hearing. A health facility that violates this section is subject to an administrative fine of up to $10,000.00 for each violation and suspension, limitation or revocation of its license.
Public Health Code, MCL 333.20180
An employee of a health care facility, a person under contract to a health care facility, or any other person who in good faith makes a report or complaint regarding a health care facility or who assists the Department of Health and Human Services in carrying out its duties under the Public Health Code is immune from civil and criminal liability. The immunity granted under this section extends only to acts done pursuant to Article 17 of the Public Health Code (relating to health care facilities). The Department is required to keep the person’s identity confidential unless the person agrees to disclosure or unless the person is required to testify in disciplinary proceedings against the subject of the report or complaint. However if disclosure of the person’s identity is considered by the Department to be essential to the disciplinary proceedings and if the person is the complainant the Department must give the person the opportunity to withdraw the complaint before disclosure. There are special provisions governing immunity from civil and criminal liability if the person is employed by or under contract to a hospital.
Public Health Code, MCL 333.21771(6); 333.21772
A nursing home licensee, administrator, or employee is prohibited from harassing, dismissing, or retaliating against a patient, a patient’s representative, or an employee who reports a reasonable suspicion of physical, mental or emotional abuse, mistreatment, or harmful neglect of a patient.
An administrator, owner, employee, or other representative of a nursing home is prohibited from interfering with the right of any individual to file a complaint with a government agency or to bring a civil or criminal action with respect to the operation of the nursing home, and is also prohibited from discharging, harassing, or retaliating against an individual for such actions.
Vulnerable Adult Abuse Act, MCL 750.145p
The Act prohibits intentional retaliation or discrimination against an employee who files a complaint against a facility, or provides information to a state or local official enforcing the Adult Foster Care Licensing Act or the Public Health Code, or who initiates, participates in, or testifies in an administrative action or criminal action against a facility or a civil suit related to the criminal action. The violation is punishable as a misdemeanor with a possible sentence of up to one year and/or a fine of not more than $10,000.00. A second offense is punishable as a felony with a possible sentence of up to five years and/or a fine of not more than $75,000.00.
Mental Health Code, MCL 330.1723(4) and (5)
An individual who makes a report pursuant to this section in good faith shall not be dismissed or otherwise penalized by an employer or contractor for making the report.