November 30, 2006, Introduced by Rep. Gaffney and referred to the Committee on Senior Health, Security, and Retirement.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 16103, 16107, 16221, and 16226 (MCL
333.16103, 333.16107, 333.16221, and 333.16226), section 16103 as
amended by 1993 PA 80 and sections 16221 and 16226 as amended by
2004 PA 214, and by adding sections 16151, 16152, and 16153.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
1 Sec. 16103. (1) "Alternative remediation program" means a
2 nondisciplinary, intervention program established under section
3 16151 for a licensee or registrant who is determined to have a
4 practice deficiency.
5
(2) (1) "Board"
as used in this part means each board
6 created in this article and as used in any other part covering a
1 specific health profession means the board created in that part.
2 (3) (2) "Certificate of licensure" means a
document issued
3 as evidence of authorization to practice and use a designated
4 title.
5 (4) (3) "Certificate of registration" means a
document
6 issued as evidence of authorization to use a designated title.
7 (5) (4) "Controlled substance" means that term as
defined
8 in section 7104.
9 (6) (5) "Conviction" means a judgment entered by a
court
10 upon a plea of guilty, guilty but mentally ill, or nolo
11 contendere or upon a jury verdict or court finding that a
12 defendant is guilty or guilty but mentally ill.
13 Sec. 16107. (1) "Practice deficiency" means a departure
14 from, or failure to conform to, minimal standards of acceptable
15 and prevailing practice for a health profession as a result of a
16 deficit in knowledge, skills, abilities, or judgment.
17
(2) (1) "Probation"
means a sanction which permits a board
18 to evaluate over a period of time a licensee's fitness to
19 continue to practice under a license.
20 (3) (2) "Public member" means a member of the
general
21 public who is not a licensee or registrant under this article, is
22 a resident of this state, is not less than 18 years of age, and
23 does not have a material financial interest in the provision of
24 health services and has not had such an interest within the 12
25 months before appointment.
26 Sec. 16151. The board shall establish an alternative
27 remediation program as an alternative option to formal
1 disciplinary action for certain individuals who have a practice
2 deficiency. The alternative remediation program shall include a
3 mechanism for monitoring health professionals admitted into the
4 program who may have a practice deficiency. The board shall
5 designate an administrator to operate the alternative remediation
6 program. The department, in consultation with the board, shall
7 promulgate rules for the alternative remediation program that
8 establish, at a minimum, each of the following:
9 (a) Criteria for use in identifying an individual's practice
10 deficiency.
11 (b) Eligibility requirements for admission into the
12 alternative remediation program.
13 (c) Standards and procedures for prescribing remediation
14 that is appropriate for the individual's identified practice
15 deficiency.
16 (d) Terms and conditions that an individual must meet to be
17 successful in completing the remediation plan prescribed by the
18 board.
19 (e) Procedures for referral and reporting of individuals to
20 the alternative remediation program.
21 (f) Procedures for monitoring the individual's remediation.
22 (g) Procedures for maintaining confidential records
23 regarding individuals who participate in remediation.
24 (h) Any other requirements or procedures necessary to
25 develop and administer the alternative remediation program.
26 Sec. 16152. (1) If a licensee or registrant, health facility
27 or agency, or employer of a licensee or registrant has reasonable
1 cause to believe that another licensee or registrant may have a
2 practice deficiency or may have committed a violation under
3 section 16221 or article 7 or a rule promulgated under article 7
4 as a result of a practice deficiency, then that person shall
5 submit a written report to the department that includes, at a
6 minimum, each of the following:
7 (a) Name of the licensee or registrant alleged to have a
8 practice deficiency.
9 (b) Description of the facts or basis for the alleged
10 practice deficiency.
11 (c) Name and contact information of the person submitting
12 the report.
13 (2) A licensee or registrant may voluntarily submit a
14 request to the department if he or she wishes to participate in
15 the alternative remediation program.
16 (3) Upon receipt of the report submitted under subsection
17 (1) or the request under subsection (2), the department, in
18 consultation with the individual's respective board, shall
19 investigate the activities related to the practice of the
20 licensee or registrant and determine if the licensee or
21 registrant has a practice deficiency which it reasonably believes
22 can, in all probability, be corrected through remediation. If the
23 department finds that the individual does have a practice
24 deficiency, then the board may abstain from taking formal
25 disciplinary action if the individual committed a violation under
26 section 16221 or article 7 or a rule promulgated under article 7
27 if the individual is eligible under section 16151 and rules
1 promulgated under that section to participate in the alternative
2 remediation program.
3 (4) If eligible, an individual entering into the alternative
4 remediation program shall enter into a remediation agreement plan
5 with the department that includes, but is not limited to, the
6 following:
7 (a) A description of the identified practice deficiency.
8 (b) The specific remediation the participant must complete,
9 including identification of educational providers and time frame
10 for compliance with the terms of the remediation agreement.
11 (c) A requirement that the participant pay all expenses he
12 or she incurs as a result of the required remediation.
13 (d) A requirement that the participant notify all employers
14 during the course of his or her participation in the alternative
15 remediation program.
16 (e) A requirement that the participant agree not to practice
17 in any other jurisdiction during the term of the remediation
18 agreement without prior authorization from the other jurisdiction
19 and the administrator of the alternative remediation program.
20 (f) A monitoring plan and expected progress reports from all
21 employers, education providers, and the participant.
22 (g) A requirement that the participant sign all waivers
23 necessary to secure all reports required by the alternative
24 remediation program.
25 (h) The expectations for successful completion of the
26 alternative remediation program.
27 (i) The grounds for termination from the alternative
1 remediation program.
2 (5) If the licensee or registrant fails to complete the
3 alternative remediation program or fails to comply with the terms
4 of the remediation agreement plan or the board determines that
5 remediation cannot correct the individual's practice deficiency,
6 then the individual is subject to disciplinary action as
7 prescribed under section 16226.
8 Sec. 16153. (1) The identity of an individual submitting
9 information to the department regarding the suspected practice
10 deficiency of a health professional is confidential. The identity
11 of a health professional who participates in the alternative
12 remediation program is confidential and is not subject to
13 disclosure under discovery or subpoena or is not subject to the
14 freedom of information act, 1976 PA 442, MCL 15.231 to 15.246,
15 unless the health professional fails to satisfactorily
16 participate in and complete a remediation plan prescribed by the
17 board.
18 (2) If a health professional successfully participates in
19 and completes a remediation plan prescribed by the board under
20 the alternative remediation program, the department shall destroy
21 all records pertaining to the practice deficiency of the health
22 professional, including records pertaining to the health
23 professional's participation in the treatment plan, upon the
24 expiration of 3 years after the date of the department's
25 determination.
26 Sec. 16221. The department may investigate activities
27 related to the practice of a health profession by a licensee, a
1 registrant, or an applicant for licensure or registration. The
2 department may hold hearings, administer oaths, and order
3 relevant testimony to be taken and shall report its findings to
4 the appropriate disciplinary subcommittee. If the department, in
5 consultation with the respective board and its disciplinary
6 subcommittee, determines that the licensee or registrant has a
7 practice deficiency which it reasonably believes can, in all
8 probability, be corrected through remediation, then the board may
9 abstain from taking formal disciplinary action as long as the
10 licensee or registrant is eligible to participate in the
11 alternative remediation program established under section 16151,
12 enters into an agreement with the board to seek remediation as
13 prescribed by the board, complies with the terms and conditions
14 of the alternative remediation agreement plan, and successfully
15 completes the alternative remediation program. If the licensee or
16 registrant fails to complete the alternative remediation program
17 or the board determines that remediation cannot correct the
18 individual's practice deficiency, then the individual is subject
19 to disciplinary action as prescribed under section 16226. The
20 disciplinary subcommittee shall proceed under section 16226 if it
21 finds that 1 or more of the following grounds exist:
22 (a) A violation of general duty, consisting of negligence or
23 failure to exercise due care, including negligent delegation to
24 or supervision of employees or other individuals, whether or not
25 injury results, or any conduct, practice, or condition that
26 impairs, or may impair, the ability to safely and skillfully
27 practice the health profession.
1 (b) Personal disqualifications, consisting of 1 or more of
2 the following:
3 (i) Incompetence.
4 (ii) Subject to sections 16165 to 16170a, substance abuse as
5 defined in section 6107.
6 (iii) Mental or physical inability reasonably related to and
7 adversely affecting the licensee's ability to practice in a safe
8 and competent manner.
9 (iv) Declaration of mental incompetence by a court of
10 competent jurisdiction.
11 (v) Conviction of a misdemeanor punishable by imprisonment
12 for a maximum term of 2 years; a misdemeanor involving the
13 illegal delivery, possession, or use of a controlled substance;
14 or a felony. A certified copy of the court record is conclusive
15 evidence of the conviction.
16 (vi) Lack of good moral character.
17 (vii) Conviction of a criminal offense under sections 520b to
18 520g of the Michigan penal code, 1931 PA 328, MCL 750.520b to
19 750.520g. A certified copy of the court record is conclusive
20 evidence of the conviction.
21 (viii) Conviction of a violation of section 492a of the
22 Michigan penal code, 1931 PA 328, MCL 750.492a. A certified copy
23 of the court record is conclusive evidence of the conviction.
24 (ix) Conviction of a misdemeanor or felony involving fraud in
25 obtaining or attempting to obtain fees related to the practice of
26 a health profession. A certified copy of the court record is
27 conclusive evidence of the conviction.
1 (x) Final adverse administrative action by a licensure,
2 registration, disciplinary, or certification board involving the
3 holder of, or an applicant for, a license or registration
4 regulated by another state or a territory of the United States,
5 by the United States military, by the federal government, or by
6 another country. A certified copy of the record of the board is
7 conclusive evidence of the final action.
8 (xi) Conviction of a misdemeanor that is reasonably related
9 to or that adversely affects the licensee's ability to practice
10 in a safe and competent manner. A certified copy of the court
11 record is conclusive evidence of the conviction.
12 (xii) Conviction of a violation of section 430 of the
13 Michigan penal code, 1931 PA 328, MCL 750.430. A certified copy
14 of the court record is conclusive evidence of the conviction.
15 (c) Prohibited acts, consisting of 1 or more of the
16 following:
17 (i) Fraud or deceit in obtaining or renewing a license or
18 registration.
19 (ii) Permitting the license or registration to be used by an
20 unauthorized person.
21 (iii) Practice outside the scope of a license.
22 (iv) Obtaining, possessing, or attempting to obtain or
23 possess a controlled substance as defined in section 7104 or a
24 drug as defined in section 7105 without lawful authority; or
25 selling, prescribing, giving away, or administering drugs for
26 other than lawful diagnostic or therapeutic purposes.
27 (d) Unethical business practices, consisting of 1 or more of
1 the following:
2 (i) False or misleading advertising.
3 (ii) Dividing fees for referral of patients or accepting
4 kickbacks on medical or surgical services, appliances, or
5 medications purchased by or in behalf of patients.
6 (iii) Fraud or deceit in obtaining or attempting to obtain
7 third party reimbursement.
8 (e) Unprofessional conduct, consisting of 1 or more of the
9 following:
10 (i) Misrepresentation to a consumer or patient or in
11 obtaining or attempting to obtain third party reimbursement in
12 the course of professional practice.
13 (ii) Betrayal of a professional confidence.
14 (iii) Promotion for personal gain of an unnecessary drug,
15 device, treatment, procedure, or service.
16 (iv) Either of the following:
17 (A) A requirement by a licensee other than a physician that
18 an individual purchase or secure a drug, device, treatment,
19 procedure, or service from another person, place, facility, or
20 business in which the licensee has a financial interest.
21 (B) A referral by a physician for a designated health
22 service that violates section 1877 of part D of title XVIII of
23 the social security act, 42 USC 1395nn, or a regulation
24 promulgated under that section. Section 1877 of part D of title
25 XVIII of the social security act, 42 USC 1395nn, and the
26 regulations promulgated under that section, as they exist on June
27 3, 2002, are incorporated by reference for purposes of this
1 subparagraph. A disciplinary subcommittee shall apply section
2 1877 of part D of title XVIII of the social security act, 42 USC
3 1395nn, and the regulations promulgated under that section
4 regardless of the source of payment for the designated health
5 service referred and rendered. If section 1877 of part D of title
6 XVIII of the social security act, 42 USC 1395nn, or a regulation
7 promulgated under that section is revised after June 3, 2002, the
8 department shall officially take notice of the revision. Within
9 30 days after taking notice of the revision, the department shall
10 decide whether or not the revision pertains to referral by
11 physicians for designated health services and continues to
12 protect the public from inappropriate referrals by physicians. If
13 the department decides that the revision does both of those
14 things, the department may promulgate rules to incorporate the
15 revision by reference. If the department does promulgate rules to
16 incorporate the revision by reference, the department shall not
17 make any changes to the revision. As used in this subparagraph,
18 "designated health service" means that term as defined in section
19 1877 of part D of title XVIII of the social security act, 42 USC
20 1395nn, and the regulations promulgated under that section and
21 "physician" means that term as defined in sections 17001 and
22 17501.
23 (v) For a physician who makes referrals pursuant to section
24 1877 of part D of title XVIII of the social security act, 42 USC
25 1395nn, or a regulation promulgated under that section, refusing
26 to accept a reasonable proportion of patients eligible for
27 medicaid and refusing to accept payment from medicaid or medicare
1 as payment in full for a treatment, procedure, or service for
2 which the physician refers the individual and in which the
3 physician has a financial interest. A physician who owns all or
4 part of a facility in which he or she provides surgical services
5 is not subject to this subparagraph if a referred surgical
6 procedure he or she performs in the facility is not reimbursed at
7 a minimum of the appropriate medicaid or medicare outpatient fee
8 schedule, including the combined technical and professional
9 components.
10 (f) Beginning June 3, 2003, the department of consumer and
11 industry services shall prepare the first of 3 annual reports on
12 the effect of this amendatory act on access to care for the
13 uninsured and medicaid patients. The department shall report on
14 the number of referrals by licensees of uninsured and medicaid
15 patients to purchase or secure a drug, device, treatment,
16 procedure, or service from another person, place, facility, or
17 business in which the licensee has a financial interest.
18 (g) Failure to report a change of name or mailing address
19 within 30 days after the change occurs.
20 (h) A violation, or aiding or abetting in a violation, of
21 this article or of a rule promulgated under this article.
22 (i) Failure to comply with a subpoena issued pursuant to
23 this part, failure to respond to a complaint issued under this
24 article or article 7, failure to appear at a compliance
25 conference or an administrative hearing, or failure to report
26 under section 16222 or 16223.
27 (j) Failure to pay an installment of an assessment levied
1 pursuant to the insurance code of 1956, 1956 PA 218, MCL 500.100
2 to 500.8302, within 60 days after notice by the appropriate
3 board.
4 (k) A violation of section 17013 or 17513.
5 (l) Failure to meet 1 or more of the requirements for
6 licensure or registration under section 16174.
7 (m) A violation of section 17015 or 17515.
8 (n) A violation of section 17016 or 17516.
9 (o) Failure to comply with section 9206(3).
10 (p) A violation of section 5654 or 5655.
11 (q) A violation of section 16274.
12 (r) A violation of section 17020 or 17520.
13 (s) A violation of the medical records access act, 2004 PA
14 47, MCL 333.26261 to 333.26271.
15 (t) A violation of section 17764(2).
16 (u) Failure to complete or comply with the terms and
17 conditions of the alternative remediation program and the
18 remediation agreement plan established under sections 16151 and
19 16152, respectively.
20 Sec. 16226. (1) After finding the existence of 1 or more of
21 the grounds for disciplinary subcommittee action listed in
22 section 16221, a disciplinary subcommittee shall impose 1 or more
23 of the following sanctions for each violation:
24 Violations of Section 16221 Sanctions
25 Subdivision (a), (b)(ii), Probation, limitation, denial,
26 (b)(iv), (b)(vi), or suspension, revocation,
1 (b)(vii) restitution, community service,
2 or fine.
3 Subdivision (b)(viii) Revocation or denial.
4 Subdivision (b)(i), Limitation, suspension,
5 (b)(iii), (b)(v), revocation, denial,
6 (b)(ix), (b)(x), probation, restitution,
7 (b)(xi), or (b)(xii) community service, or fine.
8 Subdivision (c)(i) Denial, revocation, suspension,
9 probation, limitation, community
10 service, or fine.
11 Subdivision (c)(ii) Denial, suspension, revocation,
12 restitution, community service,
13 or fine.
14 Subdivision (c)(iii) Probation, denial, suspension,
15 revocation, restitution,
16 community service, or fine.
17 Subdivision (c)(iv) Fine, probation, denial,
18 or (d)(iii) suspension, revocation, community
19 service, or restitution.
20 Subdivision (d)(i) Reprimand, fine, probation,
21 or (d)(ii) community service, denial,
22 or restitution.
23 Subdivision (e)(i) Reprimand, fine, probation,
24 limitation, suspension, community
25 service, denial, or restitution.
26 Subdivision (e)(ii) Reprimand, probation,
27 or (i) suspension, restitution,
28 community service, denial, or
29 fine.
30 Subdivision (e)(iii), Reprimand, fine, probation,
31 (e)(iv), or (e)(v) suspension, revocation,
1 limitation, community service,
2 denial, or restitution.
3 Subdivision (g) Reprimand or fine.
4 Subdivision (h) or (s) Reprimand, probation, denial,
5 suspension, revocation,
6 limitation, restitution,
7 community service, or fine.
8 Subdivision (j) Suspension or fine.
9 Subdivision (k), (p), Reprimand or fine.
10 or (r)
11 Subdivision (l) Reprimand, denial, or
12 limitation.
13 Subdivision (m) or (o) Denial, revocation, restitution,
14 probation, suspension,
15 limitation, reprimand, or fine.
16 Subdivision (n) Revocation or denial.
17 Subdivision (q) Revocation.
18 Subdivision (t) Revocation, fine, and
19 restitution.
20 Subdivision (u) Reprimand, fine, probation, or
21 community service.
22 (2) Determination of sanctions for violations under this
23 section shall be made by a disciplinary subcommittee. If, during
24 judicial review, the court of appeals determines that a final
25 decision or order of a disciplinary subcommittee prejudices
26 substantial rights of the petitioner for 1 or more of the grounds
27 listed in section 106 of the administrative procedures act of
28 1969, 1969 PA 306, MCL 24.306, and holds that the final decision
29 or order is unlawful and is to be set aside, the court shall
1 state on the record the reasons for the holding and may remand
2 the case to the disciplinary subcommittee for further
3 consideration.
4 (3) A disciplinary subcommittee may impose a fine of up to,
5 but not exceeding, $250,000.00 for a violation of section
6 16221(a) or (b).
7 (4) A disciplinary subcommittee may require a licensee or
8 registrant or an applicant for licensure or registration who has
9 violated this article or article 7 or a rule promulgated under
10 this article or article 7 to satisfactorily complete an
11 educational program, a training program, or a treatment program,
12 a mental, physical, or professional competence examination, or a
13 combination of those programs and examinations.