February 8, 2007, Introduced by Reps. Meadows, Alma Smith, Leland and Cushingberry and referred to the Committee on Health Policy.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 16231 and 16237 (MCL 333.16231 and 333.16237),
section 16231 as amended by 1993 PA 79 and section 16237 as added
by 1993 PA 87.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 16231. (1) A person or governmental entity who believes
that a violation of this article or article 7 or a rule promulgated
under this article or article 7 exists may make an allegation of
that fact to the department in writing.
(2) If, upon reviewing an application or an allegation or a
licensee's file under section 16211(4), the department determines
there is a reasonable basis to believe the existence of a violation
of this article or article 7 or a rule promulgated under this
article or article 7, the department, with the authorization of the
chair of the applicant's, licensee's, or registrant's board or task
force or his or her designee, shall investigate. If the chair or
his or her designee fails to grant or deny authorization within 7
days after receipt of a request for authorization, the department
shall investigate. The department shall notify the licensee of the
receipt of an allegation or the initiation of an investigation
within 7 days after the receipt or initiation, whichever first
occurs.
(3) Upon the receipt of information reported pursuant to
section 16243(2) that indicates 3 or more malpractice settlements,
awards, or judgments against a licensee in a period of 5
consecutive years or 1 or more malpractice settlements, awards, or
judgments against a licensee totaling more than $200,000.00 in a
period of 5 consecutive years, whether or not a judgment or award
is stayed pending appeal, the department shall investigate. The
department shall notify the licensee of the receipt of information
or the initiation of an investigation within 7 days after the
receipt or initiation, whichever first occurs.
(4)
At any time during an investigation or following the
issuance
of If a formal
complaint is issued, the department
may
schedule a compliance conference pursuant to section 92 of the
administrative
procedures act of 1969, being section 24.292 of the
Michigan
Compiled Laws MCL 24.292. The conference may include the
applicant, licensee, or registrant, the applicant's, licensee's, or
registrant's attorney, 1 member of the department's staff, and any
other individuals approved by the department. One member of the
appropriate board or task force who is not a member of the
disciplinary subcommittee with jurisdiction over the matter may
attend the conference and provide such assistance as needed. At the
compliance conference, the department shall attempt to reach
agreement. If an agreement is reached, the department shall submit
a written statement outlining the terms of the agreement, or a
stipulation and final order, if applicable, or a request for
dismissal to the appropriate disciplinary subcommittee for
approval. If the agreement or stipulation and final order or
request for dismissal is rejected by the disciplinary subcommittee,
or if no agreement is reached, a hearing before a hearings examiner
shall be scheduled. A party shall not make a transcript of the
compliance
conference. All records and documents of a compliance
conference
held before a complaint is issued are subject to section
16238.
(5) Within 90 days after an investigation is initiated under
subsection (2) or (3), the department shall do 1 or more of the
following:
(a) Issue a formal complaint.
(b)
Conduct a compliance conference under subsection (4).
(b) (c)
Issue a summary suspension.
(c) (d)
Issue a cease and desist order.
(e)
Dismiss the complaint.
(d) (f)
Place in the complaint allegation file not more than 1
written extension of not more than 30 days to take action under
this subsection.
(6)
Unless the person submitting the an allegation under
subsection
(1) otherwise agrees in writing, the department shall
keep
the identity of a the person submitting the an allegation
confidential until disciplinary proceedings under this part are
initiated. against
the subject of the allegation and the The person
making
the allegation is required to testify in the any
disciplinary proceedings relating to that person's allegation.
(7) If the department fails to take action within the time
periods set forth in subsection (5), the allegation is dismissed
without prejudice. A person or the department may refile the
allegation or recommence the investigation 1 time within 30 days of
the date of the initial dismissal and, if the allegation is refiled
or the investigation is recommenced, the person or the department
shall comply with the procedures set forth in this section.
(8) If the department fails to file a formal complaint within
1 year after the initial receipt of an allegation or the initiation
of an investigation, whichever is later, the allegation is
dismissed with prejudice. The failure to comply with this time
limitation is jurisdictional.
(9) (7)
The department shall serve a
complaint pursuant to
section 16192. The department shall include in the complaint a
notice that the applicant, licensee, or registrant who is the
subject of the complaint has 30 days from the date of receipt to
respond in writing to the complaint.
(10) (8)
The department shall treat the failure
of the
applicant, licensee, or registrant to respond to the complaint
within
the 30-day period set forth in subsection (7) (9) as
an
admission of the allegations contained in the complaint. The
department shall notify the appropriate disciplinary subcommittee
of the individual's failure to respond and shall forward a copy of
the complaint to that disciplinary subcommittee. The disciplinary
subcommittee may then impose an appropriate sanction under this
article or article 7.
Sec. 16237. (1) In imposing a penalty under section 16232(3),
a disciplinary subcommittee shall review the recommended findings
of fact and conclusions of law of the hearings examiner.
(2) The department of attorney general may assign an
independent special assistant attorney general who is under
contract to the department of attorney general and is not a member
of the state classified civil service to advise the disciplinary
subcommittees on matters of law and provide other legal assistance
as necessary. A special assistant attorney general assigned to the
disciplinary subcommittees under this subsection shall not be the
same individual who represented the department before a hearings
examiner under section 16231a(4).
(3) In reviewing the recommended findings of fact and
conclusions of law of the hearings examiner and the record of the
hearing, a disciplinary subcommittee may request the hearings
examiner to take additional testimony or evidence on a specific
issue or may revise the recommended findings of fact and
conclusions of law as determined necessary by the disciplinary
subcommittee, or both. A disciplinary subcommittee shall not
conduct its own investigation or take its own additional testimony
or evidence under this subsection.
(4) If a disciplinary subcommittee finds that a preponderance
of the evidence supports the recommended findings of fact and
conclusions of law of the hearings examiner indicating that grounds
exist for disciplinary action, the disciplinary subcommittee shall
impose an appropriate sanction under this article or article 7, or
both. If the disciplinary subcommittee finds that a preponderance
of the evidence does not support the findings of fact and
conclusions of law of the hearings examiner indicating that grounds
exist for disciplinary action, the disciplinary subcommittee shall
dismiss the complaint. A disciplinary subcommittee shall report
final action taken by it in writing to the appropriate board or
task force.
(5)
The compliance conference, the hearing before the hearings
examiner,
and final disciplinary subcommittee action shall be
completed
within 1 year after the department initiates an
investigation
under section 16231(2) or (3). The On
or before March
1
of each year, the department shall note
in its annual report any
exceptions
to the 1-year requirement to
the legislature the number
of allegations dismissed with prejudice during the previous
calendar year due to a failure to file a formal complaint as
provided for in section 16231(8).
(6) A final decision of a disciplinary subcommittee rendered
after
the effective date of the amendatory act that added this
section
April 1, 1994 but before January 1, 1995 may be appealed
only in the manner provided in sections 103 to 106 of the
administrative
procedures act of 1969, being sections 24.303 to
24.306
of the Michigan Compiled Laws MCL
24.303 to 24.306. A final
decision of a disciplinary subcommittee rendered on or after
January 1, 1995 may be appealed only to the court of appeals. An
appeal filed under this subsection is by right.