SB-0575, As Passed Senate, March 20, 2014

HOUSE SUBSTITUTE FOR

SENATE BILL NO. 575

     A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 16231 and 16232 (MCL 333.16231 and 333.16232),

as amended by 2013 PA 268, and by adding section 16216a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 16216a. (1) A member of a disciplinary subcommittee shall

not participate in making a decision of that subcommittee that 1 or

more of the grounds listed in section 16221 exist, in any

investigation, or in the imposition of sanctions under section

16226, concerning a licensee or registrant if that subcommittee

member has a conflict of interest.

     (2) A member of a disciplinary subcommittee shall disclose a

potential conflict of interest described in subsection (1) before

that subcommittee takes any action described in subsection (1).

     (3) As used in this section, "conflict of interest" means any

of the following:

     (a) Has a personal or financial interest in the outcome of the

investigation of or the imposition of disciplinary sanctions on the

licensee, registrant, or applicant for licensure or registration.

     (b) Had a past or has a present business or professional

relationship with the individual that the disciplinary subcommittee

is investigating or against whom the disciplinary subcommittee is

considering sanctions.

     (c) Has given expert testimony in a medical malpractice action

against or on behalf of the individual that the disciplinary

subcommittee is investigating or against whom the disciplinary

subcommittee is considering sanctions.

     (d) Has other interest or relationship designated as a

conflict of interest in a rule promulgated or order issued under

this act.

Sec. 16231. (1) A person or governmental entity who that

believes that a violation of this article or article 7 or a rule

promulgated under this article or article 7 exists may make submit

an allegation of that fact to the department in writing.

     (2) If, upon Subject to subsection (3), if the department

determines after reviewing an application or an allegation or a

licensee's or registrant's file under section 16211(4) , the

department determines that there is a reasonable basis to believe

the existence of that a violation of this article or article 7 or a

rule promulgated under this article or article 7 exists, the

department1 of the following applies:

     (a) Unless subdivision (b) applies, subject to subsection

(10), with the authorization of a panel of at least 3 board members

that includes the chair and at least 2 other members of the

appropriate board or task force or his or her designee, shall

designated by the chair, the department shall investigate the

alleged violation. If Subject to subsection (10), if the chair or

his or her designee panel fails to grant or deny authorization

within 7 days after receipt of the board or task force receives a

request for authorization, the department shall investigate. If the

department believes that immediate jeopardy exists, the director or

his or her designee shall authorize an investigation and notify the

board chair of that investigation within 2 business days.

     (b) If it reviews an allegation in writing under subsection

(1) that concerns a licensee or registrant whose record created

under section 16211 includes 1 substantiated allegation, or 2 or

more written investigated allegations, from 2 or more different

individuals or entities, received in the preceding 4 years, the

department shall investigate the alleged violation. Authorization

by a panel described in subdivision (a) is not required for an

investigation by the department under this subdivision.

     (3) If a person or governmental entity submits a written

allegation under subsection (1) more than 4 years after the date of

the incident or activity that is the basis of the alleged

violation, the department may investigate the alleged violation in

the manner described in subsection (2)(a) or (b), as applicable,

but is not required to conduct an investigation under subsection

(2)(a) or (b).

(4) (3) Upon the receipt of If it receives information

reported pursuant to under 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.

(5) (4) At any time during an investigation or following the

issuance of a complaint, the department may schedule a compliance

conference pursuant to under section 92 of the administrative

procedures act of 1969, MCL 24.292. The conference may include the

applicant, licensee, registrant, or individual, the applicant's,

licensee's, registrant's, or individual'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 any

assistance as that is 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, the

department shall schedule a hearing before a hearings examiner

shall be scheduled. an administrative law judge. 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.

(6) (5) Within 90 days after an investigation is initiated

under subsection (2), or (3), or (4), the department shall do 1 or

more of the following:

     (a) Issue a formal complaint.

     (b) Conduct a compliance conference under subsection (4).(5).

     (c) Issue a summary suspension.

     (d) Issue a cease and desist order.

     (e) Dismiss the complaint.allegation.

     (f) Place in the complaint file not more than 1 written

extension of not more than 30 days to take action under this

subsection.

(7) (6) Unless the person submitting the an allegation under

subsection (1) otherwise agrees in writing, the department shall

keep the identity of a person submitting that submitted the

allegation confidential until disciplinary proceedings under this

part are initiated against the subject of the allegation and the

person making that made the allegation is required to testify in

the proceedings.

(8) (7) The department shall serve a complaint pursuant to

under section 16192. The department shall include in the complaint

a notice that the applicant, licensee, registrant, or individual

who is the subject of the complaint has 30 days from the date of

receipt to respond in writing to the complaint.

(9) (8) The department shall treat the failure of the an

applicant, licensee, registrant, or individual to respond to the a

complaint within the 30-day period set forth in subsection (7) (8)

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.

     (10) All of the following apply for purposes of subsection

(2)(a):

     (a) If the chair of the board or task force has a conflict of

interest, he or she shall appoint another member of the board or

task force as his or her designee and shall not participate in the

panel's decision to grant or deny authorization to the department

to investigate an individual.

     (b) A member of the board or task force shall not participate

in the panel's decision to grant or deny authorization to the

department to investigate an individual if that member has a

conflict of interest. If the chair of the board or task force is

notified that a member of the panel has a conflict of interest, the

chair shall remove him or her from the panel and appoint another

member of the board or task force to serve on the panel.

     (c) A member of the board or task force who participates in or

is requested to participate in the panel's decision to grant or

deny authorization to the department to investigate an individual

shall disclose to the department, to the chair of the board or task

force, and to the other member of the panel a potential conflict of

interest before those participants make that decision.

     (11) As used in subsection (10), "conflict of interest" means

any of the following:

     (a) Has a personal or financial interest in the outcome of the

investigation of or the imposition of disciplinary sanctions on the

licensee, registrant, or applicant for licensure or registration.

     (b) Had a past or has a present business or professional

relationship with the individual that the department is

investigating or requesting authorization to investigate.

     (c) Has given expert testimony in a medical malpractice action

against or on behalf of the individual that the department is

seeking authorization to investigate.

     (d) Any other interest or relationship designated as a

conflict of interest in a rule promulgated or order issued under

this act.

     Sec. 16232. (1) The department shall provide an opportunity

for a hearing in connection with the denial, reclassification,

limitation, reinstatement, suspension, or revocation of a license

or a proceeding to reprimand, fine, order community service or

restitution, or place a licensee on probation.

     (2) The department shall provide an opportunity for a hearing

in connection with the denial, limitation, suspension, revocation,

or reinstatement of a registration or a proceeding to reprimand,

fine, order community service or restitution, or place a registrant

on probation.

     (3) A disciplinary subcommittee shall meet within 60 days

after receipt of the recommended findings of fact and conclusions

of law from a hearings examiner to impose a penalty.

     (4) Only the department shall promulgate rules governing

hearings under this article or article 7 and related preliminary

proceedings.

     Enacting section 1. This amendatory act takes effect July 1,

2014.