HB-4408, As Passed House, June 13, 2017

SUBSTITUTE FOR

HOUSE BILL NO. 4408

      A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 16221 and 16226 (MCL 333.16221 and 333.16226),

as amended by 2016 PA 379, and by adding section 7303b.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 1        Sec. 7303b. (1) Except as otherwise provided in this section,

 2  a prescriber shall comply with all of the following before issuing

 3  for a minor the first prescription in a single course of treatment

 4  for a controlled substance containing an opioid, regardless of

 5  whether the prescriber modifies the dosage during the course of

 6  treatment:

 7        (a) Discuss all of the following with the minor, and with the

 8  minor's parent or guardian or with another adult authorized to

 9  consent to the minor's medical treatment:

 1        (i) The risks of addiction and overdose associated with the

 2  controlled substance.

 3        (ii) The increased risk of addiction to a controlled substance

 4  to an individual who is suffering from both mental and substance

 5  abuse disorders.

 6        (iii) The danger of taking a controlled substance containing

 7  an opioid with a benzodiazepine, alcohol, or another central

 8  nervous system depressant.

 9        (iv) Any other information in the patient counseling

10  information section of the label for the controlled substance that

11  is required under 21 CFR 201.57(c)(18).

12        (b) Obtain the signature of the minor's parent or guardian,

13  or, subject to subsection (3), the signature of another adult

14  authorized to consent to the minor's medical treatment, on a start

15  talking consent form. The prescriber shall include the signed start

16  talking consent form in the minor's medical record.

17        (2) Subsection (1) does not apply in any of the following

18  circumstances:

19        (a) If the minor's treatment is associated with or incident to

20  a medical emergency.

21        (b) If the minor's treatment is associated with or incident to

22  a surgery, regardless of whether the surgery is performed on an

23  inpatient or outpatient basis.

24        (c) If, in the prescriber's professional judgment, fulfilling

25  the requirements of subsection (1) would be detrimental to the

26  minor's health or safety.

27        (d) If the minor's treatment is rendered in a hospice as that

 1  term is defined in section 20106 or an oncology department of a

 2  hospital that is licensed under article 17.

 3        (e) If the prescriber is issuing the prescription for the

 4  minor at the time of discharge from a facility described in

 5  subdivision (d).

 6        (f) If the consent of the minor's parent or guardian is not

 7  legally required for the minor to obtain treatment.

 8        (3) If the individual signing a start talking consent form is

 9  another adult authorized to consent to the minor's medical

10  treatment, the prescriber shall not prescribe more than a single,

11  72-hour supply of the controlled substance described in subsection

12  (1) to the minor.

13        (4) A start talking consent form must be on a form that is

14  separate from any other document that a prescriber uses to obtain

15  the informed consent for the treatment of a minor and must contain

16  all of the following:

17        (a) The name and quantity of the controlled substance being

18  prescribed for the minor and the amount of the initial dose.

19        (b) A statement indicating that a controlled substance is a

20  drug or other substance that the United States Drug Enforcement

21  Administration has identified as having a potential for abuse.

22        (c) A statement certifying that the prescriber discussed with

23  the minor, and with the minor's parent or guardian or with another

24  adult authorized to consent to the minor's medical treatment, the

25  topics described in subsection (1).

26        (d) The number of refills, if any, that are authorized by the

27  prescription.

 1        (e) A space for the signature of the minor's parent or

 2  guardian, or the signature of another adult authorized to consent

 3  to the minor's medical treatment, and a space to indicate the date

 4  that the minor's parent or guardian, or another adult authorized to

 5  consent to the minor's medical treatment, signed the form.

 6        (5) As used in this section:

 7        (a) "Another adult authorized to consent to the minor's

 8  medical treatment" means an adult to whom a minor's parent or

 9  guardian has given written authorization to consent to the minor's

10  medical treatment.

11        (b) "Medical emergency" means a situation that, in the

12  prescriber's good-faith medical judgment, creates an immediate

13  threat of serious risk to the life or physical health of the minor.

14        (c) "Minor" means an individual under 18 years of age who is

15  not emancipated under section 4 of 1968 PA 293, MCL 722.4.

16        (d) "Start talking consent form" means the form described in

17  subsection (4).

18  Sec. 16221. The department shall investigate any allegation

19  that 1 or more of the grounds for disciplinary subcommittee action

20  under this section exist, and may investigate activities related to

21  the practice of a health profession by a licensee, a registrant, or

22  an applicant for licensure or registration. The department may hold

23  hearings, administer oaths, and order the taking of relevant

24  testimony. After its investigation, the department shall provide a

25  copy of the administrative complaint to the appropriate

26  disciplinary subcommittee. The disciplinary subcommittee shall

27  proceed under section 16226 if it finds that 1 or more of the

 1  following grounds exist:

 2        (a) Except as otherwise specifically provided in this section,

 3  a violation of general duty, consisting of negligence or failure to

 4  exercise due care, including negligent delegation to or supervision

 5  of employees or other individuals, whether or not injury results,

 6  or any conduct, practice, or condition that impairs, or may impair,

 7  the ability to safely and skillfully engage in the practice of the

 8  health profession.

 9        (b) Personal disqualifications, consisting of 1 or more of the

10  following:

11        (i) Incompetence.

12        (ii) Subject to sections 16165 to 16170a, substance use

13  disorder as defined in section 100d of the mental health code, 1974

14  PA 258, MCL 330.1100d.

15        (iii) Mental or physical inability reasonably related to and

16  adversely affecting the licensee's or registrant's ability to

17  practice in a safe and competent manner.

18        (iv) Declaration of mental incompetence by a court of

19  competent jurisdiction.

20        (v) Conviction of a misdemeanor punishable by imprisonment for

21  a maximum term of 2 years; conviction of a misdemeanor involving

22  the illegal delivery, possession, or use of a controlled substance;

23  or conviction of any felony other than a felony listed or described

24  in another subparagraph of this subdivision. A certified copy of

25  the court record is conclusive evidence of the conviction.

26        (vi) Lack of good moral character.

27        (vii) Conviction of a criminal offense under section 520e or

 1  520g of the Michigan penal code, 1931 PA 328, MCL 750.520e and

 2  750.520g. A certified copy of the court record is conclusive

 3  evidence of the conviction.

 4        (viii) Conviction of a violation of section 492a of the

 5  Michigan penal code, 1931 PA 328, MCL 750.492a. A certified copy of

 6  the court record is conclusive evidence of the conviction.

 7        (ix) Conviction of a misdemeanor or felony involving fraud in

 8  obtaining or attempting to obtain fees related to the practice of a

 9  health profession. A certified copy of the court record is

10  conclusive evidence of the conviction.

11        (x) Final adverse administrative action by a licensure,

12  registration, disciplinary, or certification board involving the

13  holder of, or an applicant for, a license or registration regulated

14  by another state or a territory of the United States, by the United

15  States military, by the federal government, or by another country.

16  A certified copy of the record of the board is conclusive evidence

17  of the final action.

18        (xi) Conviction of a misdemeanor that is reasonably related to

19  or that adversely affects the licensee's or registrant's ability to

20  practice in a safe and competent manner. A certified copy of the

21  court record is conclusive evidence of the conviction.

22        (xii) Conviction of a violation of section 430 of the Michigan

23  penal code, 1931 PA 328, MCL 750.430. A certified copy of the court

24  record is conclusive evidence of the conviction.

25        (xiii) Conviction of a criminal offense under section 83, 84,

26  316, 317, 321, 520b, 520c, 520d, or 520f of the Michigan penal

27  code, 1931 PA 328, MCL 750.83, 750.84, 750.316, 750.317, 750.321,

 1  750.520b, 750.520c, 750.520d, and 750.520f. A certified copy of the

 2  court record is conclusive evidence of the conviction.

 3        (c) Prohibited acts, consisting of 1 or more of the following:

 4        (i) Fraud or deceit in obtaining or renewing a license or

 5  registration.

 6        (ii) Permitting a license or registration to be used by an

 7  unauthorized person.

 8        (iii) Practice outside the scope of a license.

 9        (iv) Obtaining, possessing, or attempting to obtain or possess

10  a controlled substance as defined in section 7104 or a drug as

11  defined in section 7105 without lawful authority; or selling,

12  prescribing, giving away, or administering drugs for other than

13  lawful diagnostic or therapeutic purposes.

14        (d) Except as otherwise specifically provided in this section,

15  unethical business practices, consisting of 1 or more of the

16  following:

17        (i) False or misleading advertising.

18        (ii) Dividing fees for referral of patients or accepting

19  kickbacks on medical or surgical services, appliances, or

20  medications purchased by or in behalf of patients.

21        (iii) Fraud or deceit in obtaining or attempting to obtain

22  third party reimbursement.

23        (e) Except as otherwise specifically provided in this section,

24  unprofessional conduct, consisting of 1 or more of the following:

25        (i) Misrepresentation to a consumer or patient or in obtaining

26  or attempting to obtain third party reimbursement in the course of

27  professional practice.

 1        (ii) Betrayal of a professional confidence.

 2        (iii) Promotion for personal gain of an unnecessary drug,

 3  device, treatment, procedure, or service.

 4        (iv) Either of the following:

 5        (A) A requirement by a licensee other than a physician or a

 6  registrant that an individual purchase or secure a drug, device,

 7  treatment, procedure, or service from another person, place,

 8  facility, or business in which the licensee or registrant has a

 9  financial interest.

10        (B) A referral by a physician for a designated health service

11  that violates 42 USC 1395nn or a regulation promulgated under that

12  section. For purposes of this subdivision, 42 USC 1395nn and the

13  regulations promulgated under that section as they exist on June 3,

14  2002 are incorporated by reference. A disciplinary subcommittee

15  shall apply 42 USC 1395nn and the regulations promulgated under

16  that section regardless of the source of payment for the designated

17  health service referred and rendered. If 42 USC 1395nn or a

18  regulation promulgated under that section is revised after June 3,

19  2002, the department shall officially take notice of the revision.

20  Within 30 days after taking notice of the revision, the department

21  shall decide whether or not the revision pertains to referral by

22  physicians for designated health services and continues to protect

23  the public from inappropriate referrals by physicians. If the

24  department decides that the revision does both of those things, the

25  department may promulgate rules to incorporate the revision by

26  reference. If the department does promulgate rules to incorporate

27  the revision by reference, the department shall not make any

 1  changes to the revision. As used in this sub-subparagraph,

 2  "designated health service" means that term as defined in 42 USC

 3  1395nn and the regulations promulgated under that section and

 4  "physician" means that term as defined in sections 17001 and 17501.

 5        (v) For a physician who makes referrals under 42 USC 1395nn or

 6  a regulation promulgated under that section, refusing to accept a

 7  reasonable proportion of patients eligible for Medicaid and

 8  refusing to accept payment from Medicaid or Medicare as payment in

 9  full for a treatment, procedure, or service for which the physician

10  refers the individual and in which the physician has a financial

11  interest. A physician who owns all or part of a facility in which

12  he or she provides surgical services is not subject to this

13  subparagraph if a referred surgical procedure he or she performs in

14  the facility is not reimbursed at a minimum of the appropriate

15  Medicaid or Medicare outpatient fee schedule, including the

16  combined technical and professional components.

17        (vi) Any conduct by a health professional with a patient while

18  he or she is acting within the health profession for which he or

19  she is licensed or registered, including conduct initiated by a

20  patient or to which the patient consents, that is sexual or may

21  reasonably be interpreted as sexual, including, but not limited to,

22  sexual intercourse, kissing in a sexual manner, or touching of a

23  body part for any purpose other than appropriate examination,

24  treatment, or comfort.

25        (vii) Offering to provide practice-related services, such as

26  drugs, in exchange for sexual favors.

27        (f) Failure to notify under section 16222(3) or (4).

 1        (g) Failure to report a change of name or mailing address as

 2  required in section 16192.

 3        (h) A violation, or aiding or abetting in a violation, of this

 4  article or of a rule promulgated under this article.

 5        (i) Failure to comply with a subpoena issued pursuant to this

 6  part, failure to respond to a complaint issued under this article,

 7  article 7, or article 8, failure to appear at a compliance

 8  conference or an administrative hearing, or failure to report under

 9  section 16222(1) or 16223.

10        (j) Failure to pay an installment of an assessment levied

11  under the insurance code of 1956, 1956 PA 218, MCL 500.100 to

12  500.8302, within 60 days after notice by the appropriate board.

13        (k) A violation of section 17013 or 17513.

14        (l) Failure to meet 1 or more of the requirements for

15  licensure or registration under section 16174.

16        (m) A violation of section 17015, 17015a, 17017, 17515, or

17  17517.

18        (n) A violation of section 17016 or 17516.

19        (o) Failure to comply with section 9206(3).

20        (p) A violation of section 5654 or 5655.

21        (q) A violation of section 16274.

22        (r) A violation of section 17020 or 17520.

23        (s) A violation of the medical records access act, 2004 PA 47,

24  MCL 333.26261 to 333.26271.

25        (t) A violation of section 17764(2).

26        (u) Failure to comply with the terms of a practice agreement

27  described in section 17047(2)(a) or (b), 17547(2)(a) or (b), or

 1  18047(2)(a) or (b).

 2  (v) A violation of section 7303b.

 3  Sec. 16226. (1) After finding the existence of 1 or more of

 4  the grounds for disciplinary subcommittee action listed in section

 5  16221, a disciplinary subcommittee shall impose 1 or more of the

 6  following sanctions for each violation:

7	Violations of Section 16221	Sanctions
8	Subdivision (a), (b)(i),	Probation, limitation, denial,
9	(b)(ii), (b)(iii), (b)(iv),	suspension, revocation,
10	(b)(v), (b)(vi), (b)(vii),	permanent revocation,
11	(b)(ix), (b)(x), (b)(xi),	restitution, or fine.
12	or (b)(xii)
13
14	Subdivision (b)(viii)	Revocation, permanent revocation,
15		or denial.
16
17	Subdivision (b)(xiii)	Permanent revocation
18		for a violation described in
19		subsection (5); otherwise,
20		probation, limitation, denial,
21		suspension, revocation,
22		restitution, or fine.
23
24	Subdivision (c)(i)	Denial, revocation, suspension,
25		probation, limitation, or fine.
26
27	Subdivision (c)(ii)	Denial, suspension, revocation,

1		restitution, or fine.
2
3	Subdivision (c)(iii)	Probation, denial, suspension,
4		revocation, restitution, or fine.
5
6	Subdivision (c)(iv)	Fine, probation, denial,
7	or (d)(iii)	suspension, revocation, permanent
8		revocation, or restitution.
9
10	Subdivision (d)(i)	Reprimand, fine, probation,
11	or (d)(ii)	denial, or restitution.
12
13	Subdivision (e)(i),	Reprimand, fine, probation,
14	(e)(iii), (e)(iv), (e)(v),	limitation, suspension,
15	(h), or (s)	revocation, permanent revocation,
16		denial, or restitution.
17
18	Subdivision (e)(ii)	Reprimand, probation, suspension,
19	or (i)	revocation, permanent
20		revocation, restitution,
21		denial, or fine.
22
23	Subdivision (e)(vi)	Probation, suspension, revocation,
24	or (e)(vii)	limitation, denial,
25		restitution, or fine.
26
27	Subdivision (f)	Reprimand, denial, limitation,

1		probation, or fine.
2
3	Subdivision (g)	Reprimand or fine.
4
5	Subdivision (j)	Suspension or fine.
6
7	Subdivision (k), (p),	Reprimand, probation, suspension,
8	or (r)	revocation, permanent revocation,
9		or fine.
10
11	Subdivision (l)	Reprimand, denial, or
12		limitation.
13
14	Subdivision (m) or (o)	Denial, revocation, restitution,
15		probation, suspension,
16		limitation, reprimand, or fine.
17
18	Subdivision (n)	Revocation or denial.
19
20	Subdivision (q)	Revocation.
21
22	Subdivision (t)	Revocation, permanent revocation,
23		fine, or restitution.
24
25	Subdivision (u)	Denial, revocation, probation,
26		suspension, limitation, reprimand,
27		or fine.

1
2	Subdivision (v)	Probation, limitation, denial,
3		fine, suspension, revocation, or
4		permanent revocation.

 5        (2) Determination of sanctions for violations under this

 6  section shall be made by a disciplinary subcommittee. If, during

 7  judicial review, the court of appeals determines that a final

 8  decision or order of a disciplinary subcommittee prejudices

 9  substantial rights of the petitioner for 1 or more of the grounds

10  listed in section 106 of the administrative procedures act of 1969,

11  1969 PA 306, MCL 24.306, and holds that the final decision or order

12  is unlawful and is to be set aside, the court shall state on the

13  record the reasons for the holding and may remand the case to the

14  disciplinary subcommittee for further consideration.

15        (3) A disciplinary subcommittee may impose a fine in an amount

16  that does not exceed $250,000.00 for a violation of section

17  16221(a) or (b). A disciplinary subcommittee shall impose a fine of

18  at least $25,000.00 if the violation of section 16221(a) or (b)

19  results in the death of 1 or more patients.

20        (4) A disciplinary subcommittee may require a licensee or

21  registrant or an applicant for licensure or registration who has

22  violated this article, article 7, or article 8 or a rule

23  promulgated under this article, article 7, or article 8 to

24  satisfactorily complete an educational program, a training program,

25  or a treatment program, a mental, physical, or professional

26  competence examination, or a combination of those programs and

27  examinations.

 1        (5) A disciplinary subcommittee shall impose the sanction of

 2  permanent revocation for a violation of section 16221(b)(xiii) if

 3  the violation occurred while the licensee or registrant was acting

 4  within the health profession for which he or she was licensed or

 5  registered.

 6        (6) Except as otherwise provided in subsection (5), a

 7  disciplinary subcommittee shall not impose the sanction of

 8  permanent revocation under this section without a finding that the

 9  licensee or registrant engaged in a pattern of intentional acts of

10  fraud or deceit resulting in personal financial gain to the

11  licensee or registrant and harm to the health of patients under the

12  licensee's or registrant's care.

13        Enacting section 1. This amendatory act takes effect 90 days

14  after the date it is enacted into law.