SB-0270, As Passed House, December 13, 2017

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE SUBSTITUTE FOR

 

SENATE BILL NO. 270

 

 

 

 

 

 

 

 

 

 

 

      A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending sections 7303a, 16221, and 16226 (MCL 333.7303a,

 

333.16221, and 333.16226), section 7303a as amended by 2016 PA 379,

 

section 16221 as amended by 2017 PA 75, and section 16226 as

 

amended by 2017 PA 81, and by adding section 16204e.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

 1        Sec. 7303a. (1) A prescriber who holds a controlled substances

 

 2  license may administer or dispense a controlled substance listed in

 

 3  schedules 2 to 5 without a separate controlled substances license

 

 4  for those activities.

 

 5        (2) Except as otherwise provided in rules promulgated under

 

 6  section 16204e, beginning March 31, 2018, a licensed prescriber

 

 7  shall not prescribe a controlled substance listed in schedules 2 to

 


 1  5 unless the prescriber is in a bona fide prescriber-patient

 

 2  relationship with the patient for whom the controlled substance is

 

 3  being prescribed. Except as otherwise provided in this subsection,

 

 4  if a licensed prescriber prescribes a controlled substance under

 

 5  this subsection, the prescriber shall provide follow-up care to the

 

 6  patient to monitor the efficacy of the use of the controlled

 

 7  substance as a treatment of the patient's medical condition. If the

 

 8  licensed prescriber is unable to provide follow-up care, he or she

 

 9  shall refer the patient to the patient's primary care provider for

 

10  follow-up care or, if the patient does not have a primary care

 

11  provider, he or she shall refer the patient to another licensed

 

12  prescriber who is geographically accessible to the patient for

 

13  follow-up care.

 

14        (3) (2) Before prescribing or dispensing a controlled

 

15  substance to a patient, a licensed prescriber shall ask the patient

 

16  about other controlled substances the patient may be using. The

 

17  prescriber shall record the patient's response in the patient's

 

18  medical or clinical record.

 

19        (4) (3) A licensed prescriber who dispenses controlled

 

20  substances shall maintain all of the following records separately

 

21  from other prescription records:

 

22        (a) All invoices and other acquisition records for each

 

23  controlled substance acquired by the prescriber for not less than 5

 

24  years after the date the prescriber acquires the controlled

 

25  substance.

 

26        (b) A log of all controlled substances dispensed by the

 

27  prescriber for not less than 5 years after the date the controlled


 1  substance is dispensed.

 

 2        (c) Records of all other dispositions of controlled substances

 

 3  under the licensee's control for not less than 5 years after the

 

 4  date of the disposition.

 

 5        (5) (4) The requirement under section 7303 for a license is

 

 6  waived in the following circumstances:

 

 7        (a) When a controlled substance listed in schedules 2 to 5 is

 

 8  administered on the order of a licensed prescriber by an individual

 

 9  who is licensed under article 15 as a practical nurse or a

 

10  registered professional nurse.

 

11        (b) When methadone or a methadone congener is dispensed on the

 

12  order of a licensed prescriber in a methadone treatment program

 

13  licensed under article 6 or when a controlled substance listed in

 

14  schedules 2 to 5 is dispensed on the order of a licensed prescriber

 

15  in a hospice rendering emergency care services in a patient's home

 

16  as described in section 17746 by a registered professional nurse

 

17  licensed under article 15.

 

18        (6) As used in this section:

 

19        (a) "Bona fide prescriber-patient relationship" means a

 

20  treatment or counseling relationship between a prescriber and a

 

21  patient in which both of the following are present:

 

22        (i) The prescriber has reviewed the patient's relevant medical

 

23  or clinical records and completed a full assessment of the

 

24  patient's medical history and current medical condition, including

 

25  a relevant medical evaluation of the patient conducted in person or

 

26  via telehealth.

 

27        (ii) The prescriber has created and maintained records of the


 1  patient's condition in accordance with medically accepted

 

 2  standards.

 

 3        (b) "Telehealth" means that term as defined in section 16283.

 

 4        Sec. 16204e. Not later than 1 year after the effective date of

 

 5  the amendatory act that added this section, the department in

 

 6  consultation with the Michigan board of medicine, the Michigan

 

 7  board of osteopathic medicine and surgery, the Michigan board of

 

 8  dentistry, the Michigan board of podiatric medicine and surgery,

 

 9  the Michigan board of optometry, the Michigan task force on

 

10  physician's assistants, and the Michigan board of nursing may

 

11  promulgate rules describing the circumstances under which a bona

 

12  fide prescriber-patient relationship is not required for purposes

 

13  of prescribing a schedule 2 to 5 controlled substance under section

 

14  7303a(2). The rules may include an alternative requirement for

 

15  prescribing a schedule 2 to 5 controlled substance when a bona fide

 

16  prescriber-patient relationship is not required by the rules

 

17  promulgated under this section.

 

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        (xiv) Conviction of a violation of section 136 or 136a of the

 

 4  Michigan penal code, 1931 PA 328, MCL 750.136 and 750.136a. A

 

 5  certified copy of the court record is conclusive evidence of the

 

 6  conviction.

 

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

 

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

 

 9  registration.

 

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

 

11  unauthorized person.

 

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

 

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

 

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

 

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

 

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

 

17  lawful diagnostic or therapeutic purposes.

 

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

 

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

 

20  following:

 

21        (i) False or misleading advertising.

 

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

 

23  kickbacks on medical or surgical services, appliances, or

 

24  medications purchased by or in behalf of patients.

 

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

 

26  third party reimbursement.

 

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


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

 

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

 

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

 

 4  professional practice.

 

 5        (ii) Betrayal of a professional confidence.

 

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

 

 7  device, treatment, procedure, or service.

 

 8        (iv) Either of the following:

 

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

 

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

 

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

 

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

 

13  financial interest.

 

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

 

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

 

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

 

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

 

18  2002 are incorporated by reference. A disciplinary subcommittee

 

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

 

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

 

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

 

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

 

23  2002, the department shall officially take notice of the revision.

 

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

 

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

 

26  physicians for designated health services and continues to protect

 

27  the public from inappropriate referrals by physicians. If the


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

 

 2  department may promulgate rules to incorporate the revision by

 

 3  reference. If the department does promulgate rules to incorporate

 

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

 

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

 

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

 

 7  1395nn and the regulations promulgated under that section and

 

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

 

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

 

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

 

11  reasonable proportion of patients eligible for Medicaid and

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

19  Medicaid or Medicare outpatient fee schedule, including the

 

20  combined technical and professional components.

 

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

 

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

 

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

 

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

 

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

 

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

 

27  body part for any purpose other than appropriate examination,


 1  treatment, or comfort.

 

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

 

 3  drugs, in exchange for sexual favors.

 

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

 

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

 

 6  required in section 16192.

 

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

 

 8  article or of a rule promulgated under this article.

 

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

 

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

 

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

 

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

 

13  section 16222(1) or 16223.

 

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

 

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

 

16  500.8302, within 60 days after notice by the appropriate board.

 

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

 

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

 

19  licensure or registration under section 16174.

 

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

 

21  17517.

 

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

 

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

 

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

 

25        (q) A violation of section 16274.

 

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

 

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


 1  MCL 333.26261 to 333.26271.

 

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

 

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

 

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

 

 5  18047(2)(a) or (b).

 

 6        (v) A violation of section 7303a(2).

 

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

 

 8  the grounds for disciplinary subcommittee action listed in section

 

 9  16221, a disciplinary subcommittee shall impose 1 or more of the

 

10  following sanctions for each violation:

 

 

11

 Violations of Section 16221

            Sanctions

12

 Subdivision (a), (b)(i),

Probation, limitation, denial,

13

 (b)(ii), (b)(iii), (b)(iv),

suspension, revocation,

14

 (b)(v), (b)(vi), (b)(vii),

permanent revocation,

15

 (b)(ix),  (b)(x), (b)(xi),

restitution, or fine.

16

 or (b)(xii)

17

18

 Subdivision (b)(viii)

Revocation, permanent revocation,

19

or denial.

20

21

 Subdivision (b)(xiii)

Permanent revocation

22

for a violation described in

23

subsection (5); otherwise,

24

probation, limitation, denial,

25

suspension, revocation,

26

restitution, or fine.

27


 1

 Subdivision (b)(xiv)

Permanent revocation.

 2

 3

 Subdivision (c)(i)

Denial, revocation, suspension,

 4

probation, limitation, or fine.

 5

 6

 Subdivision (c)(ii)

Denial, suspension, revocation,

 7

restitution, or fine.

 8

 9

 Subdivision (c)(iii)

Probation, denial, suspension,

10

revocation, restitution, or fine.

11

12

 Subdivision (c)(iv)

Fine, probation, denial,

13

 or (d)(iii)

suspension, revocation, permanent

14

revocation, or restitution.

15

16

 Subdivision (d)(i)

Reprimand, fine, probation,

17

 or (d)(ii)

denial, or restitution.

18

19

 Subdivision (e)(i),

Reprimand, fine, probation,

20

 (e)(iii),  (e)(iv), (e)(v),

limitation, suspension,

21

 (h), or (s)

revocation, permanent revocation,

22

denial, or restitution.

23

24

 Subdivision (e)(ii)

Reprimand, probation, suspension,

25

 or (i)

revocation, permanent

26

revocation, restitution,


 1

denial, or fine.

 2

 3

 Subdivision (e)(vi)

Probation, suspension, revocation,

 4

 or (e)(vii)

limitation, denial,

 5

restitution, or fine.

 6

 7

 Subdivision (f)

Reprimand, denial, limitation,

 8

probation, or fine.

 9

10

 Subdivision (g)

Reprimand or fine.

11

12

 Subdivision (j)

Suspension or fine.

13

14

 Subdivision (k), (p),

Reprimand, probation, suspension,

15

 or (r)

revocation, permanent revocation,

16

or fine.

17

18

 Subdivision (l)

Reprimand, denial, or

19

limitation.

20

21

 Subdivision (m) or (o)

Denial, revocation, restitution,

22

probation, suspension,

23

limitation, reprimand, or fine.

24

25

 Subdivision (n)

Revocation or denial.

26


 1

 Subdivision (q)

Revocation.

 2

 3

 Subdivision (t)

Revocation, permanent revocation,

 4

fine, or restitution.

 5

 6

 Subdivision (u)

Denial, revocation, probation,

 7

suspension, limitation, reprimand,

 8

or fine.

 9

 

 

10

 Subdivision (v)

Probation, limitation, denial,

11

 

fine, suspension, revocation, or

12

 

permanent revocation.

 

 

13        (2) Determination of sanctions for violations under this

 

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

 

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

 

16  decision or order of a disciplinary subcommittee prejudices

 

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

 

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

 

19  1969 PA 306, MCL 24.306, and holds that the final decision or order

 

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

 

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

 

22  disciplinary subcommittee for further consideration.

 

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

 

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

 

25  16221(a) or (b). A disciplinary subcommittee shall impose a fine of

 

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

 

27  results in the death of 1 or more patients.


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

 

 2  registrant or an applicant for licensure or registration who has

 

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

 

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

 

 5  satisfactorily complete an educational program, a training program,

 

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

 

 7  competence examination, or a combination of those programs and

 

 8  examinations.

 

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

 

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

 

11  the violation occurred while the licensee or registrant was acting

 

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

 

13  registered.

 

14        (6) Except as otherwise provided in subsection (5) and this

 

15  subsection, a disciplinary subcommittee shall not impose the

 

16  sanction of permanent revocation under this section without a

 

17  finding that the licensee or registrant engaged in a pattern of

 

18  intentional acts of fraud or deceit resulting in personal financial

 

19  gain to the licensee or registrant and harm to the health of

 

20  patients under the licensee's or registrant's care. This subsection

 

21  does not apply if a disciplinary subcommittee finds that a licensee

 

22  or registrant has violated section 16221(b)(xiv).