BillCam

HB-4639, As Passed Senate, June 15, 2017

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4639

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending section 16221 (MCL 333.16221), as amended by 2016 PA

379.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 16221. The department shall investigate any allegation

that 1 or more of the grounds for disciplinary subcommittee action

under this section exist, and may investigate activities related to

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

an applicant for licensure or registration. The department may hold

hearings, administer oaths, and order the taking of relevant

testimony. After its investigation, the department shall provide a

copy of the administrative complaint to the appropriate

disciplinary subcommittee. The disciplinary subcommittee shall

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

following grounds exist:

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

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

exercise due care, including negligent delegation to or supervision

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

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

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

health profession.

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

following:

(i) Incompetence.

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

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

PA 258, MCL 330.1100d.

(iii) Mental or physical inability reasonably related to and

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

practice in a safe and competent manner.

(iv) Declaration of mental incompetence by a court of

competent jurisdiction.

(v) Conviction of a misdemeanor punishable by imprisonment for

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

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

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

in another subparagraph of this subdivision. A certified copy of

the court record is conclusive evidence of the conviction.

(vi) Lack of good moral character.

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

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

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

evidence of the conviction.

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

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

the court record is conclusive evidence of the conviction.

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

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

health profession. A certified copy of the court record is

conclusive evidence of the conviction.

(x) Final adverse administrative action by a licensure,

registration, disciplinary, or certification board involving the

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

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

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

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

of the final action.

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

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

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

court record is conclusive evidence of the conviction.

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

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

record is conclusive evidence of the conviction.

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

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

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

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

court record is conclusive evidence of the conviction.

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

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

certified copy of the court record is conclusive evidence of the

conviction.

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

registration.

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

unauthorized person.

(iii) Practice outside the scope of a license.

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

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

defined in section 7105 without lawful authority; or selling,

prescribing, giving away, or administering drugs for other than

lawful diagnostic or therapeutic purposes.

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

unethical business practices, consisting of 1 or more of the

following:

(i) False or misleading advertising.

(ii) Dividing fees for referral of patients or accepting

kickbacks on medical or surgical services, appliances, or

medications purchased by or in behalf of patients.

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

third party reimbursement.

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

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

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

or attempting to obtain third party reimbursement in the course of

professional practice.

(ii) Betrayal of a professional confidence.

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

device, treatment, procedure, or service.

(iv) Either of the following:

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

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

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

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

financial interest.

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

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

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

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

2002 are incorporated by reference. A disciplinary subcommittee

shall apply 42 USC 1395nn and the regulations promulgated under

that section regardless of the source of payment for the designated

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

regulation promulgated under that section is revised after June 3,

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

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

shall decide whether or not the revision pertains to referral by

physicians for designated health services and continues to protect

the public from inappropriate referrals by physicians. If the

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

department may promulgate rules to incorporate the revision by

reference. If the department does promulgate rules to incorporate

the revision by reference, the department shall not make any

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

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

1395nn and the regulations promulgated under that section and

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

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

a regulation promulgated under that section, refusing to accept a

reasonable proportion of patients eligible for Medicaid and

refusing to accept payment from Medicaid or Medicare as payment in

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

refers the individual and in which the physician has a financial

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

he or she provides surgical services is not subject to this

subparagraph if a referred surgical procedure he or she performs in

the facility is not reimbursed at a minimum of the appropriate

Medicaid or Medicare outpatient fee schedule, including the

combined technical and professional components.

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

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

she is licensed or registered, including conduct initiated by a

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

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

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

body part for any purpose other than appropriate examination,

treatment, or comfort.

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

drugs, in exchange for sexual favors.

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

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

required in section 16192.

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

article or of a rule promulgated under this article.

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

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

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

conference or an administrative hearing, or failure to report under

section 16222(1) or 16223.

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

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

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

(k) A violation of section 17013 or 17513.

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

licensure or registration under section 16174.

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

17517.

(n) A violation of section 17016 or 17516.

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

(p) A violation of section 5654 or 5655.

(q) A violation of section 16274.

(r) A violation of section 17020 or 17520.

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

MCL 333.26261 to 333.26271.

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

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

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

18047(2)(a) or (b).

Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

Enacting section 2. This amendatory act does not take effect

unless all of the following bills of the 99th Legislature are

enacted into law:

(a) Senate Bill No. 337.

(b) Senate Bill No. 368.