SENATE Substitute For
HOUSE BILL NO. 4990
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 16221 (MCL 333.16221), as amended by 2020 PA 135.
the people of the state of michigan enact:
Sec. 16221.
Subject to section 16221b, 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.
(c) Prohibited acts,
consisting of 1 or more of the following:
(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 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.
(viii) A violation of section 16655(4) by a dental therapist.
(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).
(v) A violation of
section 7303a(2).
(w) A violation of
section 7303a(4) or (5).
(x) A violation of
section 7303b.
(y) A violation of
section 17754a.
(z) Beginning January 1, 2021, a violation of section 24507
or 24509.
Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 100th Legislature are enacted into law:
(a) House Bill No. 4459.
(b) House Bill No. 4460.
(c) House Bill No. 4991.