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SB-0465, As Passed House, November 30, 2006

SUBSTITUTE FOR

SENATE BILL NO. 465

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 16177 and 20175 (MCL 333.16177 and 333.20175),

section 16177 as amended by 1998 PA 332 and section 20175 as

amended by 2000 PA 319, and by adding sections 16213 and 20175a.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 16177. (1) An individual applying for licensure or

registration under this article shall do so on a form provided by

the department. The department shall require each applicant to

include on the application form his or her social security number.

The department shall not display an applicant's social security

number on his or her license or registration. If the facts set

forth in the application meet the requirements of the board or task

force and this article for licensure or registration, the board or

task force shall grant a license or registration to the applicant.

A board or task force may require the applicant to take an

examination to determine if the applicant meets the qualifications

for licensure or registration. The examination shall include

subjects determined by the board or task force to be essential to

the safe and competent practice of the health profession, the

appropriate use of a title, or both. Passing scores or the

procedure used to determine passing scores shall be established

before an examination is administered.

(2) In addition to the information required under subsection

(1), an applicant for licensure or registration or a licensee or

registrant applying for renewal shall include on a form provided by

the department all of the following information, if applicable:

(a) A felony conviction.

(b) A misdemeanor conviction punishable by imprisonment for a

maximum term of 2 years or a misdemeanor conviction involving the

illegal delivery, possession, or use of alcohol or a controlled

substance.

licensure, registration, certification, or disciplinary board of

another state or country.

(3) In addition to the information required under subsections

(1) and (2), a physician, osteopathic physician, dentist, or

podiatrist applying for licensure or renewal under this article

shall report to the department on a form provided by the department

the name of each hospital with which he or she is employed or under

contract, and each hospital in which he or she is allowed to

practice.

(4) In addition to the information required under subsections

(1), (2), and (3), an applicant for licensure and, beginning the

license renewal cycle after the effective date of the amendatory

act that added section 16213, a licensee applying for renewal shall

provide the department, on the application or the license renewal

form, with an affidavit stating that he or she has a written policy

for protecting, maintaining, and providing access to his or her

medical records in accordance with section 16213 and for complying

with section 16213 in the event that he or she sells or closes his

or her practice, retires from practice, or otherwise ceases to

practice under this article. The applicant or licensee shall make

the written policy available to the department upon request.

(5) ~~(4)~~ A requirement under this section to include a social

security number on an application does not apply to an applicant

who demonstrates he or she is exempt under law from obtaining a

social security number or to an applicant who for religious

convictions is exempt under law from disclosure of his or her

social security number under these circumstances. The department

shall inform the applicant of this possible exemption.

Sec. 16213. (1) An individual licensed under this article

shall keep and maintain a record for each patient for whom he or

she has provided medical services, including a full and complete

record of tests and examinations performed, observations made, and

treatments provided. Unless a longer retention period is otherwise

required under federal or state laws or regulations or by generally

accepted standards of medical practice, a licensee shall keep and

retain each record for a minimum of 7 years from the date of

service to which the record pertains. The records shall be

maintained in such a manner as to protect their integrity, to

ensure their confidentiality and proper use, and to ensure their

accessibility and availability to each patient or his or her

authorized representative as required by law. A licensee may

destroy a record that is less than 7 years old only if both of the

following are satisfied:

(a) The licensee sends a written notice to the patient at the

last known address of that patient informing the patient that the

record is about to be destroyed, offering the patient the

opportunity to request a copy of that record, and requesting the

patient's written authorization to destroy the record.

(b) The licensee receives written authorization from the

patient or his or her authorized representative agreeing to the

destruction of the record.

(2) If a licensee is unable to comply with this section, the

licensee shall employ or contract, arrange, or enter into an

agreement with another health care provider, a health facility or

agency, or a medical records company to protect, maintain, and

provide access to those records required under subsection (1).

(3) If a licensee or registrant sells or closes his or her

practice, retires from practice, or otherwise ceases to practice

under this article, the licensee or the personal representative of

the licensee, if the licensee is deceased, shall not abandon the

records required under this section and shall send a written notice

to the department that specifies who will have custody of the

medical records and how a patient may request access to or copies

of his or her medical records and shall do either of the following:

(a) Transfer the records required under subsection (1) to any

of the following:

(i) A successor licensee.

(ii) If requested by the patient or his or her authorized

representative, to the patient or a specific health facility or

agency or other health care provider licensed under article 15.

(iii) A health care provider, a health facility or agency, or a

medical records company with which the licensee had contracted or

entered into an agreement to protect, maintain, and provide access

to those records required under subsection (1).

(b) In accordance with subsection (1), as long as the licensee

or the personal representative of the licensee, if the licensee is

deceased, sends a written notice to the last known address of each

patient for whom he or she has provided medical services and

receives written authorization from the patient or his or her

authorized representative, destroy the records required under

subsection (1). The notice shall provide the patient with 30 days

to request a copy of his or her record or to designate where he or

she would like his or her medical records transferred and shall

request from the patient within 30 days written authorization for

the destruction of his or her medical records. If the patient fails

to request a copy or transfer of his or her medical records or to

provide the licensee with written authorization for the

destruction, then the licensee or the personal representative of

the licensee shall not destroy those records that are less than 7

years old but may destroy, in accordance with subsection (4), those

that are 7 years old or older.

(4) Except as otherwise provided under this section or federal

or state laws and regulations, records required to be maintained

under subsection (1) may be destroyed or otherwise disposed of

after being maintained for 7 years. If records maintained in

accordance with this section are subsequently destroyed or

otherwise disposed of, those records shall be shredded,

incinerated, electronically deleted, or otherwise disposed of in a

manner that ensures continued confidentiality of the patient's

health care information and any other personal information relating

to the patient. If records are destroyed or otherwise disposed of

as provided under this subsection, the department may take action

including, but not limited to, contracting for or making other

arrangement to ensure that those records and any other confidential

identifying information related to the patient are properly

destroyed or disposed of to protect the confidentiality of

patient's health care information and any other personal

information relating to the patient. Before the department takes

action in accordance with this subsection, the department, if able

to identify the licensee responsible for the improper destruction

or disposal of the medical records at issue, shall send a written

notice to that licensee at his or her last known address or place

of business on file with the department and provide the licensee

with an opportunity to properly destroy or dispose of those medical

records as required under this subsection unless a delay in the

proper destruction or disposal may compromise the patient's

confidentiality. The department may assess the licensee with the

costs incurred by the department to enforce this subsection.

(5) A person who fails to comply with this section is subject

to an administrative fine of not more than $10,000.00 if the

failure was the result of gross negligence or willful and wanton

misconduct.

(6) Nothing in this section shall be construed to create or

change the ownership rights to any medical records.

(7) As used in this section:

(a) "Medical record" or "record" means information, oral or

recorded in any form or medium, that pertains to a patient's health

care, medical history, diagnosis, prognosis, or medical condition

and that is maintained by a licensee in the process of providing

medical services.

(b) "Medical records company" means a person who contracts for

or agrees to protect, maintain, and provide access to medical

records for a health care provider or health facility or agency in

accordance with this section.

health care from a health care provider or health facility or

agency. Patient includes a guardian, if appointed, and a parent,

guardian, or person acting in loco parentis, if the individual is a

minor, unless the minor lawfully obtained health care without the

consent or notification of a parent, guardian, or other person

acting in loco parentis, in which case the minor has the exclusive

right to exercise the rights of a patient under this section with

respect to his or her medical records relating to that care.

Sec. 20175. (1) A health facility or agency shall keep and

maintain a record for each patient, including a full and complete

record of tests and examinations performed, observations made,

treatments provided, and in the case of a hospital, the purpose of

hospitalization. Unless a longer retention period is otherwise

required under federal or state laws or regulations or by generally

accepted standards of medical practice, a health facility or agency

shall keep and retain each record for a minimum of 7 years from the

date of service to which the record pertains. A health facility or

agency shall maintain the records in such a manner as to protect

their integrity, to ensure their confidentiality and proper use,

and to ensure their accessibility and availability to each patient

or his or her authorized representative as required by law. A

health facility or agency may destroy a record that is less than 7

years old only if both of the following are satisfied:

(a) The health facility or agency sends a written notice to

the patient at the last known address of that patient informing the

patient that the record is about to be destroyed, offering the

patient the opportunity to request a copy of that record, and

requesting the patient's written authorization to destroy the

record.

(b) The health facility or agency receives written

authorization from the patient or his or her authorized

representative agreeing to the destruction of the record. Except as

otherwise provided under federal or state laws and regulations,

records required to be maintained under this subsection may be

destroyed or otherwise disposed of after being maintained for 7

years. If records maintained in accordance with this section are

subsequently destroyed or otherwise disposed of, those records

shall be shredded, incinerated, electronically deleted, or

otherwise disposed of in a manner that ensures continued

confidentiality of the patient's health care information and any

other personal information relating to the patient. If records are

destroyed or otherwise disposed of as provided under this

subsection, the department may take action including, but not

limited to, contracting for or making other arrangements to ensure

that those records and any other confidential identifying

information related to the patient are properly destroyed or

disposed of to protect the confidentiality of patient's health care

information and any other personal information relating to the

patient. Before the department takes action in accordance with this

subsection, the department, if able to identify the health facility

or agency responsible for the improper destruction or disposal of

the medical records at issue, shall send a written notice to that

health facility or agency at the last known address on file with

the department and provide the health facility or agency with an

opportunity to properly destroy or dispose of those medical records

as required under this subsection unless a delay in the proper

destruction or disposal may compromise the patient's

confidentiality. The department may assess the health facility or

agency with the costs incurred by the department to enforce this

subsection. In addition to the sanctions set forth in section

20165, a hospital that fails to comply with this subsection is

subject to an administrative fine of $10,000.00.

(2) A hospital shall take precautions to assure that the

records required by subsection (1) are not wrongfully altered or

destroyed. A hospital that fails to comply with this subsection is

subject to an administrative fine of $10,000.00.

(3) Unless otherwise provided by law, the licensing and

certification records required by this article are public records.

(4) Departmental officers and employees shall respect the

confidentiality of patient clinical records and shall not divulge

or disclose the contents of records in a manner that identifies an

individual except pursuant to court order or as otherwise

authorized by law.

(5) A health facility or agency that employs, contracts with,

or grants privileges to a health professional licensed or

registered under article 15 shall report the following to the

department ~~of consumer and industry services~~ not more than 30

days after it occurs:

(a) Disciplinary action taken by the health facility or agency

against a health professional licensed or registered under article

15 based on the licensee's or registrant's professional competence,

disciplinary action that results in a change of employment status,

or disciplinary action based on conduct that adversely affects the

licensee's or registrant's clinical privileges for a period of more

than 15 days. As used in this subdivision, "adversely affects"

means the reduction, restriction, suspension, revocation, denial,

or failure to renew the clinical privileges of a licensee or

registrant by a health facility or agency.

(b) Restriction or acceptance of the surrender of the clinical

privileges of a licensee or registrant under either of the

following circumstances:

(i) The licensee or registrant is under investigation by the

health facility or agency.

(ii) There is an agreement in which the health facility or

agency agrees not to conduct an investigation into the licensee's

or registrant's alleged professional incompetence or improper

professional conduct.

terminates a contract or whose contract is not renewed instead of

the health facility taking disciplinary action against the health

professional.

(6) Upon request by another health facility or agency seeking

a reference for purposes of changing or granting staff privileges,

credentials, or employment, a health facility or agency that

employs, contracts with, or grants privileges to health

professionals licensed or registered under article 15 shall notify

the requesting health facility or agency of any disciplinary or

other action reportable under subsection (5) that it has taken

against a health professional licensed or registered under article

15 and employed by, under contract to, or granted privileges by the

health facility or agency.

(7) For the purpose of reporting disciplinary actions under

this section, a health facility or agency shall include only the

following in the information provided:

(a) The name of the licensee or registrant against whom

disciplinary action has been taken.

(b) A description of the disciplinary action taken.

(d) The date of the incident that is the basis for the

disciplinary action.

(8) The records, data, and knowledge collected for or by

individuals or committees assigned a professional review function

in a health facility or agency, or an institution of higher

education in this state that has colleges of osteopathic and human

medicine, are confidential, shall be used only for the purposes

provided in this article, are not public records, and are not

subject to court subpoena.

Sec. 20175a. (1) If a health facility or agency is unable to

comply with section 20175, the health facility or agency shall

employ or contract, arrange, or enter into an agreement with

another health facility or agency or a medical records company to

protect, maintain, and provide access to those records required

under section 20175(1).

(2) If a health facility or agency closes or otherwise ceases

operation, the health facility or agency shall not abandon the

records required to be maintained under section 20175(1) and shall

send a written notice to the department that specifies who will

have custody of the medical records and how a patient may request

access to or copies of his or her medical records and shall do

either of the following:

(a) Transfer the records required under section 20175(1) to

any of the following:

(i) A successor health facility or agency.

(ii) If designated by the patient or his or her authorized

representative, to the patient or a specific health facility or

agency or a health care provider licensed or registered under

article 15.

(iii) A health facility or agency or a medical records company

with which the health facility or agency had contracted or entered

into an agreement to protect, maintain, and provide access to those

records required under section 20175(1).

(b) In accordance with section 20175(1), as long as the health

facility or agency sends a written notice to the last known address

of each patient for whom he or she has provided medical services

and receives written authorization from the patient or his or her

authorized representative, destroy the records required under

section 20175(1). The notice shall provide the patient with 30 days

to request a copy of his or her record or to designate where he or

she would like his or her medical records transferred and shall

request from the patient within 30 days written authorization for

the destruction of his or her medical records. If the patient fails

to request a copy or transfer of his or her medical records or to

provide the health facility or agency with written authorization

for the destruction, then the health facility or agency shall not

destroy those records that are less than 7 years old but may

destroy, in accordance with section 20175(1), those that are 7

years old or older.

(3) Nothing in this section shall be conducted to create or