SB-0235, As Passed Senate, June 16, 2011
SUBSTITUTE FOR
SENATE BILL NO. 235
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 16221 (MCL 333.16221), as amended by 2004 PA
214.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 16221. The department 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 relevant testimony to be
taken and shall report its findings 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) 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
practice the health profession.
(b) Personal disqualifications, consisting of 1 or more of the
following:
(i) Incompetence.
(ii) Subject to sections 16165 to 16170a, substance abuse as
defined in section 6107.
(iii) Mental or physical inability reasonably related to and
adversely affecting the licensee'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; a misdemeanor involving the illegal
delivery, possession, or use of a controlled substance; or a
felony. 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 sections
520b to
520g
section 520e or
520g of the Michigan penal code, 1931
PA 328,
MCL
750.520b to 750.520g 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 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 520b,
520c, 520d, or 520f of the Michigan penal code, 1931 PA 328, MCL
750.520b, 750.520c, 750.520d, and 750.520f. 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 the 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) 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) 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 that an
individual purchase or secure a drug, device, treatment, procedure,
or service from another person, place, facility, or business in
which the licensee has a financial interest.
(B) A referral by a physician for a designated health service
that
violates section 1877 of part D of title XVIII of the social
security
act, 42 USC 1395nn , or a regulation promulgated under
that
section. Section 1877 of part D of title XVIII of the social
security
act, For purposes of this
subparagraph, 42 USC 1395nn ,
and
the regulations promulgated under that section , as they exist
on
June 3, 2002 , are incorporated by reference. for
purposes of
this
subparagraph. A disciplinary
subcommittee shall apply section
1877
of part D of title XVIII of the social security act, 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 section 1877 of part D of title
XVIII
of the social security act, 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 subparagraph, "designated
health
service" means that term as defined in section 1877 of part
D
of title XVIII of the social security act, 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 pursuant to section
1877
of part D of title XVIII of the social security act, 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.
(f) Beginning June 3, 2003, the department of consumer and
industry services shall prepare the first of 3 annual reports on
the
effect of this amendatory act 2002
PA 402 on access to care for
the uninsured and medicaid patients. The department shall report on
the number of referrals by licensees of uninsured and medicaid
patients to purchase or secure a drug, device, treatment,
procedure, or service from another person, place, facility, or
business in which the licensee has a financial interest.
(g) Failure to report a change of name or mailing address
within 30 days after the change occurs.
(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
or article 7, failure to appear at a compliance conference or an
administrative hearing, or failure to report under section 16222 or
16223.
(j) Failure to pay an installment of an assessment levied
pursuant to 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 or 17515.
(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).
Enacting section 1. This amendatory act does not take effect
unless all of the following bills of the 96th Legislature are
enacted into law:
(a) House Bill No. 4411.
(b) House Bill No. 4412.