July 27, 2011, Introduced by Reps. Poleski, Agema, Pscholka, Bumstead and Shirkey and referred to the Committee on Health Policy.
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 7408a, 16106a, 16221, and 18214 (MCL
333.7408a, 333.16106a, 333.16221, and 333.18214), section 7408a as
amended by 1999 PA 144, section 16106a as added by 1993 PA 80, and
section 16221 as amended by 2004 PA 214.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 7408a. (1) As part of the sentence or juvenile
disposition for an attempt to violate, a conspiracy to violate, or
a
violation of this part or section 17766a or of a local ordinance
that
prohibits conduct prohibited under this part, or section
17766a,
the court shall consider all prior
convictions currently
entered upon the criminal history record and Michigan driving
record of the person, except those convictions which, upon motion
of the defendant, are determined by the court to be
constitutionally invalid, and, subject to subsection (11), shall
impose the following licensing sanctions in addition to any other
penalty or sanction imposed for the violation:
(a) If the court finds that the person does not have a prior
conviction within 7 years of the violation, the court shall order
the secretary of state to suspend the operator's or chauffeur's
license of the person for 6 months. If the court finds compelling
circumstances under subsection (8) sufficient to warrant the
issuance of a restricted license, the court may order the secretary
of state to issue to the person a restricted license during all or
a specified portion of the period of suspension, except that a
restricted license shall not be issued during the first 30 days of
the period of suspension.
(b) If the court finds that the person has 1 or more prior
convictions within 7 years of the violation, the court shall order
the secretary of state to suspend the operator's or chauffeur's
license of the person for 1 year. If the court finds compelling
circumstances under subsection (8) sufficient to warrant the
issuance of a restricted license, the court may order the secretary
of state to issue to the person a restricted license during all or
any portion of the period of suspension, except that a restricted
license shall not be issued during the first 60 days of the period
of suspension.
(2) The person whose operator's or chauffeur's license is
ordered suspended under this section shall immediately surrender
his or her operator's or chauffeur's license to the court. The
court shall immediately destroy the license and forward an abstract
of conviction with court-ordered license sanctions to the secretary
of state. Upon receipt of, and pursuant to, the abstract of
conviction with court-ordered license sanctions, the secretary of
state shall suspend the person's license and, if ordered by the
court and if the person is otherwise eligible for a license, issue
to the person a restricted license stating the limited driving
privileges indicated on the abstract. If the judgment is appealed
to circuit court, the court may, ex parte, order the secretary of
state to stay the suspension or license restriction issued under
this section pending the outcome of the appeal.
(3) Except as otherwise provided in subsection (5), before
imposing sentence or entering a juvenile disposition, other than
court-ordered license sanctions under this section, for an attempt
to
violate, a conspiracy to violate, or a violation of this part or
section
17766a or of a local ordinance that
prohibits conduct
prohibited
under this part, or section 17766a, the court may order
the person to undergo screening and assessment by a person or
agency
as designated by the office of substance abuse services a
community mental health services program under the mental health
code, 1974 PA 258, MCL 330.1001 to 330.2106, to determine whether
the person is likely to benefit from rehabilitative services,
including alcohol or drug education and alcohol or drug treatment
programs. The person shall pay for the costs of the screening and
assessment services.
(4) Except as otherwise provided in subsection (5), as part of
the sentence or juvenile disposition for an attempt to violate, a
conspiracy
to violate, or a violation of this part or section
17766a
or of a local ordinance that
prohibits conduct prohibited
under
this part, or section 17766a, the court may order the
person
to do 1 or both of the following:
(a) Perform service to the community for not more than 90
days. A person ordered to perform service to the community under
this subdivision shall not receive compensation, and shall
reimburse the state or appropriate local unit of government for the
cost of supervision incurred by the state or local unit of
government as a result of the person's activities in that service.
(b) Participate in and successfully complete 1 or more
appropriate rehabilitative programs. The person shall pay for the
costs of the rehabilitative services.
(5) Subsections (3) and (4) do not apply to a person who is
not eligible for probation under chapter XI of the code of criminal
procedure, 1927 PA 175, MCL 777.1 to 777.14a.
(6) A restricted license issued in compliance with an order
under this section shall permit the person to whom it is issued to
drive under the following circumstances:
(a) In the course of the person's employment or occupation.
(b) To and from any combination of the following:
(i) The person's residence.
(ii) The person's work location.
(iii) An alcohol or drug education or treatment program as
ordered by the court.
(iv) The court probation department.
(v) A court-ordered community service program.
(vi) An educational institution at which the person is enrolled
as a student.
(vii) A place of regularly occurring medical treatment for a
serious condition for the person or a member of the person's
household or immediate family.
(7) The court shall not order the secretary of state under
this section to issue a restricted license that would permit a
person to operate a commercial motor vehicle that hauls hazardous
material.
(8) The court shall not order the secretary of state under
this section to issue a restricted license unless the person states
under oath, and the court finds by testimony taken in open court or
by statements contained in a sworn affidavit on a form prescribed
by the state court administrator, that both of the following apply:
(a) The person needs vehicular transportation to and from his
or her work location, place of alcohol or drug education treatment,
court probation department, court-ordered community service
program, or educational institution, or in the course of the
person's employment or occupation.
(b) The person is unable to take public transportation and
does not have any family members or other individual able to
provide transportation to a destination or for a purpose described
in subdivision (a).
(9) Regardless of a court order issued under this section, the
secretary of state shall not issue a restricted license to a person
whose license is suspended under this section unless a restricted
license is authorized under this section and the person is
otherwise eligible for a license.
(10) While driving, the person shall carry proof of his or her
destination and the hours of any employment, class, or other reason
for traveling and shall display that proof upon a peace officer's
request.
(11) A court shall not order the suspension of a person's
license if the person is sentenced to life imprisonment or to a
minimum term of imprisonment that exceeds 1 year for an attempt to
violate,
a conspiracy to violate, or a violation of part 74. or
section
17766a.
(12) The court shall do both of the following:
(a) Transmit a record of each order issued under this section
to the secretary of state.
(b) Forward to the department of state police, on a form or
forms prescribed by the state court administrator, a record that
specifies the penalties imposed by the court for an offense
described in subsection (1), including a licensing sanction ordered
under this section and a term of imprisonment imposed for the
offense.
(13) Except as otherwise provided by law, a record described
in subsection (12) is a public record, and the department of state
police shall retain the information contained in that record for
not less than 7 years.
(14) As used in this section:
(a) "Commercial motor vehicle" means that term as defined in
section 7a of the Michigan vehicle code, 1949 PA 300, MCL 257.7a.
(b) "Conviction" means a final conviction, a plea of guilty or
nolo contendere if accepted by the court, a finding of guilt, a
probate court disposition, or a juvenile adjudication, for a
criminal law violation, regardless of whether the penalty is
rebated or suspended.
(c) "Hazardous material" means that term as defined in section
19b of the Michigan vehicle code, 1949 PA 300, MCL 257.19b.
(d) "Juvenile disposition" means either of the following:
(i) A finding of juvenile delinquency under chapter
403 of
title
18 of the United States Code, 18 U.S.C. 5031 to 5040 and 5042
18 USC 5031 to 5042.
(ii) The entry of a judgment or order of disposition by a court
of another state that states or is based upon a finding that a
juvenile violated a law of another state that would have been a
criminal offense if committed by an adult in that state.
(e) "Law of another state" means a law or ordinance enacted by
another state or by a local unit of government in another state.
(f)
"Office of substance abuse services" means the agency
created
by section 6201.
(f) (g)
"Prior conviction" means
either of the following:
(i) A conviction for an attempt to violate, a conspiracy to
violate, or a violation of part 74 or former section 17766a, a
local ordinance that prohibits conduct prohibited under part 74 or
former section 17766a, or a law of another state that prohibits
conduct prohibited under part 74 or former section 17766a.
(ii) A conviction for an attempt to violate, a conspiracy to
violate,
or a violation of the controlled substances act, title II
of
the comprehensive drug abuse prevention and control act of 1970,
Public
Law 91-513, 84 Stat. 1242 21
USC 801 to 971.
(g) (h)
"Probate court
disposition" means the entry of a
probate court order of disposition for a child found to be within
the provisions of chapter XIIA of the probate code of 1939, 1939 PA
288,
MCL 712A.1 to 712A.28 712A.32.
(h) (i)
"Work location" means, as
applicable, either the
specific place or places of employment, or the territory or
territories regularly visited by the person in pursuance of the
person's occupation, or both.
Sec. 16106a. "Impaired" or "impairment" means the inability or
immediately impending inability of a health professional to
practice his or her health profession in a manner that conforms to
the minimum standards of acceptable and prevailing practice for
that health profession due to the health professional's substance
abuse, chemical dependency, or mental illness or the health
professional's use of drugs or alcohol that does not constitute
substance abuse or chemical dependency. As used in this section:
(a) "Chemical dependency" means a group of cognitive,
behavioral, and physiological symptoms that indicate that an
individual has a substantial lack of or no control over the
individual's use of 1 or more psychoactive substances.
(b)
"Mental illness" means that term as defined in section
400a
of the mental health code, Act No. 258 of the Public Acts of
1974,
being section 330.1400a of the Michigan Compiled Laws section
400 of the mental health code, 1974 PA 258, MCL 330.1400.
(c)
"Substance abuse" means that term as defined in section
6107 the
taking of alcohol or other drugs at dosages that place an
individual's social, economic, psychological, and physical welfare
in potential hazard or to the extent that an individual loses the
power of self-control as a result of the use of alcohol or drugs,
or while habitually under the influence of alcohol or drugs,
endangers public health, morals, safety, or welfare, or a
combination thereof.
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 16106a.
(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 of the Michigan penal code, 1931 PA 328, MCL 750.520b to
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.
(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).
Sec. 18214. (1) This part does not prohibit an individual who
holds a doctoral degree in psychology from a regionally accredited
college or university from using a title including "psychologist"
if the individual does not engage in the practice of psychology.
(2) This part does not prohibit an individual approved by the
state department of education from using the title "school
psychologist" and engaging in those duties and activities pertinent
to employment by a public or private elementary or secondary
school.
(3) This part does not prohibit an individual employed by a
regionally accredited college or university and involved in
research or the teaching of psychology from performing those duties
for which he or she is employed by that institution.
(4) This part does not prohibit a certified, licensed,
registered, or otherwise statutorily recognized member of any
profession including a lawyer, social worker, school counselor or
marriage counselor from practicing his or her profession as
authorized by law.
(5) This part does not prohibit a clergyman, professional
educator, or professional counselor, including an alcoholism or
drug abuse counselor, whose practice may include preventive
techniques, counseling techniques, or behavior modification
techniques from practicing his or her profession consistent with
his or her training and with a code of ethics for that respective
profession.
(6) This part shall not apply to a participant or employee in
a
community mental health services program licensed under part 62
providing substance abuse services under the mental health code,
1974 PA 258, MCL 330.1001 to 330.2106, or self-help, peer
counseling, or support services provided by a nonprofit
organization.
Enacting section 1. This amendatory act does not take effect
unless Senate Bill No.____ or House Bill No. 4862(request no.
00859'11) of the 96th Legislature is enacted into law.