HB 4466

HOUSE BILL NO. 4466
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending sections 16221 and 16226 (MCL 333.16221 and
333.16226), as amended by 2023 PA 209.
the people of the state of michigan enact:
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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
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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 that term is 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;
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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.
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(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.
(xv) Conviction of a violation of section 90
of the Michigan penal code, 1931 PA 328, MCL 750.90, or a violation of a state
or federal crime that is substantially similar to the violation described in
this subparagraph. 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 that term is defined in
section 7105 without lawful authority; or selling, prescribing, giving away, or
administering drugs for other than lawful diagnostic or therapeutic purposes.
(v) A final order or judgment under the
protecting minors from chemical and surgical mutilation act. A certified copy
of the court record is conclusive evidence of the final order or judgment.
(d) Except as
otherwise specifically provided in this section,
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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
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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 the physician provides surgical services is not subject
to this subparagraph if a referred surgical procedure the physician 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 licensee or registrant
with a patient while the licensee or registrant is acting within the health
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profession
for which the licensee or registrant 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, or 17515.
(n) Failure to
comply with section 9206(3).
(o) A violation of
section 5654 or 5655.
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(p) A violation of
section 16274.
(q) A violation of
section 17020 or 17520.
(r) A violation of
the medical records access act, 2004 PA 47, MCL 333.26261 to 333.26271.
(s) A violation of
section 17764(2).
(t) 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).
(u) A violation of
section 7303a(2).
(v) A violation of
section 7303a(4) or (5).
(w) A violation of
section 7303b.
(x) A violation of
section 17754a.
(y) Beginning January 1, 2021, a A violation of section 24507 or 24509.
Sec. 16226. (1) After finding the
existence of 1 or more of the grounds for disciplinary subcommittee action
listed in section 16221, a disciplinary subcommittee shall impose 1 or more of
the following sanctions for each violation:
Violations of Section 16221
Sanctions
Subdivision (a), (b)(i),
Probation,
limitation, denial,
(b)(ii), (b)(iii), (b)(iv),
suspension,
revocation,
(b)(v), (b)(vi), (b)(vii),
permanent
revocation,
(b)(ix), (b)(x), (b)(xi),
restitution,
or fine.
or (b)(xii)
Subdivision (b)(viii) or (c)(v)
Revocation,
permanent revocation, or denial.
Subdivision (b)(xiii)
Permanent
revocation for a
violation
described in
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subsection
(5); otherwise,
probation,
limitation, denial,
suspension,
revocation,
restitution,
or fine.
Subdivision (b)(xiv) or (b)(xv)
Permanent
revocation.
Subdivision (c)(i)
Denial,
revocation, suspension,
probation,
limitation, or fine.
Subdivision (c)(ii)
Denial,
suspension, revocation,
restitution,
or fine.
Subdivision (c)(iii)
Probation,
denial, suspension,
revocation,
restitution, or fine.
Subdivision (c)(iv)
Fine,
probation, denial,
or (d)(iii)
suspension,
revocation, permanent
revocation,
or restitution.
Subdivision (d)(i)
Reprimand,
fine, probation,
or (d)(ii)
denial,
or restitution.
Subdivision (e)(i),
Reprimand,
fine, probation,
(e)(iii), (e)(iv), (e)(v),
limitation,
suspension,
(h), or (r)
revocation,
permanent revocation,
denial,
or restitution.
Subdivision (e)(ii)
Reprimand,
probation, suspension,
or (i)
revocation,
permanent
revocation,
restitution, denial,
or
fine.
Subdivision (e)(vi),
Probation,
suspension, revocation,
(e)(vii), or (e)(viii)
limitation,
denial, restitution,
or
fine.
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Subdivision (f)
Reprimand,
denial, limitation,
probation,
or fine.
Subdivision (g)
Reprimand
or fine.
Subdivision (j)
Suspension
or fine.
Subdivision (k), (o),
Reprimand,
probation, suspension,
or (q)
revocation,
permanent revocation,
or
fine.
Subdivision (l)
Reprimand,
denial, or limitation.
Subdivision (m) or (n)
Denial,
revocation, restitution,
probation,
suspension,
limitation,
reprimand, or fine.
Subdivision (p)
Revocation.
Subdivision (s)
Revocation,
permanent revocation,
fine,
or restitution.
Subdivision (t)
Denial,
revocation, probation,
suspension,
limitation, reprimand,
or
fine.
Subdivision (u) or (w)
Probation,
limitation, denial,
fine,
suspension, revocation, or
permanent
revocation.
Subdivision (v)
Denial,
fine, reprimand,
probation,
limitation,
suspension,
revocation, or
permanent
revocation.
Subdivision (x)
Subject
to subsection (7), fine.
Subdivision (y)
Fine.
(2) Determination
of sanctions for violations under this section must be made by a disciplinary
subcommittee. If, during judicial review, the court of appeals determines that
a final
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decision
or order of a disciplinary subcommittee prejudices substantial rights of the
petitioner for 1 or more of the grounds listed in section 106 of the
administrative procedures act of 1969, MCL 24.306, and holds that the final
decision or order is unlawful and is to be set aside, the court shall state on
the record the reasons for the holding and may remand the case to the
disciplinary subcommittee for further consideration.
(3) A disciplinary
subcommittee may impose a fine in an amount that does not exceed $250,000.00
for a violation of section 16221(a) or (b). A disciplinary subcommittee shall
impose a fine of at least $25,000.00 if the violation of section 16221(a) or
(b) results in the death of 1 or more patients.
(4) A disciplinary
subcommittee may require a licensee or registrant or an applicant for licensure
or registration who has violated this article, article 7, or article 8 or a
rule promulgated under this article, article 7, or article 8 to satisfactorily complete
an educational program, a training program, or a treatment program, a mental,
physical, or professional competence examination, or a combination of those
programs and examinations.
(5) A disciplinary
subcommittee shall impose the sanction of permanent revocation for a violation
of section 16221(b)(xiii) if the violation occurred while the licensee or registrant
was acting within the health profession for which the licensee or registrant
was licensed or registered.
(6) Except as
otherwise provided in subsection (5) and this subsection, a disciplinary
subcommittee shall not impose the sanction of permanent revocation under this
section without a finding that the licensee or registrant engaged in a pattern
of
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intentional
acts of fraud or deceit resulting in personal financial gain to the licensee or
registrant and harm to the health of patients under the licensee's or
registrant's care. This subsection does not apply if a disciplinary
subcommittee finds that a licensee or registrant has violated section 16221(b)(xiv), or (b)(xv), or (c)(v).
(7) A disciplinary
subcommittee shall impose a fine of not more than $250.00 for each violation of
section 16221(x).
Enacting section 1. This amendatory act does not take
effect unless Senate Bill No. ____ (request no. S00335'25) or House Bill No.
4467 (request no. H00335'25) of the 103rd Legislature is enacted into law.