HOUSE BILL No. 4723

 

May 3, 2005, Introduced by Reps. Sak, Lemmons, III, Waters and Wojno and referred to the Committee on Health Policy.

 

      A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending sections 7105, 7106, 7303a, 7311, 7401, 7405, 16106,

 

16221, 16226, 17708, 17751, 17759, 17763, and 17766 (MCL

 

333.7105, 333.7106, 333.7303a, 333.7311, 333.7401, 333.7405,

 

333.16106, 333.16221, 333.16226, 333.17708, 333.17751, 333.17759,

 

333.17763, and 333.17766), sections 7105 and 7311 as amended by

 

1993 PA 80, section 7303a as added by 1993 PA 305, section 7401

 

as amended by 2002 PA 710, sections 7405 and 17763 as amended by

 

2004 PA 536, sections 17708 and 17751 as amended by 1997 PA 153,

 

section 16106 as amended by 2002 PA 643, sections 16221 and 16226

 

as amended by 2004 PA 214, and section 17766 as amended by 2004


 

PA 329.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

 1        Sec. 7105. (1) "Deliver" or "delivery" means the actual,

 

 2  constructive, or attempted transfer from 1 person to another of a

 

 3  controlled substance, whether or not there is an agency

 

 4  relationship.

 

 5        (2) "Disciplinary subcommittee" means the disciplinary

 

 6  subcommittee for the board of pharmacy appointed under section

 

 7  16216.

 

 8        (3) "Dispense" means to deliver or issue a controlled

 

 9  substance to an ultimate user or research subject by or pursuant

 

10  to the lawful order of a practitioner, including the prescribing,

 

11  administering, or compounding necessary to prepare the substance

 

12  for the delivery or issuance.

 

13        (4) "Dispenser" means a practitioner who dispenses.

 

14        (5) "Distribute" means to deliver other than by

 

15  administering or dispensing a controlled substance.

 

16        (6) "Distributor" means a person who distributes.

 

17        (7) "Drug" means a substance recognized as a drug in the

 

18  official United States pharmacopoeia, official homeopathic

 

19  pharmacopoeia of the United States, or official national

 

20  formulary, or any supplement to any of them; a substance intended

 

21  for use in the diagnosis, cure, mitigation, treatment, or

 

22  prevention of disease in human beings or animals; a substance

 

23  other than food intended to affect the structure or any function

 

24  of the body of human beings or animals; or, a substance intended

 

25  for use as a component of any article specified in this


 

 1  subsection. It does not include a device or its components,

 

 2  parts, or accessories.

 

 3        (8) "Harmful controlled substance" means a controlled

 

 4  substance intended for use by human beings that is harmful

 

 5  because of its toxicity, habit-forming nature, or other potential

 

 6  adverse effect, the method of its use, or the collateral measures

 

 7  necessary to its safe and effective use, and that is designated

 

 8  as harmful by the board according to rule.

 

 9        (9)   (8)  "Human consumption" means application, injection,

 

10  inhalation, or ingestion by a human being.

 

11        Sec. 7106. (1) "Immediate precursor" means a substance  

 

12  which  that the administrator has found to be and by rule

 

13  designates as being the principal compound commonly used or

 

14  produced primarily for use, and  which  that is an immediate

 

15  chemical intermediary used or likely to be used in the

 

16  manufacture of a controlled substance, the control of which is

 

17  necessary to prevent, curtail, or limit manufacture.

 

18        (2) "Internet" means that term as defined in section 230 of

 

19  title II of the communications act of 1934, 47 USC 230.

 

20        (3)   (2)  "Manufacture" means the production, preparation,

 

21  propagation, compounding, conversion, or processing of a

 

22  controlled substance, directly or indirectly by extraction from

 

23  substances of natural origin, or independently by means of

 

24  chemical synthesis, or by a combination of extraction and

 

25  chemical synthesis.  It  Manufacture includes the packaging or

 

26  repackaging of the substance or labeling or relabeling of its

 

27  container, except that  it  the term does not include the


 

 1  following:

 

 2        (a) The preparation or compounding of a controlled substance

 

 3  by an individual for his or her own use.

 

 4        (b) The preparation, compounding packaging, or labeling of a

 

 5  controlled substance:

 

 6        (i) By a practitioner as an incident to the practitioner's

 

 7  administering or dispensing of a controlled substance in the

 

 8  course of his or her professional practice.

 

 9        (ii) By a practitioner, or by the practitioner's authorized

 

10  agent under his or her supervision, for the purpose of, or as an

 

11  incident to, research, teaching, or chemical analysis and not for

 

12  sale.

 

13        (4)   (3)  "Marihuana" means all parts of the plant Canabis

 

14  sativa L., growing or not; the seeds thereof; the resin extracted

 

15  from any part of the plant; and every compound, manufacture,

 

16  salt, derivative, mixture, or preparation of the plant or its

 

17  seeds or resin. It does not include the mature stalks of the

 

18  plant, fiber produced from the stalks, oil or cake made from the

 

19  seeds of the plant, any other compound, manufacture, salt,

 

20  derivative, mixture, or preparation of the mature stalks, except

 

21  the resin extracted therefrom, fiber, oil or cake, or the

 

22  sterilized seed of the plant  which  that is incapable of

 

23  germination.

 

24        Sec. 7303a. (1) A prescriber who holds a controlled

 

25  substances license may administer or dispense a controlled

 

26  substance listed in schedules 2 to 5 without a separate

 

27  controlled substances license for those activities.


 

 1        (2) Before prescribing or dispensing a controlled substance

 

 2  to a patient, a licensed prescriber shall ask the patient about

 

 3  other controlled substances the patient may be using. The

 

 4  prescriber shall record the patient's response in the patient's

 

 5  medical or clinical record.

 

 6        (3) Before prescribing or dispensing a harmful controlled

 

 7  substance, a licensed prescriber shall conduct a good faith prior

 

 8  examination of the patient for whom that controlled substance is

 

 9  being prescribed or dispensed and expressly indicate on the

 

10  original prescription that an examination was conducted. A

 

11  prescriber shall not dispense a harmful controlled substance via

 

12  the internet without a prescription that expressly indicates that

 

13  the prescription is issued pursuant to a good faith prior

 

14  examination conducted by the original prescriber.

 

15        (4)   (3)  A licensed prescriber who dispenses controlled

 

16  substances shall maintain all of the following records separately

 

17  from other prescription records:

 

18        (a) All invoices and other acquisition records for each

 

19  controlled substance acquired by the prescriber for not less than

 

20  5 years after the date the prescriber acquires the controlled

 

21  substance.

 

22        (b) A log of all controlled substances dispensed by the

 

23  prescriber for not less than 5 years after the date the

 

24  controlled substance is dispensed.

 

25        (c) Records of all other dispositions of controlled

 

26  substances under the licensee's control for not less than 5 years

 

27  after the date of the disposition.


 

 1        (5)   (4)  The requirement under section 7303 for a license

 

 2  is waived in the following circumstances:

 

 3        (a) When a controlled substance listed in schedules 2 to 5

 

 4  is administered on the order of a licensed prescriber by an

 

 5  individual who is licensed under article 15 as a practical nurse,

 

 6  a registered professional nurse, or a physician's assistant.

 

 7        (b) When methadone or a methadone congener is dispensed on

 

 8  the order of a licensed prescriber in a methadone treatment

 

 9  program licensed under article 6 or when a controlled substance

 

10  listed in schedules 2 to 5 is dispensed on the order of a

 

11  licensed prescriber in a hospice rendering emergency care

 

12  services in a patient's home as described in section 17746 by a

 

13  registered professional nurse or a physician's assistant licensed

 

14  under article 15.

 

15        Sec. 7311. (1) A license under section 7306 to manufacture,

 

16  distribute, prescribe, or dispense a controlled substance may be

 

17  denied, suspended, or revoked or a licensee may be fined,

 

18  reprimanded, ordered to perform community service or make

 

19  restitution, or placed on probation by the disciplinary

 

20  subcommittee upon a finding that an applicant for licensure or a

 

21  licensee is subject to  any  1 or more of the following:

 

22        (a) The applicant or licensee has furnished false or

 

23  fraudulent material information in an application filed under

 

24  this article.

 

25        (b) The applicant's or licensee's federal registration to

 

26  manufacture, distribute, or dispense controlled substances has

 

27  been surrendered, suspended, or revoked.


 

 1        (c) The applicant or licensee has promoted a controlled

 

 2  substance to the general public.

 

 3        (d) The applicant or licensee is not a practitioner,

 

 4  manufacturer, or distributor.

 

 5        (e) The applicant or licensee has not maintained effective

 

 6  controls against diversion of controlled substances to other than

 

 7  legitimate and professionally recognized therapeutic, scientific,

 

 8  or industrial uses.

 

 9        (f) The applicant or licensee is not in compliance with

 

10  applicable federal, state, and local laws.

 

11        (g) The applicant or licensee has manufactured, distributed,

 

12  or dispensed a controlled substance for other than legitimate or

 

13  professionally recognized therapeutic, scientific, or industrial

 

14  purposes or outside the scope of practice of the practitioner-

 

15  licensee or applicant.

 

16        (h) The applicant or licensee has prescribed or dispensed a

 

17  harmful controlled substance via the internet without a

 

18  prescription that expressly indicates that the prescription is

 

19  issued pursuant to a good faith prior examination of the patient

 

20  for whom that controlled substance was prescribed or dispensed.

 

21        (i)   (h)  The applicant or licensee has violated or

 

22  attempted to violate, directly or indirectly, assisted in or

 

23  abetted the violation of, or conspired to violate this article or  

 

24  rules  a rule of the administrator promulgated under this

 

25  article.

 

26        (2) The disciplinary subcommittee may limit a license under

 

27  subsection (1) to a particular controlled substance.


 

 1        (3) A license under section 7306 to manufacture, distribute,

 

 2  prescribe, or dispense a controlled substance shall be denied or

 

 3  revoked by the disciplinary subcommittee if the applicant or

 

 4  licensee has been convicted of a felony under a state or federal

 

 5  law relating to a controlled substance.

 

 6        (4) If the disciplinary subcommittee suspends or revokes a

 

 7  license or if a license is void under subsection (6), all

 

 8  controlled substances owned or possessed by the licensee at the

 

 9  time of suspension or the effective date of the revocation order

 

10  may be placed under seal or seized at the discretion of the

 

11  disciplinary subcommittee. The department shall not dispose of

 

12  controlled substances under seal or seizure until the time for

 

13  taking an appeal has elapsed or until all appeals have been

 

14  concluded, unless a court, upon application therefor, orders the

 

15  sale of perishable controlled substances and the deposit of the

 

16  proceeds of the sale with the court. Upon a revocation order

 

17  becoming final or after a license becomes void under subsection

 

18  (6) because the licensee's license to practice is revoked under

 

19  article 15 and that revocation order becomes final, the

 

20  disciplinary subcommittee may order all controlled substances

 

21  under seal or seizure to be forfeited to this state.

 

22        (5) The disciplinary subcommittee shall promptly notify the

 

23  bureau of all orders suspending or revoking a license and all

 

24  forfeitures of controlled substances.

 

25        (6) A license under section 7306 to manufacture, distribute,

 

26  prescribe, or dispense a controlled substance is automatically

 

27  void if the licensee's license to practice is suspended or


 

 1  revoked under article 15.

 

 2        (7) Subject to subsection (8), if the administrator or the

 

 3  disciplinary subcommittee finds that an applicant or licensee has

 

 4  been convicted of a misdemeanor or a felony under a state or

 

 5  federal law relating to a controlled substance, the applicant or

 

 6  licensee shall not have a direct financial interest in or be

 

 7  employed by a person who is licensed under this article to

 

 8  manufacture, distribute, prescribe, or dispense a controlled

 

 9  substance in a capacity in which the individual has direct access

 

10  to controlled substances for a period of not less than 3 years

 

11  after the date of conviction. An individual who violates this

 

12  subsection is subject to a civil fine of not more than $25,000.00

 

13  in a proceeding in the circuit court.

 

14        (8) Subsection (7) applies only to a conviction for a

 

15  misdemeanor that is directly related to the manufacture,

 

16  delivery, possession, possession with intent to manufacture or

 

17  deliver, use, distribution, prescription, or dispensing of a

 

18  controlled substance. Subsection (7) does not apply to a

 

19  conviction for a misdemeanor based upon an unintentional error or

 

20  omission involving a clerical or record-keeping function.

 

21        Sec. 7401. (1) Except as authorized by this article, a

 

22  person shall not manufacture, create, deliver, or possess with

 

23  intent to manufacture, create, or deliver a controlled substance,

 

24  a prescription form, or a counterfeit prescription form. A

 

25  practitioner licensed by the administrator under this article

 

26  shall not dispense, prescribe, or administer a controlled

 

27  substance for other than legitimate and professionally recognized


 

 1  therapeutic or scientific purposes or outside the scope of

 

 2  practice of the practitioner, licensee, or applicant. A

 

 3  practitioner licensed by the administrator under this article

 

 4  shall not dispense or administer a harmful controlled substance

 

 5  for a patient via the internet without a prescription that

 

 6  expressly indicates that the prescription is issued pursuant to a

 

 7  good faith examination conducted by the prescriber.

 

 8        (2) A person who violates this section as to:

 

 9        (a) A controlled substance classified in schedule 1 or 2

 

10  that is a narcotic drug or a drug described in section 7214(a)(iv)

 

11  and:

 

12        (i)  Which  That is in an amount of 1,000 grams or more of

 

13  any mixture containing that substance is guilty of a felony

 

14  punishable by imprisonment for life or any term of years or a

 

15  fine of not more than $1,000,000.00, or both.

 

16        (ii)  Which  That is in an amount of 450 grams or more, but

 

17  less than 1,000 grams, of any mixture containing that substance

 

18  is guilty of a felony and punishable by imprisonment for not more

 

19  than 30 years or a fine of not more than $500,000.00, or both.

 

20        (iii)  Which  That is in an amount of 50 grams or more, but

 

21  less than 450 grams, of any mixture containing that substance is

 

22  guilty of a felony punishable by imprisonment for not more than

 

23  20 years or a fine of not more than $250,000.00, or both.

 

24        (iv)  Which  That is in an amount less than 50 grams, of any

 

25  mixture containing that substance is guilty of a felony

 

26  punishable by imprisonment for not more than 20 years or a fine

 

27  of not more than $25,000.00, or both.


 

 1        (b) Either of the following:

 

 2        (i) A substance described in section 7214(c)(ii) is guilty of

 

 3  a felony punishable by imprisonment for not more than 20 years or

 

 4  a fine of not more than $25,000.00, or both.

 

 5        (ii) Any other controlled substance classified in schedule 1,

 

 6  2, or 3, except marihuana is guilty of a felony punishable by

 

 7  imprisonment for not more than 7 years or a fine of not more than

 

 8  $10,000.00, or both.

 

 9        (c) A substance classified in schedule 4 is guilty of a

 

10  felony punishable by imprisonment for not more than 4 years or a

 

11  fine of not more than $2,000.00, or both.

 

12        (d) Marihuana or a mixture containing marihuana is guilty of

 

13  a felony punishable as follows:

 

14        (i) If the amount is 45 kilograms or more, or 200 plants or

 

15  more, by imprisonment for not more than 15 years or a fine of not

 

16  more than $10,000,000.00, or both.

 

17        (ii) If the amount is 5 kilograms or more but less than 45

 

18  kilograms, or 20 plants or more but fewer than 200 plants, by

 

19  imprisonment for not more than 7 years or a fine of not more than

 

20  $500,000.00, or both.

 

21        (iii) If the amount is less than 5 kilograms or fewer than 20

 

22  plants, by imprisonment for not more than 4 years or a fine of

 

23  not more than $20,000.00, or both.

 

24        (e) A substance classified in schedule 5 is guilty of a

 

25  felony punishable by imprisonment for not more than 2 years or a

 

26  fine of not more than $2,000.00, or both.

 

27        (f) A prescription form or a counterfeit prescription form


 

 1  is guilty of a felony punishable by imprisonment for not more

 

 2  than 7 years or a fine of not more than $5,000.00, or both.

 

 3        (3) A term of imprisonment imposed under subsection (2)(a)

 

 4  may be imposed to run consecutively with any term of imprisonment

 

 5  imposed for the commission of another felony.

 

 6        (4) If an individual was sentenced to lifetime probation

 

 7  under subsection (2)(a)(iv) before  the effective date of the

 

 8  amendatory act that added this subsection  March 1, 2003 and the

 

 9  individual has served 5 or more years of that probationary

 

10  period, the probation officer for that individual may recommend

 

11  to the court that the court discharge the individual from

 

12  probation. If an individual's probation officer does not

 

13  recommend discharge as provided in this subsection, with notice

 

14  to the prosecutor, the individual may petition the court seeking

 

15  resentencing under the court rules. The court may discharge an

 

16  individual from probation as provided in this subsection. An

 

17  individual may file more than 1 motion seeking resentencing under

 

18  this subsection.

 

19        (5) As used in this section, "plant" means a marihuana plant

 

20  that has produced cotyledons or a cutting of a marihuana plant

 

21  that has produced cotyledons.

 

22        Sec. 7405. (1) A person:

 

23        (a) Who is licensed by the administrator under this article

 

24  shall not distribute, prescribe, or dispense a controlled

 

25  substance in violation of section 7333.

 

26        (b) Who is a licensee shall not manufacture a controlled

 

27  substance not authorized by his or her license or distribute,


 

 1  prescribe, or dispense a controlled substance not authorized by

 

 2  his or her license to another licensee or other authorized

 

 3  person, except as authorized by rules promulgated by the

 

 4  administrator.

 

 5        (c) Shall not refuse an entry into any premises for an

 

 6  inspection authorized by this article.

 

 7        (d) Shall not knowingly keep or maintain a store, shop,

 

 8  warehouse, dwelling, building, vehicle, boat, aircraft, or other

 

 9  structure or place, that is frequented by persons using

 

10  controlled substances in violation of this article for the

 

11  purpose of using controlled substances, or that is used for

 

12  keeping or selling controlled substances in violation of this

 

13  article.

 

14        (e) Who is a practitioner shall not dispense a prescription

 

15  for a controlled substance written and signed or transmitted by a

 

16  physician prescriber licensed to practice in a state other than

 

17  Michigan, unless the prescription is issued by a physician

 

18  prescriber who resides adjacent to the land border between this

 

19  state and an adjoining state or resides in Illinois or Minnesota

 

20  and who is authorized under the laws of that state to practice

 

21  medicine or osteopathic medicine and surgery and to prescribe

 

22  controlled substances and whose practice may extend into this

 

23  state, but who does not maintain an office or designate a place

 

24  to meet patients or receive calls in this state.

 

25        (f) Who is a practitioner shall not dispense a prescription

 

26  for a harmful controlled substance via the internet without a

 

27  prescription that expressly indicates that the prescription is


 

 1  issued pursuant to a good faith prior examination conducted by

 

 2  the prescriber.

 

 3        (2) A person who violates subsection (1) is subject to the

 

 4  penalties prescribed in section 7406.

 

 5        Sec. 16106. (1) "Incompetence" means a departure from, or

 

 6  failure to conform to, minimal standards of acceptable and

 

 7  prevailing practice for a health profession, whether or not

 

 8  actual injury to an individual occurs.

 

 9        (2) "Internet" means that term as defined in section 230 of

 

10  title II of the communications act of 1934, 47 USC 230.

 

11        (3)   (2)  "License", except as otherwise provided in this

 

12  subsection, means an authorization issued under this article to

 

13  practice where practice would otherwise be unlawful. License

 

14  includes an authorization to use a designated title which use

 

15  would otherwise be prohibited under this article and may be used

 

16  to refer to a health profession subfield license, limited

 

17  license, or a temporary license. For purposes of the definition

 

18  of "prescriber" contained in section 17708(2) only, license

 

19  includes an authorization issued under the laws of another state,

 

20  or the country of Canada to practice in that state or in the

 

21  country of Canada, where practice would otherwise be unlawful,

 

22  and is limited to a licensed doctor of medicine, a licensed

 

23  doctor of osteopathic medicine and surgery, or another licensed

 

24  health professional acting under the delegation and using,

 

25  recording, or otherwise indicating the name of the delegating

 

26  licensed doctor of medicine or licensed doctor of osteopathic

 

27  medicine and surgery. License does not include a health


 

 1  profession specialty field license.

 

 2        (4)   (3)  "Licensee", as used in a part that regulates a

 

 3  specific health profession, means an individual to whom a license

 

 4  is issued under that part, and as used in this part means each

 

 5  licensee regulated by this article.

 

 6        (5)   (4)  "Limitation" means an action by which a board

 

 7  imposes restrictions or conditions, or both, on a license.

 

 8        (6)   (5)  "Limited license" means a license to which

 

 9  restrictions or conditions, or both, as to scope of practice,

 

10  place of practice, supervision of practice, duration of licensed

 

11  status, or type or condition of patient or client served are

 

12  imposed by a board.

 

13        Sec. 16221. The department may investigate activities

 

14  related to the practice of a health profession by a licensee, a

 

15  registrant, or an applicant for licensure or registration. The

 

16  department may hold hearings, administer oaths, and order

 

17  relevant testimony to be taken and shall report its findings to

 

18  the appropriate disciplinary subcommittee. The disciplinary

 

19  subcommittee shall proceed under section 16226 if it finds that 1

 

20  or more of the following grounds exist:

 

21        (a) A violation of general duty, consisting of negligence or

 

22  failure to exercise due care, including negligent delegation to

 

23  or supervision of employees or other individuals, whether or not

 

24  injury results, or any conduct, practice, or condition that

 

25  impairs, or may impair, the ability to safely and skillfully

 

26  practice the health profession.

 

27        (b) Personal disqualifications, consisting of 1 or more of


 

 1  the following:

 

 2        (i) Incompetence.

 

 3        (ii) Subject to sections 16165 to 16170a, substance abuse as

 

 4  defined in section 6107.

 

 5        (iii) Mental or physical inability reasonably related to and

 

 6  adversely affecting the licensee's ability to practice in a safe

 

 7  and competent manner.

 

 8        (iv) Declaration of mental incompetence by a court of

 

 9  competent jurisdiction.

 

10        (v) Conviction of a misdemeanor punishable by imprisonment

 

11  for a maximum term of 2 years; a misdemeanor involving the

 

12  illegal delivery, possession, or use of a controlled substance;

 

13  or a felony. A certified copy of the court record is conclusive

 

14  evidence of the conviction.

 

15        (vi) Lack of good moral character.

 

16        (vii) Conviction of a criminal offense under sections 520b to

 

17  520g of the Michigan penal code, 1931 PA 328, MCL 750.520b to

 

18  750.520g. A certified copy of the court record is conclusive

 

19  evidence of the conviction.

 

20        (viii) Conviction of a violation of section 492a of the

 

21  Michigan penal code, 1931 PA 328, MCL 750.492a. A certified copy

 

22  of the court record is conclusive evidence of the conviction.

 

23        (ix) Conviction of a misdemeanor or felony involving fraud in

 

24  obtaining or attempting to obtain fees related to the practice of

 

25  a health profession. A certified copy of the court record is

 

26  conclusive evidence of the conviction.

 

27        (x) Final adverse administrative action by a licensure,


 

 1  registration, disciplinary, or certification board involving the

 

 2  holder of, or an applicant for, a license or registration

 

 3  regulated by another state or a territory of the United States,

 

 4  by the United States military, by the federal government, or by

 

 5  another country. A certified copy of the record of the board is

 

 6  conclusive evidence of the final action.

 

 7        (xi) Conviction of a misdemeanor that is reasonably related

 

 8  to or that adversely affects the licensee's ability to practice

 

 9  in a safe and competent manner. A certified copy of the court

 

10  record is conclusive evidence of the conviction.

 

11        (xii) Conviction of a violation of section 430 of the

 

12  Michigan penal code, 1931 PA 328, MCL 750.430. A certified copy

 

13  of the court record is conclusive evidence of the conviction.

 

14        (c) Prohibited acts, consisting of 1 or more of the

 

15  following:

 

16        (i) Fraud or deceit in obtaining or renewing a license or

 

17  registration.

 

18        (ii) Permitting the license or registration to be used by an

 

19  unauthorized person.

 

20        (iii) Practice outside the scope of a license.

 

21        (iv) Obtaining, possessing, or attempting to obtain or

 

22  possess a controlled substance as defined in section 7104 or a

 

23  drug as defined in section 7105 without lawful authority; or

 

24  selling, prescribing, giving away, or administering drugs for

 

25  other than lawful diagnostic or therapeutic purposes.

 

26        (d) Unethical business practices, consisting of 1 or more of

 

27  the following:


 

 1        (i) False or misleading advertising.

 

 2        (ii) Dividing fees for referral of patients or accepting

 

 3  kickbacks on medical or surgical services, appliances, or

 

 4  medications purchased by or in behalf of patients.

 

 5        (iii) Fraud or deceit in obtaining or attempting to obtain

 

 6  third party reimbursement.

 

 7        (e) Unprofessional conduct, consisting of 1 or more of the

 

 8  following:

 

 9        (i) Misrepresentation to a consumer or patient or in

 

10  obtaining or attempting to obtain third party reimbursement in

 

11  the course of professional practice.

 

12        (ii) Betrayal of a professional confidence.

 

13        (iii) Promotion for personal gain of an unnecessary drug,

 

14  device, treatment, procedure, or service.

 

15        (iv) Either of the following:

 

16        (A) A requirement by a licensee other than a physician that

 

17  an individual purchase or secure a drug, device, treatment,

 

18  procedure, or service from another person, place, facility, or

 

19  business in which the licensee has a financial interest.

 

20        (B) A referral by a physician for a designated health

 

21  service that violates section 1877 of part D of title XVIII of

 

22  the social security act, 42 USC 1395nn, or a regulation

 

23  promulgated under that section. Section 1877 of part D of title

 

24  XVIII of the social security act, 42 USC 1395nn, and the

 

25  regulations promulgated under that section, as they exist on June

 

26  3, 2002, are incorporated by reference for purposes of this

 

27  subparagraph. A disciplinary subcommittee shall apply section


 

 1  1877 of part D of title XVIII of the social security act, 42 USC

 

 2  1395nn, and the regulations promulgated under that section

 

 3  regardless of the source of payment for the designated health

 

 4  service referred and rendered. If section 1877 of part D of title

 

 5  XVIII of the social security act, 42 USC 1395nn, or a regulation

 

 6  promulgated under that section is revised after June 3, 2002, the

 

 7  department shall officially take notice of the revision. Within

 

 8  30 days after taking notice of the revision, the department shall

 

 9  decide whether or not the revision pertains to referral by

 

10  physicians for designated health services and continues to

 

11  protect the public from inappropriate referrals by physicians. If

 

12  the department decides that the revision does both of those

 

13  things, the department may promulgate rules to incorporate the

 

14  revision by reference. If the department does promulgate rules to

 

15  incorporate the revision by reference, the department shall not

 

16  make any changes to the revision. As used in this subparagraph,

 

17  "designated health service" means that term as defined in section

 

18  1877 of part D of title XVIII of the social security act, 42 USC

 

19  1395nn, and the regulations promulgated under that section and

 

20  "physician" means that term as defined in sections 17001 and

 

21  17501.

 

22        (v) For a physician who makes referrals pursuant to section

 

23  1877 of part D of title XVIII of the social security act, 42 USC

 

24  1395nn, or a regulation promulgated under that section, refusing

 

25  to accept a reasonable proportion of patients eligible for

 

26  medicaid and refusing to accept payment from medicaid or medicare

 

27  as payment in full for a treatment, procedure, or service for


 

 1  which the physician refers the individual and in which the

 

 2  physician has a financial interest. A physician who owns all or

 

 3  part of a facility in which he or she provides surgical services

 

 4  is not subject to this subparagraph if a referred surgical

 

 5  procedure he or she performs in the facility is not reimbursed at

 

 6  a minimum of the appropriate medicaid or medicare outpatient fee

 

 7  schedule, including the combined technical and professional

 

 8  components.

 

 9        (f) Beginning June 3, 2003, the department of consumer and

 

10  industry services  shall prepare the first of 3 annual reports on

 

11  the effect of this amendatory act on access to care for the

 

12  uninsured and medicaid patients. The department shall report on

 

13  the number of referrals by licensees of uninsured and medicaid

 

14  patients to purchase or secure a drug, device, treatment,

 

15  procedure, or service from another person, place, facility, or

 

16  business in which the licensee has a financial interest.

 

17        (g) Failure to report a change of name or mailing address

 

18  within 30 days after the change occurs.

 

19        (h) A violation, or aiding or abetting in a violation, of

 

20  this article or of a rule promulgated under this article.

 

21        (i) Failure to comply with a subpoena issued pursuant to

 

22  this part, failure to respond to a complaint issued under this

 

23  article or article 7, failure to appear at a compliance

 

24  conference or an administrative hearing, or failure to report

 

25  under section 16222 or 16223.

 

26        (j) Failure to pay an installment of an assessment levied

 

27  pursuant to the insurance code of 1956, 1956 PA 218, MCL 500.100


 

 1  to 500.8302, within 60 days after notice by the appropriate

 

 2  board.

 

 3        (k) A violation of section 17013 or 17513.

 

 4        (l) Failure to meet 1 or more of the requirements for

 

 5  licensure or registration under section 16174.

 

 6        (m) A violation of section 17015 or 17515.

 

 7        (n) A violation of section 17016 or 17516.

 

 8        (o) Failure to comply with section 9206(3).

 

 9        (p) A violation of section 5654 or 5655.

 

10        (q) A violation of section 16274.

 

11        (r) A violation of section 17020 or 17520.

 

12        (s) A violation of the medical records access act.

 

13        (t) A violation of section 17764(2).

 

14        (u) A violation of section 17751 or 17759.

 

15        Sec. 16226. (1) After finding the existence of 1 or more of

 

16  the grounds for disciplinary subcommittee action listed in

 

17  section 16221, a disciplinary subcommittee shall impose 1 or more

 

18  of the following sanctions for each violation:

 

 

19   Violations of Section 16221 Sanctions

20 Subdivision (a), (b)(ii),        Probation, limitation, denial,

21 (b)(iv), (b)(vi), or              suspension, revocation,

22 (b)(vii)                          restitution, community service,

23                                 or fine.

24 Subdivision (b)(viii)             Revocation or denial.

25 Subdivision (b)(i),              Limitation, suspension,

26 (b)(iii), (b)(v),                 revocation, denial,

27 (b)(ix), (b)(x),                 probation, restitution,


(b)(xi), or (b)(xii)              community service, or fine.

Subdivision (c)(i)               Denial, revocation, suspension,

                                probation, limitation, community

                                service, or fine.

Subdivision (c)(ii)              Denial, suspension, revocation,

                                restitution, community service,

                                or fine.

Subdivision (c)(iii)              Probation, denial, suspension,

                                revocation, restitution,

10                                 community service, or fine.

11 Subdivision (c)(iv)              Fine, probation, denial,

12 or (d)(iii)                       suspension, revocation, community

13                                 service, or restitution.

14 Subdivision (d)(i)               Reprimand, fine, probation,

15 or (d)(ii)                       community service, denial,

16                                 or restitution.

17 Subdivision (e)(i)               Reprimand, fine, probation,

18                                 limitation, suspension, community

19                                 service, denial, or restitution.

20 Subdivision (e)(ii)              Reprimand, probation,

21 or (i)                          suspension, restitution,

22                                 community service, denial, or

23                                 fine.

24 Subdivision (e)(iii),             Reprimand, fine, probation,

25 (e)(iv), or (e)(v)               suspension, revocation,

26                                 limitation, community service,

27                                 denial, or restitution.

28 Subdivision (g)                 Reprimand or fine.

29 Subdivision (h) or (s)          Reprimand, probation, denial,

30                                 suspension, revocation,

31                                 limitation, restitution,


                                community service, or fine.

Subdivision (j)                 Suspension or fine.

Subdivision (k), (p),           Reprimand or fine.

or (r)                         

Subdivision (l)                  Reprimand, denial, or

                                limitation.

Subdivision (m), or             Denial, revocation, restitution,

(o), or (u)                     probation, suspension,

                                limitation, reprimand, or fine.

10 Subdivision (n)                 Revocation or denial.

11 Subdivision (q)                 Revocation.

12 Subdivision (t)                 Revocation, fine, and

13                                 restitution.

 

 

14        (2) Determination of sanctions for violations under this

 

15  section shall be made by a disciplinary subcommittee. If, during

 

16  judicial review, the court of appeals determines that a final

 

17  decision or order of a disciplinary subcommittee prejudices

 

18  substantial rights of the petitioner for 1 or more of the grounds

 

19  listed in section 106 of the administrative procedures act of

 

20  1969, 1969 PA 306, MCL 24.306, and holds that the final decision

 

21  or order is unlawful and is to be set aside, the court shall

 

22  state on the record the reasons for the holding and may remand

 

23  the case to the disciplinary subcommittee for further

 

24  consideration.

 

25        (3) A disciplinary subcommittee may impose a fine of up to,

 

26  but not exceeding, $250,000.00 for a violation of section

 

27  16221(a) or (b).

 

28        (4) A disciplinary subcommittee may require a licensee or


 

 1  registrant or an applicant for licensure or registration who has

 

 2  violated this article or article 7 or a rule promulgated under

 

 3  this article or article 7 to satisfactorily complete an

 

 4  educational program, a training program, or a treatment program,

 

 5  a mental, physical, or professional competence examination, or a

 

 6  combination of those programs and examinations.

 

 7        Sec. 17708. (1) "Preceptor" means a pharmacist approved by

 

 8  the board to direct the training of an intern in an approved

 

 9  pharmacy.

 

10        (2) "Prescriber" means a licensed dentist, a licensed doctor

 

11  of medicine, a licensed doctor of osteopathic medicine and

 

12  surgery, a licensed doctor of podiatric medicine and surgery, a

 

13  licensed optometrist certified under part 174 to administer and

 

14  prescribe therapeutic pharmaceutical agents, a licensed

 

15  veterinarian, or another licensed health professional acting

 

16  under the delegation and using, recording, or otherwise

 

17  indicating the name of the delegating licensed doctor of medicine

 

18  or licensed doctor of osteopathic medicine and surgery.

 

19        (3) "Prescription" means an order for a drug or device

 

20  written and signed or transmitted by other means of communication

 

21  by a prescriber to be filled, compounded, or dispensed.

 

22  Prescribing is limited to a prescriber. An order transmitted in

 

23  other than written form shall be recorded or written and

 

24  immediately dated by the pharmacist, and that record constitutes

 

25  the original prescription. In a health facility or agency

 

26  licensed under article 17 or other medical institution, an order

 

27  for a drug or device in the patient's chart constitutes for the


 

 1  purposes of this definition the original prescription. Subject to

 

 2  section 17751(2), prescription includes, but is not limited to,

 

 3  an order for a drug, not including a controlled substance as

 

 4  defined in section 7104 except under circumstances described in

 

 5  section  17763(g)  17763(f), written and signed or transmitted by

 

 6  other means of communication by a physician prescriber licensed

 

 7  to practice in a state other than Michigan.

 

 8        (4) "Prescription drug" means 1 or more of the following:

 

 9        (a) A drug dispensed pursuant to a prescription.

 

10        (b) A drug bearing the federal legend "CAUTION: federal law

 

11  prohibits dispensing without prescription".

 

12        (c) A drug designated by the board as a drug that may only

 

13  be dispensed pursuant to a prescription.

 

14        Sec. 17751. (1) A pharmacist shall not dispense a drug

 

15  requiring a prescription under the federal act or a law of this

 

16  state except under authority of an original prescription or an

 

17  equivalent record of an original prescription approved by the

 

18  board. A pharmacist shall not dispense a harmful drug via the

 

19  internet unless the prescriber expressly indicates in his or her

 

20  own handwriting on the original prescription that the harmful

 

21  drug is being prescribed pursuant to a good faith prior

 

22  examination.

 

23        (2) A pharmacist may dispense a prescription written and

 

24  signed or transmitted by other means of communication by a

 

25  physician prescriber in a state other than Michigan, but not

 

26  including a prescription for a controlled substance as defined in

 

27  section 7104 except under circumstances described in section  


 

 1  17763(g)  17763(f), only if the pharmacist in the exercise of his

 

 2  or her professional judgment determines all of the following:

 

 3        (a) That the prescription was issued pursuant to an existing

 

 4  physician-patient relationship.

 

 5        (b) That the prescription is authentic.

 

 6        (c) That the prescribed drug is appropriate and necessary

 

 7  for the treatment of an acute, chronic, or recurrent condition.

 

 8        (d) If the prescription is submitted via the internet and is

 

 9  for a harmful drug, that the prescription was issued pursuant to

 

10  a good faith prior examination.

 

11        (3) A pharmacist or a prescriber shall dispense a

 

12  prescription only if the prescription falls within the scope of

 

13  practice of the prescriber.

 

14        (4) A pharmacist shall not knowingly dispense a prescription

 

15  after the death of the prescriber or patient.

 

16        Sec. 17759. (1) A harmful drug shall be dispensed only:

 

17        (a) As a prescription drug.

 

18        (b) Under the control of a licensed pharmacist or

 

19  prescriber, who maintains records for the dispensing of these

 

20  drugs which are the same as records required for the dispensing

 

21  of prescriptions.

 

22        (2) A harmful drug shall not be dispensed via the internet

 

23  without a prescription that expressly indicates that the

 

24  prescription is being issued pursuant to a good faith prior

 

25  examination.

 

26        Sec. 17763. In addition to the grounds set forth in part

 

27  161, the disciplinary subcommittee may fine, reprimand, or place


 

 1  a pharmacist licensee on probation, or deny, limit, suspend, or

 

 2  revoke the license of a pharmacist or order restitution or

 

 3  community service for a violation or abetting in a violation of

 

 4  this part or rules promulgated under this part, or for 1 or more

 

 5  of the following grounds:

 

 6        (a) Employing the mail to sell, distribute, or deliver a

 

 7  drug that requires a prescription when the prescription for the

 

 8  drug is received by mail.

 

 9        (b) Permitting the dispensing of prescriptions by an

 

10  individual who is not a pharmacist, pharmacist intern, or

 

11  dispensing prescriber.

 

12        (c) Permitting the dispensing of prescriptions by a

 

13  pharmacist intern, except in the presence and under the personal

 

14  charge of a pharmacist.

 

15        (d) Selling at auction drugs in bulk or in open packages

 

16  unless the sale has been approved in accordance with rules of the

 

17  board.

 

18        (e) Promoting a prescription drug to the public in any

 

19  manner.

 

20        (f) In addition to the prohibition contained in section

 

21  7405(1)(e), dispensing a prescription for a controlled substance

 

22  as defined in section 7104 that is written and signed or

 

23  transmitted by a physician prescriber in a state other than

 

24  Michigan, unless the prescription is issued by a physician

 

25  prescriber who resides adjacent to the land border between this

 

26  state and an adjoining state or resides in Illinois or Minnesota

 

27  and who is authorized under the laws of that state to practice


 

 1  medicine or osteopathic medicine and surgery and to prescribe

 

 2  controlled substances and whose practice may extend into this

 

 3  state, but who does not maintain an office or designate a place

 

 4  to meet patients or receive calls in this state.

 

 5        (g) Permitting the dispensing of a harmful drug via the

 

 6  internet without a prescription that expressly indicates that the

 

 7  prescription is issued pursuant to a good faith prior

 

 8  examination.

 

 9        Sec. 17766. Except as provided in section 17766d, a person

 

10  who does any of the following is guilty of a misdemeanor:

 

11        (a) Obtains or attempts to obtain a prescription drug by

 

12  giving a false name to a pharmacist or other authorized seller,

 

13  prescriber, or dispenser.

 

14        (b) Obtains or attempts to obtain a prescription drug by

 

15  falsely representing that he or she is a lawful prescriber,

 

16  dispenser, or licensee, or acting on behalf of a lawful

 

17  prescriber, dispenser, or licensee.

 

18        (c) Falsely makes, utters, publishes, passes, alters, or

 

19  forges a prescription.

 

20        (d) Knowingly possesses a false, forged, or altered

 

21  prescription.

 

22        (e) Knowingly attempts to obtain, obtains, or possesses a

 

23  drug by means of a prescription for other than a legitimate

 

24  therapeutic purpose, or as a result of a false, forged, or

 

25  altered prescription.

 

26        (f) Possesses or controls for the purpose of resale, or

 

27  sells, offers to sell, dispenses, or gives away, a drug,


 

 1  pharmaceutical preparation, or chemical that has been dispensed

 

 2  on prescription and has left the control of a pharmacist.

 

 3        (g) Possesses or controls for the purpose of resale, or

 

 4  sells, offers to sell, dispenses, or gives away, a drug,

 

 5  pharmaceutical preparation, or chemical that has been damaged by

 

 6  heat, smoke, fire, water, or other cause and is unfit for human

 

 7  or animal use.

 

 8        (h) Prepares or permits the preparation of a prescription

 

 9  drug, except as delegated by a pharmacist.

 

10        (i) Sells a drug in bulk or in an open package at auction,

 

11  unless the sale has been approved in accordance with rules of the

 

12  board.

 

13        (j) Obtains or attempts to obtain a harmful drug from a

 

14  prescriber or pharmacist via the internet without a valid

 

15  prescription and a good faith prior examination.