HB-5614, As Passed House, January 27, 2010

HOUSE BILL No. 5614

December 1, 2009, Introduced by Rep. Roy Schmidt and referred to the Committee on Health Policy.

A bill to amend 1978 PA 368, entitled

"Public health code,"

by amending sections 16231 and 16233 (MCL 333.16231 and 333.16233),

section 16231 as amended by 1993 PA 79 and section 16233 as amended

by 1995 PA 196.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 16231. (1) A person or governmental entity who believes

that a violation of this article or article 7 or a rule promulgated

under this article or article 7 exists may make an allegation of

that fact to the department in writing.

(2) If, upon reviewing an application or an allegation or a

licensee's file under section 16211(4), the department determines

there is a reasonable basis to believe the existence of a violation

of this article or article 7 or a rule promulgated under this

article or article 7, the department, with the authorization of the

chair of the applicant's, licensee's, or registrant's board or task

force or his or her designee, shall investigate. If the chair or

his or her designee fails to grant or deny authorization within 7

days after receipt of a request for authorization, the department

shall investigate.

(3) Upon the receipt of information reported pursuant to

section 16243(2) that indicates 3 or more malpractice settlements,

awards, or judgments against a licensee in a period of 5

consecutive years or 1 or more malpractice settlements, awards, or

judgments against a licensee totaling more than $200,000.00 in a

period of 5 consecutive years, whether or not a judgment or award

is stayed pending appeal, the department shall investigate. Upon

the receipt of information that may constitute a violation of

section 16294, the department shall investigate.

(4) At any time during an investigation or following the

issuance of a complaint, the department may schedule a compliance

conference pursuant to section 92 of the administrative procedures

act of 1969, ~~being section~~ MCL 24.292. ~~of the~~ ~~Michigan~~ ~~Compiled~~

~~Laws.~~ The conference may include the applicant, licensee, or

registrant, the applicant's, licensee's, or registrant's attorney,

1 member of the department's staff, and any other individuals

approved by the department. One member of the appropriate board or

task force who is not a member of the disciplinary subcommittee

with jurisdiction over the matter may attend the conference and

provide such assistance as needed. At the compliance conference,

the department shall attempt to reach agreement. If an agreement is

reached, the department shall submit a written statement outlining

the terms of the agreement, or a stipulation and final order, if

applicable, or a request for dismissal to the appropriate

disciplinary subcommittee for approval. If the agreement or

stipulation and final order or request for dismissal is rejected by

the disciplinary subcommittee, or if no agreement is reached, a

hearing before a hearings examiner shall be scheduled. A party

shall not make a transcript of the compliance conference. All

records and documents of a compliance conference held before a

complaint is issued are subject to section 16238.

(5) Within 90 days after an investigation is initiated under

subsection (2) or (3), the department shall do 1 or more of the

following:

(a) Issue a formal complaint.

(b) Conduct a compliance conference under subsection (4).

(d) Issue a cease and desist order.

(e) Dismiss the complaint.

(f) Place in the complaint file not more than 1 written

extension of not more than 30 days to take action under this

subsection.

(6) Unless the person submitting the allegation under

subsection (1) otherwise agrees in writing, the department shall

keep the identity of a person submitting the allegation

confidential until disciplinary proceedings under this part are

initiated against the subject of the allegation and the person

making the allegation is required to testify in the proceedings.

(7) The department shall serve a complaint pursuant to section

16192. The department shall include in the complaint a notice that

the applicant, licensee, or registrant who is the subject of the

complaint has 30 days from the date of receipt to respond in

writing to the complaint.

(8) The department shall treat the failure of the applicant,

licensee, or registrant to respond to the complaint within the 30-

day period set forth in subsection (7) as an admission of the

allegations contained in the complaint. The department shall notify

the appropriate disciplinary subcommittee of the individual's

failure to respond and shall forward a copy of the complaint to

that disciplinary subcommittee. The disciplinary subcommittee may

then impose an appropriate sanction under this article or article

Sec. 16233. (1) The department may conduct an investigation

necessary to administer and enforce this article. Investigations

may include written, oral, or practical tests of a licensee's or

registrant's competency. The department may establish a special

paralegal unit to assist the department.

(2) The department may order an individual to cease and desist

from a violation of this article or article 7 or a rule promulgated

under this article or article 7.

(3) An individual ordered to cease and desist under subsection

(2) is entitled to a hearing before a hearings examiner if the

individual files a written request for a hearing within 30 days

after the effective date of the cease and desist order. The

department shall subsequently present the notice, if any, of the

~~applicant's, licensee's, or registrant's~~ individual's failure to

respond to a complaint, or attend or be represented at a hearing as

described in sections 16231 and 16231a, or the recommended findings

of fact and conclusions of law to the appropriate disciplinary

subcommittee to determine whether the order is to remain in effect

or be dissolved.

(4) Upon a violation of a cease and desist order issued under

subsection (2), the department of attorney general may apply in the

circuit court to restrain and enjoin, temporarily or permanently,

an individual from further violating the cease and desist order.

(5) After consultation with the chair of the appropriate board

or task force or his or her designee, the department may summarily

suspend a license or registration if the public health, safety, or

welfare requires emergency action in accordance with section 92 of

the administrative procedures act of 1969, ~~being section~~ MCL

24.292. ~~of the~~ ~~Michigan~~ ~~Compiled Laws.~~ If a licensee or registrant

is convicted of a felony; a misdemeanor punishable by imprisonment

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

illegal delivery, possession, or use of a controlled substance, the

department shall find that the public health, safety, or welfare

requires emergency action and, in accordance with section 92 of the

administrative procedures act of 1969, MCL 24.292, shall summarily

suspend the licensee's license or the registrant's registration. If

a licensee or registrant is convicted of a misdemeanor involving

the illegal delivery, possession, or use of alcohol that adversely

affects the licensee's ability to practice in a safe and competent

manner, the department may find that the public health, safety, or

welfare requires emergency action and, in accordance with section