HB-4863, As Passed House, December 13, 2012HB-4863, As Passed Senate, December 12, 2012

 

 

 

 

 

 

 

 

 

 

 

SUBSTITUTE FOR

 

HOUSE BILL NO. 4863

 

 

 

 

 

 

 

 

 

 

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending sections 6233, 6235, 6236, 6237, 6238, 6241, 6243,

 

6251, 7408a, 16106a, and 16221 (MCL 333.6233, 333.6235, 333.6236,

 

333.6237, 333.6238, 333.6241, 333.6243, 333.6251, 333.7408a,

 

333.16106a, and 333.16221), section 7408a as amended by 1999 PA

 

144, section 16106a as added by 1993 PA 80, and section 16221 as

 

amended by 2011 PA 222, and by adding sections 6230, 6234, and

 

6249.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 6230. As used in this part:

 

     (a) "Department" means the department of licensing and

 

regulatory affairs.

 

     (b) "Director" means the director of the department or his or

 


her designee.

 

     (c) "Substance use disorder services" means substance use

 

disorder prevention services or substance use disorder treatment

 

and rehabilitation services, or both, as those terms are defined in

 

section 100d of the mental health code, 1974 PA 258, MCL 330.1100d.

 

     Sec. 6233. (1) A person not otherwise licensed to provide

 

psychological, medical, or social services shall not establish,

 

conduct, or maintain a substance abuse service use disorder

 

services program unless it is licensed under this article.part.

 

     (2) The administrator department shall establish a licensing

 

unit in the office to administer the licensing functions of this

 

article.part.

 

     (3) This section shall does not apply to a private, nonprofit

 

organizations organization exempt under section 501(c)(3)of the

 

internal revenue code, which have 26 USC 501, that has been in

 

existence for more than 13 years prior to the enactment of this

 

code since before September 30, 1965 and whose major purpose is to

 

provide residential services for the redirection and improvement of

 

drug abusers and other character disordered individuals.

 

     Sec. 6234. The department may promulgate rules under the

 

administrative procedures act of 1969 for the administration of

 

this part and the licensing of substance use disorder services

 

programs under this part. Rules promulgated under former section

 

6231 relating to the licensing of substance use disorder services

 

programs remain effective and applicable on and after the effective

 

date of this section until rules are promulgated by the department

 

under this section.

 


     Sec. 6235. (1) An application for a license shall be in a form

 

prescribed by the office department and shall authorize the

 

administrator or his or her representative director to obtain from

 

any source information as to the ability of the applicant to comply

 

with this article part and rules promulgated under this

 

article.part.

 

     (2) An applicant for an initial license shall include evidence

 

of notice to churches, schools, and incorporated nonprofit civic

 

organizations in the applicant's service delivery area of its

 

intent to provide substance abuse treatment and rehabilitation

 

services or prevention use disorder services.

 

     Sec. 6236. The local advisory council on substance abuse

 

department shall provide an opportunity for individuals in the

 

applicant's service delivery area to comment before the issuance of

 

a license to the applicant. The comments shall be included in the

 

coordinating agency's comments to the office. However, the

 

administrator department shall make the decision to issue or deny a

 

license based on the applicant's ability to comply with the

 

requirements of this article part and rules promulgated under this

 

article part. If the administrative decision on licensing is

 

contrary to the local coordinating agency's recommendations the

 

denial of a license, the administrator department shall describe

 

those the reasons for the denial in writing to the local

 

coordinating agency applicant at the time the decision is rendered.

 

     Sec. 6237. The office department shall issue a license upon

 

determining that the applicant has complied with this article part

 

and rules promulgated under this article part. A licensee shall

 


prominently display the license while it is in effect.

 

     Sec. 6238. A standard license issued under this part is

 

effective for 1 year after the date of issuance. A The department

 

may issue a provisional license may be issued to an applicant

 

temporarily unable to comply with this part or the rules

 

promulgated under this article and part. The department may be

 

renewed or extended renew or extend a provisional license issued

 

under this section for not more than 1 year. A The department may

 

issue a temporary, nonrenewable permit may be issued for not more

 

than 90 days if additional time is needed for the department to

 

properly investigate or for the applicant to undertake remedial

 

action.

 

     Sec. 6241. The administrator, his or her agent, director or

 

the personnel of another department or agency acting at the request

 

of the administrator director may enter the premises of an

 

applicant for a license or a licensee at any reasonable time to

 

make an inspection to determine whether the applicant or licensee

 

is complying with this article part and rules promulgated under

 

this article part. A local health department may visit a facility

 

at the request of the administrator director to advise as to

 

matters affecting health and the sanitation of the buildings used

 

or other matters designated by the administrator director. The

 

inspections shall be conducted in accordance with standards

 

established in rules.

 

     Sec. 6243. With the assistance of the The department , the

 

administrator may deny, suspend, revoke, or refuse to renew a

 

license of an applicant or licensee who is in violation of this

 


article part or rules promulgated under this article part after

 

opportunity for a hearing. A hearing and an appeal in a contested

 

case shall be conducted by the director or the director's

 

authorized representative pursuant to the administrative procedures

 

act of 1969.

 

     Sec. 6249. (1) An individual or an agent, representative, or

 

officer of a person subject to this part, which individual, agent,

 

representative, or officer violates this part, is guilty of a

 

misdemeanor.

 

     (2) A conviction for a violation of this part is a sufficient

 

ground for revocation of the license of the person subject to this

 

part.

 

     Sec. 6251. Notwithstanding the existence of any other remedy,

 

the office department may maintain an action in the name of this

 

state for an injunction or other process against a person to

 

restrain or prevent the establishment, conduct, management, or

 

operation of a substance abuse service use disorder services

 

program without a license or where operation of the licensee's

 

service program is likely to result in serious harm to recipients

 

of the service substance use disorder services.

 

     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

 


House Bill No. 4863 as amended December 12, 2012

 

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

 

<<department-designated community mental health entity>> or 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 this 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 this part 74 or former section 17766a, a

 

local ordinance that prohibits conduct prohibited under this part

 

74 or former section 17766a, or a law of another state that

 

prohibits conduct prohibited under this 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 substance use disorder

 


House Bill No. 4863 as amended December 12, 2012

 

as defined in section 6107 100d of the mental health code, 1974 PA

 

258, MCL <<330.1100d>>.

 

     <<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 the taking of 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 use

 

disorder as defined in section 6107.100d 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 ability to practice in a safe and

 

competent manner.

 

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

 

jurisdiction.

 

 


House Bill No. 4863 as amended December 12, 2012

 

(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 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 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


House Bill No. 4863 as amended December 12, 2012

 

penal code, 1931 PA 328, MCL 750.430. A certified copy of the court

 

record is conclusive evidence of the conviction.

 

     (xiii) Conviction of a criminal offense under section 520b, 520c,

 

520d, or 520f of the Michigan penal code, 1931 PA 328, MCL 750.520b,

 

750.520c, 750.520d, and 750.520f. A certified copy of the court

 

record is conclusive evidence of the conviction.

 

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

 

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

 

registration.

 

     (ii) Permitting the 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 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:

 

 


House Bill No. 4863 as amended December 12, 2012

 

     (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 42 USC 1395nn or a regulation promulgated under that

 

section. For purposes of this subparagraph, 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 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

 


House Bill No. 4863 as amended December 12, 2012

 

incorporate the revision by reference, the department shall not make any

 

changes to the revision. As used in this subparagraph, 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 pursuant to 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

 

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.

 


House Bill No. 4863 as amended December 12, 2012

 

     (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 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, or 17015a, 17017, 17515, or

 

17517.

 

     (n) A violation of section 17016 or 17516.

 

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

 

     (p) A violation of section 5654 or 5655.

 

     (q) A violation of section 16274.

 

     (r) A violation of section 17020 or 17520.

 

     (s) A violation of the medical records access act, 2004 PA 47, MCL

 

333.26261 to 333.26271.

 

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

 

 

 

 

 

>>

 

     Enacting section 1. This amendatory act takes effect January

 

1, 2013.

 


     Enacting section 2. This amendatory act does not take effect

 

unless House Bill No. 4862 of the 96th Legislature is enacted into

 

law.