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.