Major Changes to Medical License Investigation Process Under Michigan Public Health Code

If you are a Michigan-licensed doctor, nurse, physician’s assistant, certified nurse assistant, physical therapist, chiropractor, therapist, psychologist or psychiatrist, new changes to the Public Health Code could have an impact on you if you are facing discipline.

New changes to the public health code were signed into law by Lt. Gov. Brian Calley on April 4, 2014, and take effect on July 1, 2014 — and they drastically alter the way licensing investigations are conducted and resolved.

Public Act 95: Investigations

Public Act 95 (Senate Bill 575) requires a minimum of three board members (including the chair) to review every allegation to determine if an investigation is warranted. Additionally, if the Department of Licensing and Regulatory Affairs (LARA), Bureau of Health Professions believes that “immediate” jeopardy exists, the director or his or her designee shall authorize an investigation and notify the board chair of that investigation within two business days.

What does this mean?

Previously, in order to initiate or dismiss an investigation against a health professional, LARA simply needed the authorization of the chairperson of the board or his/her designee. This change requires that two additional people review each allegation in order to determine if an investigation is warranted or if there is a “reasonable basis” to believe that a licensee has violated the public health code.

Therefore, if you are terminated from your employment, a patient files a complaint against you, you are suspected of drug diversion, or have recently received a misdemeanor or felony conviction, three members from your profession’s respective board — such as the state Board of Medicine, Board of Nursing, Board of Dentistry, Board of Pharmacy and Board of Chiropractic Medicine — must look at the allegation in order to determine if an investigation is warranted.

Investigations pursuant to the Public Health Code have drastically risen over the previous 10 years, and they will continue to rise with this new legislation. Given that health professionals are more likely to be investigated when misconduct is suspected, it is imperative that you contact an experienced professional licensing attorney for guidance.

Public Act 97: Reporting Criminal Convictions

Public Act 97 (Senate Bill 577) explicitly makes it a requirement that licensees report criminal convictions within 30 days after the date of the conviction. Failure of a licensee or registrant to notify the department under this subsection shall result in administrative action under sections 16221 and 16226 (i.e. sanctions).

What does this mean?

Previously, there was no explicit law requiring health professionals to report convictions. However, boards were still disciplining individuals for failure to report their convictions based on a broad interpretation of a different law.

This change closes the loophole and makes it a requirement that health professionals report their convictions within 30 days.

This means if you have recently been arrested, charged, indicted, or convicted of a misdemeanor or felony you must report your conviction within 30 days. In order to report your conviction you will need to notify LARA that you were convicted.

It is imperative that you contact an experienced professional licensing attorney to guide you through the reporting process and draft a well-written report that could possibly prevent the need for a lengthy investigation, sanctions, or revocation of your license.

Your first communication with the board regarding your conviction is your best opportunity to show that you do not deserve sanctions or that sanctions should be limited. Many of Chapman Law Group’s clients have been able to avoid additional substance abuse monitoring or HPRP involvement.

Additionally, the question of what constitutes a conviction in some cases requires the interpretation of experienced health professional counsel. If your adjudication involved Section 7411 (Holmes Youthful Training Act) or was taken under advisement, you may not be required to report the adjudication as a conviction.

This analysis is loaded with complications and requires the review of an experienced health professional counsel.

Public Act 98: Unilateral Action

Public Act 98 includes a new provision of the public health code that LARA may take unilateral action if it believes that the action taken by a subcommittee does not protect the public health, safety and welfare.

Additionally, beginning January 1, 2015, the department shall include on its public licensing and registration website each final decision where disciplinary action is taken against a licensee, including the reason for and description of that disciplinary action.

What does this mean?

After an investigation is initiated and a licensee receives an Administrative Complaint, the licensee will have an opportunity to meet with a member of the board and negotiate an acceptable resolution to the complaint. Once that resolution is approved by the disciplinary subcommittee the order is entered and the licensee is required to comply with the agreement.

Previously, LARA did not have the ability to disagree with a disciplinary subcommittee and pursue sanctions against a licensee. This change allows LARA to effectively trump a subcommittee’s decision after an order is entered and impose its own sanction if the Department determines that an action taken by a subcommittee does not protect the “health, safety and welfare of the public.”

The Cumulative Effect of This New Legislation

While Lansing has faced increased scrutiny over a number of high-profile cases where investigations were not properly handled or administrative action was not taken, there is no indication that misconduct by health professionals is on the rise. The new changes to the public health code appear as a knee-jerk reaction designed to redress prior issues with disciplinary subcommittees and LARA.

While the effect of this new legislation remains to be seen, it is likely that investigations, complaints and sanctions will increase. Michigan has already seen an increase in investigations, administrative complaints and sanctions over the previous 10 years.

With the implementation of programs like the Health Professionals Recovery Program and this new legislation (PAs 95-98) designed to strip power from disciplinary subcommittees and grant it to LARA, licensed health professionals are at a greater risk of facing sanctions or other restrictions on their licenses.

Additionally, the myriad of rules that licensed health professionals are required to follow continues to grow. Now more than ever, it is imperative that licensed health professionals receive accurate and timely advice regarding their professional license from an experienced professional licensing attorney who is aware of the constant changes in laws.

We at Chapman Law Group focus our practice on protecting and defending health care professionals of all types. If you have any questions or concerns, or would like to speak with a dedicated health professional attorney, contact us.

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Ronald W. Chapman II LL.M.
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Chairperson of White Collar Defense & Government Investigations

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1441 West Long Lake Rd., Ste. 310
Troy, MI 48098
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