Bill Text: MI HB6364 | 2017-2018 | 99th Legislature | Introduced

---

Bill Title: Health occupations; health professionals; procedure for filing and responding to an allegation against a health professional with the department of licensing and regulatory affairs; modify, and modify the information to be provided to the department during the investigation of a health professional and the procedures for obtaining the information. Amends secs. 16211, 16222, 16231, 16235, 16238, 16244, 16648, 16911, 18117, 18237, 18513, 20175 & 21515 of 1978 PA 368 MCL (333.16211 et seq.).

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2018-09-26 - Bill Electronically Reproduced 09/25/2018 [HB6364 Detail]

Download: Michigan-2017-HB6364-Introduced.html

---

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

HOUSE BILL No. 6364

 

 

September 25, 2018, Introduced by Rep. Lucido and referred to the Committee on Law and Justice.

 

     A bill to amend 1978 PA 368, entitled

 

"Public health code,"

 

by amending sections 16211, 16222, 16231, 16235, 16238, 16244,

 

16648, 16911, 18117, 18237, 18513, 20175, and 21515 (MCL 333.16211,

 

333.16222, 333.16231, 333.16235, 333.16238, 333.16244, 333.16648,

 

333.16911, 333.18117, 333.18237, 333.18513, 333.20175, and

 

333.21515), sections 16211 and 16235 as amended and section 16238

 

as added by 1993 PA 79, section 16222 as amended by 2014 PA 97,

 

section 16231 as amended by 2017 PA 249, section 16244 as amended

 

by 1993 PA 87, section 16648 as amended by 2004 PA 401, section

16911 as added by 1995 PA 126, sections 18117 and 18237 as amended

 

by 1998 PA 496, section 18513 as amended by 2004 PA 61, and section

 

20175 as amended by 2006 PA 481.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 16211. (1) The department shall create and maintain a

 

permanent historical record for each licensee and registrant with

 

respect to information and data transmitted pursuant to law.

 

     (2) The individual historical record shall must include a

 

written allegation against the licensee or registrant that is

 

substantiated after investigation.

 

     (3) The individual historical record may include other items

 

concerning a licensee's or registrant's record of practice that the

 

appropriate board determines will facilitate proper and periodic

 

review, but only those items as designated by rule.

 

     (4) The department shall promptly review the entire file of a

 

licensee or registrant, including all prior matters with respect to

 

which no action was taken at the time, with respect to whom there

 

is received 1 or more of the following:

 

     (a) A notice of revocation, suspension, or limitation of staff

 

privileges or a change in employment status due to disciplinary

 

action by a licensed health facility.

 

     (b) A written allegation of a violation of this article,

 

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

 

that is substantiated after investigation.

 

     (c) A notice of disciplinary action by a health professional

 

society.

 

     (d) An adverse malpractice settlement, award, or judgment.

 

     (e) Written notice of 1 or more of the following:

 

     (i) A felony conviction.

 

     (ii) A misdemeanor conviction punishable by imprisonment for a

 

maximum term of 2 years.

 

     (iii) A misdemeanor conviction, if the misdemeanor involves

 

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

 

substance.

 

     (f) Notice that a licensee or registrant is ineligible to

 

participate as a provider in a federally funded health insurance or

 

health benefits program based upon the licensee's or registrant's

 

failure to meet the program's standards of professional practice. A

 

certified copy of the action or final order making the licensee or

 

registrant ineligible is sufficient notice for purposes of this

 

subdivision.

 

     (g) A report or notice under section 16222.

 

     (h) Notice of a disciplinary action by a licensure,

 

registration, disciplinary, or specialty certification board in

 

another state.

 

     (5) The department shall retain written allegations that are

 

unsubstantiated for 5 years, after which the department shall

 

remove the allegations from the file, if no further allegations

 

against the licensee or registrant have been received by the

 

department within the 5-year period.

 

     (6) Except as provided in section 16231(6), 16231(8), a

 

licensee, registrant, or applicant may review his or her individual

 

historical record.

 

     Sec. 16222. (1) A licensee or registrant who has knowledge

that another licensee or registrant has committed a violation under

 

section 16221, article 7, or article 8 or a rule promulgated under

 

article 7 or article 8 shall report file an affidavit with the

 

department that reports the conduct and the name of the subject of

 

the report to the department. Information The affidavit must be

 

signed under penalty of perjury by the licensee or registrant who

 

is making a report under this subsection. Subject to sections 16238

 

and 16244, the information obtained by the department under this

 

subsection is confidential. and is subject to sections 16238 and

 

16244. Failure of a licensee or registrant to make a report under

 

this subsection does not give rise to a civil cause of action for

 

damages against the licensee or registrant, but the licensee or

 

registrant is subject to administrative action under sections 16221

 

and 16226 . This and a person that willfully makes a false

 

statement in an affidavit under this subsection is guilty of

 

perjury under section 423 of the Michigan penal code, 1931 PA 328,

 

MCL 750.423. The duty to make a report under this subsection does

 

not apply to a licensee or registrant who obtains the knowledge of

 

a violation while providing professional services to the licensee

 

or registrant to whom the knowledge applies, who is serving on a

 

duly constituted ethics or peer review committee of a professional

 

association, or who is serving on a committee assigned a

 

professional review function in a health facility or agency.

 

     (2) Unless the licensee or registrant making a report under

 

subsection (1) otherwise agrees in writing or except to the extent

 

necessary for the proper functioning of the department as that term

 

is defined in section 16238, the identity of the licensee or

registrant making a report under subsection (1) shall remain

 

confidential unless disciplinary proceedings under this part are

 

initiated against the subject of the report and the licensee or

 

registrant making the report is required to testify in the

 

proceedings.

 

     (3) A licensee or registrant shall notify the department of

 

any criminal conviction 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.

 

     (4) A licensee or registrant shall notify the department of

 

any disciplinary licensing or registration action taken by another

 

state against the licensee or registrant within 30 days after the

 

date of the action. This subsection includes, but is not limited

 

to, a disciplinary action that is stayed pending appeal. Failure of

 

a licensee or registrant to notify the department under this

 

subsection shall result in administrative action under sections

 

16221 and 16226.

 

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

 

that a violation of this article, article 7, or article 8 or a rule

 

promulgated under this article, article 7, or article 8 exists may

 

submit an allegation of that fact to the department in writing. An

 

allegation that is submitted to the department under this

 

subsection must be in an affidavit that is signed under penalty of

 

perjury by the person submitting the allegation. A person that

 

willfully makes a false statement in an affidavit under this

 

subsection is guilty of perjury under section 423 of the Michigan

penal code, 1931 PA 328, MCL 750.423.

 

     (2) Subject to subsection (3) and section 16221b, if the

 

department determines after reviewing an application or an

 

allegation or a licensee's or registrant's file under section

 

16211(4) that there is a reasonable basis to believe that a

 

violation of this article, article 7, or article 8 or a rule

 

promulgated under this article, article 7, or article 8 exists, 1

 

of the following applies:

 

     (a) Unless subdivision (b) applies, subject to subsection

 

(10), (11), with the authorization of a panel of at least 3 board

 

members that includes the chair and at least 2 other members of the

 

appropriate board or task force designated by the chair, the

 

department shall investigate the alleged violation. Subject to

 

subsection (10), (11), if the panel fails to grant or deny

 

authorization within 7 days after the board or task force receives

 

a request for authorization, the department shall investigate. If

 

the department 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 2 business

 

days.

 

     (b) If it reviews an allegation in writing under subsection

 

(1) that concerns a licensee or registrant whose record created

 

under section 16211 includes 1 substantiated allegation, or 2 or

 

more written investigated allegations, from 2 or more different

 

individuals or entities, received in the preceding 4 years, the

 

department shall investigate the alleged violation. Authorization

 

by a panel described in subdivision (a) is not required for an

investigation by the department under this subdivision.

 

     (3) If a person or governmental entity submits a written

 

allegation under subsection (1) more than 4 years after the date of

 

the incident or activity that is the basis of the alleged

 

violation, the department may investigate the alleged violation in

 

the manner described in subsection (2)(a) or (b), as applicable,

 

but is not required to conduct an investigation under subsection

 

(2)(a) or (b).

 

     (4) If it receives information reported under 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.

 

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

 

issuance of a complaint, the department may schedule a compliance

 

conference under section 92 of the administrative procedures act of

 

1969, MCL 24.292. The compliance conference may include the

 

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

 

licensee's, registrant's, or individual'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 compliance conference and provide

 

any assistance that is 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, the

 

department shall schedule a hearing before an administrative law

 

judge. 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.

 

     (6) During an investigation of an alleged violation, the

 

department shall request that an applicant, licensee, registrant,

 

or individual who is the subject of the investigation provide the

 

department with an affidavit responding to the alleged violation.

 

Within 21 days after the date of receipt of the department's

 

request, the applicant, licensee, registrant, or individual shall

 

provide the department with the affidavit. The affidavit must be

 

signed under penalty of perjury by the applicant, licensee,

 

registrant, or individual and if another individual assists the

 

applicant, licensee, registrant, or individual with the preparation

 

of the affidavit, the affidavit must include the name and title of

 

the individual who provided the assistance. A person that willfully

 

makes a false statement in an affidavit under this subsection is

 

guilty of perjury under section 423 of the Michigan penal code,

 

1931 PA 328, MCL 750.423.

 

     (7) (6) Within 90 days after an investigation is initiated

 

under subsection (2), (3), or (4), the department shall do 1 or

more of the following:

 

     (a) Issue a formal complaint.

 

     (b) Conduct a compliance conference under subsection (5).

 

     (c) Issue a summary suspension.

 

     (d) Issue a cease and desist order.

 

     (e) Dismiss the allegation.

 

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

 

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

 

subsection.

 

     (8) (7) Unless the person submitting an allegation under

 

subsection (1) otherwise agrees in writing or except to the extent

 

necessary for the proper functioning of the department as that term

 

is defined in section 16238, the department shall keep the identity

 

of a person that submitted the allegation confidential until

 

disciplinary proceedings under this part are initiated against the

 

subject of the allegation and the person that made the allegation

 

is required to testify in the proceedings.

 

     (9) (8) The department shall serve a complaint under section

 

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

 

the applicant, licensee, registrant, or individual who is the

 

subject of the complaint has 30 days from the date of receipt to

 

respond in writing to the complaint.

 

     (10) (9) The department shall treat the failure of an

 

applicant, licensee, registrant, or individual to respond to a

 

complaint within the 30-day period set forth in subsection (8) (9)

 

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, article 7, or article 8.

 

     (11) (10) All of the following apply for purposes of

 

subsection (2)(a):

 

     (a) If the chair of the board or task force has a conflict of

 

interest, he or she shall appoint another member of the board or

 

task force as his or her designee and shall not participate in the

 

panel's decision to grant or deny authorization to the department

 

to investigate an individual.

 

     (b) A member of the board or task force shall not participate

 

in the panel's decision to grant or deny authorization to the

 

department to investigate an individual if that member has a

 

conflict of interest. If the chair of the board or task force is

 

notified that a member of the panel has a conflict of interest, the

 

chair shall remove him or her from the panel and appoint another

 

member of the board or task force to serve on the panel.

 

     (c) A member of the board or task force who participates in or

 

is requested to participate in the panel's decision to grant or

 

deny authorization to the department to investigate an individual

 

shall disclose to the department, to the chair of the board or task

 

force, and to the other member of the panel a potential conflict of

 

interest before those participants make that decision.

 

     (12) (11) As used in subsection (10), (11), "conflict of

 

interest" means any of the following:

 

     (a) Has a personal or financial interest in the outcome of the

investigation of or the imposition of disciplinary sanctions on the

 

licensee, registrant, or applicant for licensure or registration.

 

     (b) Had a past or has a present business or professional

 

relationship with the individual that the department is

 

investigating or requesting authorization to investigate.

 

     (c) Has given expert testimony in a medical malpractice action

 

against or on behalf of the individual that the department is

 

seeking authorization to investigate.

 

     (d) Any other interest or relationship designated as a

 

conflict of interest in a rule promulgated or order issued under

 

this act.

 

     Sec. 16235. (1) Upon application by the attorney general or a

 

party to a contested case, the circuit court The department or

 

department of attorney general may issue a subpoena requiring a

 

person to appear before a hearings examiner in a contested case or

 

before the department in an investigation and be examined with

 

reference to a matter within the scope of that contested case or

 

investigation and to produce books, papers, or documents pertaining

 

to that contested case or investigation. A subpoena issued under

 

this subsection may require a person to produce all books, papers,

 

and documents pertaining to all of a licensee's or registrant's

 

patients in a health facility on a particular day if the allegation

 

that gave rise to the disciplinary proceeding was made by or

 

pertains to 1 or more of those patients.

 

     (2) If a person fails to comply with a subpoena issued under

 

subsection (1), the attorney general acting on the behalf of the

 

department may invoke the aid of the circuit court for Ingham

County to require the attendance and testimony of witnesses and the

 

producing of books, papers, and documents. The circuit court may

 

issue an order requiring the person to appear and give testimony or

 

to produce the books, papers, and documents. Failure to obey the

 

order of the circuit court may be punished by the court as a

 

contempt.

 

     (3) (2) A copy of a record of a board or a task force or a

 

disciplinary subcommittee or a hearings examiner certified by a

 

person designated by the director is prima facie evidence of the

 

matters recorded and is admissible as evidence in a proceeding in

 

this state with the same force and effect as if the original were

 

produced.

 

     Sec. 16238. (1) Except as otherwise provided in section

 

13(1)(u) (i) 13(1)(t)(i) and (ii) of the freedom of information

 

act, Act No. 442 of the Public Acts of 1976, being section 15.243

 

of the Michigan Compiled Laws, 1976 PA 442, MCL 15.243, the

 

information including, but not limited to, patient names, obtained

 

in an investigation or a compliance conference before a complaint

 

is issued, is confidential and shall must not be disclosed except

 

to the extent necessary for the proper functioning of a hearings

 

examiner, a or disciplinary subcommittee, or the proper functioning

 

of the department.

 

     (2) A compliance conference conducted under this part before a

 

complaint is issued shall must be closed to the public.

 

     (3) As used in this section, "proper functioning of the

 

department" includes, but is not limited to, the disclosure of

 

information, including information regarding a person that reports

or submits an allegation to the department under section 16222 or

 

16231, that the department considers necessary for an applicant,

 

licensee, registrant, or individual to comply with section 16231(6)

 

or for the issuance of a subpoena under section 16235.

 

     Sec. 16244. (1) A person, including a state or county health

 

professional organization, a committee of the organization, or an

 

employee or officer of the organization furnishing information to,

 

or on behalf of, the organization, acting in good faith who makes a

 

report; assists in originating, investigating, or preparing a

 

report; or assists a board or task force, a disciplinary

 

subcommittee, a hearings examiner, the committee, or the department

 

in carrying out its duties under this article is immune from civil

 

or criminal liability including, but not limited to, liability in a

 

civil action for damages that might otherwise be incurred thereby

 

and is protected under the whistleblowers' protection act, Act No.

 

469 of the Public Acts of 1980, being sections 15.361 to 15.369 of

 

the Michigan Compiled Laws. 1980 PA 469, MCL 15.361 to 15.369. A

 

person making or assisting in making a report, or assisting a board

 

or task force, a hearings examiner, the committee, or the

 

department, is presumed to have acted in good faith. The immunity

 

from civil or criminal liability granted under this subsection

 

extends only to acts done pursuant to this article or section

 

21513(e).20175(6) to (8).

 

     (2) The physician-patient privilege created in section 2157 of

 

the revised judicature act of 1961, Act No. 236 of the Public Acts

 

of 1961, being section 600.2157 of the Michigan Compiled Laws, 1961

 

PA 236, MCL 600.2157, does not apply in an investigation or

proceeding by a board or task force, a disciplinary subcommittee, a

 

hearings examiner, the committee, or the department acting within

 

the scope of its authorization. Unless expressly waived by the

 

individual to whom the information pertains, the information

 

obtained is confidential and shall must not be disclosed except to

 

the extent necessary for the proper functioning of a board or task

 

force, a disciplinary subcommittee, or the committee, or the proper

 

functioning of the department. Except as otherwise provided in this

 

subsection, a person shall not use or disseminate the information

 

except pursuant to a valid court order. As used in this subsection,

 

"proper functioning of the department" includes, but is not limited

 

to, the disclosure of information, including information regarding

 

a person that reports or submits an allegation to the department

 

under section 16222 or 16231, that the department considers

 

necessary for an applicant, licensee, registrant, or individual to

 

comply with section 16231(6) or for the issuance of a subpoena

 

under section 16235.

 

     Sec. 16648. (1) Information relative to the care and treatment

 

of a dental patient acquired as a result of providing professional

 

dental services is confidential and privileged. Except as otherwise

 

permitted or required under the health insurance portability and

 

accountability act of 1996, Public Law 104-191, and regulations

 

promulgated under that act, 45 CFR parts 160 and 164, or as

 

otherwise provided in subsection (2), a dentist or a person

 

employed by the dentist shall not disclose or be required to

 

disclose that information.

 

     (2) This section does not prohibit disclosure of the

information described in subsection (1) in the following instances:

 

     (a) Disclosure as part of the defense to a claim in a court or

 

administrative agency challenging the dentist's professional

 

competence.

 

     (b) Disclosure pursuant to 1967 PA 270, MCL 331.531 to

 

331.533.331.534.

 

     (c) Disclosure in relation to a claim for payment of fees.

 

     (d) Disclosure to a third party payer of information relating

 

to fees for services in the course of a good faith good-faith

 

examination of the dentist's records to determine the amount and

 

correctness of fees or the type and volume of services furnished

 

pursuant to provisions for payment established by a third party

 

payer, or information required for a third party payer's

 

predeterminations, post treatment reviews, or audits. For purposes

 

of this subdivision, "third party payer" includes, but is not

 

limited to, a nonprofit dental care corporation, nonprofit health

 

care corporation, insurer, benefit fund, health maintenance

 

organization, and dental capitation plan.

 

     (e) Disclosure, pursuant to a court order, to a police agency

 

as part of a criminal investigation.

 

     (f) Disclosure as provided in section 2844a.

 

     (g) Disclosure made pursuant to section 16222 if the licensee

 

reasonably believes it is necessary to disclose the information to

 

comply with section 16222.

 

     (h) Disclosure under section 16281.

 

     (i) Disclosure made pursuant to section 16231(6) if the

 

licensee reasonably believes it is necessary to disclose the

information to comply with section 16231(6).

 

     Sec. 16911. (1) Except as provided in subsection (3),

 

information regarding an individual to whom a licensee provided

 

marriage and family therapy is privileged information and not

 

subject to waiver, regardless of any of the following:

 

     (a) Whether the information was obtained directly from the

 

individual, from another person involved in the therapy, from a

 

test or other evaluation mechanism, or from other sources.

 

     (b) Whether the information was obtained before, during, or

 

following therapy.

 

     (c) Whether the individual involved is a present client or a

 

former client.

 

     (2) Except as provided in subsection (3), referrals made by a

 

circuit court or its counseling service, as provided in the circuit

 

court family counseling services act, Act No. 155 of the Public

 

Acts of 1964, being sections 551.331 to 551.344 of the Michigan

 

Compiled Laws, 1964 PA 155, MCL 551.331 to 551.344, is privileged

 

information not subject to waiver.

 

     (3) The privilege established in this section is waived only

 

under 1 of the following circumstances:

 

     (a) If disclosure is required by law or necessary to protect

 

the health or safety of an individual.

 

     (b) If the licensee is a party defendant to a civil, criminal,

 

or administrative action arising from services performed as a

 

licensee, in which case the waiver is limited only to that action.

 

     (c) If a waiver specifying the terms of disclosure is obtained

 

in writing from each individual over 18 years of age involved in

the marriage and family therapy and then only in accordance with

 

the terms of the written waiver. If more than 1 individual is or

 

was involved in the marriage and family therapy performed by a

 

licensee, the privilege is not waived for any individual unless all

 

individuals over 18 years of age involved in the marriage and

 

family therapy have executed the written waiver.

 

     (d) Pursuant to section 16231(6) if the licensee reasonably

 

believes it is necessary to comply with section 16231(6).

 

     Sec. 18117. For the purposes of this part, the confidential

 

relations and communications between a licensed professional

 

counselor or a limited licensed counselor and a client of the

 

licensed professional counselor or a limited licensed counselor are

 

privileged communications, and this part does not require a

 

privileged communication to be disclosed, except as otherwise

 

provided by law. Confidential information may be disclosed only

 

upon under any of the following circumstances:

 

     (a) Upon consent of the client. , pursuant

 

     (b) Pursuant to section 16222 if the licensee reasonably

 

believes it is necessary to disclose the information to comply with

 

section 16222. , or under

 

     (c) Under section 16281.

 

     (d) Pursuant to section 16231(6) if the licensee reasonably

 

believes it is necessary to disclose the information to comply with

 

section 16231(6).

 

     Sec. 18237. (1) A psychologist licensed or allowed to use that

 

title under this part or an individual under his or her supervision

 

cannot be compelled to disclose confidential information acquired

from an individual consulting the psychologist in his or her

 

professional capacity if the information is necessary to enable the

 

psychologist to render services. Information may be disclosed with

 

under any of the following circumstances:

 

     (a) With the consent of the individual consulting the

 

psychologist, or if the individual consulting the psychologist is a

 

minor, with the consent of the minor's guardian. , pursuant

 

     (b) Pursuant to section 16222 if the psychologist reasonably

 

believes it is necessary to disclose the information to comply with

 

section 16222. , or under

 

     (c) Under section 16281.

 

     (d) Pursuant to section 16231(6) if the psychologist

 

reasonably believes it is necessary to disclose the information to

 

comply with section 16231(6).

 

     (2) In a contest on the admission of a deceased individual's

 

will to probate, an heir at law of the decedent, whether a

 

proponent or contestant of the will, and the personal

 

representative of the decedent may waive the privilege created by

 

this section.

 

     Sec. 18513. (1) An individual registered or licensed under

 

this part A registrant or licensee or an employee or officer of an

 

organization that employs the registrant or licensee is not

 

required to disclose a communication or a portion of a

 

communication made by a client to the individual or advice given in

 

the course of professional employment.

 

     (2) Except as otherwise provided in this section, a

 

communication between a registrant or licensee or an organization

with which the registrant or licensee has an agency relationship

 

and a client is a confidential communication. A confidential

 

communication shall not be disclosed, except under either or both

 

any of the following circumstances:

 

     (a) The disclosure is part of a required supervisory process

 

within the organization that employs or otherwise has an agency

 

relationship with the registrant or licensee.

 

     (b) The privilege is waived by the client or a person

 

authorized to act in the client's behalf.

 

     (c) If the licensee or registrant reasonably believes that it

 

is necessary to disclose the information to comply with section

 

16231(6).

 

     (3) If requested by the court for a court action, a registrant

 

or licensee shall submit to an appropriate court a written

 

evaluation of the prospect or prognosis of a particular client

 

without disclosing a privileged fact or a privileged communication.

 

An attorney representing a client who is the subject of an

 

evaluation described in this subsection has the right to receive a

 

copy of the evaluation. If required for the exercise of a public

 

purpose by a legislative committee, a registrant or licensee or

 

agency representative may make available statistical and program

 

information without violating the privilege established under

 

subsection (2).

 

     (4) A registrant or licensee may disclose a communication or a

 

portion of a communication made by a client pursuant to section 946

 

of the mental health code, 1974 PA 258, MCL 330.1946, in order to

 

comply with the duty set forth in that section.

     Sec. 20175. (1) A health facility or agency shall keep and

 

maintain a record for each patient, including a full and complete

 

record of tests and examinations performed, observations made,

 

treatments provided, and in the case of a hospital, the purpose of

 

hospitalization. Unless a longer retention period is otherwise

 

required under federal or state laws or regulations or by generally

 

accepted standards of medical practice, a health facility or agency

 

shall keep and retain each record for a minimum of 7 years from the

 

date of service to which the record pertains. A health facility or

 

agency shall maintain the records in such a manner as to protect

 

their integrity, to ensure their confidentiality and proper use,

 

and to ensure their accessibility and availability to each patient

 

or his or her authorized representative as required by law. A

 

health facility or agency may destroy a record that is less than 7

 

years old only if both of the following are satisfied:

 

     (a) The health facility or agency sends a written notice to

 

the patient at the last known address of that patient informing the

 

patient that the record is about to be destroyed, offering the

 

patient the opportunity to request a copy of that record, and

 

requesting the patient's written authorization to destroy the

 

record.

 

     (b) The health facility or agency receives written

 

authorization from the patient or his or her authorized

 

representative agreeing to the destruction of the record. Except as

 

otherwise provided under federal or state laws and regulations,

 

records required to be maintained under this subsection may be

 

destroyed or otherwise disposed of after being maintained for 7

years. If records maintained in accordance with this section are

 

subsequently destroyed or otherwise disposed of, those records

 

shall must be shredded, incinerated, electronically deleted, or

 

otherwise disposed of in a manner that ensures continued

 

confidentiality of the patient's health care information and any

 

other personal information relating to the patient. If records are

 

not destroyed or otherwise disposed of as provided under this

 

subsection, the department may take action including, but not

 

limited to, contracting for or making other arrangements to ensure

 

that those records and any other confidential identifying

 

information related to the patient are properly destroyed or

 

disposed of to protect the confidentiality of patient's health care

 

information and any other personal information relating to the

 

patient. Before the department takes action in accordance with this

 

subsection, the department, if able to identify the health facility

 

or agency responsible for the improper destruction or disposal of

 

the medical records at issue, shall send a written notice to that

 

health facility or agency at the last known address on file with

 

the department and provide the health facility or agency with an

 

opportunity to properly destroy or dispose of those medical records

 

as required under this subsection unless a delay in the proper

 

destruction or disposal may compromise the patient's

 

confidentiality. The department may assess the health facility or

 

agency with the costs incurred by the department to enforce this

 

subsection. In addition to the sanctions set forth in section

 

20165, a hospital that fails to comply with this subsection is

 

subject to an administrative fine of $10,000.00.

     (2) A hospital shall take precautions to assure ensure that

 

the records required by subsection (1) are not wrongfully altered

 

or destroyed. A hospital that fails to comply with this subsection

 

is subject to an administrative fine of $10,000.00.

 

     (3) Unless otherwise provided by law, the licensing and

 

certification records required by this article are public records.

 

     (4) Departmental officers and employees shall respect the

 

confidentiality of patient clinical records and shall not divulge

 

or disclose the contents of records in a manner that identifies an

 

individual except pursuant to court order or as otherwise

 

authorized by law.

 

     (5) The department may request and within 30 days of receiving

 

the request a health facility or agency shall provide the

 

department with any of the following for the purposes of the

 

department's investigation of an individual or health professional

 

employed by the health facility or agency:

 

     (a) Unless otherwise prohibited by law, unredacted medical

 

records that are requested by the department.

 

     (b) The complete personnel file for the individual or health

 

professional.

 

     (c) Any other information that the department considers

 

relevant.

 

     (6) (5) A health facility or agency that employs, contracts

 

with, or grants privileges to a health professional licensed or

 

registered under article 15 shall report the following to the

 

department not more than 30 days after it occurs:

 

     (a) Disciplinary action taken by the health facility or agency

against a health professional licensed or registered under article

 

15 based on the licensee's or registrant's health professional's

 

professional competence, disciplinary action that results in a

 

change of employment status, or disciplinary action based on

 

conduct that adversely affects the licensee's or registrant's

 

health professional's clinical privileges for a period of more than

 

15 days. As used in this subdivision, "adversely affects" means the

 

reduction, restriction, suspension, revocation, denial, or failure

 

to renew the clinical privileges of a licensee or registrant health

 

professional by a health facility or agency.

 

     (b) Restriction or acceptance of the surrender of the clinical

 

privileges of a licensee or registrant health professional under

 

either of the following circumstances:

 

     (i) The licensee or registranthealth professional is under

 

investigation by the health facility or agency.

 

     (ii) There is an agreement in which the health facility or

 

agency agrees not to conduct an investigation into the licensee's

 

or registrant's health professional's alleged professional

 

incompetence or improper professional conduct.

 

     (c) A case in which a health professional resigns or

 

terminates a contract or whose contract is not renewed instead of

 

the health facility or agency taking disciplinary action against

 

the health professional.

 

     (7) (6) Upon request by another health facility or agency

 

seeking a reference for purposes of changing or granting staff

 

privileges, credentials, or employment, a health facility or agency

 

that employs, contracts with, or grants privileges to health

professionals licensed or registered under article 15 shall notify

 

the requesting health facility or agency of any disciplinary or

 

other action reportable under subsection (5) (6) that it has taken

 

against a health professional licensed or registered under article

 

15 and employed by, under contract to, or granted privileges by the

 

health facility or agency.

 

     (8) (7) For the purpose of reporting disciplinary actions

 

under this section, a health facility or agency shall include only

 

the following in the information provided:

 

     (a) The name of the licensee or registrant health professional

 

against whom disciplinary action has been taken.

 

     (b) A description of the disciplinary action taken.

 

     (c) The specific grounds for the disciplinary action taken.

 

     (d) The date of the incident that is the basis for the

 

disciplinary action.

 

     (9) (8) The Except as otherwise provided in this subsection,

 

the records, data, and knowledge collected for or by individuals or

 

committees assigned a professional review function in a health

 

facility or agency, or an institution of higher education in this

 

state that has colleges of osteopathic and human medicine, are

 

confidential, shall must be used only for the purposes provided in

 

this article, are not public records, and are not subject to court

 

subpoena. This subsection does not prohibit the disclosure of

 

records, data, and knowledge requested by the department for the

 

investigation of a health professional or individual.

 

     (10) In addition to the sanctions set forth in section 20165,

 

a health facility or agency that violates this section is subject

to an administrative fine of $10,000.00 for each violation.

 

     (11) As used in this section, "health professional" means an

 

individual who is licensed or registered under article 15.

 

     Sec. 21515. (1) The Except as otherwise provided in this

 

subsection, the records, data, and knowledge collected for or by

 

individuals or committees assigned a review function described in

 

this article are confidential, and shall must be used only for the

 

purposes provided in this article, shall not be are not public

 

records, and shall are not be available for subject to court

 

subpoena. This subsection does not prohibit the disclosure of

 

records, data, and knowledge requested by the department for the

 

investigation of a health professional or individual.

 

     (2) As used in this section, "health professional" means an

 

individual who is licensed or registered under article 15.

 

     Enacting section 1. This amendatory act takes effect 90 days

 

after the date it is enacted into law.