SF 482

2nd Engrossment - 90th Legislature (2017 - 2018) Posted on 08/09/2017 03:28pm

A bill for an act
relating to health licensing; clarifying title protection and grounds for disciplinary
action; making technical changes; amending Minnesota Statutes 2016, sections
147.081; 147.091, subdivision 1; proposing coding for new law in Minnesota
Statutes, chapter 147.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2016, section 147.081, is amended to read:

147.081 PRACTICING WITHOUT LICENSE; PENALTY.

Subdivision 1.

Unlawful practice of medicine.

It is unlawful for any person to practice
medicine as defined in subdivision 3 in this state unless:

(1) the person holds a valid license issued according to this chapter; or

(2) the person is registered to provide interstate telemedicine services according to section
147.032.

Subd. 2.

Penalty.

Any person violating the provisions of subdivision 1 new text begin or section 147.082
new text end is guilty of a gross misdemeanor.

Subd. 3.

Practice of medicine defined.

For purposes of this chapter, a person not
exempted under section 147.09 is "practicing medicine" or engaged in the "practice of
medicine" if the person does any of the following:

(1) advertises, holds out to the public, or represents in any manner that the person is
authorized to practice medicine in this state;

(2) offers or undertakes to prescribe, give, or administer any drug or medicine for the
use of another;

(3) offers or undertakes to prevent or to diagnose, correct, or treat in any manner or by
any means, methods, devices, or instrumentalities, any disease, illness, pain, wound, fracture,
infirmity, deformity or defect of any person;

(4) offers or undertakes to perform any surgical operation including any invasive or
noninvasive procedures involving the use of a laser or laser assisted device, upon any person; new text begin
or
new text end

(5) offers to undertake to use hypnosis for the treatment or relief of any wound, fracture,
or bodily injury, infirmity, or disease deleted text begin ; or deleted text end new text begin .
new text end

deleted text begin (6) uses in the conduct of any occupation or profession pertaining to the diagnosis of
human disease or conditions, the designation "doctor of medicine," "medical doctor," "doctor
of osteopathic medicine," "osteopathic physician," "physician," "surgeon," "M.D.," "D.O.,"
or any combination of these designations.
deleted text end

Sec. 2.

new text begin [147.082] TITLE PROTECTION.
new text end

new text begin (a) A person not licensed under this chapter is prohibited from using the title "doctor of
medicine," "medical doctor," "doctor of osteopathic medicine," "osteopathic physician,"
"physician," "surgeon," "M.D.," or "D.O." in the conduct of any occupation or profession
pertaining to the diagnosis of human disease or conditions.
new text end

new text begin (b) Nothing in this section shall be construed to prohibit a health care professional from
using a title incorporating any of the words specified in paragraph (a), or from using a title
or designation that is not specifically protected in paragraph (a), if the title or designation
used is permitted under the health care professional's practice act.
new text end

Sec. 3.

Minnesota Statutes 2016, section 147.091, subdivision 1, is amended to read:

Subdivision 1.

Grounds listed.

The board may refuse to grant a license, may refuse to
grant registration to perform interstate telemedicine services, or may impose disciplinary
action as described in section 147.141 against any physician. The following conduct is
prohibited and is grounds for disciplinary action:

(a) Failure to demonstrate the qualifications or satisfy the requirements for a license
contained in this chapter or rules of the board. The burden of proof shall be upon the applicant
to demonstrate such qualifications or satisfaction of such requirements.

(b) Obtaining a license by fraud or cheating, or attempting to subvert the licensing
examination process. Conduct which subverts or attempts to subvert the licensing examination
process includes, but is not limited to: (1) conduct which violates the security of the
examination materials, such as removing examination materials from the examination room
or having unauthorized possession of any portion of a future, current, or previously
administered licensing examination; (2) conduct which violates the standard of test
administration, such as communicating with another examinee during administration of the
examination, copying another examinee's answers, permitting another examinee to copy
one's answers, or possessing unauthorized materials; or (3) impersonating an examinee or
permitting an impersonator to take the examination on one's own behalf.

(c) Conviction, during the previous five years, of a felony reasonably related to the
practice of medicine or osteopathic medicine. Conviction as used in this subdivision shall
include a conviction of an offense which if committed in this state would be deemed a felony
without regard to its designation elsewhere, or a criminal proceeding where a finding or
verdict of guilt is made or returned but the adjudication of guilt is either withheld or not
entered thereon.

(d) Revocation, suspension, restriction, limitation, or other disciplinary action against
the person's medical license in another state or jurisdiction, failure to report to the board
that charges regarding the person's license have been brought in another state or jurisdiction,
or having been refused a license by any other state or jurisdiction.

(e) Advertising which is false or misleading, which violates any rule of the board, or
which claims without substantiation the positive cure of any disease, or professional
superiority to or greater skill than that possessed by another physician.

(f) Violating a rule promulgated by the board or an order of the board, a state, or federal
law which relates to the practice of medicine, or in part regulates the practice of medicine
including without limitation sections 604.201, 609.344, and 609.345, or a state or federal
narcotics or controlled substance law.

(g) Engaging in any unethical new text begin or improper new text end conduct deleted text begin ; deleted text end new text begin , including but not limited to:
new text end

new text begin (1) new text end conduct likely to deceive deleted text begin , deleted text end new text begin or new text end defraud deleted text begin , or harm deleted text end the public deleted text begin , or demonstrating a willful
or careless disregard for the health, welfare or safety of a patient; or medical practice which
is professionally incompetent, in that it deleted text end new text begin ;
new text end

new text begin (2) conduct likely to harm the public;
new text end

new text begin (3) conduct that demonstrates a willful or careless disregard for the health, welfare, or
safety of a patient;
new text end

new text begin (4) medical practice that is professionally incompetent; and
new text end

new text begin (5) conduct that new text end may create unnecessary danger to any patient's life, health, or safety,
in any of which cases, proof of actual injury need not be established.

(h) Failure to deleted text begin supervise deleted text end new text begin provide proper supervision, including but not limited to
supervision of new text end a new text begin :
new text end

new text begin (1) new text end physician assistant deleted text begin or failure to supervise a deleted text end new text begin ;
new text end

new text begin (2) licensed or unlicensed health care provider; and
new text end

new text begin (3) new text end physician under any agreement with the board.

(i) Aiding or abetting an unlicensed person in the practice of medicine, except that it is
not a violation of this paragraph for a physician to employ, supervise, or delegate functions
to a qualified person who may or may not be required to obtain a license or registration to
provide health services if that person is practicing within the scope of that person's license
or registration or delegated authority.

(j) Adjudication new text begin by a court of competent jurisdiction, within or outside this state, new text end as new text begin :
new text end

new text begin (1) new text end mentally incompetent deleted text begin , deleted text end new text begin ;
new text end

new text begin (2) new text end mentally ill deleted text begin or deleted text end new text begin ;
new text end

new text begin (3) new text end developmentally disabled deleted text begin , or as deleted text end new text begin ;
new text end

new text begin (4) new text end a chemically dependent person deleted text begin , deleted text end new text begin ;
new text end

new text begin (5) new text end a person dangerous to the public deleted text begin , deleted text end new text begin ;
new text end

new text begin (6) new text end a sexually dangerous person deleted text begin , deleted text end new text begin ; new text end or

new text begin (7) new text end a person who has a sexual psychopathic personality deleted text begin by a court of competent
jurisdiction, within or without this state deleted text end .

Such adjudication shall automatically suspend a license for the duration deleted text begin thereof deleted text end new text begin of the
adjudication new text end unless the board orders otherwise.

(k) deleted text begin Engaging in unprofessional conduct. Unprofessional deleted text end Conduct deleted text begin shall include any
departure deleted text end new text begin that departs new text end from or deleted text begin the failure deleted text end new text begin fails new text end to conform to the minimal standards of
acceptable and prevailing medical practice in which deleted text begin proceeding deleted text end new text begin case proof of new text end actual injury
deleted text begin to a patient deleted text end need not be established.

(l) Inability to practice medicine with reasonable skill and safety to patients by reason
of new text begin the following, including but not limited to:
new text end

new text begin (1) new text end illness deleted text begin , drunkenness, deleted text end new text begin ;
new text end

new text begin (2) intoxication;
new text end

new text begin (3) new text end use of drugs, narcotics, chemicals new text begin , new text end or any other type of deleted text begin material or as a result of any deleted text end new text begin
substance;
new text end

new text begin (4) new text end mental deleted text begin or deleted text end new text begin condition;
new text end

new text begin (5) new text end physical condition deleted text begin , including deleted text end new text begin ;
new text end

new text begin (6) diminished cognitive ability;
new text end

new text begin (7) loss of motor skills; or
new text end

new text begin (8) new text end deterioration through the aging process deleted text begin or loss of motor skills deleted text end .

(m) Revealing a privileged communication from or relating to a patient except when
otherwise required or permitted by law.

(n) Failure by a doctor of osteopathic medicine to identify the school of healing in the
professional use of the doctor's name by one of the following terms: osteopathic physician
and surgeon, doctor of osteopathic medicine, or D.O.

(o) Improper management of medical records, including failure to maintain adequate
medical records, to comply with a patient's request made pursuant to sections 144.291 to
144.298 or to furnish a medical record or report required by law.

(p) Fee splitting, including without limitation:

(1) paying, offering to pay, receiving, or agreeing to receive, a commission, rebate, or
remuneration, directly or indirectly, primarily for the referral of patients or the prescription
of drugs or devices;

(2) dividing fees with another physician or a professional corporation, unless the division
is in proportion to the services provided and the responsibility assumed by each professional
and the physician has disclosed the terms of the division;

(3) referring a patient to any health care provider as defined in sections 144.291 to
144.298 in which the referring physician has a "financial or economic interest," as defined
in section 144.6521, subdivision 3, unless the physician has disclosed the physician's financial
or economic interest in accordance with section 144.6521; and

(4) dispensing for profit any drug or device, unless the physician has disclosed the
physician's own profit interest.

The physician must make the disclosures required in this clause in advance and in writing
to the patient and must include in the disclosure a statement that the patient is free to choose
a different health care provider. This clause does not apply to the distribution of revenues
from a partnership, group practice, nonprofit corporation, or professional corporation to its
partners, shareholders, members, or employees if the revenues consist only of fees for
services performed by the physician or under a physician's direct supervision, or to the
division or distribution of prepaid or capitated health care premiums, or fee-for-service
withhold amounts paid under contracts established under other state law.

(q) Engaging in abusive or fraudulent billing practices, including violations of the federal
Medicare and Medicaid laws or state medical assistance laws.

(r) Becoming addicted or habituated to a drug or intoxicant.

(s) new text begin Inappropriate new text end prescribing new text begin of or failure to properly prescribe new text end a drug or device new text begin , including
prescribing a drug or device new text end for other than medically accepted therapeutic or experimental
or investigative purposes authorized by a state or federal agency deleted text begin or referring a patient to
any health care provider as defined in sections 144.291 to 144.298 for services or tests not
medically indicated at the time of referral deleted text end .

(t) Engaging in conduct with a patient which is sexual or may reasonably be interpreted
by the patient as sexual, or in any verbal behavior which is seductive or sexually demeaning
to a patient.

(u) Failure to make reports as required by section 147.111 or to cooperate with an
investigation of the board as required by section 147.131.

(v) Knowingly providing false or misleading information that is directly related to the
care of that patient unless done for an accepted therapeutic purpose such as the administration
of a placebo.

(w) Aiding suicide or aiding attempted suicide in violation of section 609.215 as
established by any of the following:

(1) a copy of the record of criminal conviction or plea of guilty for a felony in violation
of section 609.215, subdivision 1 or 2;

(2) a copy of the record of a judgment of contempt of court for violating an injunction
issued under section 609.215, subdivision 4;

(3) a copy of the record of a judgment assessing damages under section 609.215,
subdivision 5; or

(4) a finding by the board that the person violated section 609.215, subdivision 1 or 2.
The board shall investigate any complaint of a violation of section 609.215, subdivision 1
or 2.

(x) Practice of a board-regulated profession under lapsed or nonrenewed credentials.

(y) Failure to repay a state or federally secured student loan in accordance with the
provisions of the loan.

(z) Providing interstate telemedicine services other than according to section 147.032.