HF 1151

3rd Engrossment - 82nd Legislature (2001 - 2002) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to professions; modifying penalty provisions 
  1.3             for psychologists; amending Minnesota Statutes 2000, 
  1.4             section 148.941, subdivision 2, and by adding a 
  1.5             subdivision. 
  1.6   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.7      Section 1.  Minnesota Statutes 2000, section 148.941, 
  1.8   subdivision 2, is amended to read: 
  1.9      Subd. 2.  [GROUNDS FOR DISCIPLINARY ACTION; FORMS OF 
  1.10  DISCIPLINARY ACTION.] (a) The board may impose disciplinary 
  1.11  action as described in paragraph (b) against an applicant or 
  1.12  licensee whom the board, by a preponderance of the evidence, 
  1.13  determines:  
  1.14     (1) has violated a statute, rule, or order that the board 
  1.15  issued or is empowered to enforce; 
  1.16     (2) has engaged in fraudulent, deceptive, or dishonest 
  1.17  conduct, whether or not the conduct relates to the practice of 
  1.18  psychology, that adversely affects the person's ability or 
  1.19  fitness to practice psychology; 
  1.20     (3) has engaged in unprofessional conduct or any other 
  1.21  conduct which has the potential for causing harm to the public, 
  1.22  including any departure from or failure to conform to the 
  1.23  minimum standards of acceptable and prevailing practice without 
  1.24  actual injury having to be established; 
  1.25     (4) has been convicted of or has pled guilty or nolo 
  2.1   contendere to a felony or other crime, an element of which is 
  2.2   dishonesty or fraud, or has been shown to have engaged in acts 
  2.3   or practices tending to show that the applicant or licensee is 
  2.4   incompetent or has engaged in conduct reflecting adversely on 
  2.5   the applicant's or licensee's ability or fitness to engage in 
  2.6   the practice of psychology; 
  2.7      (5) has employed fraud or deception in obtaining or 
  2.8   renewing a license, in requesting approval of continuing 
  2.9   education activities, or in passing an examination; 
  2.10     (6) has had a license, certificate, charter, registration, 
  2.11  privilege to take an examination, or other similar authority 
  2.12  denied, revoked, suspended, canceled, limited, reprimanded, or 
  2.13  otherwise disciplined, or not renewed for cause in any 
  2.14  jurisdiction; or has surrendered or voluntarily terminated a 
  2.15  license or certificate during a board investigation of a 
  2.16  complaint, as part of a disciplinary order, or while under a 
  2.17  disciplinary order; 
  2.18     (7) has been subject to a corrective action or similar 
  2.19  action in another jurisdiction or by another regulatory 
  2.20  authority; 
  2.21     (8) has failed to meet any requirement for the issuance or 
  2.22  renewal of the person's license.  The burden of proof is on the 
  2.23  applicant or licensee to demonstrate the qualifications or 
  2.24  satisfy the requirements for a license under the Psychology 
  2.25  Practice Act; 
  2.26     (9) has failed to cooperate with an investigation of the 
  2.27  board as required under subdivision 4; 
  2.28     (10) has demonstrated an inability to practice psychology 
  2.29  with reasonable skill and safety to clients due to any mental or 
  2.30  physical illness or condition; or 
  2.31     (11) has engaged in fee splitting.  This clause does not 
  2.32  apply to the distribution of revenues from a partnership, group 
  2.33  practice, nonprofit corporation, or professional corporation to 
  2.34  its partners, shareholders, members, or employees if the 
  2.35  revenues consist only of fees for services performed by the 
  2.36  licensee or under a licensee's administrative authority.  This 
  3.1   clause also does not apply to the charging of a general 
  3.2   membership fee by a licensee or applicant to health care 
  3.3   providers, as defined in section 144.335, for participation in a 
  3.4   referral service, provided that the licensee or applicant 
  3.5   discloses in advance to each referred client the financial 
  3.6   nature of the referral arrangement.  Fee splitting includes, but 
  3.7   is not limited to: 
  3.8      (i) paying, offering to pay, receiving, or agreeing to 
  3.9   receive a commission, rebate, or remuneration, directly or 
  3.10  indirectly, primarily for the referral of clients; 
  3.11     (ii) dividing client fees with another individual or 
  3.12  entity, unless the division is in proportion to the services 
  3.13  provided and the responsibility assumed by each party; 
  3.14     (iii) referring an individual or entity to any health care 
  3.15  provider, as defined in section 144.335, or for other 
  3.16  professional or technical services in which the referring 
  3.17  licensee or applicant has a significant financial interest 
  3.18  unless the licensee has disclosed the financial interest in 
  3.19  advance to the client; and 
  3.20     (iv) dispensing for profit or recommending any instrument, 
  3.21  test, procedure, or device that for commercial purposes the 
  3.22  licensee or applicant has developed or distributed, unless the 
  3.23  licensee or applicant has disclosed any profit interest in 
  3.24  advance to the client.  
  3.25     (b) If grounds for disciplinary action exist under 
  3.26  paragraph (a), the board may take one or more of the following 
  3.27  actions: 
  3.28     (1) refuse to grant or renew a license; 
  3.29     (2) revoke a license; 
  3.30     (3) suspend a license; 
  3.31     (4) impose limitations or conditions on a licensee's 
  3.32  practice of psychology, including, but not limited to, limiting 
  3.33  the scope of practice to designated competencies, imposing 
  3.34  retraining or rehabilitation requirements, requiring the 
  3.35  licensee to practice under supervision, or conditioning 
  3.36  continued practice on the demonstration of knowledge or skill by 
  4.1   appropriate examination or other review of skill and competence; 
  4.2      (5) censure or reprimand the licensee; 
  4.3      (6) refuse to permit an applicant to take the licensure 
  4.4   examination or refuse to release an applicant's examination 
  4.5   grade if the board finds that it is in the public interest; or 
  4.6      (7) impose a civil penalty not exceeding $5,000 $7,500 for 
  4.7   each separate violation.  The amount of the penalty shall be 
  4.8   fixed so as to deprive the applicant or licensee of any economic 
  4.9   advantage gained by reason of the violation charged, or to 
  4.10  discourage repeated violations, or to recover the board's costs 
  4.11  that occur in bringing about a disciplinary order.  For purposes 
  4.12  of this clause, costs are limited to legal, paralegal, and 
  4.13  investigative charges billed to the board by the attorney 
  4.14  general's office, witness costs, consultant and expert witness 
  4.15  fees, and charges attendant to the use of an administrative law 
  4.16  judge.  
  4.17     (c) In lieu of or in addition to paragraph (b), the board 
  4.18  may require, as a condition of continued licensure, termination 
  4.19  of suspension, reinstatement of license, examination, or release 
  4.20  of examination grades, that the applicant or licensee: 
  4.21     (1) submit to a quality review, as specified by the board, 
  4.22  of the applicant's or licensee's ability, skills, or quality of 
  4.23  work; and 
  4.24     (2) complete to the satisfaction of the board educational 
  4.25  courses specified by the board.; and 
  4.26     (3) reimburse to the board all costs incurred by the board 
  4.27  that are the result of provider failing, neglecting, or refusing 
  4.28  to fully comply, or not complying in a timely manner, with any 
  4.29  part of the remedy section of a stipulation and consent order or 
  4.30  the corrective action section of an agreement for corrective 
  4.31  action.  For purposes of this clause, costs are limited to 
  4.32  legal, paralegal, and investigative charges billed to the board 
  4.33  by the attorney general's office, witness costs, consultant and 
  4.34  expert witness fees, and charges attendant to the use of an 
  4.35  administrative law judge. 
  4.36     (d) Service of the order is effective if the order is 
  5.1   served on the applicant, licensee, or counsel of record 
  5.2   personally or by mail to the most recent address provided to the 
  5.3   board for the licensee, applicant, or counsel of record.  The 
  5.4   order shall state the reasons for the entry of the order. 
  5.5      Sec. 2.  Minnesota Statutes 2000, section 148.941, is 
  5.6   amended by adding a subdivision to read: 
  5.7      Subd. 7.  [LIMITATION PERIOD.] (a) For complaints against 
  5.8   providers received by the board after July 31, 2001, a board 
  5.9   proceeding against a provider must not be instituted unless it 
  5.10  is begun within seven years from the date of some portion of the 
  5.11  alleged misconduct that is complained of. 
  5.12     (b) The following are exceptions to the limitation period 
  5.13  in paragraph (a): 
  5.14     (1) complaints alleging a violation of subdivision 2, 
  5.15  paragraph (a), clauses (2), (4), (5), and (6); 
  5.16     (2) complaints alleging sexual intercourse or other 
  5.17  physical intimacies with a client, or any verbal or physical 
  5.18  behavior that is sexually seductive or sexually demeaning to the 
  5.19  client; or complaints alleging sexual intercourse or other 
  5.20  physical intimacies with a former client, or any verbal or 
  5.21  physical behavior that is sexually demeaning to the former 
  5.22  client, for a period of two years following the date of the last 
  5.23  professional contact with the former client, whether or not the 
  5.24  provider has formally terminated the professional relationship.  
  5.25  Physical intimacies include handling of the breasts, genital 
  5.26  areas, buttocks, or thighs of either sex by either the provider 
  5.27  or the client.  
  5.28     (c) If a complaint is received by the board less than 12 
  5.29  months from the expiration of the limitation period in paragraph 
  5.30  (a), the limitation period is extended for a period of 12 months 
  5.31  from the date the complaint is received by the board. 
  5.32     (d) If alleged misconduct is complained of that involves a 
  5.33  client who is a minor, the limitation period in paragraph (a) 
  5.34  does not begin until the minor reaches the age of 18.  
  5.35     (e) For purposes of this subdivision only, "proceeding" 
  5.36  means the service of a notice of conference, or in cases in 
  6.1   which a notice of conference was not served, a notice of hearing.