HF 2295

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to professions; requiring the Board of Medical Practice to bring
adverse actions to district court; allowing the governor to remove a board
member; specifying specific duties of a board member; amending Minnesota
Statutes 2006, sections 147.01, subdivision 4, by adding subdivisions; 147.091,
subdivisions 1, 2, 4; 147.092; 147.141; 147.151; 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 2006, section 147.01, is amended by adding a
subdivision to read:

new text begin Subd. 1a. new text end

new text begin Removal of board member for cause. new text end

new text begin The governor may remove a
board member for cause after giving the board member a 30-day notice. The board
member may petition the district court for a hearing on the dismissal and present evidence
to rebut the dismissal and offer evidence to the contrary. A decision by the district court
is final on the matter. A board member must act with consistency in regards to matters
before the board or may be subject to removal by the governor.
new text end

Sec. 2.

Minnesota Statutes 2006, section 147.01, is amended by adding a subdivision
to read:

new text begin Subd. 3a. new text end

new text begin Information. new text end

new text begin A board member must receive any information regarding
an ongoing investigation. Failure to comply shall result in the board member's removal
from the board. Notwithstanding this section or any other contrary provision, a violation
of this subdivision is actionable in a court of law.
new text end

Sec. 3.

Minnesota Statutes 2006, section 147.01, subdivision 4, is amended to read:

Subd. 4.

Disclosure.

Subject to the exceptions listed in this subdivision, all
communications or information received by or disclosed to the board relating to any
person or matter subject to its regulatory jurisdiction are confidential and privileged and
any disciplinary hearing shall be closed to the public.

(a) Upon application of a party in a proceeding before the board under section
147.091, the board shall produce and permit the inspection and copying, by or on behalf of
the moving party, of any designated documents or papers relevant to the proceedings, in
accordance with the provisions of rule 34, Minnesota Rules of Civil Procedure.

(b) If the board imposes disciplinary measures of any kind, whether by contested
case or by settlement agreement, the name and business address of the licensee, the nature
of the misconduct, and the action taken by the board are public data. If disciplinary
action is taken by settlement agreement, the entire agreement is public data. The board
shall decide disciplinary matters, whether by settlement or by contested case, by roll call
vote. The votes are public data.

(c) The board shall exchange information with other licensing boards, agencies, or
departments within the state, as required under section 214.10, subdivision 8, paragraph
(c), and may release information in the reports required under section 147.02, subdivision
6.

(d) The board shall upon request furnish to a person who made a complaint, or the
alleged victim of a violation of section 147.091, subdivision 1, paragraph (t), or both, a
description of the activities and actions of the board relating to that complaint, a summary
of the results of an investigation of that complaint, and the reasons for actions taken
by the board.

(e) A probable cause hearing held pursuant to section 147.092 shall be closed to the
public, except for the notices of hearing made public by operation of section 147.092.

(f) Findings of fact, conclusions, and recommendations issued by the administrative
law judge, and transcripts of oral arguments before the board pursuant to a contested case
proceeding in which an administrative law judge found a violation of section 147.091,
subdivision 1, paragraph (t), are public data.

new text begin (g) All information collected or presented to the board that is not deemed confidential
must be made available to the general public upon request.
new text end

Sec. 4.

Minnesota Statutes 2006, section 147.01, is amended by adding a subdivision
to read:

new text begin Subd. 4a. new text end

new text begin Conflict of interest. new text end

new text begin (a) A board member must disclose any conflict of
interest in matters before the board for board action and abstain from voting, discussing,
or rendering an opinion on the matter before the board. Additionally, a board member who
has knowledge that a person in the board member's employment has a business, financial,
or personal interest in a matter before the board shall disclose a potential conflict of interest
to the board and abstain from voting, discussing, or rendering an opinion on the matter.
new text end

new text begin (b) Notwithstanding this section or any other provision of law, a violation of this
subdivision is actionable in a court of law.
new text end

Sec. 5.

Minnesota Statutes 2006, section 147.01, is amended by adding a subdivision
to read:

new text begin Subd. 4b. new text end

new text begin Confidentiality. new text end

new text begin A board member may not disclose any investigative
information on a physician to any other person including those in the board member's
employment, or those acting as a consultant or advisor to the board member.
Notwithstanding this section or any other provision of law, a violation of this duty is
actionable in a court of law.
new text end

Sec. 6.

new text begin [147.041] CONTRARY PROVISIONS.
new text end

new text begin The provisions in this chapter supersede any contrary provision in chapter 214.
new text end

Sec. 7.

Minnesota Statutes 2006, 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 new text begin petition the court
to new text end 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 osteopathy. 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 148A.02, 609.344, and 609.345, or a state
or federal narcotics or controlled substance law.

(g) Engaging in any unethical conduct; conduct likely to deceive, defraud, or harm
the public, 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 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 supervise a physician's assistant or failure to supervise a 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 as mentally incompetent, mentally ill or developmentally disabled,
or as a chemically dependent person, a person dangerous to the public, a sexually
dangerous person, or a person who has a sexual psychopathic personality by a court of
competent jurisdiction, within or without this state. Such adjudication shall automatically
suspend a license for the duration thereof unless the board orders otherwise.

(k) Engaging in unprofessional conduct. Unprofessional conduct shall include
any departure from or the failure to conform to the minimal standards of acceptable
and prevailing medical practice in which proceeding actual injury to a patient need not
be established.

(l) Inability to practice medicine with reasonable skill and safety to patients by
reason of illness, drunkenness, use of drugs, narcotics, chemicals or any other type of
material or as a result of any mental or physical condition, including deterioration through
the aging process or loss of motor skills.

(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 osteopathy 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 osteopathy, 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 section 144.335 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 section 144.335 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) Prescribing a drug or device for other than medically accepted therapeutic or
experimental or investigative purposes authorized by a state or federal agency or referring
a patient to any health care provider as defined in section 144.335 for services or tests not
medically indicated at the time of referral.

(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.

Sec. 8.

Minnesota Statutes 2006, section 147.091, subdivision 2, is amended to read:

Subd. 2.

Automatic suspension.

(a) A license to practice medicine is automatically
suspended if (1) a guardian of a licensee is appointed by order of a court pursuant to
sections 524.5-101 to 524.5-502, for reasons other than the minority of the licensee; or
(2) the licensee is committed by order of a court pursuant to chapter 253B. The license
remains suspended until the licensee is restored to capacity by a court and, upon petition
by the licensee, the suspension is terminated by the deleted text begin board deleted text end new text begin court new text end after a hearing.

(b) Upon notice to the board of a judgment of, or a plea of guilty to, a felony
reasonably related to the practice of patient care, the credentials of the regulated person
shall be automatically suspended deleted text begin by the board deleted text end . The credentials shall remain suspended
until, upon petition by the regulated person and after a hearing, the suspension is
terminated by the deleted text begin board deleted text end new text begin court new text end . The deleted text begin board deleted text end new text begin court new text end shall indefinitely suspend or revoke
the credentials of the regulated person if, after a hearing, the deleted text begin board deleted text end new text begin court new text end finds that the
felonious conduct would cause a serious risk of harm to the public.

(c) For credentials that have been suspended or revoked pursuant to paragraphs
(a) and (b), the regulated person may be reinstated to practice, either with or without
restrictions, by demonstrating clear and convincing evidence of rehabilitation, as provided
in section 364.03. If the regulated person's conviction is subsequently overturned by
court decision, the board shall deleted text begin conduct deleted text end new text begin request new text end a new text begin court new text end hearing to review the suspension
within 30 days after receipt of the court decision new text begin overturning the felony conviction new text end . The
regulated person is not required to prove rehabilitation if the subsequent court decision
overturns previous court findings of public risk.

(d) The board may, upon majority vote of a quorum of its members, deleted text begin suspend deleted text end
new text begin recommend suspension of new text end the credentials of a regulated person deleted text begin without a hearing deleted text end if the
regulated person fails to maintain a current name and address with the board, as described
in paragraph (e), while the regulated person is: (1) under board investigation, and a notice
of conference has been issued by the board; (2) party to a contested case with the board;
(3) party to an agreement for corrective action with the board; or (4) under a deleted text begin board deleted text end new text begin court new text end
order for disciplinary action. The suspension shall remain in effect until lifted by the
deleted text begin board deleted text end new text begin court new text end pursuant to the deleted text begin board's deleted text end new text begin court's new text end receipt of a petition from the regulated person,
along with the regulated person's current name and address.

(e) A person regulated deleted text begin by the board deleted text end new text begin under this section new text end shall maintain a current
name and address with the board and shall notify the board in writing within 30 days
of any change in name or address. If a name change only is requested, the regulated
person must request revised credentials and return the current credentials to the board.
The board may require the regulated person to substantiate the name change by submitting
official documentation from a court of law or agency authorized under law to receive and
officially record a name change. If an address change only is requested, no request for
revised credentials is required. If the regulated person's current credentials have been lost,
stolen, or destroyed, the person shall provide a written explanation to the board.

Sec. 9.

Minnesota Statutes 2006, section 147.091, subdivision 4, is amended to read:

Subd. 4.

Temporary suspension of license.

In addition to any other remedy
provided by law, the board may deleted text begin , without a hearing, temporarily suspend deleted text end new text begin request from the
court a temporary suspension of new text end the license of a physician if the board finds that the
physician has violated a statute or rule which the board is empowered to enforce and
continued practice by the physician would create a serious risk of harm to the public. The
suspension shall take effect new text begin after a hearing and new text end upon written notice to the physician,
specifying the statute or rule violated. The suspension shall remain in effect until the
deleted text begin board deleted text end new text begin court new text end issues a final order in the matter after a hearing. deleted text begin At the time it issues the
suspension notice, the board shall schedule a disciplinary hearing to be held pursuant to
the Administrative Procedure Act. deleted text end The physician shall be provided with at least 20 days'
notice of any hearing held pursuant to this subdivision. The hearing shall be scheduled to
begin no later than 30 days after the issuance of the suspension order.

Sec. 10.

Minnesota Statutes 2006, section 147.092, is amended to read:

147.092 PROBABLE CAUSE HEARING; SEXUAL MISCONDUCT.

(a) In any deleted text begin contested deleted text end case in which a violation of section 147.091, subdivision 1,
paragraph (t), is charged all parties shall be afforded an opportunity for a probable cause
hearing before deleted text begin an administrative law judge deleted text end new text begin the district court new text end . The motion for a hearing
must be made to the deleted text begin Office of Administrative Hearings deleted text end new text begin district court new text end within 20 days of the
filing date deleted text begin of the contested case deleted text end and served upon the board upon filing. Any hearing shall
be held within 30 days of the motion. The deleted text begin administrative law judge deleted text end new text begin court new text end shall issue a
decision within 20 days of completion of the probable cause hearing. If there is no request
for a hearing, the portion of the notice of and order for hearing relating to allegations of
sexual misconduct automatically becomes public.

(b) The scope of the probable cause hearing is confined to a review of the facts upon
which the complaint review committee of the board based its determination that there was
a reasonable belief that section 147.091, subdivision 1, paragraph (t), was violated. The
deleted text begin administrative law judge deleted text end new text begin court new text end shall determine whether there is a sufficient showing of
probable cause to believe the licensee committed the violations listed in the notice of and
order for hearing, and shall receive evidence offered in support or opposition. Each party
may cross-examine any witnesses produced by the other. A finding of probable cause shall
be based upon the entire record including reliable hearsay in whole or in part and requires
only a preponderance of the evidence. The burden of proof rests with the board.

(c) Upon a showing of probable cause, that portion of the notice of and order for
hearing filed by the board that pertains to the allegations of sexual misconduct, including
the factual allegations that support the charge, become public data. In addition, the
notice of and order for hearing may be amended. A finding of no probable cause by the
deleted text begin administrative law judge deleted text end new text begin court new text end is grounds for dismissal without prejudice. Nothing in this
section shall prevent the board from reopening the investigation or filing charges based
on the same subject matter at a later date.

Sec. 11.

Minnesota Statutes 2006, section 147.141, is amended to read:

147.141 FORMS OF DISCIPLINARY ACTION.

When the board finds that a licensed physician or a physician registered under
section 147.032 has violated a provision or provisions of sections 147.01 to 147.22, it may
deleted text begin do deleted text end new text begin bring an action in district court and recommend new text end one or more of the following:

(1) revoke the license;

(2) suspend the license;

(3) revoke or suspend registration to perform interstate telemedicine;

(4) impose limitations or conditions on the physician's practice of medicine,
including the limitation of scope of practice to designated field specialties; the imposition
of retraining or rehabilitation requirements; the requirement of practice under supervision;
or the conditioning of continued practice on demonstration of knowledge or skills by
appropriate examination or other review of skill and competence;

(5) impose a civil penalty not exceeding $10,000 for each separate violation, the
amount of the civil penalty to be fixed so as to deprive the physician of any economic
advantage gained by reason of the violation charged or to reimburse the board for the
cost of the investigation and proceeding;

(6) order the physician to provide unremunerated professional service under
supervision at a designated public hospital, clinic, or other health care institution; or

(7) censure or reprimand the licensed physician.

Sec. 12.

Minnesota Statutes 2006, section 147.151, is amended to read:

147.151 DISCIPLINARY RECORD ON JUDICIAL REVIEW.

Upon deleted text begin judicial review of any board deleted text end new text begin a court order for new text end disciplinary action taken under
sections 147.01 to 147.22, the deleted text begin reviewing deleted text end court shall seal the administrative record, except
for the deleted text begin board's deleted text end new text begin court's new text end final decision, and shall not make the deleted text begin administrative deleted text end new text begin court new text end record
available to the public.

Sec. 13.

new text begin [147.1611] JUDICIAL OVERSIGHT.
new text end

new text begin (a) After the board has conducted an investigation of a physician licensed under this
chapter and prior to imposing any disciplinary action as specified in section 147.141,
the board must present its evidence and recommended disciplinary action to the district
court and the physician shall have the right to rebut the evidence and offer evidence to
the contrary. The physician shall also have the right to call witnesses in the physician's
defense.
new text end

new text begin (b) If the board determines that emergency circumstances are present, the board
shall petition the court for a temporary suspension of the physician's license while an
investigation is being conducted. The decision of the judge is final if a temporary license
suspension is issued.
new text end

Sec. 14.

new text begin [147.1612] INJUNCTIVE RELIEF.
new text end

new text begin Any party who is under investigation by the board and adversely affected by a
determination of the board may seek injunctive relief through the district court during an
investigative period or during the appeals process.
new text end