Minnesota Session Laws - 1988, Regular Session

  

                         Laws of Minnesota 1988 

                        CHAPTER 557-S.F.No. 1904 
           An act relating to health; exempting certain 
          disciplinary actions from publication; expanding the 
          grounds for disciplinary action; providing for 
          temporary permit to practice physical therapy; 
          allowing dissemination of data to other states; 
          amending Minnesota Statutes 1986, sections 147.02, by 
          adding a subdivision; 147.091, subdivision 1; 147.111, 
          subdivision 2; 148.71; and 214.10, subdivision 8. 
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1986, section 147.02, is 
amended by adding a subdivision to read: 
    Subd. 6a.  [EXCEPTION TO PUBLICATION REQUIREMENT.] The 
publication requirement does not apply to disciplinary measures 
by the board which are based exclusively upon grounds listed in 
section 147.091, subdivision 1, clause (l) or (r). 
    Sec. 2.  Minnesota Statutes 1986, section 147.091, 
subdivision 1, is amended to read:  
    Subdivision 1.  [GROUNDS LISTED.] The board may refuse to 
grant a license 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 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 
mentally retarded, or as a chemically dependent person, a person 
dangerous to the public, or a person who has a 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) Splitting fees, or promising to pay a portion of a fee 
or a commission, or accepting a rebate.  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 significant financial interest unless the physician has 
disclosed the physician's own financial interest; 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. 
    Sec. 3.  Minnesota Statutes 1986, section 147.111, 
subdivision 2, is amended to read:  
    Subd. 2.  [INSTITUTIONS.] Any hospital, clinic, prepaid 
medical plan, or other health care institution or organization 
located in this state shall report to the board any action taken 
by the institution or organization or any of its administrators 
or medical or other committees to revoke, suspend, restrict, or 
condition a physician's privilege to practice or treat patients 
in the institution, or as part of the organization, any denial 
of privileges, or any other disciplinary action.  The 
institution or organization shall also report the resignation of 
any physicians prior to the conclusion of any disciplinary 
proceeding, or prior to the commencement of formal charges but 
after the physician had knowledge that formal charges were 
contemplated or in preparation.  Each report made under this 
subdivision must state the nature of the action taken, state in 
detail the reasons for the action, and identify the specific 
patient medical records upon which the action was based.  No 
report shall be required of a physician voluntarily limiting the 
practice of the physician at a hospital provided that the 
physician notifies all hospitals at which the physician has 
privileges of the voluntary limitation and the reasons for it. 
    Sec. 4.  Minnesota Statutes 1986, section 148.71, is 
amended to read:  
    148.71 [REGISTRATION.] 
    Subdivision 1.  [QUALIFIED APPLICANT.] The state board of 
medical examiners shall register as a physical therapist and 
shall furnish a certificate of registration to each applicant 
who successfully passes an examination provided for in sections 
148.65 to 148.78 for registration as a physical therapist and 
who is otherwise qualified as required herein. 
    Subd. 2.  [TEMPORARY PERMIT.] The board may, upon payment 
of a fee set by the board, issue a temporary permit to practice 
physical therapy under supervision to a physical therapist who 
is a graduate of an approved school of physical therapy and 
qualified for admission to examination for registration as a 
physical therapist.  A temporary permit to practice physical 
therapy under supervision may be issued only once and cannot be 
renewed.  It expires 90 days after the next examination for 
registration given by the board or on the date on which the 
board, after examination of the applicant, grants or denies the 
applicant a registration to practice, whichever occurs first.  A 
temporary permit expires on the first day the board begins its 
next examination for registration after the permit is issued if 
the holder does not submit to examination on that date.  The 
holder of a temporary permit to practice physical therapy under 
supervision may practice physical therapy as defined in section 
148.65 if the entire practice is under the supervision of a 
person holding a valid registration to practice physical therapy 
in this state.  The supervision shall be direct, immediate, and 
on premises. 
    Sec. 5.  Minnesota Statutes 1986, section 214.10, 
subdivision 8, is amended to read:  
    Subd. 8.  [SPECIAL REQUIREMENTS FOR HEALTH-RELATED 
LICENSING BOARDS.] In addition to the provisions of this section 
that apply to all examining and licensing boards, the 
requirements in this subdivision apply to all health-related 
licensing boards, except the board of veterinary medicine. 
    (a) If the executive director or consulted board member 
determines that a communication received alleges a violation of 
statute or rule that involves sexual contact with a patient or 
client, the communication shall be forwarded to the designee of 
the attorney general for an investigation of the facts alleged 
in the communication.  If, after an investigation it is the 
opinion of the executive director or consulted board member that 
there is sufficient evidence to justify disciplinary action, the 
board shall conduct a disciplinary conference or hearing.  If, 
after a hearing or disciplinary conference the board determines 
that misconduct involving sexual contact with a patient or 
client occurred, the board shall take disciplinary action.  
Notwithstanding subdivision 2, a board may not attempt to 
correct improper activities or redress grievances through 
education, conciliation, and persuasion, unless in the opinion 
of the executive director or consulted board member there is 
insufficient evidence to justify disciplinary action.  The board 
may settle a case by stipulation prior to, or during, a hearing 
if the stipulation provides for disciplinary action. 
    (b) In addition to the information required under section 
214.07, subdivision 1, each board shall include in its reports 
to the legislature summaries of each individual case that 
involved possible sexual contact with a patient or client.  The 
summary must include a description of the alleged misconduct; 
the general results of the investigation; the nature of board 
activities relating to that case; the disposition of the case; 
and the reasons for board decisions concerning the disposition 
of the case.  The information disclosed under this section must 
not include the name or specific identifying information about 
any person, agency, or organization. 
    (c) A board member who has a direct current or former 
financial connection or professional relationship to a person 
who is the subject of board disciplinary activities must not 
participate in board activities relating to that case. 
    (d) Each health-related licensing board shall establish 
procedures for exchanging information with other Minnesota state 
boards, agencies, and departments responsible for licensing 
health-related occupations, facilities, and programs, and for 
coordinating investigations involving matters within the 
jurisdiction of more than one licensing body.  The procedures 
must provide for the forwarding to other licensing bodies of all 
information and evidence, including the results of 
investigations, that are relevant to matters within that 
licensing body's regulatory jurisdiction.  Each health-related 
licensing board shall have access to any data of the department 
of human services relating to a person subject to the 
jurisdiction of the licensing board.  The data shall have the 
same classification under sections 13.01 to 13.88, the Minnesota 
government data practices act, in the hands of the agency 
receiving the data as it had in the hands of the department of 
human services. 
    (e) Each health-related licensing board shall establish 
procedures for exchanging information with other states 
regarding disciplinary actions against licensees.  The 
procedures must provide for the collection of information from 
other states about disciplinary actions taken against persons 
who are licensed to practice in Minnesota or who have applied to 
be licensed in this state and the dissemination of information 
to other states regarding disciplinary actions taken in 
Minnesota.  In addition to any authority in chapter 13 
permitting the dissemination of data, the board may, in its 
discretion, disseminate data to other states regardless of its 
classification under chapter 13.  Before transferring any data 
that is not public, the board shall obtain reasonable assurances 
from the receiving state that the data will not be made public. 
    Sec. 6.  [REPEALER.] 
    Section 1 is repealed effective August 1, 1990. 
    Approved April 18, 1988