Minnesota Session Laws - 1992, Regular Session

  

                         Laws of Minnesota 1992 

                        CHAPTER 577-S.F.No. 1693 
           An act relating to crimes; providing that certain 
          health care providers who administer medications to 
          relieve another person's pain do not violate the law 
          making it a crime to aid or attempt aiding suicide; 
          authorizing certain licensure disciplinary options 
          against physicians, physician assistants, nurses, 
          dentists, and pharmacists who are convicted of aiding 
          or attempting to aid suicide; amending Minnesota 
          Statutes 1990, sections 147.091, subdivision 1; 
          148.261, subdivision 1; 150A.08, subdivision 1; 
          151.06, subdivision 1; and 609.215, by adding 
          subdivisions; 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 1990, 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) 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. 
    (v) 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. 
    Sec. 2.  [147.36] [PHYSICIAN ASSISTANT; DISCIPLINARY 
OPTIONS FOR AIDING OR ATTEMPTING TO AID SUICIDE.] 
    The board of medical examiners shall refuse to grant or 
renew a registration, or shall suspend or revoke a registration, 
or use any reasonable lesser remedy against a physician 
assistant if the assistant aids suicide or aids 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. 
    Sec. 3.  Minnesota Statutes 1990, section 148.261, 
subdivision 1, is amended to read: 
    Subdivision 1.  [GROUNDS LISTED.] The board shall have 
power to deny, revoke, suspend, limit, or condition the license 
and registration of any person to practice professional or 
practical nursing pursuant to sections 148.171 to 148.285, or to 
otherwise discipline a licensee or applicant as described in 
section 148.262.  The following are grounds for disciplinary 
action: 
    (1) Failure to demonstrate the qualifications or satisfy 
the requirements for a license contained in section 148.171 to 
148.285 or rules of the board.  In the case of a person applying 
for a license, the burden of proof is upon the applicant to 
demonstrate the qualifications or satisfaction of the 
requirements. 
    (2) Employing fraud or deceit in procuring or attempting to 
procure a permit, license, or registration certificate to 
practice professional or practical nursing or attempting to 
subvert the licensing examination process.  Conduct that 
subverts or attempts to subvert the licensing examination 
process includes, but is not limited to:  
    (i) conduct that 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; 
     (ii) conduct that 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 
     (iii) impersonating an examinee or permitting an 
impersonator to take the examination on one's own behalf. 
     (3) Conviction during the previous five years of a felony 
or gross misdemeanor reasonably related to the practice of 
professional or practical nursing.  Conviction as used in this 
subdivision shall include a conviction of an offense that if 
committed in this state would be considered a felony or gross 
misdemeanor 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. 
     (4) Revocation, suspension, limitation, conditioning, or 
other disciplinary action against the person's professional or 
practical nursing license in another state, territory, or 
country; failure to report to the board that charges regarding 
the person's nursing license are pending in another state, 
territory, or country; or having been refused a license by 
another state, territory, or country. 
     (5) Failure to or inability to perform professional or 
practical nursing as defined in section 148.171, paragraph (3) 
or (5), with reasonable skill and safety, including failure of a 
registered nurse to supervise or a licensed practical nurse to 
monitor adequately the performance of acts by any person working 
at the nurse's direction. 
     (6) Engaging in unprofessional conduct including, but not 
limited to, a departure from or failure to conform to board 
rules of professional or practical nursing practice that 
interpret the statutory definition of professional or practical 
nursing as well as provide criteria for violations of the 
statutes, or, if no rule exists, to the minimal standards of 
acceptable and prevailing professional or practical nursing 
practice, or any nursing practice that may create unnecessary 
danger to a patient's life, health, or safety.  Actual injury to 
a patient need not be established under this clause.  
     (7) Delegating or accepting the delegation of a nursing 
function or a prescribed health care function when the 
delegation or acceptance could reasonably be expected to result 
in unsafe or ineffective patient care. 
     (8) Actual or potential inability to practice nursing with 
reasonable skill and safety to patients by reason of illness, 
use of alcohol, drugs, chemicals, or any other material, or as a 
result of any mental or physical condition.  
     (9) Adjudication as mentally incompetent, mentally ill, a 
chemically dependent person, or a person dangerous to the public 
by a court of competent jurisdiction, within or without this 
state.  
     (10) Engaging in any unethical conduct including, but not 
limited to, 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.  Actual injury need not 
be established under this clause.  
     (11) Engaging in conduct with a patient that is sexual or 
may reasonably be interpreted by the patient as sexual, or in 
any verbal behavior that is seductive or sexually demeaning to a 
patient, or engaging in sexual exploitation of a patient or 
former patient.  
      (12) Obtaining money, property, or services from a patient, 
other than reasonable fees for services provided to the patient, 
through the use of undue influence, harassment, duress, 
deception, or fraud. 
      (13) Revealing a privileged communication from or relating 
to a patient except when otherwise required or permitted by law. 
      (14) Engaging in abusive or fraudulent billing practices, 
including violations of federal Medicare and Medicaid laws or 
state medical assistance laws. 
    (15) Improper management of patient records, including 
failure to maintain adequate patient records, to comply with a 
patient's request made pursuant to section 144.335, or to 
furnish a patient record or report required by law.  
    (16) Knowingly aiding, assisting, advising, or allowing an 
unlicensed person to engage in the unlawful practice of 
professional or practical nursing.  
    (17) Violating a rule adopted by the board, an order of the 
board, or a state or federal law relating to the practice of 
professional or practical nursing, or a state or federal 
narcotics or controlled substance law. 
    (18) Aiding suicide or aiding attempted suicide in 
violation of section 609.215 as established by any of the 
following: 
    (i) 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; 
    (ii) a copy of the record of a judgment of contempt of 
court for violating an injunction issued under section 609.215, 
subdivision 4; 
    (iii) a copy of the record of a judgment assessing damages 
under section 609.215, subdivision 5; or 
    (iv) 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. 
    Sec. 4.  Minnesota Statutes 1990, section 150A.08, 
subdivision 1, is amended to read: 
    Subdivision 1.  [GROUNDS.] The board may refuse or by order 
suspend or revoke, limit or modify by imposing conditions it 
deems necessary, any license to practice dentistry or dental 
hygiene or the registration of any dental assistant upon any of 
the following grounds: 
     (1) Fraud or deception in connection with the practice of 
dentistry or the securing of a license or annual registration 
certificate; 
     (2) Conviction, including a finding or verdict of guilt, an 
admission of guilt, or a no contest plea, in any court of a 
felony or gross misdemeanor reasonably related to the practice 
of dentistry as evidenced by a certified copy of the conviction; 
     (3) Conviction, including a finding or verdict of guilt, an 
admission of guilt, or a no contest plea, in any court of an 
offense involving moral turpitude as evidenced by a certified 
copy of the conviction; 
     (4) Habitual overindulgence in the use of intoxicating 
liquors; 
     (5) Improper or unauthorized prescription, dispensing, 
administering, or personal or other use of any legend drug as 
defined in chapter 151, of any chemical as defined in chapter 
151, or of any controlled substance as defined in chapter 152; 
     (6) Conduct unbecoming a person licensed to practice 
dentistry or dental hygiene or registered as a dental assistant, 
or conduct contrary to the best interest of the public, as such 
conduct is defined by the rules of the board; 
    (7) Gross immorality; 
    (8) Any physical, mental, emotional, or other disability 
which adversely affects a dentist's, dental hygienist's, or 
registered dental assistant's ability to perform the service for 
which the person is licensed or registered; 
    (9) Revocation or suspension of a license, registration, or 
equivalent authority to practice, or other disciplinary action 
or denial of a license or registration application taken by a 
licensing, registering, or credentialing authority of another 
state, territory, or country as evidenced by a certified copy of 
the licensing authority's order, if the disciplinary action or 
application denial was based on facts that would provide a basis 
for disciplinary action under this chapter and if the action was 
taken only after affording the credentialed person or applicant 
notice and opportunity to refute the allegations or pursuant to 
stipulation or other agreement; 
    (10) Failure to maintain adequate safety and sanitary 
conditions for a dental office in accordance with the standards 
established by the rules of the board; 
    (11) Employing, assisting, or enabling in any manner an 
unlicensed person to practice dentistry; 
    (12) Failure or refusal to attend, testify, and produce 
records as directed by the board under subdivision 7; or 
    (13) Violation of, or failure to comply with, any other 
provisions of sections 150A.01 to 150A.12, the rules of the 
board of dentistry, or any disciplinary order issued by the 
board or for any other just cause related to the practice of 
dentistry.  Suspension, revocation, modification or limitation 
of any license shall not be based upon any judgment as to 
therapeutic or monetary value of any individual drug prescribed 
or any individual treatment rendered, but only upon a repeated 
pattern of conduct.; or 
    (14) Aiding suicide or aiding attempted suicide in 
violation of section 609.215 as established by any of the 
following:  
    (i) 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; 
    (ii) a copy of the record of a judgment of contempt of 
court for violating an injunction issued under section 609.215, 
subdivision 4; 
    (iii) a copy of the record of a judgment assessing damages 
under section 609.215, subdivision 5; or 
    (iv) 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. 
    Sec. 5.  Minnesota Statutes 1990, section 151.06, 
subdivision 1, is amended to read: 
    Subdivision 1.  (a)  [POWERS AND DUTIES.] The board of 
pharmacy shall have the power and it shall be its duty: 
     (1) to regulate the practice of pharmacy; 
     (2) to regulate the manufacture, wholesale, and retail sale 
of drugs within this state; 
     (3) to regulate the identity, labeling, purity, and quality 
of all drugs and medicines dispensed in this state, using the 
United States Pharmacopeia and the National Formulary, or any 
revisions thereof, or standards adopted under the federal act as 
the standard; 
     (4) to enter and inspect by its authorized representative 
any and all places where drugs, medicines, medical gases, or 
veterinary drugs or devices are sold, vended, given away, 
compounded, dispensed, manufactured, wholesaled, or held; it may 
secure samples or specimens of any drugs, medicines, medical 
gases, or veterinary drugs or devices after paying or offering 
to pay for such sample; it shall be entitled to inspect and make 
copies of any and all records of shipment, purchase, 
manufacture, quality control, and sale of these items provided, 
however, that such inspection shall not extend to financial 
data, sales data, or pricing data; 
     (5) to examine and license as pharmacists all applicants 
whom it shall deem qualified to be such; 
     (6) to license wholesale drug distributors; 
     (7) to deny, suspend, revoke, or refuse to renew any 
registration or license required under this chapter, to any 
applicant or registrant or licensee upon any of the following 
grounds: 
      (i) fraud or deception in connection with the securing of 
such license or registration; 
      (ii) in the case of a pharmacist, conviction in any court 
of a felony; 
      (iii) in the case of a pharmacist, conviction in any court 
of an offense involving moral turpitude; 
      (iv) habitual indulgence in the use of narcotics, 
stimulants, or depressant drugs; or habitual indulgence in 
intoxicating liquors in a manner which could cause conduct 
endangering public health; 
      (v) unprofessional conduct or conduct endangering public 
health; 
      (vi) gross immorality; 
      (vii) employing, assisting, or enabling in any manner an 
unlicensed person to practice pharmacy; 
      (viii) conviction of theft of drugs, or the unauthorized 
use, possession, or sale thereof; 
      (ix) violation of any of the provisions of this chapter or 
any of the rules of the state board of pharmacy; 
      (x) in the case of a pharmacy license, operation of such 
pharmacy without a pharmacist present and on duty; 
    (xi) in the case of a pharmacist, physical or mental 
disability which could cause incompetency in the practice of 
pharmacy; or 
    (xii) in the case of a pharmacist, the suspension or 
revocation of a license to practice pharmacy in another 
state; or 
    (xiii) in the case of a pharmacist, aiding suicide or 
aiding attempted suicide in violation of section 609.215 as 
established by any of the following: 
    (a) 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; 
    (b) a copy of the record of a judgment of contempt of court 
for violating an injunction issued under section 609.215, 
subdivision 4; 
    (c) a copy of the record of a judgment assessing damages 
under section 609.215, subdivision 5; or 
    (d) 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; 
    (8) to employ necessary assistants and make rules for the 
conduct of its business; and 
    (9) to perform such other duties and exercise such other 
powers as the provisions of the act may require.  
    (b)  [TEMPORARY SUSPENSION.] In addition to any other 
remedy provided by law, the board may, without a hearing, 
temporarily suspend a license for not more than 60 days if the 
board finds that a pharmacist has violated a statute or rule 
that the board is empowered to enforce and continued practice by 
the pharmacist would create an imminent risk of harm to others.  
The suspension shall take effect upon written notice to the 
pharmacist, specifying the statute or rule violated.  At the 
time it issues the suspension notice, the board shall schedule a 
disciplinary hearing to be held under the administrative 
procedure act.  The pharmacist shall be provided with at least 
20 days notice of any hearing held under this subdivision. 
    (c)  [RULES.] For the purposes aforesaid, it shall be the 
duty of the board to make and publish uniform rules not 
inconsistent herewith for carrying out and enforcing the 
provisions of this chapter.  
    Sec. 6.  Minnesota Statutes 1990, section 609.215, is 
amended by adding a subdivision to read: 
    Subd. 3.  [ACTS OR OMISSIONS NOT CONSIDERED AIDING SUICIDE 
OR AIDING ATTEMPTED SUICIDE.] (a) A health care provider, as 
defined in section 145B.02, subdivision 6, who administers, 
prescribes, or dispenses medications or procedures to relieve 
another person's pain or discomfort, even if the medication or 
procedure may hasten or increase the risk of death, does not 
violate this section unless the medications or procedures are 
knowingly administered, prescribed, or dispensed to cause death. 
    (b) A health care provider, as defined in section 145B.02, 
subdivision 6, who withholds or withdraws a life-sustaining 
procedure in compliance with chapter 145B or in accordance with 
reasonable medical practice does not violate this section. 
    Sec. 7.  Minnesota Statutes 1990, section 609.215, is 
amended by adding a subdivision to read: 
    Subd. 4.  [INJUNCTIVE RELIEF.] A cause of action for 
injunctive relief may be maintained against any person who is 
reasonably believed to be about to violate or who is in the 
course of violating this section by any person who is: 
    (1) the spouse, parent, child, or sibling of the person who 
would commit suicide; 
    (2) an heir or a beneficiary under a life insurance policy 
of the person who would commit suicide; 
    (3) a health care provider of the person who would commit 
suicide; 
    (4) a person authorized to prosecute or enforce the laws of 
this state; or 
    (5) a legally appointed guardian or conservator of the 
person who would have committed suicide. 
    Sec. 8.  Minnesota Statutes 1990, section 609.215, is 
amended by adding a subdivision to read: 
    Subd. 5.  [CIVIL DAMAGES.] A person given standing by 
subdivision 4, clause (1), (2), or (5), or the person who would 
have committed suicide, in the case of an attempt, may maintain 
a cause of action against any person who violates or who 
attempts to violate subdivision 1 or 2 for compensatory damages 
and punitive damages as provided in section 549.20.  A person 
described in subdivision 4, clause (4), may maintain a cause of 
action against a person who violates or attempts to violate 
subdivision 1 or 2 for a civil penalty of up to $50,000 on 
behalf of the state.  An action under this subdivision may be 
brought whether or not the plaintiff had prior knowledge of the 
violation or attempt. 
    Sec. 9.  Minnesota Statutes 1990, section 609.215, is 
amended by adding a subdivision to read: 
    Subd. 6.  [ATTORNEY FEES.] Reasonable attorney fees shall 
be awarded to the prevailing plaintiff in a civil action brought 
under subdivision 4 or 5. 
    Presented to the governor April 17, 1992 
    Signed by the governor April 29, 1992, 8:22 a.m.