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Minnesota Legislature

Office of the Revisor of Statutes

Key: (1) language to be deleted (2) new language

                             CHAPTER 18-H.F.No. 231 
                  An act relating to occupations and professions; board 
                  of medical practice; changing licensing requirements 
                  for foreign applicants; changing certain disciplinary 
                  procedures; amending Minnesota Statutes 1994, sections 
                  147.037, subdivision 1; 147.091, subdivisions 1, 2, 6, 
                  and by adding subdivisions; 147.121, subdivision 2; 
                  148.70; 148.72, subdivision 1; and 364.09; proposing 
                  coding for new law in Minnesota Statutes, chapter 147. 
        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
           Section 1.  [147.011] [DEFINITION.] 
           For the purpose of this chapter, "regulated person" or 
        "person regulated by the board" means a person licensed, 
        registered, or regulated in any other manner by the board of 
        medical practice. 
           Sec. 2.  Minnesota Statutes 1994, section 147.037, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [REQUIREMENTS.] The board shall issue a 
        license to practice medicine to any person who satisfies the 
        requirements in paragraphs (a) to (g). 
           (a) The applicant shall satisfy all the requirements 
        established in section 147.02, subdivision 1, paragraphs (a), 
        (e), (f), (g), and (h).  
           (b) The applicant shall present evidence satisfactory to 
        the board that the applicant is a graduate of a medical or 
        osteopathic school approved by the board as equivalent to 
        accredited United States or Canadian schools based upon its 
        faculty, curriculum, facilities, accreditation, or other 
        relevant data.  
           (c) The applicant shall present evidence satisfactory to 
        the board that the applicant has been awarded a certificate by 
        the educational council for foreign medical graduates, and the 
        applicant has a working ability in the English language 
        sufficient to communicate with patients and physicians and to 
        engage in the practice of medicine.  
           (d) The applicant shall present evidence satisfactory to 
        the board of the completion of two years of graduate, clinical 
        medical training in a program located in the United States, its 
        territories, or Canada and accredited by a national accrediting 
        organization approved by the board or other graduate training 
        approved in advance by the board as meeting standards similar to 
        those of a national accrediting organization.  This requirement 
        does not apply: 
           (1) to an applicant who is admitted as a permanent 
        immigrant to the United States as a person of exceptional 
        ability in the sciences,; 
           (2) to an applicant holding a valid license to practice 
        medicine in another country and issued a permanent immigrant 
        visa after October 1, 1991, as a person of extraordinary ability 
        or as an outstanding professor or researcher provided that a 
        person under clause (1) or (2) is admitted pursuant to rules of 
        the United States Department of Labor and has completed one year 
        of the graduate, clinical medical training required by this 
        paragraph,; or meeting standards similar to those of a national 
        accrediting organization; or 
           (3) to an applicant who is licensed in another state, has 
        practiced five years without disciplinary action in the United 
        States, its territories, or Canada, has completed one year of 
        the graduate, clinical medical training required by this 
        paragraph, and has passed the Special Purpose Examination of the 
        Federation of State Medical Boards within three attempts in the 
        24 months before licensing. 
           (e) The applicant must:  
           (1) within ten years prior to application have passed an 
        examination prepared and graded by the Federation of State 
        Medical Boards, the United States Medical Licensing Examination 
        program, or the Medical Council of Canada; or 
           (2) have a current license from the equivalent licensing 
        agency in another state or Canada; and 
           (i) pass the Special Purpose Examination of the Federation 
        of State Medical Boards with a score of 75 or better within 
        three attempts; or 
           (ii) have a current certification by a specialty board of 
        the American Board of Medical Specialties, of the American 
        Osteopathic Association Bureau of Professional Education, or of 
        the Royal College of Physicians and Surgeons of Canada, or of 
        the College of Family Physicians of Canada. 
           (f) The applicant must not be under license suspension or 
        revocation by the licensing board of the state or jurisdiction 
        in which the conduct that caused the suspension or revocation 
        occurred.  
           (g) The applicant must not have engaged in conduct 
        warranting disciplinary action against a licensee, or have been 
        subject to disciplinary action other than as specified in 
        paragraph (f).  If an applicant does not satisfy the 
        requirements stated in this paragraph, the board may issue a 
        license only on the applicant's showing that the public will be 
        protected through issuance of a license with conditions or 
        limitations the board considers appropriate. 
           Sec. 3.  [147.0381] [CANCELLATION OF CREDENTIALS UNDER 
        DISCIPLINARY ORDER.] 
           Subdivision 1.  [BOARD APPROVAL; REPORTING.] A person 
        regulated by the board, whose right to practice is under 
        suspension, condition, limitation, qualification, or restriction 
        by the board may be granted cancellation of credentials by 
        approval of the board.  Such action by the board shall be 
        reported as cancellation while under discipline. 
           Credentials, for purposes of this section, means board 
        authorized documentation of the privilege to practice a 
        board-regulated profession. 
           Subd. 2.  [FEES NONREFUNDABLE.] A person regulated by the 
        board who receives board approval for credential cancellation is 
        not entitled to a refund of any fees paid for the credentialing 
        year in which cancellation of the credential occurred. 
           Subd. 3.  [NEW CREDENTIAL AFTER CANCELLATION.] If a person 
        regulated by the board, who has been granted board approval for 
        credential cancellation, desires to resume the practice of the 
        regulated profession in Minnesota, that person must obtain a new 
        credential by applying to the board and fulfilling the 
        requirements then in existence for obtaining an initial 
        credential to practice the regulated profession in Minnesota. 
           Sec. 4.  Minnesota Statutes 1994, 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, 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 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) 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. 
           Sec. 5.  Minnesota Statutes 1994, section 147.091, is 
        amended by adding a subdivision to read: 
           Subd. 1a.  [CONVICTION OF A FELONY-LEVEL CRIMINAL SEXUAL 
        CONDUCT OFFENSE.] (a) The board may not grant a license to 
        practice medicine to any person who has been convicted of a 
        felony-level criminal sexual conduct offense. 
           (b) A license to practice medicine is automatically revoked 
        if the licensee is convicted of a felony-level criminal sexual 
        conduct offense.  
           (c) A license that has been denied or revoked pursuant to 
        this subdivision is not subject to chapter 364. 
           (d) For purposes of this subdivision, "conviction" means a 
        plea of guilty, a verdict of guilty by a jury, or a finding of 
        guilty by the court, and "criminal sexual conduct offense" means 
        a violation of sections 609.342 to 609.345 or a similar statute 
        in another jurisdiction. 
           Sec. 6.  Minnesota Statutes 1994, section 147.091, 
        subdivision 2, is amended to read: 
           Subd. 2.  [EFFECTIVE DATES AUTOMATIC SUSPENSION.] A 
        suspension, revocation, condition, limitation, qualification or 
        restriction of a license shall be in effect pending 
        determination of an appeal unless the court, upon petition and 
        for good cause shown, shall otherwise order. 
           (a) A license to practice medicine is automatically 
        suspended if (1) a guardian of the person of a licensee is 
        appointed by order of a court pursuant to sections 525.54 to 
        525.61, 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 board 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 by the board.  The credentials shall 
        remain suspended until, upon petition by the regulated person 
        and after a hearing, the suspension is terminated by the board. 
           The board shall indefinitely suspend or revoke the 
        credentials of the regulated person, if after a hearing, the 
        board finds that the felonious conduct would cause a serious 
        risk of harm to the public. 
           For credentials that have been suspended or revoked 
        pursuant to this subdivision, 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 conduct a hearing to review the suspension within 30 
        days after receipt of the court decision.  The regulated person 
        is not required to prove rehabilitation if the subsequent court 
        decision overturns previous court findings of public risk. 
           Sec. 7.  Minnesota Statutes 1994, section 147.091, is 
        amended by adding a subdivision to read: 
           Subd. 2a.  [EFFECTIVE DATES.] A suspension, revocation, 
        condition, limitation, qualification or restriction of a license 
        or registration shall be in effect pending determination of an 
        appeal unless the court, upon petition and for good cause shown, 
        shall otherwise order.  A revocation of a license pursuant to 
        subdivision 1a is not appealable and shall remain in effect 
        indefinitely. 
           Sec. 8.  Minnesota Statutes 1994, section 147.091, 
        subdivision 6, is amended to read: 
           Subd. 6.  [MENTAL EXAMINATION; ACCESS TO MEDICAL DATA.] (a) 
        If the board has probable cause to believe that a physician 
        regulated person comes under subdivision 1, paragraph (1), it 
        may direct the physician person to submit to a mental or 
        physical examination.  For the purpose of this subdivision every 
        physician licensed under this chapter regulated person is deemed 
        to have consented to submit to a mental or physical examination 
        when directed in writing by the board and further to have waived 
        all objections to the admissibility of the examining physicians' 
        testimony or examination reports on the ground that the same 
        constitute a privileged communication.  Failure of a physician 
        regulated person to submit to an examination when directed 
        constitutes an admission of the allegations against the 
        physician person, unless the failure was due to circumstance 
        beyond the physician's person's control, in which case a default 
        and final order may be entered without the taking of testimony 
        or presentation of evidence.  A physician regulated person 
        affected under this paragraph shall at reasonable intervals be 
        given an opportunity to demonstrate that the physician person 
        can resume the competent practice of medicine the regulated 
        profession with reasonable skill and safety to patients the 
        public.  
           In any proceeding under this paragraph, neither the record 
        of proceedings nor the orders entered by the board shall be used 
        against a physician regulated person in any other proceeding.  
           (b) In addition to ordering a physical or mental 
        examination, the board may, notwithstanding section 13.42, 
        144.651, or any other law limiting access to medical or other 
        health data, obtain medical data and health records relating to 
        a licensee regulated person or applicant without the licensee's 
        person's or applicant's consent if the board has probable cause 
        to believe that a physician regulated person comes under 
        subdivision 1, paragraph (1).  The medical data may be requested 
        from a provider, as defined in section 144.335, subdivision 1, 
        paragraph (b), an insurance company, or a government agency, 
        including the department of human services.  A provider, 
        insurance company, or government agency shall comply with any 
        written request of the board under this subdivision and is not 
        liable in any action for damages for releasing the data 
        requested by the board if the data are released pursuant to a 
        written request under this subdivision, unless the information 
        is false and the provider giving the information knew, or had 
        reason to believe, the information was false.  Information 
        obtained under this subdivision is classified as private under 
        sections 13.01 to 13.87. 
           Sec. 9.  Minnesota Statutes 1994, section 147.121, 
        subdivision 2, is amended to read: 
           Subd. 2.  [INVESTIGATION; INDEMNIFICATION.] (a) Members of 
        the board, persons employed by the board, and consultants 
        retained by the board for the purpose of investigation of 
        violations or, the preparation and management of charges of 
        violations of sections 147.01 to 147.22 and management of board 
        orders on behalf of the board are immune from civil liability 
        and criminal prosecution for any actions, transactions, or 
        publications in the execution of, or relating to, their duties 
        under sections 147.01 to 147.22.  
           (b) For purposes of this section, a member of the board or 
        a consultant described in paragraph (a) is considered a state 
        employee under section 3.736, subdivision 9. 
           Sec. 10.  Minnesota Statutes 1994, section 148.70, is 
        amended to read: 
           148.70 [APPLICANTS, QUALIFICATIONS.] 
           It shall be the duty of the board of medical practice with 
        the advice and assistance of the physical therapy council to 
        pass upon the qualifications of applicants for registration, 
        continuing education requirements for reregistration, provide 
        for and conduct all examinations following satisfactory 
        completion of all didactic requirements, determine the 
        applicants who successfully pass the examination, and duly 
        register such applicants after the applicant has presented 
        evidence satisfactory to the board that the applicant has 
        completed a program of education or continuing education 
        approved by the board. 
           The passing score for examinations taken after July 1, 
        1995, shall be based on objective, numerical standards, as 
        established by a nationally recognized board approved testing 
        service. 
           Sec. 11.  Minnesota Statutes 1994, section 148.72, 
        subdivision 1, is amended to read: 
           Subdivision 1.  [ISSUANCE OF REGISTRATION WITHOUT 
        EXAMINATION.] On payment to the board of a fee in the amount set 
        by the board and on submission of a written application on forms 
        provided by the board, the board shall issue registration 
        without examination to a person who is licensed or otherwise 
        registered as a physical therapist by another state of the 
        United States of America, its possessions, or the District of 
        Columbia, if the requirements for licensure or registration in 
        the state, possession, or District were at the date of license 
        or registration by the state substantially are equal to, or 
        greater than, the requirements set forth in sections 148.65 to 
        148.78. 
           Sec. 12.  Minnesota Statutes 1994, section 364.09, is 
        amended to read: 
           364.09 [EXCEPTIONS.] 
           (a) This chapter does not apply to the licensing process 
        for peace officers; to law enforcement agencies as defined in 
        section 626.84, subdivision 1, paragraph (h); to fire protection 
        agencies; to eligibility for a private detective or protective 
        agent license; to eligibility for a family day care license, a 
        family foster care license, or a home care provider license; to 
        eligibility for school bus driver endorsements; or to 
        eligibility for special transportation service endorsements.  
        This chapter also shall not apply to eligibility for a license 
        issued or renewed by the board of teaching or state board of 
        education or to eligibility for juvenile corrections employment, 
        where the offense involved child physical or sexual abuse or 
        criminal sexual conduct.  
           (b) This chapter does not apply to a school district.  
           (c) Nothing in this section precludes the Minnesota police 
        and peace officers training board or the state fire marshal from 
        recommending policies set forth in this chapter to the attorney 
        general for adoption in the attorney general's discretion to 
        apply to law enforcement or fire protection agencies. 
           (d) This chapter does not apply to a license to practice 
        medicine that has been denied or revoked by the board of medical 
        practice pursuant to section 147.091, subdivision 1a. 
           Sec. 13.  [EFFECTIVE DATE.] 
           Section 5 is effective for a conviction entered on or after 
        the day following final enactment.  This does not prevent the 
        board from refusing to grant a license to a person or revoking 
        the license of a licensee who has been convicted of a 
        felony-level criminal sexual conduct offense prior to the 
        effective date of this section. 
           Presented to the governor March 24, 1995 
           Signed by the governor March 27, 1995, 2:23 p.m.