How Could Proposed Changes To Michigan’s Professional Licensing Rules Affect You?

Posted by donna@healthlawcenterplc.com in Aug, 2020

Last month Michigan’s Department of Licensing and Regulatory Affairs (LARA) held a public hearing to receive comments on proposed changes to the professional licensing disciplinary rules. These proposed rules would not only affect healthcare professionals but would also impact how healthcare attorneys represent clients facing licensing investigations and actions. When the rules are finalized, The Health Law Center, PLC will update accordingly.

Disciplinary Actions Against Unlicensed or Unregistered Individuals

Proposed New Rule — The proposed rule would allow LARA to take action against any individual who practices a health profession without being licensed/registered.
What This Means For You – Make sure you obtain the required license/registration upon completion of your formal education. Also practice your profession within your profession’s scope of practice and do not carry out activities allowed by another profession for which you are not licensed/registered.

Timely Reporting Change of Name, Address and Electronic Email Address

Proposed Modified Rule – While Michigan law currently requires all healthcare professionals to report any change of name or address within 30 days, this modified proposed rule would require an ongoing obligation to notify LARA of any changes to your name, address or email address within thirty 30 days: (1) for 7 years after a change to your healthcare license/registration status; (2) for 3 years after all administrative complaints against your license/registration have been closed; or (3) until your license/registration is in full compliance with all final orders received in a disciplinary .
What This Means For You – Regardless of your license/registration status, and even if you have never faced disciplinary action, make sure your name, address and email address on file with LARA are kept current and updated within 30 days of any change.

Information Maintained in LARA’s Historical File

Proposed Modified Rule – While LARA maintains historical records on healthcare professionals, this modified rule expands the scope of information that may be maintained in the file. Under the proposed rule, LARA would maintain any reports and information from: (1) a professional peer review organization; (2) a state department or agency; (3) a professional association or professional society; (4) the national practitioner databank; (5) the secretary of state’s office; (6) prior allegations made against the licensee/registrant; (7) any federal, state, or local law enforcement; (8) final orders from any federal, state, or local court or other adjudicating body; (9) the health professional recovery program (HPRP) information demonstrating an individual’s failure to satisfactorily participate or complete a treatment plan; and (10) HPRP even when successfully completing a treatment plan, LARA may maintain such records for a period of 5 years.
What This Means For You – Some examples to consider include actions by professional associations or societies that are then reported to LARA. These reports, even if no licensing investigation or action is taken by LARA will remain in LARA’s historical file. Also, if a licensee/registrant pleads no contest or guilty to a DUI, this information will also be maintained in LARA’s file.

LARA May Expand its Investigation –

Proposed Modified Rule – The proposed rule would allow LARA to expand the scope of any investigation to include other possible violations of the public health code, even if these issues were not the basis for the initial investigation.
What This Means For You – This proposed rule would subject healthcare professionals to expanded investigations. Given this, it is important that licensees/registrants work cooperatively with their healthcare attorney to make sure all issues and concerns during an investigation are discussed. The forthrightness of the licensee/registrant is critical for the healthcare attorney’s thorough preparation and representation.

Legal Pleadings

Proposed New Rule – This new rule applies to attorneys who represent healthcare professionals and healthcare professionals who represent themselves in licensure hearings. It provides direction as to which government department or office is to receive legal pleadings. The new proposed rule would also allow LARA to file an amended administrative complaint as late as 31 days or more before a hearing date, or at any time when granted by an administrative law judge (ALJ).
What This Means For You – This proposed rule in combination with LARA’s expanded investigations could result in additional allegations for which a licensee/registrant would be required to defend against, sometimes with little time to prepare. This can be particularly burdensome for individuals to gather necessary information and documents if an amended administrative complaint is delayed until shortly before a hearing.

Compliance Conferences

Proposed Modified Rule – Currently when a healthcare professional is served with an administrative complaint, LARA is required to ask if he/she would like to schedule a compliance conference. A compliance conference is helpful in limiting the allegations or showing that the healthcare professional did not violate the public health code. The proposed rule would give LARA the discretion to conduct a compliance conference instead of being required to offer a compliance conference to a licensee/registrant. While the proposed rule would allow a licensee/registrant to request a compliance conference, there are no assurances that a request would be granted. Also, if a licensee/registrant seeks to adjourn a scheduled compliance conference, he/she must show a “good cause” basis for such request. If, at a compliance conference, LARA and the licensee/registrant agree on all issues except the terms of the disciplinary action, the proposed rule would require LARA to schedule a hearing on the matter.
What This Means For You – If this proposed rule is approved it will severely limit the options the licensee/registrant has to defend with. Also, because a hearing is required when the disciplinary sanction cannot be agreed on at the compliance conference, licensees/registrants will incur more defense costs and less leeway.

Disciplinary Orders

Proposed Modified Rule – This proposed rule gives each board’s disciplinary subcommittee more leeway in the disposition of any action against a licensee/registrant. While it has always been a board’s disciplinary subcommittee role to determine what sanction, if any, is to be imposed, this proposed rule allows each board’s disciplinary subcommittee to review the official record of the hearing. This would significantly delay resolution of licensing actions.

If the disciplinary subcommittee feels, after reviewing the official record of the hearing, more testimony or evidence is needed, the proposed rule would require the disciplinary subcommittee to send a case back to the ALJ for a further hearing. This would involve more cost to a licensee/registrant. If the disciplinary subcommittee decides that the case needs an additional hearing, the disciplinary subcommittee must specify what witnesses, evidence, or questions are to be addressed by the ALJ.

After receiving an ALJ’s findings and conclusions after the new hearing, the disciplinary subcommittee may make revisions to the ALJ’s findings and conclusions after reviewing the official record. In essence the disciplinary subcommittee can reject an ALJ’s findings and conclusions without any administrative law expertise.

If a licensee/registrant is not satisfied with a disciplinary subcommittee’s decision, he/she may seek reconsideration. Such written reconsideration request must be filed within 30 days after the final order. In asking for reconsideration, the licensee/registrant must specifically state the material error in the decision and what relief he/she is seeking. Reconsideration will not be allowed on the same issues already presented.

What This Means For You – The terms of the proposed rule would allow each board’s disciplinary subcommittee much more involvement in reviewing evidence and testimony at a hearing. This would result in much more delayed resolutions of cases and be more costly for licensees/registrants, especially if they are sent back for another hearing. This proposed rule also gives a disciplinary subcommittee a more active role in reviewing evidence and testimony, allowing it to make evidentiary decisions without any legal or judicial expertise.

The end result of this proposed rule would be a delayed process and possible inappropriate decisions based on a lack of legal expertise. Because the grounds for reconsideration of a final order are very narrow, it puts more emphasis on how the case will be defended from the start. A healthcare attorney must take a broad approach and have the necessary administrative law experience to defend licensees/registrants.

Denial of License/Registration Application and Surrender of a License

Proposed New Rule — If LARA determines a licensee/registrant or an applicant for a license/registration does not meet the requirements for licensure/registration, LARA is required to issue a notice of intent to deny (NOID) the application. In response the individual may request a hearing to show that he or she has fulfilled the requirements for licensure/registration. This hearing request must be filed within 30 days after the NOID is served. If the request for a hearing is not timely, the decision on the license/registration becomes final.
What This Means For You – When applying for a license or registration it is imperative that all requirements for licensure/registration are fulfilled before applying. If not, under this new proposed rule an individual may receive a NOID and not be properly and adequately prepare for a hearing. Any hearing would be costly. Make sure you do your homework and meet the qualifications before applying for a license/registration.

As of this date, the rules summarized above are proposed and not final. The final rules may or may not differ from these proposed rules. The Health Law Center, PLC in an effort to keep healthcare professionals up to date on laws and rules that may affect their practices felt it was important to advise of these possible changes to the professional disciplinary rules. If you have any business or legal issues that affect your practice, call on The Health Law Center, PLC for guidance.