DEPARTMENT OF LICENSING AND REGULATORY AFFAIRS
 
MICHIGAN ADMINISTRATIVE HEARING SYSTEM
DIRECTOR’S OFFICE
 
PUBLIC HEALTH CODE – DISCIPLINARY PROCEEDINGS RULES
 
Filed with the secretary of state on
 
These rules take effect immediately upon filing with the secretary of state unless adopted under section 33, 44, or 45a(6) of the administrative procedures act of 1969, 1969 PA 306, MCL 24.233, 24.244, or 24.245a.  Rules adopted under these sections become effective 7 days after filing with the secretary of state.
 

(By authority conferred on the executive director of the department of licensing and regulatory affairs Michigan administrative hearing system by section 33(3) of the administrative procedures act of 1969, 1969 PA 306, MCL 24.233, section 16141 of the public health code, 1978 PA 368, MCL 333.16141, and Executive Reorganization Order Nos. 2005-1, 1991-9, 1996-2, 2003-1, and 2011-4, MCL 338.3501, 445.2001, 445.2011, 445.2021, and 445.2030)

 
R 338.1603, R 338.1604, R 338.1608, R 338.1630, R 338.1631, and R 338.1632 of the Michigan Administrative Code are amended, R 338.1601a, R 338.1601b, R 338.1602a, R338.1607a, and R 338.1632a are added, and R 338.1605, R 338.1606, R 338.1607, R  338.1609, R 338.1612, and R 338.1615 are rescinded, as follows:
 
PART 1.  GENERAL RULES
 
R 338.1601a  Definitions.
  Rule 1a.  (1)  As used in these rules:
  (a)  “Board” means that term as defined in section 16103(1) of the public health code, 1978 PA 368, MCL 333.16103.  
  (b)   “Bureau” means the bureau of professional licensing.
  (c) “Code” means the public health code, 1978 PA 368, MCL 333.1101 to 333.25211.
  (d)  “Department” means the department of licensing and regulatory affairs.
  (e)  “Disciplinary subcommittee” means that term as defined in section 16104(5) of the code, MCL 333.16104.
   (f)  “Official record of the hearing,” includes those records required in section 86 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.286.
  (g)  “Person” means that term as defined in section 1106(4) of the code, MCL 333.1106.
  (h)  “Respondent” means a person against whom an formal administrative complaint has been issued or filed.
  (i)  “Surrendered”  means the permanent relinquishment of a license or registration to practice a health profession by a licensee or registrant as a disciplinary sanction in lieu of or in resolution of further disciplinary proceedings.
  (ij)  “Task force” means that term as defined in section 16109(3) of the code, MCL 333.16109.
  (2)  Except as otherwise defined in these rules, the terms defined in the code have the same meaning when used in these rules.
 
R 338.1601b  Disciplinary action; unlicensed or unregistered person.
  Rule 1b.  (1) An unlicensed or unregistered person is subject to disciplinary action without regard to whether that person becomes licensed or registered or whether the department knew of the violation when the license or registration was issued or reinstated.
  (2)  A person is unlicensed or unregistered if the person’s license or registration is considered null and void pursuant to section 16201(3) of the code, MCL 333.16201, or if the person’s license or registration has been suspended, revoked, or surrendered.
  (3)  A person who becomes unlicensed or unregistered remains subject to disciplinary action for violating the code, a rule promulgated under the code, or a final order issued pursuant to the code until the later of 1 of the following occurs:  
    (a) Seven years after a change in license or registration status occurs.
    (b) Three years after all complaints against the license or registration filed with the department have been closed.
    (c) The licensee or registrant is in full compliance with all final orders issued against the licensee or registrant.
 
R 338.1602a  Continuing duty to report name, address, or electronic mail address 
  change.  
  Rule 2a. In addition to complying with section 16192(1) of the code, MCL 333.16192, a licensee or registrant whose license or registration has expired, lapsed, or been suspended, revoked, or surrendered must notify the department of a change of name, postal address, or electronic mail address within 30 days until the later of 1 of the following occurs:  
  (a) Seven years after a change in license or registration status occurs.
  (b) Three years after all administrative complaints against the license or registration filed with the department have been closed.
  (c) The licensee or registrant is in full compliance with all final orders issued against the licensee or registrant.
 
PART 2.  HISTORICAL RECORDS
 
R 338.1603  Allegation; investigations; historical files Historical records.
  Rule 3. In addition to the information required to be maintained in the historical record of a licensee or registrant pursuant to section 16211 of the code, MCL 333.16211, the department may obtain and maintain all of the following in a licensee’s or registrant’s individual historical record:
  (a)  Reports or information from a professional peer review organization.disclosed by a health facility or agency consistent with sections 20175 and 21515 of the code, MCL 333.20175 and 333.21515
  (b)  Reports, information, or a final order from a state department or agency.
  (c)  Reports or information from a professional association or professional society.
  (d)  Reports or information from a national practitioner databank.
  (e)  Reports or information from the secretary of state’s office.
  (f)  Reports or information related to prior allegations made against the licensee or registrant.
  (g) Reports or information from any federal, state, or local law enforcement agency.  
  (h) Reports, information, or a final order from any federal, state, or local court or other adjudicating body.
  (i)  Reports or information related to the individual’s failure to satisfactorily participate in or complete a treatment plan under the health professional recovery program (HPRP).  
  (j)  For a period of 5 years following the individual’s successful completion of the HPRP, records pertaining to the individual’s participation in the HPRP, in compliance with section 16170a(3) of the code, MCL 333.16170a.  
An  allegation shall  be  processed  in  accordance  with  the applicable provisions  of  the  code. An  investigation  is initiated  upon authorization of the chairperson or his or  her  designee.  However,  if  the chairperson or his or her designee fails to grant or deny  the  authorization within 7 days after receipt of a request for authorization, the investigation is initiated.
 (2) In addition to the information set forth in section 16211 of the  code, the bureau may maintain all of the following historical information regarding a licensee:
    (a) Reports from professional peer review organizations.
    (b) Final orders issued by the department of social services.
    (c) Reports from professional associations and societies.
    (d) Information obtained from the national practitioner databank.
    (e) Information obtained from the secretary of state's office.
    (f) Prior investigations which were closed by the department and  in  which no action was taken.
(g) Information obtained from federal, state,  and  local  law  enforcement agencies. 
(3) The department shall conduct any screening or review of the  allegation or historical record as necessary to  determine  if  reasonable  grounds  for investigation exist.
   (4) An investigation may encompass possible  violations  other  than  those specifically identified as such in the allegation. 
 
PART 3.  INVESTIGATIONS
 
 R 338.1604  Persons participating  in  investigation  or  allegation  process prohibited  from  deciding  contested   case;   exceptions;   disclosure   of participation in investigation or allegation process; waiver.  Investigations.
  Rule 4. Any member of the department, a board, or task force who  takes  an active part in the investigatory or allegation process shall not  participate in deciding the contested case, unless necessary to assure  the  availability of the forum, in which event disclosure of the individual's participation  in the investigatory or allegation process shall be made  on  the  record.  This prohibition may be waived by stipulation of the parties.    The department’s investigation conducted as required or permitted by section 16221 of the code, MCL 333.16221, may encompass possible violations other than those specifically identified when the investigation was initiated if the possible violations arise from the same conduct or incident described when the investigation was initiated.  
 
R 338.1605  Disciplinary subcommittee; selection. Rescinded.
  Rule  5.  (1)  After  the  filing  of  an  administrative  complaint,   the chairperson of the board or task force or his or her designee shall assign  a disciplinary subcommittee. The subcommittee shall have jurisdiction over  the case until there is a final disposition.
  (2) After the issuance of a final order, the disciplinary subcommittee that had jurisdiction shall be reconvened if the case is remanded by  a  court  of competent jurisdiction.
  (3) If a vacancy is created on a disciplinary subcommittee or a  member  of the  subcommittee  is  unable  to  participate,  the  board  or  task   force chairperson shall appoint a replacement from the membership of the  board  or task force.
 
 R 338.1606  Issuance of license or registration not  a  bar  to  disciplinary action.  Rescinded.
  Rule 6. The issuance of a license  or  registration  does  not  diminish  a disciplinary subcommittee's authority to take disciplinary action based  upon conduct that occurred before  the  issuance  of  a  license  or  registration without regard to whether the department knew  of  the  alleged  grounds  for discipline at the time the license or registration was issued. 
 
R 338.1607  Denial of application; hearing; complaint filed  against  renewal applicant.  Rescinded.
  Rule 7. (1) If an applicant for a new or renewal license or registration or for relicensure  or  reregistration  is  found  not  to  have  fulfilled  the requirements for the license or registration, the applicant shall be given an opportunity for a hearing.
  (2) If a hearing  is  requested  by  the  applicant,  a  hearing  shall  be scheduled and notice of the hearing shall  be  served  on  the  parties.  The department, a board, or a task force may request that  the  attorney  general prepare and  present  the  grounds  believed  to  support  a  denial  of  the 
application.
  (3) If a complaint is filed against a renewal applicant, the procedures set forth in R 338.1608 shall be followed. The procedures set forth in R 338.1608 shall not be followed if a complaint is filed against an applicant for a  new license or registration or for reissuance of a lapsed license or registration.
 
PART 4.  PLEADINGS
 
 R 338.1607a  Pleadings.
  Rule 7a.  (1)  Until a notice of hearing has been issued, all original pleadings and related attachments must be filed with the department or office of the attorney general as set forth in the formal administrative complaint or notice of compliance conference.
  (2) After a notice of hearing has been issued, all original pleadings and any related attachments must be filed with the Michigan office of administrative hearings and rules as required in the notice of hearing. A copy of all original pleadings and any related attachments must be transmitted to all other parties listed on the notice.
  (3) An answer to an formal administrative complaint must be filed within 30 days from the date of receipt of the formal administrative complaint.
  (4) An amended formal administrative complaint may be filed 31 or more days before the hearing or at any time with leave from the administrative law judge.  A respondent must be given a reasonable time to file an amended answer and sufficient time to prepare a defense before hearing if the charges allegations in the formal administrative complaint are substantially amended.
  (5) All pleadings and any related attachments that are properly filed become a part of the official record of the hearing.
 
 PART 5.  COMPLIANCE CONFERENCE, REQUEST FOR ADJOURNMENT, AND HEARING TO ESTABLISH AN OFFICIAL RECORD FOR DETERMINATION OF DISCIPLINARY ACTION
 
R 338.1608  Opportunity to show compliance with requirements for retention of license; voluntary disposition. Compliance conference; request for adjournment; hearing to establish record for disciplinary action only.
  Rule 8. (1) Before the issuance of a notice of hearing  upon  a  complaint, the department shall serve on the  licensee  or  registrant  a  copy  of  the complaint and notice of an opportunity to show  compliance  with  all  lawful requirements for retention of the license  pursuant  to  section  92  of  the administrative procedures act.   The department may conduct a compliance conference held pursuant to section 16231(5) of the code, MCL 333.16231, informally and not as an evidentiary hearing.  A licensee or registrant may submit a written statement before the date of the compliance conference. 

(2) The notice of opportunity to show compliance shall set forth the  date, time, and location of the compliance conference. A respondent may request and may be granted 1 an adjournment of the compliance conference for good cause.  As used in this subrule, “good cause” means that the respondent submitted a written request for adjournment to the department that provides  legally sufficient grounds to warrant the adjournment, such as circumstances beyond the respondent’s control.As used in this subrule, “good cause” means that the respondent has provided substantial or legally sufficient grounds to warrant the adjournment.

 (3) The compliance conference shall be conducted informally and not  as  an evidentiary hearing. The licensee or registrant, licensee's  or  registrant's attorney, 1 member of the department staff, the complaining  party,  and  any other individuals  designated  by  the  department  may  participate  in  the conference. A licensee or registrant may exercise  the  opportunity  to  show compliance  by  submitting  a  written  statement  before  the  date  of  the compliance conference noticed pursuant to subrule (2) of this rule.
 (4) If, after a compliance conference or review of a written statement, the parties determine that a lawful requirement was not violated by the  licensee or registrant, the parties shall so notify the disciplinary  subcommittee  of the appropriate board or task force.  If  the  disciplinary  subcommittee  is satisfied that a lawful requirement was not  violated,  it  shall  enter  its order dismissing the complaint.
 (5) If, after a compliance conference or review  of  a  written  statement, disputed issues of law or fact remain and the parties do  not  agree  that  a lawful requirement was not violated, the matter shall be a contested case. Unless a voluntary resolution is reached, a hearing shall  be  scheduled  and notice of the hearing shall be served on the parties.
 (6) If the licensee or registrant is unable to demonstrate compliance  with all lawful requirements for retention of the  license  or  registration,  the parties shall attempt to  voluntarily  resolve  the  case  without  a  formal hearing. If the parties agree upon a disposition of  the  case,  the  parties shall file a document evidencing  the  agreement  for  consideration  by  the disciplinary subcommittee  of  the  appropriate  board  or  task  force.  The disciplinary subcommittee may accept the proposed disposition, suggest  other terms, or require that formal proceedings be commenced.
 (7) (3) If the parties agree on all issues except the terms of the appropriate disciplinary action, the department they shall must schedule a hearing to establish an official record  be provided an opportunity to make  a  record for consideration by the disciplinary subcommittee of the appropriate board or task force in making its determination of the appropriate disciplinary action. Before making the presentation, the parties shall file a document  evidencing the  agreement.  After  considering  the  agreement  and  presentation, the The disciplinary subcommittee shall must consider the parties’ agreement and the official record of the hearing when determining determine the appropriate disciplinary action. 
 
R 338.1609  Summary suspension of license. Rescinded.
 Rule 9. (1) Except as provided in this rule, after  consultation  with  the chair of the appropriate board or task force, or his  or  her  designee,  the department may issue an ex parte order summarily suspending a license if  the public health, safety, or welfare requires emergency  action.  The  complaint shall attest to the fact that the department has consulted with the chair  of the appropriate board or task force or his or her designee before issuing the ex parte order summarily suspending a license.
  (2) The department shall issue an ex parte  order  summarily  suspending  a license based upon  a  licensee's  having  been  convicted  of  a  felony;  a misdemeanor punishable by imprisonment  for  a  maximum  of  2  years;  or  a misdemeanor  involving  the  illegal  delivery,  possession,  or  use  of   a controlled substance.
  (3) The department may issue an  ex  parte  order  summarily  suspending  a license based upon a  licensee’s  having  been  convicted  of  a  misdemeanor involving the illegal delivery, possession, or use of alcohol that  adversely affects the licensee’s ability to practice in a safe and competent manner  if the public health, safety, or welfare requires emergency action.
  (4) After the issuance  of  a  summary  suspension  order,  contested  case proceedings shall be promptly commenced and decided. The procedures set forth 
in R 338.1608 need not be followed.
  (5) The taking of emergency action shall not affect the impartiality of the disciplinary subcommittee of the appropriate  board  or  task  force  in  its receipt and consideration of the evidence.
 
R 338.1612   Cease  and  desist  hearings;  informal   conference;   service; scheduling hearings. Rescinded.
 Rule 12. (1) Pursuant to section 16233 of  the  code,  the  department  may issue a cease and desist order based upon an investigation.
  (2) The department  shall  serve  the  cease  and  desist  order  upon  the individual and provide notice that the individual may  request  an  immediate hearing.
  (3) A person who has been issued an order to cease and desist shall request a hearing on dissolution of the order before seeking judicial review.  
  (4) If the individual fails to request a hearing within 30 days of the date of the cease and desist order, the order shall become a final  order  without further proceedings.
  (5) Either party may request  that  an  informal  conference  be  scheduled before the date scheduled for the hearing if the  parties  determine  that  a conference will assist in the resolution of the matter.
  (6) Upon receiving the request for hearing, the department  shall  promptly schedule an administrative hearing. After the hearing, the administrative law judge  shall  submit  findings  of  fact  and  conclusions  of  law  to   the disciplinary subcommittee.
 
 
R 338.1615  Filing pleadings; answers and amendments. Rescinded.
 Rule 15. (1) Until a notice  of  hearing  has  been  issued,  all  original pleadings and related materials shall be filed with  the  department  as  set forth in the notice of compliance conference.
  (2) After a notice of hearing has been issued, all original  pleadings  and related materials shall be filed with the department  as  set  forth  in  the notice of hearing. A copy shall be transmitted to the attorney general and to all other parties.
  (3) An answer to a complaint shall be filed within 30 days from the date of receipt of the complaint.
  (4) A complaint may be  amended  at  any  time.  A  party  shall  be  given sufficient time to prepare a defense if the charges are substantially amended.
  (5) All pleadings and related materials that are properly filed shall be  a part of the record of the hearing.
 
PART 6.  FINAL ORDER, RECONSIDERATION OF FINAL ORDER,
 AND DUTY TO COMPLY WITH FINAL ORDER
 
R 338.1630  Final order; from opinion or proposal for decision; exceptions remand for
additional evidence; revisions to findings; majority vote required; department 
review.
  Rule 30. (1)  If an agreement has been reached at an informal conference, the disciplinary subcommittee may accept the proposed disposition and enter a final order, suggest other terms, or require that formal administrative proceedings be commenced.
 (1) (2) In a contested case, the disciplinary subcommittee, board, or task force may enter a final order after 
 (a)  After reviewing the official record of the hearing. entire  record  and  the  opinion  of  the administrative law judge. , the disciplinary subcommittee, board, or task force may enter its final order
 (2)  Alternatively,  after  reviewing the  proposal for decision of the administrative law judge containing findings of fact and conclusions of  law, together with any exceptions and replies filed by a party and any parts of the record that the disciplinary subcommittee, board, or task force deems necessary, the disciplinary subcommittee, board, or task force may enter  its final order.
  (3) If, after reviewing the findings of fact and conclusions of law, the disciplinary subcommittee, board, or task force determines that additional testimony or evidence is necessary, it must issue an order remand remanding the case to the administrative law judge to take additional evidence.  
    (a)  If  the  case  pending before the disciplinary subcommittee, board, or task force is  remanded,  the disciplinary  subcommittee,  board,  or  task  force  shall  enter  an The order remanding  the  case  to  the  administrative  law  judge  must give with  specify ic instructions what witnesses, evidence, or questions are to be addressed on remand without limiting the witnesses or evidence the parties may present.  to the administrative law judge regarding witnesses and testimony.  regarding the additional  testimony  or  evidence  deemed  necessary  by  the disciplinary subcommittee, board, or task force. The administrative law judge may conduct a hearing pursuant to the order of the disciplinary subcommittee, board, or task force, 
 (b) after which After the administrative law judge has held a hearing on the remanded matter, the administrative law judge must issue a proposal for decision on remand with  shall  submit findings of fact and conclusions of law  to  the  disciplinary  subcommittee, board, or task force having jurisdiction over the case.
  (4) After reviewing the findings of fact and conclusions of law, the The disciplinary subcommittee, board, or task force may make revisions to the findings of fact and conclusions of law based on the evidence in the official record of the hearing.  The revision must In making revisions, the  disciplinary subcommittee,  board,  or  task  force   shall specifically identify those portions of the findings of fact or conclusions of law, or both, that it is being modifying or rejecting modified or rejected and identify the evidence from the official record of the hearing that supports its revisions the revision.
  (5)  In determining an appropriate disciplinary action, a disciplinary subcommittee, board, or task force may review any prior final orders that imposed disciplinary action on the applicant, licensee, or registrant. Except as provided in section 16221(b)(x) of the code, MCL 333.16221, a disciplinary subcommittee must not rely on any prior final order in determining whether grounds for discipline exist in the case under consideration. 
  (5) (6)  In its final order, A a disciplinary subcommittee, board, or task force, in its final  order, may adopt, modify, or reject, in whole or in part, the opinion or proposal for  decision of the administrative law judge.  If the disciplinary subcommittee, board, or task  force modifies or rejects the opinion or proposal for decision, the reasons for that action shall must be stated in the final order.
  (6)  Except as provided in section 16221(b)(x) of the code, MCL 333.16221, a disciplinary subcommittee must not rely on any prior final order in determining whether grounds for discipline exist in the case under consideration.  In determining an appropriate disciplinary action, a disciplinary subcommittee, board, or task force may review any prior final order, and the underlying administrative complaint, that imposed disciplinary action on the applicant, licensee, or registrant. 
 
 
R 338.1631  Determination of disciplinary action. Request for reconsideration of a final disciplinary subcommittee, board, or task force order.
  Rule 31. In determining appropriate action,  a  disciplinary  subcommittee, board, or  task  force  may  review  any  prior  final  orders  that  imposed disciplinary action on the applicant, licensee, petitioner, or registrant. Except as provided  in  section  16221(b)(x)  of  the  code,  a  disciplinary subcommittee shall not rely on any prior final order in  determining  whether grounds for discipline exist in the case under consideration. Issuance of license or registration not  a  bar  to  disciplinary action. 
  (1)  A person may file a written request for reconsideration of a final disciplinary subcommittee, board, or task force order. 
  (2)  The bureau must receive the written request for reconsideration within 30 calendar days after the effective date of the final order.  The bureau must deny an untimely request.  
  (3)  The written request must state with specificity the material error claimed and the relief requested.  A request for reconsideration that presents the same issues ruled on, either expressly or by reasonable implication, must not be granted.
  (4)  A properly submitted request must be forwarded to the appropriate disciplinary subcommittee, board, or task force for reconsideration.  A request for a modification of a consent order may only be granted after agreement by the parties.
 
 
R 338.1632  Duty to comply with Violation of final order; effect.  
  Rule 32. Violation of a final order issued by a disciplinary  subcommittee, board, or task force constitutes a violation of this rule.  An applicant, licensee, or registrant must comply with a final order issued by a disciplinary subcommittee, board, or task force.
 
PART 7.  APPLICATION DENIAL, REQUEST FOR HEARING, SURRENDERED LICENSE 
 
R 338.1632a  Denial of application; hearing; surrendered license or registration   ineligible.
  Rule 32a. (1) If the department determines that an applicant for licensure, relicensure, license renewal, registration, reregistration, or registration renewal has not met the requirements for licensure or registration, the department must serve upon the applicant a notice of intent to deny (NOID) the application for licensure or registration.
  (2)  An applicant may request a hearing to show that he or she has fulfilled the requirements for licensure or registration.  The applicant’s request for a hearing must be filed within 30 days after a NOID is served on the applicant.  If the applicant fails to request a hearing within 30 days of service, the NOID becomes a final order of the board, disciplinary subcommittee, or task force denying the application for licensure or registration.  
  (3)  The department may request that the  attorney general prepare and present the grounds believed to support a denial of the application at the hearing.
  (4)  An applicant who has previously surrendered a license or registration to practice in this state is ineligible to apply for licensure, relicensure, registration, or reregistration in the same profession.  
PART 7.  APPLICATION DENIAL AND REQUEST FOR HEARING
 
R 338.1632a  Denial of application; hearing.
  Rule 32a. (1) If the department finds that an applicant for licensure, relicensure, license renewal, registration, reregistration, or registration renewal has failed to fulfill the requirements for licensure or registration, the applicant may request a hearing.
  (2)  If a denied applicant for licensure, relicensure, license renewal, registration, reregistration, or registration renewal requests a hearing, it must be scheduled and notice of the hearing served on the parties.  The department may request that the  attorney general prepare and present the grounds believed to support a denial of  the application.
  (3)  If the applicant was denied renewal of his or her license or registration, the applicant must be given an opportunity to show compliance pursuant to section 92 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.292.