Collateral Consequences to Licensed Health Care Professionals Charged and/or Convicted of Drunk Driving in Michigan
Our client is licensed as a Physical Therapist in the state of Michigan and has been charged with Operating While Intoxicated (OWI). In Michigan, Physical Therapists are licensed and regulated under the Michigan Public Health Code MCLA 333.17820, and are therefore subject to the same regulations and sanctions as all licensed Michigan Health Professionals. MCLA 333.16105. As a result, licensed physical therapists have strict 30 day reporting requirements and may encounter serious potential sanctions as well as collateral consequences.
Issue
What possible licensing and collateral consequences are faced by a licensed physical therapist convicted of OWI in Michigan?
Reporting Requirements
With regard to an OWI charge, if a physical therapist is ultimately convicted, the individual has 30 days to report the incident to the Department of Community Health - Licensing Division. MCLA 333.16222.
The Licensing Division requires that the offending physical therapist report the Court of conviction, the police report number, the individual’s permanent ID number, date of birth and date of conviction. The Licensing Division’s fax number is 517-241-2389.
Procedure for and Possible License Sanctions for Misdemeanor Convictions
Each case is reviewed and treated differently. Once the conviction is entered by the Court and the department is notified, the department will request all of the necessary documents from the Court. Included in these documents are the certified copy of conviction and police reports. After the department reviews the case and the circumstances surrounding the conviction, the board will make a determination regarding the license sanctions.
The Disciplinary Subcommittee will consider appropriate sanctions when a licensee has committed a violation of general duty, consisting of any conduct, practice, or condition that impairs, or may impair, the ability to safely and skillfully practice the health profession. MCLA 333.16221. Misdemeanor OWI convictions which are considered lesser violations and therefore, lesser sanctions are appropriate. MCLA 333.16221(v), (xi).
The Board has the authority to limit, suspend, revoke, deny, require probation, restitution, community service or fine the licensee up to $250,000 for a violation of MCLA 333.16221(b)(v), (xi). However, the department is not required to do so, if the department finds that the OWI conviction was an isolated incident, it is possible that no action would be taken nor sanctions imposed. It all depends on the totality of the circumstances and as stated before, every case is treated independent of each other.
Possible Emergency Disciplinary Action For Misdemeanors
It is also important to note that based on the totality of the circumstances an emergency suspension of a license may be appropriate. MCLA 338.1609. The department may summarily suspending a license based upon a licensee’s having been convicted of an OWI misdemeanor. MCLA 338.1609.
In the event of such a suspension, the Licensee can then petition to have the order lifted and will be afforded a hearing before an administrative law judge regarding the order. MCLA 338.1610. This emergency action taken against the licensee will not affect the later investigation referenced in the previous section and the ruling of the appropriate subcommittee in their determination of the sanctions that may or may not be imposed against the licensee.
Possible Collateral Consequences of an Operating While Intoxicated Conviction
The Department is also required by law to publish a list of all individuals subjected to discipline under the act. This list is provided to agencies at both the federal and state level. They include the National Practitioner Data Bank and the Health Integrity Protection Data Bank. Ultimately, this information is made available to all potential health care employers. This publication has the potential to affect malpractice insurance rates because the list is reported to the Commission of Insurance. Consequently, insurers issuing coverage will know if our client is convicted and may then raise our client’s rates in a significant way.
Perhaps the most problematic consequence of a OWI conviction is the manner in which the publication of the conviction affects a professional’s business. Hypothetically, a colleague may face personal liability for making a negligent referral and therefore is likely to be reluctant to refer patients to a professional that has been disciplined. This is especially problematic with an OWI because the reports provide only a brief description of the grounds for discipline. Many medical insurance providers require disclosure when a health care professional applies to become a participating provider for that insurer. What makes this even worse is that many of the largest providers make it a policy of denying the applications of health care professionals who have been subjected to disciplinary action.
Michigan Health Professionals Recovery Program
Another item to consider is that a convicted licensee may be required to participate in the Health Care Professionals Recovery Program. MCL 333.16105a. This is a fairly intense substance abuse treatment program for Health Care Professionals. Again, depending on the totality of the circumstances participation may by part of the sanction, and would be public record.
Duty to Report Fellow Licensees
A licensee who has reasonable cause to believe that a licensee is impaired, shall report that fact/incident to the department. For purposes of the statute, impaired is defined as:
The inability or immediately impending inability of a health professional to practice his or her health profession in a manner that conforms to the minimum standards of acceptable and prevailing practice for that health profession due to the health professional's substance abuse, chemical dependancy, or mental illness or the health professional's use of drugs or alcohol that does not constitute substance abuse or chemical dependancy. MCLA 333.16223.
A licensee who fails to report is not liable in a civil action for damages resulting from the failure to report, but the licensee is subject to administrative action. This section does not apply to a licensee who is in a bona fide health professional-patient relationship. A licensee or registrant who in good faith complies with the statute is not liable for civil damages or subject to criminal prosecution as a result of the compliance. MCLA 333.16223.
Possible Emergency Disciplinary Action For Felonies and other Serious Crimes
In the case of a licensee having been convicted of a felony, misdemeanor punishable by imprisonment for a maximum of two years, or a misdemeanor involving a controlled substance, the department shall summarily suspending the license. MCLA 338.1609(2). The licensee may still petition for reinstatement of the license after such emergency action, and this suspension will not have an effect on the later investigation by the Department.
Conclusion
A Michigan Licensed Physical Therapist is required to report an Operating While Intoxicated conviction within 30 days of the final judgment to the Department of Community Health - Licensing Division. Following the reporting of the conviction, the department will investigate the crime, and based upon the totality of the circumstances may find it appropriate to sanction the license in a manner consistent with the statute. An individual who committed a first offense which was an isolated incident may not have any licensing sanctions, while more serious offenses may carry with them serious licensing sanctions. Beyond that, a conviction is required to be published by the Department, which will likely affect our clients malpractice insurance rates and income through referrals or as a participating provider for insurers.
There are other life situations upon which a DUI conviction may impact:
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