Licensing-Board Investigations for Sexual Misconduct in Michigan

In Michigan, a licensed health professional can face discipline for sexual misconduct through the Public Health Code, in a process that is separate from any criminal case and does not depend on one. The Code makes it a ground for discipline to engage in conduct with a patient "that is sexual or may reasonably be interpreted as sexual," including "conduct initiated by a patient or to which the patient consents."^[1]

This page explains the grounds for discipline, the sanctions tied to each ground, emergency suspension, how a complaint is filed and investigated, the reporting duties placed on licensees, and the chaperone and record-keeping rules added in 2023. The criminal offenses that apply to health professionals are covered in sexual conduct by health and mental health professionals.

What are the grounds for discipline?

The grounds fall into two groups: grounds based on conduct with a patient, and grounds based on a conviction, for which a certified copy of the court record is conclusive evidence.^[1][7]

Ground	Listed sanctions
Sexual conduct with a patient while acting within the health profession, including conduct the patient initiates or consents to[1]	Probation, suspension, revocation, limitation, denial, restitution, or fine[8]
Offering to provide practice-related services, such as drugs, in exchange for sexual favors[8]	Probation, suspension, revocation, limitation, denial, restitution, or fine[8]
Conviction of fourth-degree criminal sexual conduct or assault with intent to commit criminal sexual conduct[9]	Sanctions ranging from probation to permanent revocation[9]
Conviction of first-, second- or third-degree criminal sexual conduct[7]	Permanent revocation if the violation occurred while the licensee was acting within the health profession; otherwise probation, limitation, denial, suspension, revocation, restitution, or fine[2][10]
Conviction under MCL 750.90, sexual contact or penetration under pretext of medical treatment, or a substantially similar crime[11]	Permanent revocation[11]

The examples the statute gives of sexual conduct with a patient are "sexual intercourse, kissing in a sexual manner, or touching of a body part for any purpose other than appropriate examination, treatment, or comfort," and the list is introduced with the words "including, but not limited to."^[1]

For the conviction-based grounds, "a certified copy of the court record is conclusive evidence of the conviction."^[7][9] A disciplinary subcommittee may also impose a fine of up to $250,000 for a violation of the subsections that contain the conviction-based grounds.^[12]

The underlying crime of medical pretext

MCL 750.90 was rewritten effective October 10, 2023. An individual who undertakes medical treatment of a patient, misrepresents to the patient that sexual contact between them is necessary or will be beneficial to the patient's health, and induces the patient to engage in that contact by means of the misrepresentation is guilty of a felony punishable by imprisonment for not more than 20 years; where the misrepresentation and inducement concern sexual penetration, the maximum is 25 years.^[13]

Can a license be suspended before the case is decided?

Yes, in two situations described in the same subsection of the Code.

• Discretionary. After consultation with the chair of the appropriate board or task force or a designee, the department may summarily suspend a license or registration if the public health, safety, or welfare requires emergency action.^[3]
• Mandatory. If a licensee or registrant is convicted of a felony, or of a misdemeanor punishable by imprisonment for a maximum term of 2 years, the department shall find that emergency action is required and shall summarily suspend the license or registration.^[3]

Fourth-degree criminal sexual conduct is a misdemeanor punishable by imprisonment for not more than 2 years, which is the kind of misdemeanor the mandatory rule describes.^[14][3]

How does a complaint start, and is it confidential?

A person or governmental entity may submit a written allegation to the department. If the allegation is submitted more than 4 years after the date of the incident or activity, the department may investigate but is not required to.^[15]

Until a complaint is issued, the information obtained in an investigation or a compliance conference, including patient names, "is confidential and shall not be disclosed except to the extent necessary for the proper functioning of a hearings examiner, a disciplinary subcommittee, or the department." A compliance conference conducted before a complaint is issued is closed to the public.^[16]

The discipline decision is made by a disciplinary subcommittee, the body the Code names when it describes sanctions.^[2][12] Hearing procedure in individual cases is governed by provisions this guide's sources do not cover in detail.

What reporting duties do licensees have?

• Their own convictions. A licensee or registrant must notify the department of any criminal conviction within 30 days after the date of the conviction, and failure to do so results in administrative action.^[4]
• Other licensees' violations. A licensee or registrant who has knowledge that another licensee or registrant has committed a violation under MCL 333.16221 must report the conduct and the name of the subject of the report to the department.^[17] Failure to report does not give rise to a civil cause of action for damages, but the licensee is subject to administrative action.^[17] The duty does not apply to a licensee who learns of the violation while providing professional services to the licensee concerned, or who is serving on an ethics or peer review committee of a professional association or a professional review committee in a health facility or agency.^[17]
• Suspected child abuse. Physicians, nurses, psychologists, physical therapists, athletic trainers and the other professionals listed in the Child Protection Law must make an immediate report to centralized intake when they have reasonable cause to suspect child abuse or child neglect.^[18]

The child abuse reporting law is explained in mandated reporters of child abuse.

Reinstatement after revocation

Type of revocation	Reinstatement rule
Permanent revocation	The individual is ineligible for reinstatement, and the department returns an application it receives[19]
Revocation for a conviction under the criminal sexual conduct subparagraphs, MCL 333.16221(b)(vii) or (xiii)	No application before the expiration of 5 years after the effective date of the revocation[20]
Other revocations	No application before the expiration of 3 years after the effective date of the revocation[20]

The 2023 chaperone, consent and record rules

The two rules below took effect October 10, 2023.^[5][21]

Procedures on minors: MCL 333.16279

A licensee may not perform a medical treatment, procedure, or examination on a minor that involves vaginal or anal penetration unless it is within the licensee's scope of practice, a medical assistant or another licensee or registrant is in the room, and written consent of a parent, guardian or other authorized person is obtained beforehand. The person giving consent may waive the requirement that a second person be in the room.^[5]

The rule has exceptions. It does not apply in a medical emergency; to care that primarily relates to the patient's urological, gastrointestinal, reproductive, gynecological, or sexual health; to care at a children's advocacy center; to a sexual assault medical forensic examination; to taking a temperature; or to rectally administering a drug.^[22]

Knowingly violating the rule is a felony: for a first offense, imprisonment for not more than 2 years or a fine of not more than $5,000, or both; for a second or subsequent offense, imprisonment for not more than 5 years or a fine of not more than $10,000, or both.^[6]

Medical records: MCL 333.16213

When a medical service involves vaginal or anal penetration, and none of the listed circumstances applies, the licensee must expressly state in the patient's record that it was performed and keep the record for a minimum of 15 years from the date of service.^[21] Other records are kept for at least 7 years.^[21]

How forensic exams themselves work is covered in the sexual assault forensic exam.

How other licensed occupations differ

The rules above belong to the health professions. Other occupations have their own statutes, and the differences are large.

• Teachers. If a certified teacher is convicted of criminal sexual conduct in any degree, the superintendent of public instruction shall order summary suspension of the teaching certificate and then provide an opportunity for a hearing.^[23]
• Attorneys. On conviction of a felony, a Michigan attorney is automatically suspended until the effective date of a hearing panel's order.^[24]
• Occupations licensed on "good moral character." A licensing board or agency may not consider a criminal conviction, in and of itself, as conclusive proof of a lack of good moral character.^[25] It may not use records of an arrest that is not followed by a conviction, or of a conviction that has been reversed or vacated, in that determination.^[26]

Those and the remaining occupations are covered in sex offense convictions and professional licenses and teacher-student sexual conduct laws.

What people get wrong

"No conviction, no discipline." The ground for sexual conduct with a patient is defined by the conduct, and the department's discretionary power to suspend summarily turns on public health, safety, or welfare.^[1][3]

"It was consensual, so it is not misconduct." The statute covers conduct "to which the patient consents."^[1]

"The chaperone law dates from 2020, and MCL 333.16429 requires a chaperone." The chaperone-and-consent rule is MCL 333.16279, added by 2023 PA 60 and effective October 10, 2023, and it applies to minors.^[5] The record-keeping rule was added by 2023 PA 62, effective the same day.^[21]

"A revoked license can always be won back eventually." A permanently revoked license cannot be reinstated.^[19]

A licensing case can run alongside a criminal prosecution and a civil suit over the same events. For how those differ, see criminal case vs. civil case and what "sexual misconduct" means in Michigan.