February 6, 2013
SENATE BILL No. 589
_____
DIGEST OF SB 589
(Updated February 4, 2013 1:08 pm - DI 44)
Citations Affected: IC 16-39; IC 25-1; IC 25-6.1; IC 25-22.5;
IC 25-28.5; IC 25-34.1; IC 30-2.
Synopsis: Occupational licensing issues. Permits professional
licensing boards to include consumer restitution orders in cease and
desist orders issued against persons who commit unlicensed practice.
Permits medical and professional licensing boards to include orders
requiring repayment of certain costs relating to cease and desist
proceedings. Includes within the cease and desist statute failure to
obtain a certificate required for sellers of preneed funeral services and
merchandise. Allows the state board of funeral and cemetery service to
issue a cease and desist order against a person who solicits or sells
preneed funeral services and merchandise if the person has not
obtained a preneed certificate from the board, even if the person
possesses an active funeral director license, funeral home license,
embalmer license, or cemetery registration. Authorizes the division of
consumer protection in the attorney general's office to obtain mental
health records without a court order if access to or inspection of the
records is necessary for the investigation of a consumer protection or
licensing complaint. Amends the law governing the auctioneer
consumer recovery fund, real estate recovery fund, and plumbing
recovery fund to provide that petitions requesting payment from the
funds are filed with the respective licensing commission instead of with
the court in which the underlying judgment against the licensee was
entered. Prohibits a person from misrepresenting the effect a purchase
of prepaid funeral services and merchandise may have on the
purchaser's eligibility for Medicaid.
Effective: July 1, 2013; July 1, 2014.
Mishler
January 15, 2013, read first time and referred to Committee on Commerce, Economic
Development & Technology.
February 5, 2013, amended, reported favorably _ Do Pass.
February 6, 2013
First Regular Session 118th General Assembly (2013)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
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SENATE BILL No. 589
A BILL FOR AN ACT to amend the Indiana Code concerning
professions and occupations.
Be it enacted by the General Assembly of the State of Indiana:
SOURCE: IC 16-39-2-6; (13)SB0589.1.1. -->
SECTION 1. IC 16-39-2-6, AS AMENDED BY P.L.1-2007,
SECTION 136, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2013]: Sec. 6. (a) Without the consent of the
patient, the patient's mental health record may only be disclosed as
follows:
(1) To individuals who meet the following conditions:
(A) Are employed by:
(i) the provider at the same facility or agency;
(ii) a managed care provider (as defined in
IC 12-7-2-127(b)) IC 12-7-2-127); or
(iii) a health care provider or mental health care provider, if
the mental health records are needed to provide health care
or mental health services to the patient.
(B) Are involved in the planning, provision, and monitoring of
services.
(2) To the extent necessary to obtain payment for services
rendered or other benefits to which the patient may be entitled, as
provided in IC 16-39-5-3.
(3) To the patient's court appointed counsel and to the Indiana
protection and advocacy services commission.
(4) For research conducted in accordance with IC 16-39-5-3 and
the rules of the division of mental health and addiction, the rules
of the division of disability and rehabilitative services, or the rules
of the provider.
(5) To the division of mental health and addiction for the purpose
of data collection, research, and monitoring managed care
providers (as defined in IC 12-7-2-127(b)) IC 12-7-2-127) who
are operating under a contract with the division of mental health
and addiction.
(6) To the extent necessary to make reports or give testimony
required by the statutes pertaining to admissions, transfers,
discharges, and guardianship proceedings.
(7) To a law enforcement agency if any of the following
conditions are met:
(A) A patient escapes from a facility to which the patient is
committed under IC 12-26.
(B) The superintendent of the facility determines that failure
to provide the information may result in bodily harm to the
patient or another individual.
(C) A patient commits or threatens to commit a crime on
facility premises or against facility personnel.
(D) A patient is in the custody of a law enforcement officer or
agency for any reason and:
(i) the information to be released is limited to medications
currently prescribed for the patient or to the patient's history
of adverse medication reactions; and
(ii) the provider determines that the release of the
medication information will assist in protecting the health,
safety, or welfare of the patient.
Mental health records released under this clause must be
maintained in confidence by the law enforcement agency
receiving them.
(8) To a coroner or medical examiner, in the performance of the
individual's duties.
(9) To a school in which the patient is enrolled if the
superintendent of the facility determines that the information will
assist the school in meeting educational needs of a person with a
disability under 20 U.S.C. 1400 et seq.
(10) To the extent necessary to satisfy reporting requirements
under the following statutes:
(A) IC 12-10-3-10.
(B) IC 12-24-17-5.
(C) IC 16-41-2-3.
(D) IC 31-25-3-2.
(E) IC 31-33-5-4.
(F) IC 34-30-16-2.
(G) IC 35-46-1-13.
(11) To the extent necessary to satisfy release of information
requirements under the following statutes:
(A) IC 12-24-11-2.
(B) IC 12-24-12-3, IC 12-24-12-4, and IC 12-24-12-6.
(C) IC 12-26-11.
(12) To another health care provider in a health care emergency.
(13) For legitimate business purposes as described in
IC 16-39-5-3.
(14) Under a court order under IC 16-39-3.
(15) With respect to records from a mental health or
developmental disability facility, to the United States Secret
Service if the following conditions are met:
(A) The request does not apply to alcohol or drug abuse
records described in 42 U.S.C. 290dd-2 unless authorized by
a court order under 42 U.S.C. 290dd-2(b)(2)(c).
(B) The request relates to the United States Secret Service's
protective responsibility and investigative authority under 18
U.S.C. 3056, 18 U.S.C. 871, or 18 U.S.C. 879.
(C) The request specifies an individual patient.
(D) The director or superintendent of the facility determines
that disclosure of the mental health record may be necessary
to protect a person under the protection of the United States
Secret Service from serious bodily injury or death.
(E) The United States Secret Service agrees to only use the
mental health record information for investigative purposes
and not disclose the information publicly.
(F) The mental health record information disclosed to the
United States Secret Service includes only:
(i) the patient's name, age, and address;
(ii) the date of the patient's admission to or discharge from
the facility; and
(iii) any information that indicates whether or not the patient
has a history of violence or presents a danger to the person
under protection.
(16) To the statewide waiver ombudsman established under
IC 12-11-13, in the performance of the ombudsman's duties.
(17) To the division of consumer protection created by
IC 4-6-9-1, if disclosure is necessary for purposes relating to
the investigation of complaints under IC 25-1-7-2 and
IC 25-1-7-14. Mental health records released under this
subdivision must be maintained in confidence by the division
and used only for the purposes for which they were received.
(b) After information is disclosed under subsection (a)(15) and if the
patient is evaluated to be dangerous, the records shall be interpreted in
consultation with a licensed mental health professional on the staff of
the United States Secret Service.
(c) A person who discloses information under subsection (a)(7) or
(a)(15) in good faith is immune from civil and criminal liability.
SOURCE: IC 25-1-7-14; (13)SB0589.1.2. -->
SECTION 2. IC 25-1-7-14, AS AMENDED BY P.L.155-2011,
SECTION 9, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2013]: Sec. 14. (a) Notwithstanding any other law, if the board
of a regulated occupation believes that a person who is not licensed,
certified, or registered under this title is engaged in or is believed to be
engaged in activities for which a license, certification, or registration
is required under this title, the board may do the following:
(1) File a complaint with the attorney general, who shall
investigate and may file:
(A) with notice; or
(B) without notice, if the attorney general determines that
the
person is engaged in activities that may affect an individual's
health or safety;
a motion for a cease and desist order with the appropriate board.
For purposes of this subdivision, the board may designate a board
member or an employee of the Indiana professional licensing
agency to act on behalf or in the name of the board.
(2) Upon review of the attorney general's motion for a cease and
desist order, the board may issue an order requiring the affected
person to show cause why the person should not be ordered to
cease and desist from such activities. The show cause order must
set forth a time and place for a hearing at which the affected
person may appear and show cause as to why the person should
not be subject to licensing, certification, or registration under this
title. For purposes of this subdivision, the board may designate a
board member to act on behalf or in the name of the board.
(b) If the board, after a hearing, determines that the activities in
which the person is engaged are subject to licensing, certification, or
registration under this title, the board may issue a cease and desist
order that must describe the person and activities that are the subject
of the order.
(c) A hearing conducted under this section must comply with the
requirements under IC 4-21.5.
(d) A cease and desist order issued under this section is enforceable
in the circuit or superior courts. A person who is enjoined under a
cease and desist order and who violates the order shall be punished for
contempt of court.
(e) A cease and desist order issued under this section does not
relieve any person from prosecution under any other law.
(f) In addition to the powers specified in subsections (a) through
(e), the state board of funeral and cemetery service may:
(1) file complaints under subsection (a)(1);
(2) issue show cause orders under subsection (a)(2); and
(3) hold hearings and issue cease and desist orders under
subsection (b);
in relation to persons who are engaged in or believed to be engaged
in activities for which a certificate of authority is required under
IC 30-2-13.
(g) Cease and desist orders may be issued by the state board of
funeral and cemetery service under subsection (f) for failure to
possess a certificate of authority even if the person has a valid:
(1) funeral home license;
(2) funeral director license;
(3) embalmer license; or
(4) cemetery registration.
(h) A cease and desist order issued under this section by a board
defined in IC 25-1-11-1 may also include an order for the person to
pay consumer restitution to a person who suffered damages as a
result of the activities that were the basis for the cease and desist
order.
(i) A cease and desist order issued under this section may also
include an order for repayment of the costs of the proceedings. The
person's ability to pay must be considered when costs are assessed.
These costs are limited to costs for the following:
(1) Court reporters.
(2) Transcripts.
(3) Certification of documents.
(4) Photo duplication.
(5) Witness attendance and mileage fees.
(6) Postage.
(7) Expert witnesses.
(8) Depositions.
(9) Notarizations.
(10) Administrative law judges.
(11) Real estate review appraisals.
SOURCE: IC 25-6.1-8-4; (13)SB0589.1.3. -->
SECTION 3. IC 25-6.1-8-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 4. (a) If any aggrieved
person obtains a final judgment in any court against any licensee to
recover damages for failure to meet the obligations of a licensee under
this article and the rules adopted under this article (with or without
findings by the auctioneer commission) that results in an actual cash
loss to the aggrieved person, the person may, upon termination of all
proceedings including appeals and proceedings supplemental to
judgment for collection purposes, file a verified application in the court
in which the judgment was entered with the commission for an order
directing payment out of the auctioneer recovery fund of the amount of
actual and direct loss in the transaction that remains unpaid upon the
judgment. The amount of actual and direct loss may include court costs
but may not include attorney's fees or punitive damages awarded. The
amount that may be paid from the auctioneer recovery fund may not
exceed twenty thousand dollars ($20,000) per judgment and an
aggregate lifetime limit of fifty thousand dollars ($50,000) with respect
to any one (1) licensee.
(b) This section applies only to a final judgment that awards
damages for an act by the licensee described in subsection (a) that
arises directly out of any transaction:
(1) that occurred when the licensee was licensed;
(2) for which a license was required under IC 25-6.1; and
(3) that occurred after December 31, 1987.
SOURCE: IC 25-6.1-8-5; (13)SB0589.1.4. -->
SECTION 4. IC 25-6.1-8-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 5. (a) If the payment in
full of two (2) or more pending valid claims that have been filed by
aggrieved persons against a single licensee would exceed the fifty
thousand
dollars dollar ($50,000) limit set forth in section 4 of this
chapter, the fifty thousand dollars ($50,000) shall be distributed among
the aggrieved persons in the ratio that their respective claims bear to
the aggregate of all valid claims or in any other manner that
a court of
record the commission may determine equitable. This money shall be
distributed among the persons entitled to share in it without regard to
the order of priority in which their respective judgments have been
obtained or their claims have been filed.
(b)
Upon petition of the commission, the court may require The
commission shall consider pending applications filed by all
claimants and prospective claimants against one (1) licensee to be
joined in one (1) action, jointly to the end that the respective rights of
all the claimants to the commission may be equitably adjudicated and
settled.
(c) On June 30 and December 31 of each year, the auctioneer
commission shall identify each claim that the court commission orders
to be paid during the six (6) month period that ended on that day. The
commission shall pay the part of each claim that is so identified within
fifteen (15) days after the end of the six (6) month period in which the
claim is ordered paid. However, if the balance in the fund is
insufficient to pay the full payable amount of each claim that is ordered
to be paid during a six (6) month period, the commission shall pay a
prorated portion of each claim that is ordered to be paid during the
period. Any part of the payable amount of a claim left unpaid due to the
prorating of payments under this subsection must be paid (subject to
the fifty thousand dollar ($50,000) limit described in section 4 of this
chapter) before the payment of claims ordered to be paid during the
following six (6) month period.
SOURCE: IC 25-6.1-8-8; (13)SB0589.1.5. -->
SECTION 5. IC 25-6.1-8-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 8.
(a) When any person
files an application for an order directing payment from the auctioneer
recovery fund, the commission shall
be made a party defendant to the
proceedings. The court shall conduct a hearing on promptly review
and consider the application, and it may issue an order directing
payment out of the auctioneer recovery fund, as provided in section 9
of this chapter, subject to the limitation of section 4 of this chapter, if
the
court commission finds:
(1) that there is no collusion between the judgment creditor and
the judgment debtor;
(2) that the judgment creditor is making application not more than
one (1) year after the termination of all proceedings in connection
with the judgment, including appeals and proceedings
supplemental to judgment for collection purposes;
(3) that the judgment creditor has caused to be issued a writ of
execution on the judgment and the officer executing the writ has
made a return showing that no personal or real property of the
judgment debtor liable to be levied upon in satisfaction of the
judgment could be found or that the amount realized on the sale
under the execution was insufficient to satisfy the judgment;
(4) (3) that the judgment creditor has diligently pursued
the all
available creditor's remedies,
including proceedings
supplemental, against the licensee who is the subject of the
application filed under section 4 of this chapter, against all the
judgment debtors, and against all other persons liable to the
creditor in the transaction for which the creditor seeks recovery
from the auctioneer recovery fund, but that the diligent pursuit
did not result in satisfaction of the judgment;
(5) (4) that the failure to meet the obligations of a licensee under
this article and the rules adopted under this article arose directly
out of a transaction that occurred when the judgment debtor was
licensed and acted in a capacity for which a license is required
under this article and that the transaction occurred after December
31, 1987; and
(6) (5) that, in the event of a default judgment or a judgment
entered upon stipulation of the parties, the judgment debtor's acts
constituted failure to meet the obligations of a licensee under this
article and the rules adopted under this article.
(b) A person who is dissatisfied by:
(1) an order issued under subsection (a) directing payment out
of the auctioneer recovery fund; or
(2) a denial of an application filed under section 4 of this
chapter;
may petition for review under IC 4-21.5-3-7.
SOURCE: IC 25-6.1-8-9; (13)SB0589.1.6. -->
SECTION 6. IC 25-6.1-8-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 9. Upon a final an
order of the court commission directing that payment be made out of
the auctioneer recovery fund, the commission shall, subject to sections
4 through 5 of this chapter, make the payment out of the auctioneer
recovery fund as provided in section 5 of this chapter.
SOURCE: IC 25-6.1-8-10; (13)SB0589.1.7. -->
SECTION 7. IC 25-6.1-8-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 10. (a) If the
commission is required to make any payment from the auctioneer
recovery fund in settlement of a claim or toward the satisfaction of a
judgment an order under this chapter, the commission shall suspend
the judgment debtor's license. The licensee is not eligible to be licensed
again as either an auctioneer, auction company, or auction house until
the licensee has repaid in full the amount paid from the auctioneer
recovery fund with interest of twelve percent (12%) per annum.
(b) A license suspension issued under this section must be done
in accordance with IC 4-21.5-3-6. The licensee may petition for
review under IC 4-21.5-3-7.
SOURCE: IC 25-6.1-8-11; (13)SB0589.1.8. -->
SECTION 8. IC 25-6.1-8-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 11. When
upon order
of any court, the commission has ordered and caused payment to be
made from the auctioneer recovery fund to a judgment creditor, the
commission is subrogated to the rights of the judgment creditor with
respect to the amount paid.
SOURCE: IC 25-22.5-1-1.1; (13)SB0589.1.9. -->
SECTION 9. IC 25-22.5-1-1.1, AS AMENDED BY P.L.90-2007,
SECTION 3, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2013]: Sec. 1.1. As used in this article:
(a) "Practice of medicine or osteopathic medicine" means any one
(1) or a combination of the following:
(1) Holding oneself out to the public as being engaged in:
(A) the diagnosis, treatment, correction, or prevention of any
disease, ailment, defect, injury, infirmity, deformity, pain, or
other condition of human beings;
(B) the suggestion, recommendation, or prescription or
administration of any form of treatment, without limitation;
(C) the performing of any kind of surgical operation upon a
human being, including tattooing, except for tattooing (as
defined in IC 35-42-2-7), in which human tissue is cut, burned,
or vaporized by the use of any mechanical means, laser, or
ionizing radiation, or the penetration of the skin or body orifice
by any means, for the intended palliation, relief, or cure; or
(D) the prevention of any physical, mental, or functional
ailment or defect of any person.
(2) The maintenance of an office or a place of business for the
reception, examination, or treatment of persons suffering from
disease, ailment, defect, injury, infirmity, deformity, pain, or other
conditions of body or mind.
(3) Attaching the designation "doctor of medicine", "M.D.",
"doctor of osteopathy", "D.O.", "osteopathic medical physician",
"physician", "surgeon", or "physician and surgeon", either alone
or in connection with other words, or any other words or
abbreviations to a name, indicating or inducing others to believe
that the person is engaged in the practice of medicine or
osteopathic medicine (as defined in this section).
(4) Providing diagnostic or treatment services to a person in
Indiana when the diagnostic or treatment services:
(A) are transmitted through electronic communications; and
(B) are on a regular, routine, and nonepisodic basis or under
an oral or written agreement to regularly provide medical
services.
In addition to the exceptions described in section 2 of this chapter,
a nonresident physician who is located outside Indiana does not
practice medicine or osteopathy in Indiana by providing a second
opinion to a licensee or diagnostic or treatment services to a
patient in Indiana following medical care originally provided to
the patient while outside Indiana.
(b) "Board" refers to the medical licensing board of Indiana.
(c) "Diagnose or diagnosis" means to examine a patient, parts of a
patient's body, substances taken or removed from a patient's body, or
materials produced by a patient's body to determine the source or
nature of a disease or other physical or mental condition, or to hold
oneself out or represent that a person is a physician and is so examining
a patient. It is not necessary that the examination be made in the
presence of the patient; it may be made on information supplied either
directly or indirectly by the patient.
(d) "Drug or medicine" means any medicine, compound, or
chemical or biological preparation intended for internal or external use
of humans, and all substances intended to be used for the diagnosis,
cure, mitigation, or prevention of diseases or abnormalities of humans,
which are recognized in the latest editions published of the United
States Pharmacopoeia or National Formulary, or otherwise established
as a drug or medicine.
(e) "Licensee" means any individual holding a valid unlimited
license issued by the board under this article.
(f) "Prescribe or prescription" means to direct, order, or designate
the use of or manner of using a drug, medicine, or treatment, by spoken
or written words or other means.
(g) "Physician" means any person who holds the degree of doctor of
medicine or doctor of osteopathy or its equivalent and who holds a
valid unlimited license to practice medicine or osteopathic medicine in
Indiana.
(h) "Medical school" means a nationally accredited college of
medicine or of osteopathic medicine approved by the board.
(i) "Physician assistant" means an individual who:
(1) is supervised by a physician;
(2) graduated from a an approved physician assistant program
accredited by an accrediting agency (as defined in
IC 25-27.5-2-4.5); described in IC 25-27.5-2-2;
(3) passed the examination administered by the National
Commission on Certification of Physician Assistants (NCCPA)
and maintains certification; and
(4) has been licensed by the physician assistant committee under
IC 25-27.5.
(j) "Agency" refers to the Indiana professional licensing agency
under IC 25-1-5.
SOURCE: IC 25-28.5-2-4; (13)SB0589.1.10. -->
SECTION 10. IC 25-28.5-2-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 4. (a) If any aggrieved
person obtains a final judgment in any court against any plumbing
contractor to recover damages for a violation under IC 25-1-11 or the
plumbing codes of the state (with or without a finding by the Indiana
plumbing commission) that results in an actual cash loss to the
aggrieved person, the person may, upon termination of all proceedings,
including appeals and proceedings supplemental to judgment for
collection purposes, file a verified application in the court in which the
judgment was entered with the plumbing commission for an order
directing payment out of the plumbers recovery fund of the amount of
actual and direct loss in the transaction that remains unpaid upon the
judgment. The amount of actual and direct loss may include court costs
but may not include attorney's fees or punitive damages awarded. The
amount that may be paid from the plumbers recovery fund may not
exceed twenty thousand dollars ($20,000) per judgment and an
aggregate lifetime limit of fifty thousand dollars ($50,000) with respect
to any one (1) licensee.
(b) This section applies only to a final judgment that awards
damages for an act by the plumbing contractor described in subsection
(a) that arises directly out of any transaction:
(1) that occurred when the plumbing contractor was licensed;
(2) for which a license was required under IC 25-28.5; and
(3) that occurred after December 31, 1987.
SOURCE: IC 25-28.5-2-5; (13)SB0589.1.11. -->
SECTION 11. IC 25-28.5-2-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 5. (a) If the payment in
full of two (2) or more pending valid claims that have been filed by
aggrieved persons against a single plumbing contractor would exceed
the fifty thousand dollar ($50,000) limit set forth in section 4 of this
chapter, the fifty thousand dollars ($50,000) shall be distributed among
the aggrieved persons in the ratio that their respective claims bear to
the aggregate of all valid claims or in any other manner that
a court of
record the plumbing commission may determine equitable. This
money shall be distributed among the persons entitled to share in it
without regard to the order of priority in which their respective
judgments have been obtained or their claims have been filed.
(b)
Upon petition of The
plumbing commission
the court may
require shall consider pending applications filed by all claimants and
prospective claimants against a single plumbing
contractor to be joined
in one (1) action, licensee jointly to the end that the respective rights
of all the claimants to the
plumbing commission may be equitably
adjudicated and settled.
(c) On June 30 and December 31 of each year, the plumbing
commission shall identify each claim that the court plumbing
commission orders to be paid during the six (6) month period that
ended on that day. The plumbing commission shall pay the part of
each claim that is so identified within fifteen (15) days after the end of
the six (6) month period in which the claim is ordered paid. However,
if the balance in the fund is insufficient to pay the full payable amount
of each claim that is ordered to be paid during a six (6) month period,
the plumbing commission shall pay a prorated portion of each claim
that is ordered to be paid during the period. Any part of the payable
amount of a claim left unpaid due to the prorating of payments under
this subsection must be paid (subject to the fifty thousand dollar
($50,000) limit described in section 4 of this chapter) before the
payment of claims ordered to be paid during the following six (6)
month period.
SOURCE: IC 25-28.5-2-7; (13)SB0589.1.12. -->
SECTION 12. IC 25-28.5-2-7 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 7. An order for
payment from the plumbers recovery fund may not be issued unless the
action to recover from the plumbers recovery fund was commenced
within two (2) years after the termination of all proceedings against the
plumbing contractor for a violation under IC 25-1-11 or the plumbing
codes of the state, including appeals and proceedings supplemental to
judgment. When any person commences an action for a judgment that
may result in an order for payment from the fund, the plumbing
contractor against whom the action has been taken person shall notify
the plumbing commission in writing of the commencement of the
action.
SOURCE: IC 25-28.5-2-8; (13)SB0589.1.13. -->
SECTION 13. IC 25-28.5-2-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 8.
(a) When any person
files an application for an order directing payment from the plumbers
recovery fund, the
plumbing commission shall
be made a party
defendant to the proceedings. The court shall conduct a hearing on
promptly review and consider the application, and it may issue an
order directing payment out of the plumbers recovery fund, as provided
in section 9 of this chapter, subject to the limitation of section 4 of this
chapter, if the
court plumbing commission finds:
(1) that there is no collusion between the judgment creditor and
the judgment debtor;
(2) that the judgment creditor is making application not more than
one (1) year after the termination of all proceedings in connection
with the judgment, including appeals and proceedings
supplemental to judgment for collection purposes;
(3) that the judgment creditor has caused to be issued a writ of
execution on the judgment and the officer executing the writ has
made a return showing that no personal or real property of the
judgment debtor liable to be levied upon in satisfaction of the
judgment could be found or that the amount realized on the sale
under the execution was insufficient to satisfy the judgment;
(4) (3) that the judgment creditor has diligently pursued the all
available creditor's remedies, including proceedings
supplemental, against the licensee who is the subject of the
application filed under section 4 of this chapter, against all the
judgment debtors, and against all other persons liable to the
creditor in the transaction for which the creditor seeks recovery
from the plumbers recovery fund, but that the diligent pursuit
did not result in satisfaction of the judgment;
(5) (4) that a violation under IC 25-1-11 or the plumbing codes of
the state arose directly out of a transaction that occurred when the
judgment debtor was licensed and acted in a capacity for which
a license is required under this article and that the transaction
occurred after December 31, 1987; and
(6) (5) that, in the event of a default judgment or a judgment
entered upon stipulation of the parties, the judgment debtor's acts
constituted a violation under IC 25-1-11 or the plumbing codes of
the state.
(b) A person who is dissatisfied by:
(1) an order issued under subsection (a) directing payment
from the plumbers recovery fund; or
(2) a denial of an application filed under section 4 of this
chapter;
may petition for review under IC 4-21.5-3-7.
SOURCE: IC 25-28.5-2-9; (13)SB0589.1.14. -->
SECTION 14. IC 25-28.5-2-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 9. Upon a final order
of the court plumbing commission directing that payment be made out
of the plumbers recovery fund, the plumbing commission shall, subject
to sections 4 through 5 of this chapter, make the payment out of the
plumbers recovery fund as provided in section 5 of this chapter.
SOURCE: IC 25-28.5-2-10; (13)SB0589.1.15. -->
SECTION 15. IC 25-28.5-2-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 10.
(a) If the
plumbing
commission is required to make any payment from the plumbers
recovery fund in settlement of a claim or toward the satisfaction of
a
judgment an order under this chapter, the
plumbing commission shall
suspend the judgment debtor's license. The licensee is not eligible to be
licensed again as either a plumbing contractor or journeyman plumber
until the licensee has repaid in full the amount paid from the plumbers
recovery fund with interest of twelve percent (12%) per annum.
(b) A license suspension issued under this section must be done
in accordance with IC 4-21.5-3-6. The licensee may petition for
review under IC 4-21.5-3-7.
SOURCE: IC 25-28.5-2-11; (13)SB0589.1.16. -->
SECTION 16. IC 25-28.5-2-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 11. When upon order
of any court, the plumbing commission has ordered and caused
payment to be made from the plumbers recovery fund to a judgment
creditor, the plumbing commission is subrogated to the rights of the
judgment creditor with respect to the amount paid.
SOURCE: IC 25-34.1-7-4; (13)SB0589.1.17. -->
SECTION 17. IC 25-34.1-7-4 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 4. (a) If any aggrieved
person obtains a final judgment in any court against a licensee to
recover damages for any act of:
(1) embezzlement of money or property; or
(2) unlawfully obtaining money or property by false pretenses, use
of a device, trickery, or forgery;
that results in an actual cash loss to the aggrieved person (as opposed
to loss in market value), the person may, upon termination of all
proceedings including appeals and proceedings supplemental to
judgment for collection purposes, file a verified application in the court
in which the judgment was entered with the commission for an order
directing payment out of the real estate recovery fund of the amount of
actual and direct loss in the transaction that remains unpaid upon the
judgment. The amount of actual and direct loss may include court costs
but may not include attorney's fees or punitive damages awarded. The
amount that may be paid from the real estate recovery fund may not
exceed twenty thousand dollars ($20,000) per judgment and an
aggregate lifetime limit of fifty thousand dollars ($50,000) with respect
to any one (1) licensee.
(b) This section applies only to a final judgment that awards
damages for an act by the licensee described in subsections (a)(1)
through (a)(2) that arises directly out of any transaction:
(1) that occurred when the licensee was licensed;
(2) for which a license was required under IC 25-34.1; and
(3) that occurred after December 31, 1987.
SOURCE: IC 25-34.1-7-5; (13)SB0589.1.18. -->
SECTION 18. IC 25-34.1-7-5 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 5. (a) If the payment in
full of two (2) or more pending valid claims that have been filed by
aggrieved persons against a single licensee would exceed the fifty
thousand dollar ($50,000) limit set forth in section 4 of this chapter, the
fifty thousand dollars ($50,000) shall be distributed among the
aggrieved persons in the ratio that their respective claims bear to the
aggregate of all valid claims or in any other manner that a court of
record the commission may determine equitable. This money shall be
distributed among the persons entitled to share in it without regard to
the order of priority in which their respective judgments have been
obtained or their claims have been filed.
(b) Upon petition of The commission the court may require shall
consider pending applications filed by all claimants and prospective
claimants against one (1) licensee to be joined in one (1) action, jointly
to the end that the respective rights of all the claimants to the
commission may be equitably adjudicated and settled.
(c) On June 30 and December 31 of each year, the real estate
commission shall identify each claim that the court commission orders
to be paid during the six (6) month period that ended on that day. The
commission shall pay the part of each claim that is so identified within
fifteen (15) days after the end of the six (6) month period in which the
claim is ordered paid. However, if the balance in the fund is
insufficient to pay the full payable amount of each claim that is ordered
to be paid during a six (6) month period, the commission shall pay a
prorated portion of each claim that is ordered to be paid during the
period. Any part of the payable amount of a claim left unpaid due to the
prorating of payments under this subsection must be paid (subject to
the fifty thousand dollar ($50,000) limit described in section 4 of this
chapter) before the payment of claims ordered to be paid during the
following six (6) month period.
SOURCE: IC 25-34.1-7-8; (13)SB0589.1.19. -->
SECTION 19. IC 25-34.1-7-8 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 8. (a) When any person
files an application for an order directing payment from the real estate
recovery fund, the commission shall be made a party defendant to the
proceedings. The court shall conduct a hearing on promptly review
and consider the application, and it may issue an order directing
payment out of the real estate recovery fund, as provided in section 9
of this chapter, subject to the limitation of section 4 of this chapter, if
the court commission finds:
(1) that there is no collusion between the judgment creditor and
the judgment debtor;
(2) that the judgment creditor is making application not more than
one (1) year after the termination of all proceedings in connection
with the judgment, including appeals and proceedings
supplemental to judgment for collection purposes;
(3) that the judgment creditor has caused to be issued a writ of
execution on the judgment and the officer executing the writ has
made a return showing that no personal or real property of the
judgment debtor liable to be levied upon in satisfaction of the
judgment could be found or that the amount realized on the sale
under the execution was insufficient to satisfy the judgment;
(4) (3) that the judgment creditor has diligently pursued the all
available creditor's remedies, including proceedings
supplemental, against the licensee who is the subject of the
application filed under section 4 of this chapter, against all the
judgment debtors, and against all other persons liable to the
creditor in the transaction for which the creditor seeks recovery
from the real estate recovery fund, but that the diligent pursuit
did not result in satisfaction of the judgment;
(5) (4) that the embezzlement of money or property, or the
unlawfully obtaining of money or property by false pretenses, use
of a device, trickery, or forgery, arose directly out of a transaction
that occurred when the judgment debtor was licensed and acted
in a capacity for which a license is required under this article and
that the transaction occurred after December 31, 1987; and
(6) (5) that, in the event of a default judgment or a judgment
entered upon stipulation of the parties, the judgment debtor's acts
constituted embezzlement of money or property, or the unlawful
obtaining of money or property by false pretenses, use of a device,
trickery, or forgery.
(b) A person who is dissatisfied by:
(1) an order issued under subsection (a) directing payment out
of the real estate recovery fund; or
(2) a denial of an application filed under section 4 of this
chapter;
may petition for review under IC 4-21.5-3-7.
SOURCE: IC 25-34.1-7-9; (13)SB0589.1.20. -->
SECTION 20. IC 25-34.1-7-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 9. Upon a final an
order of the court commission directing that payment be made out of
the real estate recovery fund, the commission shall, subject to sections
4 through 5 of this chapter, make the payment out of the real estate
recovery fund as provided in section 5 of this chapter.
SOURCE: IC 25-34.1-7-10; (13)SB0589.1.21. -->
SECTION 21. IC 25-34.1-7-10 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 10.
(a) If the
commission is required to make any payment from the real estate
recovery fund in settlement of a claim or toward the satisfaction of
a
judgment an order under this chapter, the commission shall suspend
the judgment debtor's license and, if the judgment debtor is licensed
under IC 25-34.1-3-3.1, the license of the individual designated broker,
under this article. The licensee is not eligible to be licensed again either
as a broker or a salesperson until the licensee has repaid in full the
amount paid from the real estate recovery fund with interest of twelve
percent (12%) per annum.
(b) A license suspension issued under this section must be done
in accordance with IC 4-21.5-3-6. The licensee may petition for
review under IC 4-21.5-3-7.
SOURCE: IC 25-34.1-7-10; (13)SB0589.1.22. -->
SECTION 22. IC 25-34.1-7-10, AS AMENDED BY P.L.127-2012,
SECTION 33, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2014]: Sec. 10. (a) If the commission is required to make any
payment from the real estate recovery fund in settlement of a claim or
toward the satisfaction of a judgment an order under this chapter, the
commission shall suspend the judgment debtor's license and, if the
judgment debtor is licensed under IC 25-34.1-3-4.1, the license of the
individual designated broker, under this article. The licensee is not
eligible to be licensed again as a broker until the licensee has repaid in
full the amount paid from the real estate recovery fund with interest of
twelve percent (12%) per annum.
(b) A license suspension issued under this section must be done
in accordance with IC 4-21.5-3-6. The licensee may petition for
review under IC 4-21.5-3-7.
SOURCE: IC 25-34.1-7-11; (13)SB0589.1.23. -->
SECTION 23. IC 25-34.1-7-11 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 11. When upon order
of any court, the commission has ordered and caused payment to be
made from the real estate recovery fund to a judgment creditor, the
commission is subrogated to the rights of the judgment creditor with
respect to the amount paid.
SOURCE: IC 30-2-13-35; (13)SB0589.1.24. -->
SECTION 24. IC 30-2-13-35 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2013]: Sec. 35.
(a) It is a violation
of this chapter for a seller to misrepresent the character, quality,
durability, or suitability for a specific or an intended purpose of
services or merchandise offered for sale to a purchaser.
(b) It is a violation of this chapter for a person to misrepresent
the effect a purchase of prepaid services or merchandise may have
on the purchaser's eligibility for Medicaid.