As Passed by the House                        1            

123rd General Assembly                                             4            

   Regular Session                               Sub. H.B. No. 90  5            

      1999-2000                                                    6            


   REPRESENTATIVES TERWILLEGER-KREBS-D. MILLER-OPFER-PRINGLE-      8            

        BARRETT-ROMAN-BARNES-VAN VYVEN-GARDNER-ASLANIDES-          9            

   MOTTLEY-O'BRIEN-MEAD-ALLEN-SULLIVAN-GRENDELL-SUTTON- BENDER     11           


_________________________________________________________________   12           

                          A   B I L L                                           

             To amend section 4731.22 and to enact section         14           

                4731.227 of the Revised Code to permit physicians  15           

                to use alternative medical treatments if the risk  16           

                of harm is  reasonable when compared to the        18           

                potential benefit, the patient provides informed   19           

                consent,  and the treatment is consistent with     21           

                the standards enforced by the State Medical                     

                Board.                                             22           




BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:        23           

      Section 1.  That section 4731.22 be amended and section      25           

4731.227 of the Revised Code be enacted to read as follows:        26           

      Sec. 4731.22.  (A)  The state medical board, by an           36           

affirmative vote of not fewer than six of its members, may revoke  37           

or may refuse to grant a certificate to a person found by the      38           

board to have committed fraud during the administration of the     39           

examination for a certificate to practice or to have committed     41           

fraud, misrepresentation, or deception in applying for or          42           

securing any certificate to practice or certificate of                          

registration issued by the board.                                  43           

      (B)  The board, by an affirmative vote of not fewer than     46           

six members, shall, to the extent permitted by law, limit,         47           

revoke, or suspend an individual's certificate to practice,        49           

refuse to register an individual, refuse to reinstate a            51           

certificate, or reprimand or place on probation the holder of a    53           

                                                          2      


                                                                 
certificate for one or more of the following reasons:                           

      (1)  Permitting one's name or one's certificate to practice  55           

or certificate of registration to be used by a person, group, or   57           

corporation when the individual concerned is not actually          58           

directing the treatment given;                                     59           

      (2)  Failure to maintain minimal standards applicable to     62           

the selection or administration of drugs, or failure to employ     63           

acceptable scientific methods in the selection of drugs or other   64           

modalities for treatment of disease;                               65           

      (3)  Selling, giving away, personally furnishing,            67           

prescribing, or administering drugs for other than legal and       68           

legitimate therapeutic purposes or a plea of guilty to, a          70           

judicial finding of guilt of, or a judicial finding of             71           

eligibility for treatment in lieu of conviction of, a violation    73           

of any federal or state law regulating the possession,                          

distribution, or use of any drug;                                  74           

      (4)  Willfully betraying a professional confidence.          76           

      For purposes of this division, "willfully betraying a        78           

professional confidence" does not include the making of a report   79           

of an employee's use of a drug of abuse, or a report of a          80           

condition of an employee other than one involving the use of a     81           

drug of abuse, to the employer of the employee as described in     82           

division (B) of section 2305.33 of the Revised Code.  Nothing in   84           

this division affects the immunity from civil liability conferred  86           

by that section upon a physician who makes either type of report   87           

in accordance with division (B) of that section.  As used in this  88           

division, "employee," "employer," and "physician" have the same    89           

meanings as in section 2305.33 of the Revised Code.                90           

      (5)  Making a false, fraudulent, deceptive, or misleading    93           

statement in the solicitation of or advertising for patients; in   95           

relation to the practice of medicine and surgery, osteopathic      96           

medicine and surgery, podiatry, or a limited branch of medicine;   97           

or in securing or attempting to secure any certificate to          99           

practice or certificate of registration issued by the board.                    

                                                          3      


                                                                 
      As used in this division, "false, fraudulent, deceptive, or  101          

misleading statement" means a statement that includes a            102          

misrepresentation of fact, is likely to mislead or deceive         103          

because of a failure to disclose material facts, is intended or    104          

is likely to create false or unjustified expectations of           105          

favorable results, or includes representations or implications     106          

that in reasonable probability will cause an ordinarily prudent    107          

person to misunderstand or be deceived.                            108          

      (6)  A departure from, or the failure to conform to,         110          

minimal standards of care of similar practitioners under the same  111          

or similar circumstances, whether or not actual injury to a        112          

patient is established;.  THE USE OF AN ALTERNATIVE MEDICAL        113          

TREATMENT, AS DEFINED IN SECTION 4731.227 OF THE REVISED CODE, IS  114          

NOT IN AND OF ITSELF A DEPARTURE FROM OR FAILURE TO CONFORM TO     115          

MINIMAL STANDARDS OF CARE.                                                      

      (7)  Representing, with the purpose of obtaining             117          

compensation or other advantage as personal gain or for any other  119          

person, that an incurable disease or injury, or other incurable    120          

condition, can be permanently cured;                               121          

      (8)  The obtaining of, or attempting to obtain, money or     123          

anything of value by fraudulent misrepresentations in the course   124          

of practice;                                                       125          

      (9)  A plea of guilty to, a judicial finding of guilt of,    128          

or a judicial finding of eligibility for treatment in lieu of                   

conviction for, a felony;                                          129          

      (10)  Commission of an act that constitutes a felony in      131          

this state, regardless of the jurisdiction in which the act was    132          

committed;                                                         133          

      (11)  A plea of guilty to, a judicial finding of guilt of,   136          

or a judicial finding of eligibility for treatment in lieu of                   

conviction for, a misdemeanor committed in the course of           137          

practice;                                                                       

      (12)  Commission of an act in the course of practice that    139          

constitutes a misdemeanor in this state, regardless of the         141          

                                                          4      


                                                                 
jurisdiction in which the act was committed;                       142          

      (13)  A plea of guilty to, a judicial finding of guilt of,   145          

or a judicial finding of eligibility for treatment in lieu of                   

conviction for, a misdemeanor involving moral turpitude;           146          

      (14)  Commission of an act involving moral turpitude that    148          

constitutes a misdemeanor in this state, regardless of the         150          

jurisdiction in which the act was committed;                       151          

      (15)  Violation of the conditions of limitation placed by    153          

the board upon a certificate to practice;                          154          

      (16)  Failure to pay license renewal fees specified in this  156          

chapter;                                                           157          

      (17)  Except as authorized in section 4731.31 of the         159          

Revised Code, engaging in the division of fees for referral of     161          

patients, or the receiving of a thing of value in return for a     162          

specific referral of a patient to utilize a particular service or  163          

business;                                                                       

      (18)  Subject to section 4731.226 of the Revised Code,       165          

violation of any provision of a code of ethics of the American     167          

medical association, the American osteopathic association, the     168          

American podiatric medical association, or any other national      169          

professional organizations that the board specifies by rule.  The  171          

state medical board shall obtain and keep on file current copies   172          

of the codes of ethics of the various national professional        173          

organizations.  The individual whose certificate is being          174          

suspended or revoked shall not be found to have violated any       176          

provision of a code of ethics of an organization not appropriate   177          

to the individual's profession.                                    178          

      For purposes of this division, a "provision of a code of     181          

ethics of a national professional organization" does not include   182          

any provision that would preclude the making of a report by a      183          

physician of an employee's use of a drug of abuse, or of a         184          

condition of an employee other than one involving the use of a     185          

drug of abuse, to the employer of the employee as described in                  

division (B) of section 2305.33 of the Revised Code.  Nothing in   187          

                                                          5      


                                                                 
this division affects the immunity from civil liability conferred  188          

by that section upon a physician who makes either type of report   189          

in accordance with division (B) of that section.  As used in this  190          

division, "employee," "employer," and "physician" have the same    191          

meanings as in section 2305.33 of the Revised Code.                192          

      (19)  Inability to practice according to acceptable and      194          

prevailing standards of care by reason of mental illness or        195          

physical illness, including, but not limited to, physical          196          

deterioration that adversely affects cognitive, motor, or          197          

perceptive skills.                                                 198          

      In enforcing this division, the board, upon a showing of a   201          

possible violation, may compel any individual authorized to        202          

practice by this chapter or who has submitted an application       204          

pursuant to this chapter to submit to a mental examination,        206          

physical examination, including an HIV test, or both a mental and  208          

a physical examination.  The expense of the examination is the     210          

responsibility of the individual compelled to be examined.         211          

Failure to submit to a mental or physical examination or consent   212          

to an HIV test ordered by the board constitutes an admission of    213          

the allegations against the individual unless the failure is due   215          

to circumstances beyond the individual's control, and a default    216          

and final order may be entered without the taking of testimony or  217          

presentation of evidence.  If the board finds an individual        218          

unable to practice because of the reasons set forth in this        220          

division, the board shall require the individual to submit to      221          

care, counseling, or treatment by physicians approved or           222          

designated by the board, as a condition for initial, continued,    223          

reinstated, or renewed authority to practice.  An individual       225          

affected under this division shall be afforded an opportunity to   227          

demonstrate to the board the ability to resume practice in         228          

compliance with acceptable and prevailing standards under the      229          

provisions of the individual's certificate.  For the purpose of    231          

this division, any individual who applies for or receives a        232          

certificate to practice under this chapter accepts the privilege   233          

                                                          6      


                                                                 
of practicing in this state and, by so doing, shall be deemed to   236          

have given consent to submit to a mental or physical examination   237          

when directed to do so in writing by the board, and to have        238          

waived all objections to the admissibility of testimony or         239          

examination reports that constitute a privileged communication.    240          

      (20)  Except when civil penalties are imposed under section  242          

4731.225 or 4731.281 of the Revised Code, and subject to section   243          

4731.226 of the Revised Code, violating or attempting to violate,  245          

directly or indirectly, or assisting in or abetting the violation  246          

of, or conspiring to violate, any provisions of this chapter or    247          

any rule promulgated by the board.                                              

      This division does not apply to a violation or attempted     249          

violation of, assisting in or abetting the violation of, or a      250          

conspiracy to violate, any provision of this chapter or any rule   251          

adopted by the board that would preclude the making of a report    254          

by a physician of an employee's use of a drug of abuse, or of a    255          

condition of an employee other than one involving the use of a     256          

drug of abuse, to the employer of the employee as described in                  

division (B) of section 2305.33 of the Revised Code.  Nothing in   258          

this division affects the immunity from civil liability conferred  259          

by that section upon a physician who makes either type of report   260          

in accordance with division (B) of that section.  As used in this  261          

division, "employee," "employer," and "physician" have the same    262          

meanings as in section 2305.33 of the Revised Code.                263          

      (21)  The violation of any abortion rule adopted by the      265          

public health council pursuant to section 3701.341 of the Revised  266          

Code;                                                              267          

      (22)  Any of the following actions taken by the state        269          

agency responsible for regulating the practice of medicine and     270          

surgery, osteopathic medicine and surgery, podiatry, or the        271          

limited branches of medicine in another state, for any reason      272          

other than the nonpayment of fees:  the limitation, revocation,    273          

or suspension of an individual's license to practice; acceptance   274          

of an individual's license surrender; denial of a license;         275          

                                                          7      


                                                                 
refusal to renew or reinstate a license; imposition of probation;  277          

or issuance of an order of censure or other reprimand;             278          

      (23)  The violation of section 2919.12 of the Revised Code   280          

or the performance or inducement of an abortion upon a pregnant    281          

woman with actual knowledge that the conditions specified in       282          

division (B) of section 2317.56 of the Revised Code have not been  283          

satisfied or with a heedless indifference as to whether those      284          

conditions have been satisfied, unless an affirmative defense as   285          

specified in division (H)(2) of that section would apply in a      286          

civil action authorized by division (H)(1) of that section;        287          

      (24)  The revocation, suspension, restriction, reduction,    289          

or termination of clinical privileges by the United States         291          

department of defense or department of veterans affairs or the     293          

termination or suspension of a certificate of registration to      294          

prescribe drugs by the drug enforcement administration of the      295          

United States department of justice;                               296          

      (25)  Termination or suspension from participation in the    298          

medicare or medicaid programs by the department of health and      300          

human services or other responsible agency for any act or acts     301          

that also would constitute a violation of division (B)(2), (3),    302          

(6), (8), or (19) of this section;                                 303          

      (26)  Impairment of ability to practice according to         305          

acceptable and prevailing standards of care because of habitual    306          

or excessive use or abuse of drugs, alcohol, or other substances   307          

that impair ability to practice.                                   308          

      For the purposes of this division, any individual            310          

authorized to practice by this chapter accepts the privilege of    312          

practicing in this state subject to supervision by the board.  By  313          

filing an application for or holding a certificate to practice     316          

under this chapter, an individual shall be deemed to have given    318          

consent to submit to a mental or physical examination when         319          

ordered to do so by the board in writing, and to have waived all   320          

objections to the admissibility of testimony or examination        321          

reports that constitute privileged communications.                 322          

                                                          8      


                                                                 
      If it has reason to believe that any individual authorized   324          

to practice by this chapter or any applicant for certification to  326          

practice suffers such impairment, the board may compel the         327          

individual to submit to a mental or physical examination, or       328          

both.  The expense of the examination is the responsibility of     330          

the individual compelled to be examined.  Any mental or physical   332          

examination required under this division shall be undertaken by a  333          

treatment provider or physician who is qualified to conduct the    334          

examination and who is chosen by the board.                        335          

      Failure to submit to a mental or physical examination        338          

ordered by the board constitutes an admission of the allegations   339          

against the individual unless the failure is due to circumstances  340          

beyond the individual's control, and a default and final order     341          

may be entered without the taking of testimony or presentation of  342          

evidence.  If the board determines that the individual's ability   343          

to practice is impaired, the board shall suspend the individual's  344          

certificate or deny the individual's application and shall         345          

require the individual, as a condition for initial, continued,     346          

reinstated, or renewed certification to practice, to submit to     348          

treatment.                                                                      

      Before being eligible to apply for reinstatement of a        350          

certificate suspended under this division, the impaired            352          

practitioner shall demonstrate to the board the ability to resume  354          

practice in compliance with acceptable and prevailing standards    355          

of care under the provisions of the practitioner's certificate.    356          

The demonstration shall include, but shall not be limited to, the  358          

following:                                                                      

      (a)  Certification from a treatment provider approved under  360          

section 4731.25 of the Revised Code that the individual has        362          

successfully completed any required inpatient treatment;           363          

      (b)  Evidence of continuing full compliance with an          365          

aftercare contract or consent agreement;                           366          

      (c)  Two written reports indicating that the individual's    368          

ability to practice has been assessed and that the individual has  369          

                                                          9      


                                                                 
been found capable of practicing according to acceptable and       370          

prevailing standards of care.  The reports shall be made by        371          

individuals or providers approved by the board for making the      372          

assessments and shall describe the basis for their determination.  373          

      The board may reinstate a certificate suspended under this   376          

division after that demonstration and after the individual has     377          

entered into a written consent agreement.                          378          

      When the impaired practitioner resumes practice, the board   380          

shall require continued monitoring of the individual.  The         382          

monitoring shall include, but not be limited to, compliance with   384          

the written consent agreement entered into before reinstatement    385          

or with conditions imposed by board order after a hearing, and,    386          

upon termination of the consent agreement, submission to the       387          

board for at least two years of annual written progress reports    388          

made under penalty of perjury stating whether the individual has   389          

maintained sobriety.                                               390          

      (27)  A second or subsequent violation of section 4731.66    392          

or 4731.69 of the Revised Code;                                    393          

      (28)  Except as provided in division (N) of this section:    395          

      (a)  Waiving the payment of all or any part of a deductible  398          

or copayment that a patient, pursuant to a health insurance or     399          

health care policy, contract, or plan that covers the              400          

individual's services, otherwise would be required to pay if the   402          

waiver is used as an enticement to a patient or group of patients  403          

to receive health care services from that individual;              404          

      (b)  Advertising that the individual will waive the payment  407          

of all or any part of a deductible or copayment that a patient,    408          

pursuant to a health insurance or health care policy, contract,    409          

or plan that covers the individual's services, otherwise would be  411          

required to pay.                                                   412          

      (29)  Failure to use universal blood and body fluid          414          

precautions established by rules adopted under section 4731.051    415          

of the Revised Code;                                               416          

      (30)  Failure of a collaborating physician to perform the    419          

                                                          10     


                                                                 
responsibilities agreed to by the physician in the protocol        420          

established between the physician and an advanced practice nurse   421          

in accordance with section 4723.56 of the Revised Code;            422          

      (31)  Failure to provide notice to, and receive              424          

acknowledgment of the notice from, a patient when required by      426          

section 4731.143 of the Revised Code prior to providing            427          

nonemergency professional services, or failure to maintain that    428          

notice in the patient's file;                                                   

      (32)  Failure of a physician supervising a physician         430          

assistant to maintain supervision in accordance with the           431          

requirements of Chapter 4730. of the Revised Code and the rules    432          

adopted under that chapter;                                                     

      (33)  Failure of a physician or podiatrist to maintain a     434          

standard care arrangement with a clinical nurse specialist,        435          

certified nurse-midwife, or certified nurse practitioner with      436          

whom the physician or podiatrist is in collaboration pursuant to   437          

section 4731.27 of the Revised Code and practice in accordance     438          

with the arrangement;                                                           

      (34)  Failure to comply with the terms of a consult          440          

agreement entered into with a pharmacist pursuant to section       441          

4729.39 of the Revised Code;                                       442          

      (35)  Failure to cooperate in an investigation conducted by  444          

the board under division (F) of this section, including failure    446          

to comply with a subpoena or order issued by the board or failure  447          

to answer truthfully a question presented by the board at a        448          

deposition or in written interrogatories, except that failure to   449          

cooperate with an investigation shall not constitute grounds for   450          

discipline under this section if a court of competent              451          

jurisdiction has issued an order that either quashes a subpoena    452          

or permits the individual to withhold the testimony or evidence    453          

in issue.                                                                       

      (C)  Disciplinary actions taken by the board under           455          

divisions (A) and (B) of this section shall be taken pursuant to   456          

an adjudication under Chapter 119. of the Revised Code, except     457          

                                                          11     


                                                                 
that in lieu of an adjudication, the board may enter into a        458          

consent agreement with an individual to resolve an allegation of   459          

a violation of this chapter or any rule adopted under it.  A       460          

consent agreement, when ratified by an affirmative vote of not     461          

fewer than six members of the board, shall constitute the          462          

findings and order of the board with respect to the matter         463          

addressed in the agreement.  If the board refuses to ratify a      464          

consent agreement, the admissions and findings contained in the    465          

consent agreement shall be of no force or effect.                  466          

      (D)  For purposes of divisions (B)(10), (12), and (14) of    468          

this section, the commission of the act may be established by a    469          

finding by the board, pursuant to an adjudication under Chapter    471          

119. of the Revised Code, that the individual committed the act.                

The board does not have jurisdiction under those divisions if the  474          

trial court renders a final judgment in the individual's favor                  

and that judgment is based upon an adjudication on the merits.     477          

The board has jurisdiction under those divisions if the trial      478          

court issues an order of dismissal upon technical or procedural    479          

grounds.                                                                        

      (E)  The sealing of conviction records by any court shall    481          

have no effect upon a prior board order entered under this         482          

section or upon the board's jurisdiction to take action under      483          

this section if, based upon a plea of guilty, a judicial finding   485          

of guilt, or a judicial finding of eligibility for treatment in    486          

lieu of conviction, the board issued a notice of opportunity for   487          

a hearing prior to the court's order to seal the records.  The     488          

board shall not be required to seal, destroy, redact, or           489          

otherwise modify its records to reflect the court's sealing of     490          

conviction records.                                                491          

      (F)(1)  The board shall investigate evidence that appears    493          

to show that a person has violated any provision of this chapter   495          

or any rule adopted under it.  Any person may report to the board               

in a signed writing any information that the person may have that  497          

appears to show a violation of any provision of this chapter or    498          

                                                          12     


                                                                 
any rule adopted under it.  In the absence of bad faith, any       500          

person who reports information of that nature or who testifies                  

before the board in any adjudication conducted under Chapter 119.  502          

of the Revised Code shall not be liable in damages in a civil      503          

action as a result of the report or testimony.  Each complaint or  505          

allegation of a violation received by the board shall be assigned  506          

a case number and shall be recorded by the board.                  507          

      (2)  Investigations of alleged violations of this chapter    509          

or any rule adopted under it shall be supervised by the            511          

supervising member elected by the board in accordance with         512          

section 4731.02 of the Revised Code and by the secretary as        513          

provided in section 4731.39 of the Revised Code.  The president                 

may designate another member of the board to supervise the         515          

investigation in place of the supervising member.  No member of                 

the board who supervises the investigation of a case shall         517          

participate in further adjudication of the case.                                

      (3)  In investigating a possible violation of this chapter   520          

or any rule adopted under this chapter, the board may administer   522          

oaths, order the taking of depositions, issue subpoenas, and       523          

compel the attendance of witnesses and production of books,        524          

accounts, papers, records, documents, and testimony, except that   525          

a subpoena for patient record information shall not be issued      526          

without consultation with the attorney general's office and        527          

approval of the secretary and supervising member of the board.     529          

Before issuance of a subpoena for patient record information, the  530          

secretary and supervising member shall determine whether there is  533          

probable cause to believe that the complaint filed alleges a                    

violation of this chapter or any rule adopted under it and that    534          

the records sought are relevant to the alleged violation and       536          

material to the investigation.  The subpoena may apply only to     537          

records that cover a reasonable period of time surrounding the     538          

alleged violation.                                                 539          

      On failure to comply with any subpoena issued by the board   542          

and after reasonable notice to the person being subpoenaed, the    543          

                                                          13     


                                                                 
board may move for an order compelling the production of persons   544          

or records pursuant to the Rules of Civil Procedure.               545          

      A subpoena issued by the board may be served by a sheriff,   547          

the sheriff's deputy, or a board employee designated by the        548          

board.  Service of a subpoena issued by the board may be made by   550          

delivering a copy of the subpoena to the person named therein,     551          

reading it to the person, or leaving it at the person's usual      552          

place of residence.  When the person being served is a person      553          

whose practice is authorized by this chapter, service of the       554          

subpoena may be made by certified mail, restricted delivery,       555          

return receipt requested, and the subpoena shall be deemed served  556          

on the date delivery is made or the date the person refuses to     557          

accept delivery.                                                                

      A sheriff's deputy who serves a subpoena shall receive the   559          

same fees as a sheriff.  Each witness who appears before the       561          

board in obedience to a subpoena shall receive the fees and        563          

mileage provided for witnesses in civil cases in the courts of     564          

common pleas.                                                                   

      (4)  All hearings and investigations of the board shall be   566          

considered civil actions for the purposes of section 2305.251 of   567          

the Revised Code.                                                  568          

      (5)  Information received by the board pursuant to an        570          

investigation is confidential and not subject to discovery in any  571          

civil action.                                                      572          

      The board shall conduct all investigations and proceedings   574          

in a manner that protects the confidentiality of patients and      576          

persons who file complaints with the board.  The board shall not   578          

make public the names or any other identifying information about   579          

patients or complainants unless proper consent is given or, in     580          

the case of a patient, a waiver of the patient privilege exists    581          

under division (B) of section 2317.02 of the Revised Code, except  582          

that consent or a waiver of that nature is not required if the     583          

board possesses reliable and substantial evidence that no bona     585          

fide physician-patient relationship exists.                        586          

                                                          14     


                                                                 
      The board may share any information it receives pursuant to  589          

an investigation, including patient records and patient record     590          

information, with other licensing boards and governmental          591          

agencies that are investigating alleged professional misconduct    592          

and with law enforcement agencies and other governmental agencies  594          

that are investigating or prosecuting alleged criminal offenses.                

A board or agency that receives the information shall comply with  595          

the same requirements regarding confidentiality as those with      596          

which the state medical board must comply, notwithstanding any     597          

conflicting provision of the Revised Code or procedure of the      599          

board or agency that applies when the board or agency is dealing                

with other information in its possession.  The information may be  601          

admitted into evidence in a criminal trial in accordance with the  602          

Rules of Evidence, but the court shall require that appropriate    603          

measures are taken to ensure that confidentiality is maintained    604          

with respect to any part of the information that contains names    605          

or other identifying information about patients or complainants                 

whose confidentiality was protected by the state medical board     606          

when the information was in the board's possession.  Measures to   607          

ensure confidentiality that may be taken by the court include      608          

sealing its records or deleting specific information from its      610          

records.                                                                        

      (6)  On a quarterly basis, the board shall prepare a report  612          

that documents the disposition of all cases during the preceding   613          

three months.  The report shall contain the following information  614          

for each case with which the board has completed its activities:   615          

      (a)  The case number assigned to the complaint or alleged    617          

violation;                                                         618          

      (b)  The type of certificate to practice, if any, held by    621          

the individual against whom the complaint is directed;             622          

      (c)  A description of the allegations contained in the       624          

complaint;                                                         625          

      (d)  The disposition of the case.                            627          

      The report shall state how many cases are still pending and  630          

                                                          15     


                                                                 
shall be prepared in a manner that protects the identity of each   632          

person involved in each case.  The report shall be a public        633          

record under section 149.43 of the Revised Code.                                

      (G)  If the secretary and supervising member determine that  635          

there is clear and convincing evidence that an individual has      637          

violated division (B) of this section and that the individual's    638          

continued practice presents a danger of immediate and serious      640          

harm to the public, they may recommend that the board suspend the  641          

individual's certificate to practice without a prior hearing.      643          

Written allegations shall be prepared for consideration by the                  

board.                                                             644          

      The board, upon review of those allegations and by an        646          

affirmative vote of not fewer than six of its members, excluding   648          

the secretary and supervising member, may suspend a certificate    649          

without a prior hearing.  A telephone conference call may be       650          

utilized for reviewing the allegations and taking the vote on the  651          

summary suspension.                                                652          

      The board shall issue a written order of suspension by       654          

certified mail or in person in accordance with section 119.07 of   655          

the Revised Code.  The order shall not be subject to suspension    657          

by the court during pendency of any appeal filed under section     658          

119.12 of the Revised Code.  If the individual subject to the      660          

summary suspension requests an adjudicatory hearing by the board,  661          

the date set for the hearing shall be within fifteen days, but     662          

not earlier than seven days, after the individual requests the     664          

hearing, unless otherwise agreed to by both the board and the      665          

individual.                                                                     

      Any summary suspension imposed under this division shall     667          

remain in effect, unless reversed on appeal, until a final         668          

adjudicative order issued by the board pursuant to this section    669          

and Chapter 119. of the Revised Code becomes effective.  The       670          

board shall issue its final adjudicative order within sixty days   671          

after completion of its hearing.  A failure to issue the order     672          

within sixty days shall result in dissolution of the summary       673          

                                                          16     


                                                                 
suspension order but shall not invalidate any subsequent, final    674          

adjudicative order.                                                675          

      (H)  If the board takes action under division (B)(9), (11),  678          

or (13) of this section and the judicial finding of guilt, guilty  679          

plea, or judicial finding of eligibility for treatment in lieu of  680          

conviction is overturned on appeal, upon exhaustion of the         682          

criminal appeal, a petition for reconsideration of the order may   683          

be filed with the board along with appropriate court documents.    684          

Upon receipt of a petition of that nature and supporting court     685          

documents, the board shall reinstate the individual's certificate  686          

to practice.  The board may then hold an adjudication under        687          

Chapter 119. of the Revised Code to determine whether the          688          

individual committed the act in question.  Notice of an            690          

opportunity for a hearing shall be given in accordance with        691          

Chapter 119. of the Revised Code.  If the board finds, pursuant    692          

to an adjudication held under this division, that the individual   693          

committed the act or if no hearing is requested, the board may     695          

order any of the sanctions identified under division (B) of this   696          

section.                                                                        

      (I)  The certificate to practice issued to an individual     698          

under this chapter and the individual's practice in this state     700          

are automatically suspended as of the date the individual pleads                

guilty to, is found by a judge or jury to be guilty of, or is      702          

subject to a judicial finding of eligibility for treatment in      703          

lieu of conviction for any of the following criminal offenses in   705          

this state or a substantially equivalent criminal offense in       706          

another jurisdiction: aggravated murder, murder, voluntary         707          

manslaughter, felonious assault, kidnapping, rape, sexual          708          

battery, gross sexual imposition, aggravated arson, aggravated     709          

robbery, or aggravated burglary.  Continued practice after         711          

suspension shall be considered practicing without a certificate.   712          

      The board shall notify the individual subject to the         715          

suspension by certified mail or in person in accordance with       716          

section 119.07 of the Revised Code.  If an individual whose        717          

                                                          17     


                                                                 
certificate is suspended under this division fails to make a       718          

timely request for an adjudication under Chapter 119. of the       719          

Revised Code, the board shall enter a final order permanently      720          

revoking the individual's certificate to practice.                 721          

      (J)  If the board is required by Chapter 119. of the         724          

Revised Code to give notice of an opportunity for a hearing and    725          

if the individual subject to the notice does not timely request a  726          

hearing in accordance with section 119.07 of the Revised Code,     728          

the board is not required to hold a hearing, but may adopt, by an  729          

affirmative vote of not fewer than six of its members, a final     731          

order that contains the board's findings.  In that final order,    732          

the board may order any of the sanctions identified under          733          

division (A) or (B) of this section.                               734          

      (K)  Any action taken by the board under division (B) of     736          

this section resulting in a suspension from practice shall be      737          

accompanied by a written statement of the conditions under which   738          

the individual's certificate to practice may be reinstated.  The   740          

board shall adopt rules governing conditions to be imposed for     741          

reinstatement.  Reinstatement of a certificate suspended pursuant  742          

to division (B) of this section requires an affirmative vote of    743          

not fewer than six members of the board.                           744          

      (L)  When the board refuses to grant a certificate to an     747          

applicant, revokes an individual's certificate to practice,        749          

refuses to register an applicant, or refuses to reinstate an       750          

individual's certificate to practice, the board may specify that   751          

its action is permanent.  An individual subject to a permanent     752          

action taken by the board is forever thereafter ineligible to      753          

hold a certificate to practice and the board shall not accept an   754          

application for reinstatement of the certificate or for issuance   755          

of a new certificate.                                                           

      (M)  Notwithstanding any other provision of the Revised      757          

Code, all of the following apply:                                  758          

      (1)  The surrender of a certificate issued under this        760          

chapter shall not be effective unless or until accepted by the     762          

                                                          18     


                                                                 
board.  Reinstatement of a certificate surrendered to the board    763          

requires an affirmative vote of not fewer than six members of the  764          

board.                                                                          

      (2)  An application for a certificate made under the         767          

provisions of this chapter may not be withdrawn without approval   769          

of the board.                                                                   

      (3)  Failure by an individual to renew a certificate of      772          

registration in accordance with this chapter shall not remove or                

limit the board's jurisdiction to take any disciplinary action     774          

under this section against the individual.                         775          

      (N)  Sanctions shall not be imposed under division (B)(28)   778          

of this section against any person who waives deductibles and      779          

copayments as follows:                                                          

      (1)  In compliance with the health benefit plan that         781          

expressly allows such a practice.  Waiver of the deductibles or    782          

copayments shall be made only with the full knowledge and consent  783          

of the plan purchaser, payer, and third-party administrator.       784          

Documentation of the consent shall be made available to the board  785          

upon request.                                                                   

      (2)  For professional services rendered to any other person  787          

authorized to practice pursuant to this chapter, to the extent     789          

allowed by this chapter and rules adopted by the board.            790          

      (O)  Under the board's investigative duties described in     792          

this section and subject to division (F) of this section, the      794          

board shall develop and implement a quality intervention program   796          

designed to improve through remedial education the clinical and    798          

communication skills of individuals authorized under this chapter  799          

to practice medicine and surgery, osteopathic medicine and                      

surgery, and podiatry.  In developing and implementing the         801          

quality intervention program, the board may do all of the          802          

following:                                                                      

      (1)  Offer in appropriate cases as determined by the board   804          

an educational and assessment program pursuant to an               805          

investigation the board conducts under this section;               806          

                                                          19     


                                                                 
      (2)  Select providers of educational and assessment          808          

services, including a quality intervention program panel of case   809          

reviewers;                                                                      

      (3)  Make referrals to educational and assessment service    812          

providers and approve individual educational programs recommended  813          

by those providers.  The board shall monitor the progress of each  814          

individual undertaking a recommended individual educational        815          

program.                                                           816          

      (4)  Determine what constitutes successful completion of an  818          

individual educational program and require further monitoring of   819          

the individual who completed the program or other action that the  821          

board determines to be appropriate;                                             

      (5)  Adopt rules in accordance with Chapter 119. of the      823          

Revised Code to further implement the quality intervention         825          

program.                                                                        

      An individual who participates in an individual educational  828          

program pursuant to this division shall pay the financial          829          

obligations arising from that educational program.                 830          

      Sec. 4731.227.  AS USED IN THIS SECTION, "ALTERNATIVE        832          

MEDICAL TREATMENT" MEANS A TREATMENT THAT DIFFERS FROM TREATMENTS  834          

USED IN ACCEPTED OR PREVAILING STANDARDS OF MEDICAL CARE BUT IS                 

REASONABLE WHEN ITS BENEFITS ARE COMPARED TO THE RISK OF HARM OF   836          

THE ALTERNATIVE MEDICAL TREATMENT ITSELF OR OF THE FAILURE TO                   

UTILIZE ACCEPTED OR PREVAILING STANDARDS OF MEDICAL CARE.          837          

      AN INDIVIDUAL AUTHORIZED TO PRACTICE MEDICINE AND SURGERY    839          

OR OSTEOPATHIC MEDICINE AND SURGERY MAY USE ALTERNATIVE MEDICAL    840          

TREATMENTS IF THE PATIENT PROVIDES INFORMED CONSENT AND THE        841          

TREATMENT IS CONSISTENT WITH THE STANDARDS ENFORCED BY THE STATE   842          

MEDICAL BOARD PURSUANT TO SECTION 4731.22 OF THE REVISED CODE AND               

ANY RULES ADOPTED BY THE BOARD.                                    843          

      Section 2.  That existing section 4731.22 of the Revised     846          

Code is hereby repealed.