As Introduced

125th General Assembly Regular Session 2003-2004

H. B. No. 105

Representatives Collier, D. Evans, Hollister, McGregor, Raga, Schaffer, Redfern, Widener, Jerse, Webster, Allen, G. Smith 

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A BILL

To amend sections 4745.01, 4761.02, and 4761.03 and

1

to enact sections 4752.01 to 4752.09 and 4752.99

2

of the Revised Code to require licensure of home

3

medical equipment services providers by the Ohio

4

Respiratory Care Board.

5

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

Section 1.  That sections 4745.01, 4761.02, and 4761.03 be	6
amended and sections 4752.01, 4752.02, 4752.03, 4752.04, 4752.05,	7
4752.06, 4752.07, 4752.08, 4752.09, and 4752.99 of the Revised	8
Code be enacted to read as follows:	9

Sec. 4745.01.  (A) "Standard renewal procedure," as used in	10
Chapters 905., 907., 909., 911., 913., 915., 918., 921., 923.,	11
927., 942., 943., 953., 1321., 3710., 3713., 3719., 3731., 3742.,	12
3748., 3769., 3783., 3921., 3951., 4104., 4105., 4143., 4169.,	13
4561., 4703., 4707., 4709., 4713., 4715., 4717., 4723., 4725.,	14
4727., 4728., 4729., 4731., 4733., 4734., 4735., 4739., 4741.,	15
4747., 4749., 4752., 4753., 4755., 4757., 4758., 4759., 4761.,	16
4766., 4773., and 4775. of the Revised Code, means the license	17
renewal procedures specified in this chapter.	18

(B) "Licensing agency," as used in this chapter, means any	19
department, division, board, section of a board, or other state	20
governmental unit subject to the standard renewal procedure, as	21
defined in this section, and authorized by the Revised Code to	22
issue a license to engage in a specific profession, occupation, or	23
occupational activity, or to have charge of and operate certain	24
specified equipment, machinery, or premises.	25

(C) "License," as used in this chapter, means a license,	26
certificate, permit, card, or other authority issued or conferred	27
by a licensing agency by authority of which the licensee has or	28
claims the privilege to engage in the profession, occupation, or	29
occupational activity, or to have control of and operate certain	30
specific equipment, machinery, or premises, over which the	31
licensing agency has jurisdiction.	32

(D) "Licensee," as used in this chapter, means either the	33
person to whom the license is issued or renewed by a licensing	34
agency, or the person, partnership, or corporation at whose	35
request the license is issued or renewed.	36

(E) "Renewal" and "renewed," as used in this chapter and in	37
the chapters of the Revised Code specified in division (A) of this	38
section, includes the continuing licensing procedure provided in	39
Chapter 3748. of the Revised Code and rules adopted under it and	40
in sections 1321.05 and 3921.33 of the Revised Code, and as	41
applied to those continuing licenses any reference in this chapter	42
to the date of expiration of any license shall be construed to	43
mean the due date of the annual or other fee for the continuing	44
license.	45

Sec. 4752.01. As used in this chapter:

46

(A) "Authorized health care professional" means a person	47
authorized under Chapter 4731. of the Revised Code to practice	48
medicine and surgery or osteopathic medicine and surgery or	49
otherwise authorized under Ohio law to prescribe the use of home	50
medical equipment by a patient.	51

(B) "Home medical equipment" means equipment that can stand	52
repeated use, is primarily and customarily used to serve a medical	53
purpose, is not useful to a person in the absence of illness or	54
injury, and is appropriate for use in the home. "Home medical	55
equipment" includes all of the following:	56

(1) Life-sustaining equipment prescribed by an authorized	57
health care professional that mechanically sustains, restores, or	58
supplants a vital bodily function, such as breathing;	59

(2) Technologically sophisticated medical equipment	60
prescribed by an authorized health care professional that requires	61
individualized adjustment or regular maintenance by a home medical	62
equipment services provider to maintain a patient's health care	63
condition or the effectiveness of the equipment;	64

(3) Any item specified by the board in rules adopted under	65
division (C) of section 4752.06 of the Revised Code.	66

(C) "Home medical equipment services" means the sale,	67
delivery, installation, maintenance, replacement, or instruction	68
in the use of home medical equipment.	69

(D) "Home medical equipment services provider" means a person	70
engaged in providing home medical equipment services.	71

(E) "Hospital" has the same meaning as in section 3727.01 of	72
the Revised Code.	73

(F) "Sell or rent" means to transfer ownership or the right	74
to use property, whether in person or through an agent, employee,	75
or other person, in return for compensation.	76

Sec. 4752.02. (A) Except as provided in division (B) of this	77
section, no person who does not hold a valid license issued under	78
this chapter shall provide home medical equipment or services or	79
claim to the public to be a home medical equipment services	80
provider.	81

(B) Division (A) of this section does not apply to any of the	82
following:	83

(1) A health care practitioner, as defined in section 4769.01	84
of the Revised Code, who does not sell or rent home medical	85
equipment;	86

(2) A hospital that provides home medical equipment services	87
only as an integral part of patient care and does not provide the	88
services through a separate entity that has its own medicare or	89
medicaid provider number;	90

(3) A manufacturer or wholesale distributor of home medical	91
equipment that does not sell directly to the public;	92

(4) A hospice care program, as defined by section 3712.01 of	93
the Revised Code, that does not sell or rent home medical	94
equipment;	95

(5) A home, as defined by section 3721.01 of the Revised	96
Code;	97

(6) A home health agency that is certified under Title XVIII	98
of the "Social Security Act," 79 Stat. 286 (1965), 42 U.S.C.A.	99
1395, as a provider of home health services and does not sell or	100
rent home medical equipment;	101

(7) An individual who holds a current, valid license issued	102
under Chapter 4741. of the Revised Code to practice veterinary	103
medicine;	104

(8) An individual who holds a current, valid license issued	105
under Chapter 4779. of the Revised Code to practice orthotics,	106
prosthetics, or pedorthics;	107

(9) A pharmacy licensed under Chapter 4729. of the Revised	108
Code that either does not sell or rent home medical equipment or	109
receives total payments of less than ten thousand dollars per year	110
from selling or renting home medical equipment;	111

(10) A home dialysis equipment provider regulated by federal	112
law.	113

Sec. 4752.03. A person seeking a license to provide home	114
medical equipment services shall apply to the Ohio respiratory	115
care board on a form the board shall prescribe and provide. The	116
application must be accompanied by the license application fee	117
established in rules adopted under section 4752.06 of the Revised	118
Code and specify the location of the facility from which services	119
will be provided.	120

Sec. 4752.04. (A) The respiratory care board shall issue a	121
license to provide home medical equipment services to each	122
applicant that meets one of the following requirements:	123

(1) Meets the standards established by the board in rules	124
adopted under section 4752.06 of the Revised Code;	125

(2) Is a hospital that provides home medical equipment	126
services through a separate entity that has its own medicare or	127
medicaid provider number;	128

(3) Is a pharmacy licensed under Chapter 4729. of the Revised	129
Code that receives total payments of ten thousand dollars or more	130
per year from selling or renting home medical equipment;	131

(4) Is an entity accredited by the joint commission on	132
accreditation of healthcare organizations;	133

(5) Is accredited based on home health care standards by an	134
accrediting body recognized by the board in rules adopted under	135
section 4752.06 of the Revised Code and provides documentation of	136
its accreditation to the board.	137

(B) During the period ending two years after the effective	138
date of this section, an applicant that does not meet any of the	139
requirements of division (A) of this section shall be granted an	140
initial license if for at least twelve months prior to the	141
effective date of this section the applicant was engaged in the	142
business of providing home medical equipment services.	143

(C) The board may conduct a personal interview of an	144
applicant, or an applicant's representative, to determine the	145
applicant's qualifications for licensure.	146

(D) A license issued under this section is valid from the day	147
it is issued and expires annually on the thirtieth day of June. A	148
license may be renewed in accordance with section 4752.05 of the	149
Revised Code.	150

(E) A license issued under this section is valid only for the	151
facility named in the application. A person that intends to	152
provide home medical equipment services from more than one	153
facility must obtain a separate license for each facility.	154

Sec. 4752.05. A license issued under this chapter shall be	155
renewed by the Ohio respiratory care board if the license holder	156
is in compliance with the applicable requirements of this chapter.	157

An application for license renewal shall be accompanied by	158
the renewal fee established in rules adopted under section 4752.06	159
of the Revised Code and documentation satisfactory to the board	160
that the continuing education requirements of section 4752.07 of	161
the Revised Code have been met. Renewals shall be made in	162
accordance with the standard renewal procedure established under	163
Chapter 4745. of the Revised Code.	164

Sec. 4752.06. (A) The Ohio respiratory care board shall adopt	165
rules to implement and administer this chapter. The rules shall	166
establish all of the following:	167

(1) Standards an applicant must meet to be eligible to be	168
granted a license under section 4752.04 of the Revised Code;	169

(2) Standards for personnel policies, equipment storage,	170
equipment maintenance, and record keeping;	171

(3) Standards for continuing education programs in home	172
medical equipment services for individuals who provide home	173
medical equipment services while employed by or under the control	174
of a home medical equipment services provider;	175

(4) Standards and procedures for inspection of home medical	176
equipment providers and facilities from which home medical	177
equipment services are provided and for appeal of inspection	178
results;	179

(5) Fees for initial license, license, license renewal, and	180
inspections;	181

(6) Any other standards, requirements, or procedures the	182
board considers necessary for the implementation or administration	183
of this chapter.	184

(B) The board shall adopt rules that specify the following:

185

(1) The accrediting bodies it recognizes for the purposes of	186
division (A)(5) of section 4752.04 of the Revised Code;	187

(2) Items considered home medical equipment for purposes of	188
divisions (B)(1) and (2) of section 4752.01 of the Revised Code.	189

(C) The board may adopt rules specifying additional items	190
that are considered home medical equipment for purposes of	191
division (B) of section 4752.01 of the Revised Code.	192

(D) Rules shall be adopted under this chapter in accordance	193
with Chapter 119. of the Revised Code. Prior to adopting any rule,	194
the board shall consult with representatives of any association of	195
home medical equipment services providers that do business in this	196
state.	197

Sec. 4752.07. The holder of a license issued under this	198
chapter shall do all of the following:	199

(A) Maintain a physical facility and a medical equipment	200
inventory;	201

(B) Establish equipment management and personnel policies;

202

(C) Provide life-sustaining home medical equipment, as	203
described in division (B)(1) of section 4752.01 of the Revised	204
Code, and related home medical equipment services twenty-four	205
hours per day, seven days per week;	206

(D) Require persons in its employ or under its control who	207
provide home medical equipment services to successfully complete	208
continuing education programs in home medical equipment services	209
that meet the standards established by rule adopted under section	210
4752.06 of the Revised Code and maintain records on participation	211
in those programs;	212

(E) Maintain records on all individuals to whom it provides	213
home medical equipment and services;	214

(F) Maintain liability insurance, including coverage for	215
professional and products liability;	216

(G) Comply with all other requirements established by rule	217
adopted under section 4752.06 of the Revised Code.	218

Sec. 4752.08. (A) The Ohio respiratory care board may inspect	219
the operations and facility, subpoena the records, and compel	220
testimony of employees of any home medical equipment services	221
provider. Inspections shall be conducted as provided in rules	222
adopted by the board under section 4752.06 of the Revised Code.	223

(B) The board shall employ investigators who shall, under the	224
direction of the executive director of the board, investigate	225
complaints and conduct inspections. Pursuant to an investigation	226
or inspection, investigators may review and audit records during	227
normal business hours at the place of business of the person being	228
investigated. The board and its employees shall not disclose	229
confidential information obtained during an investigation, except	230
pursuant to a court order.	231

(C) The board shall send the provider a report of the results	232
of an inspection. If the board determines that the provider is not	233
in compliance with any requirement of this chapter, the board may	234
direct the provider to attain compliance. Failure of the provider	235
to comply with the directive is grounds for action by the board	236
under division (A)(1) of section 4752.09 of the Revised Code.	237

(D) A provider that disputes the results of an inspection may	238
file an appeal with the board not later than ninety days after	239
receiving the report. The board shall review the inspection report	240
and, at the request of the provider, conduct a new inspection.	241

Sec. 4752.09. (A) The Ohio respiratory care board may, in	242
accordance with Chapter 119. of the Revised Code, suspend or	243
revoke a license issued under this chapter or discipline a license	244
holder by imposing a fine of not more than five thousand dollars	245
or taking other disciplinary action on any of the following	246
grounds:	247

(1) Violation of any provision of this chapter or an order or	248
rule of the board or failure to meet the standards established	249
under division (A) of section 4752.06 of the Revised Code;	250

(2) A plea of guilty to or a judicial finding of guilt of a	251
felony or a misdemeanor that involves dishonesty or is directly	252
related to the provision of medical equipment;	253

(3) Making a material misstatement in furnishing information	254
to the board;	255

(4) Professional incompetence;

256

(5) Being guilty of negligence or gross misconduct in	257
providing home medical equipment and services;	258

(6) Aiding, assisting, or willfully permitting another person	259
to violate any provision of this chapter or an order or rule of	260
the board;	261

(7) Failing, within sixty days, to provide information in	262
response to a written request by the board;	263

(8) Engaging in conduct likely to deceive, defraud, or harm	264
the public;	265

(9) Denial, revocation, suspension, or restriction of a	266
license to provide home medical equipment services, for any reason	267
other than failure to renew, in another state or jurisdiction;	268

(10) Directly or indirectly giving to or receiving from any	269
person a fee, commission, rebate, or other form of compensation	270
for services not rendered;	271

(11) Knowingly making or filing false records, reports, or	272
billings in the course of providing home medical equipment and	273
services, including false records, reports, or billings prepared	274
for or submitted to state and federal agencies or departments;	275

(12) Failing to comply with federal rules issued pursuant to	276
the medicare program established under Title XVIII of the "Social	277
Security Act," 49 Stat. 620(1935), 42 U.S.C.A. 1395, as amended,	278
relating to operations, financial transactions, and general	279
business practices of home medical services providers.	280

(B) The respiratory care board may suspend a license without	281
a hearing if it determines that there is evidence that the license	282
holder is subject to actions under this section and that there is	283
clear and convincing evidence that continued operation by the	284
license holder presents an immediate and serious harm to the	285
public. The president and executive director of the board shall	286
make a preliminary determination and describe the evidence on	287
which they made their determination to the other members of the	288
board. The board may by resolution designate another board member	289
to act in place of the president of the board or another employee	290
to act in the place of the executive director, in the event that	291
the board president or executive director is unavailable or unable	292
to act. On consideration of the evidence, the board may by an	293
affirmative vote of four members, not including the president of	294
the board or the person named to act in place of the president,	295
impose the summary suspension.	296

Immediately following the decision to suspend a license under	297
this division, the board shall issue a written order of suspension	298
and cause it to be delivered in accordance with section 119.07 of	299
the Revised Code. The order shall not be subject to suspension by	300
the court during the pendency of any appeal filed under section	301
119.12 of the Revised Code. If the license holder requests an	302
adjudication hearing, the date set for the hearing shall be within	303
fifteen days but not earlier than seven days after the license	304
holder requests the hearing, unless another date is agreed to by	305
the license holder and the board. The suspension shall remain in	306
effect, unless reversed by the board, until a final adjudication	307
order issued by the board pursuant to this section and Chapter	308
119. of the Revised Code becomes effective. The board shall issue	309
its final adjudication order not later than ninety days after	310
completion of the hearing. The board's failure to issue the order	311
by that day shall cause the summary suspension to end, but shall	312
not affect the validity of any subsequent final adjudication	313
order.	314

Sec. 4752.99. Whoever violates division (A) of section	315
4752.02 of the Revised Code is guilty of a minor misdemeanor on	316
the first offense. On the second offense, the person is guilty of	317
a misdemeanor of the fourth degree. On each subsequent offense,	318
the person is guilty of a misdemeanor of the first degree.	319

Sec. 4761.02.  The governor, with the advice and consent of	320
the senate, shall appoint the Ohio respiratory care board,	321
consisting of fiveseven residents of this state. Three members of	322
the board shall be respiratory care professionals who were engaged	323
in or actively associated with the practice of respiratory care in	324
this state for at least five years immediately preceding	325
appointment. Two members shall be home medical equipment services	326
providers with not less than five years of management experience	327
in home medical equipment services prior to appointment. One	328
member shall be a physician who has clinical training and	329
experience in the management of pulmonary disease. One member	330
shall represent the public.	331

After the term of a member of the board expires or becomes	332
vacant, the Ohio state medical association may submit to the	333
governor the names of nominees for the board position to be filled	334
by a physician. The board of directors of the Ohio society for	335
respiratory care, inc., may recommend to the governor at least	336
three persons for each board position to be filled by a	337
respiratory care professional. The American lung association of	338
Ohio may submit to the governor the names of nominees for the	339
board position to be filled by a person representing the public.	340
The Ohio association of medical equipment services may submit to	341
the governor the names of nominees for the two board positions to	342
be filled by home medical equipment services providers. The	343
governor shall consider these nominees in making the appointments.	344

TermsOf the initial two home medical equipment services	345
providers appointed to the board, one shall be appointed for a	346
term ending the fourteenth day of March immediately following the	347
date that is one year after the effective date of this amendment	348
and one for a term ending the fourteenth day of March immediately	349
following the date that is two years after the effective date of	350
this amendment. Thereafter, terms of office shall be for three	351
years, each term ending on the same day of the same month of the	352
year as did the term which it succeeds. A member shall serve	353
subsequent to the expiration of the member's term until athe	354
member's successor is appointed and qualifies, or until a period	355
of sixty days has elapsed, whichever occurs first. Each member,	356
before entering upon the duties of office, shall subscribe to and	357
file with the secretary of state the oath of office required under	358
Section 7 of Article XV, Ohio Constitution. Vacancies shall be	359
filled in the manner prescribed for the regular appointments to	360
the board and shall be limited to the unexpired terms. Members of	361
the board may be reappointed.	362

Annually, upon the qualification of the member or members	363
appointed in that year, the Ohio respiratory care board shall	364
organize and shall select from its members a president and	365
secretary. A majority of the members of the board shall constitute	366
a quorum to transact and vote on the business of the board.	367

Each member of the board shall receive an amount fixed	368
pursuant to division (J) of section 124.15 of the Revised Code for	369
each day actually employed in the discharge of the member's	370
duties. In addition, each member shall receive actual and	371
necessary expenses incurred in the performance of the member's	372
official duties.	373

The board shall employ an executive director who shall be in	374
the unclassified service of the state. The executive director	375
shall assist the board in the administration and enforcement of	376
this chapter and shall employ individuals as the board considers	377
necessary to provide that assistance.	378

Sec. 4761.03.  The Ohio respiratory care board shall regulate	379
the practice of respiratory care in this state and the persons to	380
whom the board issues licenses and limited permits and shall	381
license home medical equipment services providers under Chapter	382
4752. of the Revised Code under this chapter. Rules adopted under	383
this chapter that deal with the provision of respiratory care in a	384
hospital, other than rules regulating the issuance of licenses or	385
limited permits, shall be consistent with the conditions for	386
participation under medicare, Title XVIII of the "Social Security	387
Act," 79 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended, and with	388
the respiratory care accreditation standards of the joint	389
commission on accreditation of healthcare organizations or the	390
American osteopathic association.	391

The board shall:

392

(A) Adopt, and may rescind or amend, rules in accordance with	393
Chapter 119. of the Revised Code to carry out the purposes of this	394
chapter, including rules prescribing:	395

(1) The form and manner for filing applications for licensure	396
and renewal, limited permits, and limited permit extensions under	397
sections 4761.05 and 4761.06 of the Revised Code;	398

(2) The form, scoring, and scheduling of examinations and	399
reexaminations for licensure and license renewal;	400

(3) Standards for the approval of educational programs	401
required to qualify for licensure and continuing education	402
programs required for license renewal;	403

(4) Continuing education courses and the number of hour	404
requirements necessary for license renewal, in accordance with	405
section 4761.06 of the Revised Code;	406

(5) Procedures for the issuance and renewal of licenses and	407
limited permits;	408

(6) Procedures for the denial, suspension, permanent	409
revocation, refusal to renew, and reinstatement of licenses and	410
limited permits, the conduct of hearings, and the imposition of	411
fines for engaging in conduct that is grounds for such action and	412
hearings under section 4761.09 of the Revised Code;	413

(7) Standards of ethical conduct for the practice of	414
respiratory care;	415

(8) Conditions under which the license renewal fee and	416
continuing education requirements may be waived at the request of	417
a licensee who is not in active practice;	418

(9) The respiratory care tasks that may be performed by an	419
individual practicing as a polysomnographic technologist pursuant	420
to division (B)(3) of section 4761.10 of the Revised Code;	421

(10) Procedures for registering out-of-state respiratory care	422
providers authorized to practice in this state under division	423
(A)(4) of section 4761.11 of the Revised Code.	424

(B) Determine the sufficiency of an applicant's	425
qualifications for admission to the licensing examination or a	426
reexamination, and for the issuance or renewal of a license or	427
limited permit;	428

(C) Determine the respiratory care educational programs that	429
are acceptable for fulfilling the requirements of division (A) of	430
section 4761.04 of the Revised Code;	431

(D) Schedule, administer, and score the licensing examination	432
or any reexamination for license renewal or reinstatement. The	433
board shall administer the licensing examinations at least twice a	434
year and notify applicants of the time and place of the	435
examinations.	436

(E) Investigate complaints concerning alleged violations of	437
section 4761.10 of the Revised Code or grounds for the suspension,	438
permanent revocation, or refusal to issue licenses or limited	439
permits under section 3123.47 or 4761.09 of the Revised Code. The	440
board shall employ investigators who shall, under the direction of	441
the executive director of the board, investigate complaints and	442
make inspections and other inquiries as, in the judgment of the	443
board, are appropriate to enforce sections 3123.41 to 3123.50,	444
4761.09, and 4761.10 of the Revised Code. Pursuant to an	445
investigation and inspection, the investigators may review and	446
audit records during normal business hours at the place of	447
business of a licensee or person who is the subject of a complaint	448
filed with the board or at any place where the records are kept.	449

Except when required by court order, the board and its	450
employees shall not disclose confidential information obtained	451
during an investigation or identifying information about any	452
person who files a complaint with the board.	453

The board may hear testimony in matters relating to the	454
duties imposed upon it and issue subpoenas pursuant to an	455
investigation. The president and secretary of the board may	456
administer oaths.	457

(F) Conduct hearings, keep records of its proceedings, and do	458
all such other things as are necessary and proper to carry out and	459
enforce the provisions of this chapter;	460

(G) Maintain, publish, and make available upon request, for a	461
fee not to exceed the actual cost of printing and mailing:	462

(1) The requirements for the issuance of licenses and limited	463
permits under this chapter and rules adopted by the board;	464

(2) A current register of every person licensed to practice	465
respiratory care in this state, to include the addresses of the	466
person's last known place of business and residence, the effective	467
date and identification number of the license, the name and	468
location of the institution that granted the person's degree or	469
certificate of completion of respiratory care educational	470
requirements, and the date the degree or certificate was issued;	471

(3) A list of the names and locations of the institutions	472
that each year granted degrees or certificates of completion in	473
respiratory care;	474

(4) After the administration of each examination, a list of	475
persons who passed the examination.	476

(H) Submit to the governor and to the general assembly each	477
year a report of all of its official actions during the preceding	478
year, together with any findings and recommendations with regard	479
to the improvement of the profession of respiratory care;	480

(I) Administer and enforce Chapter 4752. of the Revised Code.

481

Section 2.  That existing sections 4745.01, 4761.02, and	482
4761.03 of the Revised Code are hereby repealed.	483