As Reported by the Senate Judiciary--Civil Justice Committee

126th General Assembly Regular Session 2005-2006

Sub. H. B. No. 144

Representatives Buehrer, Aslanides, Barrett, Daniels, Domenick, C. Evans, D. Evans, Faber, Flowers, Gilb, Harwood, Hughes, Latta, McGregor, Miller, Oelslager, Reidelbach, Schneider, Seaver, Seitz, G. Smith 

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A BILL

To amend sections 2107.76 and 2317.02 of the Revised

1

Code to waive the physician-patient and

2

attorney-client privileges in probate cases under

3

certain circumstances, to prohibit persons who

4

have not received or waived the right to receive

5

notice of the admission of a will to probate from

6

commencing an action to contest the validity of

7

the will more than three months after the filing

8

of a certificate of giving notice or waiver of

9

notice of the admission of the will to probate,

10

and to provide that the savings statute does not

11

apply to a civil action to contest the validity of

12

a will.

13

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

Section 1. That sections 2107.76 and 2317.02 of the Revised	14
Code be amended to read as follows:	15

Sec. 2107.76. (A) No person who has received or waived the	16
right to receive the notice of the admission of a will to probate	17
required by section 2107.19 of the Revised Code may commence an	18
action permitted by section 2107.71 of the Revised Code to contest	19
the validity of the will more than three months after the filing	20
of the certificate described in division (A)(3) of section 2107.19	21
of the Revised Code. No other person may commence an action	22
permitted by section 2107.71 of the Revised Code to contest the	23
validity of the will more than three months after the initial	24
filing of a certificate described in division (A)(3) of section	25
2107.19 of the Revised Code. A person under any legal disability	26
nevertheless may commence an action permitted by section 2107.71	27
of the Revised Code to contest the validity of the will within	28
fourthree months after the disability is removed, but the rights	29
saved shall not affect the rights of a purchaser, lessee, or	30
encumbrancer for value in good faith and shall not impose any	31
liability upon a fiduciary who has acted in good faith, or upon a	32
person delivering or transferring property to any other person	33
under authority of a will, whether or not the purchaser, lessee,	34
encumbrancer, fiduciary, or other person had actual or	35
constructive notice of the legal disability.	36

(B) Section 2305.19 of the Revised Code does not apply to an	37
action permitted by section 2107.71 of the Revised Code to contest	38
the validity of a will.	39

Sec. 2317.02.  The following persons shall not testify in	40
certain respects:	41

(A) An attorney, concerning a communication made to the	42
attorney by a client in that relation or the attorney's advice to	43
a client, except that the attorney may testify by express consent	44
of the client or, if the client is deceased, by the express	45
consent of the surviving spouse or the executor or administrator	46
of the estate of the deceased client and except that. However, if	47
the client voluntarily testifies or is deemed by section 2151.421	48
of the Revised Code to have waived any testimonial privilege under	49
this division, the attorney may be compelled to testify on the	50
same subject;.	51

The testimonial privilege established under this division	52
does not apply concerning a communication between a client who has	53
since died and the deceased client's attorney if the communication	54
is relevant to a dispute between parties who claim through that	55
deceased client, regardless of whether the claims are by testate	56
or intestate succession or by inter vivos transaction, and the	57
dispute addresses the competency of the deceased client when the	58
deceased client executed a document that is the basis of the	59
dispute or whether the deceased client was a victim of fraud,	60
undue influence, or duress when the deceased client executed a	61
document that is the basis of the dispute.	62

(B)(1) A physician or a dentist concerning a communication	63
made to the physician or dentist by a patient in that relation or	64
the physician's or dentist's advice to a patient, except as	65
otherwise provided in this division, division (B)(2), and division	66
(B)(3) of this section, and except that, if the patient is deemed	67
by section 2151.421 of the Revised Code to have waived any	68
testimonial privilege under this division, the physician may be	69
compelled to testify on the same subject.	70

The testimonial privilege established under this division	71
does not apply, and a physician or dentist may testify or may be	72
compelled to testify, in any of the following circumstances:	73

(a) In any civil action, in accordance with the discovery	74
provisions of the Rules of Civil Procedure in connection with a	75
civil action, or in connection with a claim under Chapter 4123. of	76
the Revised Code, under any of the following circumstances:	77

(i) If the patient or the guardian or other legal	78
representative of the patient gives express consent;	79

(ii) If the patient is deceased, the spouse of the patient or	80
the executor or administrator of the patient's estate gives	81
express consent;	82

(iii) If a medical claim, dental claim, chiropractic claim,	83
or optometric claim, as defined in section 2305.113 of the Revised	84
Code, an action for wrongful death, any other type of civil	85
action, or a claim under Chapter 4123. of the Revised Code is	86
filed by the patient, the personal representative of the estate of	87
the patient if deceased, or the patient's guardian or other legal	88
representative.	89

(b) In any civil action concerning court-ordered treatment or	90
services received by a patient, if the court-ordered treatment or	91
services were ordered as part of a case plan journalized under	92
section 2151.412 of the Revised Code or the court-ordered	93
treatment or services are necessary or relevant to dependency,	94
neglect, or abuse or temporary or permanent custody proceedings	95
under Chapter 2151. of the Revised Code.	96

(c) In any criminal action concerning any test or the results	97
of any test that determines the presence or concentration of	98
alcohol, a drug of abuse, or alcohol and a drug of abuse in the	99
patient's blood, breath, urine, or other bodily substance at any	100
time relevant to the criminal offense in question.	101

(d) In any criminal action against a physician or dentist. In	102
such an action, the testimonial privilege established under this	103
division does not prohibit the admission into evidence, in	104
accordance with the Rules of Evidence, of a patient's medical or	105
dental records or other communications between a patient and the	106
physician or dentist that are related to the action and obtained	107
by subpoena, search warrant, or other lawful means. A court that	108
permits or compels a physician or dentist to testify in such an	109
action or permits the introduction into evidence of patient	110
records or other communications in such an action shall require	111
that appropriate measures be taken to ensure that the	112
confidentiality of any patient named or otherwise identified in	113
the records is maintained. Measures to ensure confidentiality that	114
may be taken by the court include sealing its records or deleting	115
specific information from its records.	116

(e) In any will contest action under sections 2107.71 to	117
2107.77 of the Revised Code if all of the following apply:	118

(i) The patient is deceased.

119

(ii) A party to the will contest action requests the	120
testimony, demonstrates to the court that that party would be an	121
heir of the patient if the patient died without a will, is a	122
beneficiary under the will that is the subject of the will contest	123
action, or is a beneficiary under another testamentary document	124
allegedly executed by the patient, and demonstrates to the court	125
that the testimony is necessary to establish the party's rights as	126
described in this division(i) If the communication was between a	127
patient who has since died and the deceased patient's physician or	128
dentist, the communication is relevant to a dispute between	129
parties who claim through that deceased patient, regardless of	130
whether the claims are by testate or intestate succession or by	131
inter vivos transaction, and the dispute addresses the competency	132
of the deceased patient when the deceased patient executed a	133
document that is the basis of the dispute or whether the deceased	134
patient was a victim of fraud, undue influence, or duress when the	135
deceased patient executed a document that is the basis of the	136
dispute.	137

(ii) If neither the spouse of a patient nor the executor or	138
administrator of that patient's estate gives consent under	139
division (B)(1)(a)(ii) of this section, testimony or the	140
disclosure of the patient's medical records by a physician,	141
dentist, or other health care provider under division (B)(1)(e)(i)	142
of this section is a permitted use or disclosure of protected	143
health information, as defined in 45 C.F.R. 160.103, and an	144
authorization or opportunity to be heard shall not be required.	145

(iii) Division (B)(1)(e)(i) of this section does not require	146
a mental health professional to disclose psychotherapy notes, as	147
defined in 45 C.F.R. 164.501.	148

(iv) An interested person who objects to testimony or	149
disclosure under division (B)(1)(e)(i) of this section may seek a	150
protective order pursuant to Civil Rule 26.	151

(v) A person to whom protected health information is	152
disclosed under division (B)(1)(e)(i) of this section shall not	153
use or disclose the protected health information for any purpose	154
other than the litigation or proceeding for which the information	155
was requested and shall return the protected health information to	156
the covered entity or destroy the protected health information,	157
including all copies made, at the conclusion of the litigation or	158
proceeding.	159

(2)(a) If any law enforcement officer submits a written	160
statement to a health care provider that states that an official	161
criminal investigation has begun regarding a specified person or	162
that a criminal action or proceeding has been commenced against a	163
specified person, that requests the provider to supply to the	164
officer copies of any records the provider possesses that pertain	165
to any test or the results of any test administered to the	166
specified person to determine the presence or concentration of	167
alcohol, a drug of abuse, or alcohol and a drug of abuse in the	168
person's blood, breath, or urine at any time relevant to the	169
criminal offense in question, and that conforms to section	170
2317.022 of the Revised Code, the provider, except to the extent	171
specifically prohibited by any law of this state or of the United	172
States, shall supply to the officer a copy of any of the requested	173
records the provider possesses. If the health care provider does	174
not possess any of the requested records, the provider shall give	175
the officer a written statement that indicates that the provider	176
does not possess any of the requested records.	177

(b) If a health care provider possesses any records of the	178
type described in division (B)(2)(a) of this section regarding the	179
person in question at any time relevant to the criminal offense in	180
question, in lieu of personally testifying as to the results of	181
the test in question, the custodian of the records may submit a	182
certified copy of the records, and, upon its submission, the	183
certified copy is qualified as authentic evidence and may be	184
admitted as evidence in accordance with the Rules of Evidence.	185
Division (A) of section 2317.422 of the Revised Code does not	186
apply to any certified copy of records submitted in accordance	187
with this division. Nothing in this division shall be construed to	188
limit the right of any party to call as a witness the person who	189
administered the test to which the records pertain, the person	190
under whose supervision the test was administered, the custodian	191
of the records, the person who made the records, or the person	192
under whose supervision the records were made.	193

(3)(a) If the testimonial privilege described in division	194
(B)(1) of this section does not apply as provided in division	195
(B)(1)(a)(iii) of this section, a physician or dentist may be	196
compelled to testify or to submit to discovery under the Rules of	197
Civil Procedure only as to a communication made to the physician	198
or dentist by the patient in question in that relation, or the	199
physician's or dentist's advice to the patient in question, that	200
related causally or historically to physical or mental injuries	201
that are relevant to issues in the medical claim, dental claim,	202
chiropractic claim, or optometric claim, action for wrongful	203
death, other civil action, or claim under Chapter 4123. of the	204
Revised Code.	205

(b) If the testimonial privilege described in division (B)(1)	206
of this section does not apply to a physician or dentist as	207
provided in division (B)(1)(c) of this section, the physician or	208
dentist, in lieu of personally testifying as to the results of the	209
test in question, may submit a certified copy of those results,	210
and, upon its submission, the certified copy is qualified as	211
authentic evidence and may be admitted as evidence in accordance	212
with the Rules of Evidence. Division (A) of section 2317.422 of	213
the Revised Code does not apply to any certified copy of results	214
submitted in accordance with this division. Nothing in this	215
division shall be construed to limit the right of any party to	216
call as a witness the person who administered the test in	217
question, the person under whose supervision the test was	218
administered, the custodian of the results of the test, the person	219
who compiled the results, or the person under whose supervision	220
the results were compiled.	221

(c) If the testimonial privilege described in division (B)(1)	222
of this section does not apply as provided in division (B)(1)(e)	223
of this section, a physician or dentist may be compelled to	224
testify or to submit to discovery in the will contest action under	225
sections 2107.71 to 2107.77 of the Revised Code only as to the	226
patient in question on issues relevant to the competency of the	227
patient at the time of the execution of the will. Testimony or	228
discovery conducted pursuant to this division shall be conducted	229
in accordance with the Rules of Civil Procedure.	230

(4) The testimonial privilege described in division (B)(1) of	231
this section is not waived when a communication is made by a	232
physician to a pharmacist or when there is communication between a	233
patient and a pharmacist in furtherance of the physician-patient	234
relation.	235

(5)(a) As used in divisions (B)(1) to (4) of this section,	236
"communication" means acquiring, recording, or transmitting any	237
information, in any manner, concerning any facts, opinions, or	238
statements necessary to enable a physician or dentist to diagnose,	239
treat, prescribe, or act for a patient. A "communication" may	240
include, but is not limited to, any medical or dental, office, or	241
hospital communication such as a record, chart, letter,	242
memorandum, laboratory test and results, x-ray, photograph,	243
financial statement, diagnosis, or prognosis.	244

(b) As used in division (B)(2) of this section, "health care	245
provider" means a hospital, ambulatory care facility, long-term	246
care facility, pharmacy, emergency facility, or health care	247
practitioner.	248

(c) As used in division (B)(5)(b) of this section:

249

(i) "Ambulatory care facility" means a facility that provides	250
medical, diagnostic, or surgical treatment to patients who do not	251
require hospitalization, including a dialysis center, ambulatory	252
surgical facility, cardiac catheterization facility, diagnostic	253
imaging center, extracorporeal shock wave lithotripsy center, home	254
health agency, inpatient hospice, birthing center, radiation	255
therapy center, emergency facility, and an urgent care center.	256
"Ambulatory health care facility" does not include the private	257
office of a physician or dentist, whether the office is for an	258
individual or group practice.	259

(ii) "Emergency facility" means a hospital emergency	260
department or any other facility that provides emergency medical	261
services.	262

(iii) "Health care practitioner" has the same meaning as in	263
section 4769.01 of the Revised Code.	264

(iv) "Hospital" has the same meaning as in section 3727.01 of	265
the Revised Code.	266

(v) "Long-term care facility" means a nursing home,	267
residential care facility, or home for the aging, as those terms	268
are defined in section 3721.01 of the Revised Code; an adult care	269
facility, as defined in section 3722.01 of the Revised Code; a	270
nursing facility or intermediate care facility for the mentally	271
retarded, as those terms are defined in section 5111.20 of the	272
Revised Code; a facility or portion of a facility certified as a	273
skilled nursing facility under Title XVIII of the "Social Security	274
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.	275

(vi) "Pharmacy" has the same meaning as in section 4729.01 of	276
the Revised Code.	277

(6) Divisions (B)(1), (2), (3), (4), and (5) of this section	278
apply to doctors of medicine, doctors of osteopathic medicine,	279
doctors of podiatry, and dentists.	280

(7) Nothing in divisions (B)(1) to (6) of this section	281
affects, or shall be construed as affecting, the immunity from	282
civil liability conferred by section 307.628 of the Revised Code	283
or the immunity from civil liability conferred by section 2305.33	284
of the Revised Code upon physicians who report an employee's use	285
of a drug of abuse, or a condition of an employee other than one	286
involving the use of a drug of abuse, to the employer of the	287
employee in accordance with division (B) of that section. As used	288
in division (B)(7) of this section, "employee," "employer," and	289
"physician" have the same meanings as in section 2305.33 of the	290
Revised Code.	291

(C) A member of the clergy, rabbi, priest, or regularly	292
ordained, accredited, or licensed minister of an established and	293
legally cognizable church, denomination, or sect, when the member	294
of the clergy, rabbi, priest, or minister remains accountable to	295
the authority of that church, denomination, or sect, concerning a	296
confession made, or any information confidentially communicated,	297
to the member of the clergy, rabbi, priest, or minister for a	298
religious counseling purpose in the member of the clergy's,	299
rabbi's, priest's, or minister's professional character; however,	300
the member of the clergy, rabbi, priest, or minister may testify	301
by express consent of the person making the communication, except	302
when the disclosure of the information is in violation of a sacred	303
trust;	304

(D) Husband or wife, concerning any communication made by one	305
to the other, or an act done by either in the presence of the	306
other, during coverture, unless the communication was made, or act	307
done, in the known presence or hearing of a third person competent	308
to be a witness; and such rule is the same if the marital relation	309
has ceased to exist;	310

(E) A person who assigns a claim or interest, concerning any	311
matter in respect to which the person would not, if a party, be	312
permitted to testify;	313

(F) A person who, if a party, would be restricted under	314
section 2317.03 of the Revised Code, when the property or thing is	315
sold or transferred by an executor, administrator, guardian,	316
trustee, heir, devisee, or legatee, shall be restricted in the	317
same manner in any action or proceeding concerning the property or	318
thing.	319

(G)(1) A school guidance counselor who holds a valid educator	320
license from the state board of education as provided for in	321
section 3319.22 of the Revised Code, a person licensed under	322
Chapter 4757. of the Revised Code as a professional clinical	323
counselor, professional counselor, social worker, independent	324
social worker, marriage and family therapist or independent	325
marriage and family therapist, or registered under Chapter 4757.	326
of the Revised Code as a social work assistant concerning a	327
confidential communication received from a client in that relation	328
or the person's advice to a client unless any of the following	329
applies:	330

(a) The communication or advice indicates clear and present	331
danger to the client or other persons. For the purposes of this	332
division, cases in which there are indications of present or past	333
child abuse or neglect of the client constitute a clear and	334
present danger.	335

(b) The client gives express consent to the testimony.

336

(c) If the client is deceased, the surviving spouse or the	337
executor or administrator of the estate of the deceased client	338
gives express consent.	339

(d) The client voluntarily testifies, in which case the	340
school guidance counselor or person licensed or registered under	341
Chapter 4757. of the Revised Code may be compelled to testify on	342
the same subject.	343

(e) The court in camera determines that the information	344
communicated by the client is not germane to the counselor-client,	345
marriage and family therapist-client, or social worker-client	346
relationship.	347

(f) A court, in an action brought against a school, its	348
administration, or any of its personnel by the client, rules after	349
an in-camera inspection that the testimony of the school guidance	350
counselor is relevant to that action.	351

(g) The testimony is sought in a civil action and concerns	352
court-ordered treatment or services received by a patient as part	353
of a case plan journalized under section 2151.412 of the Revised	354
Code or the court-ordered treatment or services are necessary or	355
relevant to dependency, neglect, or abuse or temporary or	356
permanent custody proceedings under Chapter 2151. of the Revised	357
Code.	358

(2) Nothing in division (G)(1) of this section shall relieve	359
a school guidance counselor or a person licensed or registered	360
under Chapter 4757. of the Revised Code from the requirement to	361
report information concerning child abuse or neglect under section	362
2151.421 of the Revised Code.	363

(H) A mediator acting under a mediation order issued under	364
division (A) of section 3109.052 of the Revised Code or otherwise	365
issued in any proceeding for divorce, dissolution, legal	366
separation, annulment, or the allocation of parental rights and	367
responsibilities for the care of children, in any action or	368
proceeding, other than a criminal, delinquency, child abuse, child	369
neglect, or dependent child action or proceeding, that is brought	370
by or against either parent who takes part in mediation in	371
accordance with the order and that pertains to the mediation	372
process, to any information discussed or presented in the	373
mediation process, to the allocation of parental rights and	374
responsibilities for the care of the parents' children, or to the	375
awarding of parenting time rights in relation to their children;	376

(I) A communications assistant, acting within the scope of	377
the communication assistant's authority, when providing	378
telecommunications relay service pursuant to section 4931.35 of	379
the Revised Code or Title II of the "Communications Act of 1934,"	380
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication	381
made through a telecommunications relay service. Nothing in this	382
section shall limit the obligation of a communications assistant	383
to divulge information or testify when mandated by federal law or	384
regulation or pursuant to subpoena in a criminal proceeding.	385

Nothing in this section shall limit any immunity or privilege	386
granted under federal law or regulation.	387

(J)(1) A chiropractor in a civil proceeding concerning a	388
communication made to the chiropractor by a patient in that	389
relation or the chiropractor's advice to a patient, except as	390
otherwise provided in this division. The testimonial privilege	391
established under this division does not apply, and a chiropractor	392
may testify or may be compelled to testify, in any civil action,	393
in accordance with the discovery provisions of the Rules of Civil	394
Procedure in connection with a civil action, or in connection with	395
a claim under Chapter 4123. of the Revised Code, under any of the	396
following circumstances:	397

(a) If the patient or the guardian or other legal	398
representative of the patient gives express consent.	399

(b) If the patient is deceased, the spouse of the patient or	400
the executor or administrator of the patient's estate gives	401
express consent.	402

(c) If a medical claim, dental claim, chiropractic claim, or	403
optometric claim, as defined in section 2305.113 of the Revised	404
Code, an action for wrongful death, any other type of civil	405
action, or a claim under Chapter 4123. of the Revised Code is	406
filed by the patient, the personal representative of the estate of	407
the patient if deceased, or the patient's guardian or other legal	408
representative.	409

(2) If the testimonial privilege described in division (J)(1)	410
of this section does not apply as provided in division (J)(1)(c)	411
of this section, a chiropractor may be compelled to testify or to	412
submit to discovery under the Rules of Civil Procedure only as to	413
a communication made to the chiropractor by the patient in	414
question in that relation, or the chiropractor's advice to the	415
patient in question, that related causally or historically to	416
physical or mental injuries that are relevant to issues in the	417
medical claim, dental claim, chiropractic claim, or optometric	418
claim, action for wrongful death, other civil action, or claim	419
under Chapter 4123. of the Revised Code.	420

(3) The testimonial privilege established under this division	421
does not apply, and a chiropractor may testify or be compelled to	422
testify, in any criminal action or administrative proceeding.	423

(4) As used in this division, "communication" means	424
acquiring, recording, or transmitting any information, in any	425
manner, concerning any facts, opinions, or statements necessary to	426
enable a chiropractor to diagnose, treat, or act for a patient. A	427
communication may include, but is not limited to, any	428
chiropractic, office, or hospital communication such as a record,	429
chart, letter, memorandum, laboratory test and results, x-ray,	430
photograph, financial statement, diagnosis, or prognosis.	431

(K)(1) Except as provided under division (K)(2) of this	432
section, a critical incident stress management team member	433
concerning a communication received from an individual who	434
receives crisis response services from the team member, or the	435
team member's advice to the individual, during a debriefing	436
session.	437

(2) The testimonial privilege established under division	438
(K)(1) of this section does not apply if any of the following are	439
true:	440

(a) The communication or advice indicates clear and present	441
danger to the individual who receives crisis response services or	442
to other persons. For purposes of this division, cases in which	443
there are indications of present or past child abuse or neglect of	444
the individual constitute a clear and present danger.	445

(b) The individual who received crisis response services	446
gives express consent to the testimony.	447

(c) If the individual who received crisis response services	448
is deceased, the surviving spouse or the executor or administrator	449
of the estate of the deceased individual gives express consent.	450

(d) The individual who received crisis response services	451
voluntarily testifies, in which case the team member may be	452
compelled to testify on the same subject.	453

(e) The court in camera determines that the information	454
communicated by the individual who received crisis response	455
services is not germane to the relationship between the individual	456
and the team member.	457

(f) The communication or advice pertains or is related to any	458
criminal act.	459

(3) As used in division (K) of this section:

460

(a) "Crisis response services" means consultation, risk	461
assessment, referral, and on-site crisis intervention services	462
provided by a critical incident stress management team to	463
individuals affected by crisis or disaster.	464

(b) "Critical incident stress management team member" or	465
"team member" means an individual specially trained to provide	466
crisis response services as a member of an organized community or	467
local crisis response team that holds membership in the Ohio	468
critical incident stress management network.	469

(c) "Debriefing session" means a session at which crisis	470
response services are rendered by a critical incident stress	471
management team member during or after a crisis or disaster.	472

(L)(1) Subject to division (L)(2) of this section and except	473
as provided in division (L)(3) of this section, an employee	474
assistance professional, concerning a communication made to the	475
employee assistance professional by a client in the employee	476
assistance professional's official capacity as an employee	477
assistance professional.	478

(2) Division (L)(1) of this section applies to an employee	479
assistance professional who meets either or both of the following	480
requirements:	481

(a) Is certified by the employee assistance certification	482
commission to engage in the employee assistance profession;	483

(b) Has education, training, and experience in all of the	484
following:	485

(i) Providing workplace-based services designed to address	486
employer and employee productivity issues;	487

(ii) Providing assistance to employees and employees'	488
dependents in identifying and finding the means to resolve	489
personal problems that affect the employees or the employees'	490
performance;	491

(iii) Identifying and resolving productivity problems	492
associated with an employee's concerns about any of the following	493
matters: health, marriage, family, finances, substance abuse or	494
other addiction, workplace, law, and emotional issues;	495

(iv) Selecting and evaluating available community resources;

496

(v) Making appropriate referrals;

497

(vi) Local and national employee assistance agreements;

498

(vii) Client confidentiality.

499

(3) Division (L)(1) of this section does not apply to any of	500
the following:	501

(a) A criminal action or proceeding involving an offense	502
under sections 2903.01 to 2903.06 of the Revised Code if the	503
employee assistance professional's disclosure or testimony relates	504
directly to the facts or immediate circumstances of the offense;	505

(b) A communication made by a client to an employee	506
assistance professional that reveals the contemplation or	507
commission of a crime or serious, harmful act;	508

(c) A communication that is made by a client who is an	509
unemancipated minor or an adult adjudicated to be incompetent and	510
indicates that the client was the victim of a crime or abuse;	511

(d) A civil proceeding to determine an individual's mental	512
competency or a criminal action in which a plea of not guilty by	513
reason of insanity is entered;	514

(e) A civil or criminal malpractice action brought against	515
the employee assistance professional;	516

(f) When the employee assistance professional has the express	517
consent of the client or, if the client is deceased or disabled,	518
the client's legal representative;	519

(g) When the testimonial privilege otherwise provided by	520
division (L)(1) of this section is abrogated under law.	521

Section 2. That existing sections 2107.76 and 2317.02 of the	522
Revised Code are hereby repealed.	523