As Introduced

127th General Assembly Regular Session 2007-2008

S. B. No. 245

Senator Schuring 

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A BILL

To amend sections 4762.02 to 4762.06, 4762.08 to

1

4762.11, 4762.13, 4762.131, 4762.132, 4762.14 to

2

4762.16, and 4762.18 and to enact section 4762.22

3

of the Revised Code to modify the laws regarding

4

the practice of acupuncturists.

5

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

Section 1. That sections 4762.02, 4762.03, 4762.04, 4762.05,	6
4762.06, 4762.08, 4762.09, 4762.10, 4762.11, 4762.13, 4762.131,	7
4762.132, 4762.14, 4762.15, 4762.16, and 4762.18 be amended and	8
section 4762.22 of the Revised Code be enacted to read as follows:	9

Sec. 4762.02.  (A) Except as provided in division (B) of this	10
section, no person shall engage in the practice of acupuncture	11
unless the person holds a valid certificate of registration	12
license as an acupuncturist issued by the state medical board	13
under this chapter.	14

(B) Division (A) of this section does not apply to the	15
following:	16

(1) A physician;

17

(2) A person who performsmeets both of the following	18
requirements:	19

(a) Performs acupuncture as part of a training program in	20
acupuncture operated by an educational institution that holds an	21
effective certificate of authorization issued by the Ohio board	22
of regents under section 1713.02 of the Revised Code or a school	23
that holds an effective certificate of registration issued by the	24
state board of career colleges and schools under section 3332.05	25
of the Revised Code;	26

(b) Performs the acupuncture under the general supervision of	27
an acupuncturist who has held a license under this chapter for not	28
less than twelve months;	29

(3) A chiropractor who holds a certificate to practice	30
acupuncture issued by the state chiropractic board under section	31
4734.283 of the Revised Code.	32

Sec. 4762.03.  (A) An individual seeking a certificate of	33
registrationlicense as an acupuncturist shall file with the state	34
medical board a written application on a form prescribed and	35
supplied by the board. The application shall include all of the	36
following:	37

(1) Evidence satisfactory to the board that the applicant is	38
at least eighteen years of age and of good moral character;	39

(2) Evidence satisfactory to the board that the applicant has	40
been designated as a diplomate in acupuncture or oriental medicine	41
by the national certification commission for acupuncture and	42
oriental medicine and that the designation is current and active;	43

(3) Any other information the board requires.

44

(B) The board shall review all applications received under	45
this section. The board shall determine whether an applicant meets	46
the requirements to receive a certificate of registrationlicense	47
not later than sixty days after receiving a complete application.	48
The affirmative vote of not fewer than six members of the board is	49
required to determine that an applicant meets the requirements for	50
a certificatelicense.	51

(C) At the time of making application for a certificate of	52
registrationlicense, the applicant shall pay the board a fee of	53
one hundred dollars, no part of which shall be returned.	54

Sec. 4762.04.  If the state medical board determines under	55
section 4762.03 of the Revised Code that an applicant meets the	56
requirements for a certificate of registrationlicense as an	57
acupuncturist, the secretary of the board shall register the	58
applicant as an acupuncturist and issue to the applicant a	59
certificate of registrationlicense as an acupuncturist. The	60
certificatelicense shall expire biennially and may be renewed in	61
accordance with section 4762.06 of the Revised Code.	62

Sec. 4762.05.  Upon application by the holder of a	63
certificate of registrationlicense as an acupuncturist, the state	64
medical board shall issue a duplicate certificatelicense to	65
replace one that is missing or damaged, to reflect a name change,	66
or for any other reasonable cause. The fee for a duplicate	67
certificatelicense is thirty-five dollars.	68

Sec. 4762.06.  (A) A person seeking to renew a certificate of	69
registrationlicense as an acupuncturist shall, on or before the	70
thirty-first day of January of each even-numbered year, apply for	71
renewal of the certificatelicense. The state medical board shall	72
send renewal notices at least one month prior to the expiration	73
date.	74

Applications shall be submitted to the board on forms the	75
board shall prescribe and supply. Each application shall be	76
accompanied by a biennial renewal fee of one hundred dollars.	77

The applicant shall report any criminal offense that	78
constitutes grounds for refusing to issue a certificate of	79
registrationlicense under section 4762.13 of the Revised Code to	80
which the applicant has pleaded guilty, of which the applicant has	81
been found guilty, or for which the applicant has been found	82
eligible for intervention in lieu of conviction, since last	83
signing an application for a certificate of registrationlicense	84
as an acupuncturist.	85

(B) To be eligible for renewal, an acupuncturist must certify	86
to the board that the acupuncturist has maintained the	87
acupuncturist's designation as a diplomate in acupuncture or	88
oriental medicine by the national certification commission for	89
acupuncture and oriental medicine.	90

(C) If an applicant submits a complete renewal application	91
and qualifies for renewal pursuant to division (B) of this	92
section, the board shall issue to the applicant a renewed	93
certificate of registrationlicense as an acupuncturist.	94

(D) A certificate of registrationlicense that is not renewed	95
on or before its expiration date is automatically suspended on its	96
expiration date. The board shall reinstate a certificatelicense	97
suspended for failure to renew upon an applicant's submission of	98
the biennial renewal fee and the applicable monetary penalty. The	99
penalty for reinstatement is twenty-five dollars if the	100
certificatelicense has been suspended for two years or less and	101
fifty dollars if the certificatelicense has been suspended for	102
more than two years.	103

Sec. 4762.08.  A person who holds a certificate of	104
registrationlicense as an acupuncturist issued under this chapter	105
may use the following titles, initials, or abbreviations, or the	106
equivalent of such titles, initials, or abbreviations, to identify	107
the person as an acupuncturist: "Acupuncturist," "Registered	108
Licensed Acupuncturist," "R. Ac.," "Reg. Ac.," "Certified	109
Acupuncturist," "C.A.," "C. Ac.,""L.Ac.," "Diplomate of	110
Acupuncture (NCCAOM)," "Dipl. Ac. (NCCAOM)," or "National Board	111
Certified in Acupuncture (NCCAOM)." The person shall not use	112
other titles, initials, or abbreviations in conjunction with the	113
person's practice of acupuncture, including the title "doctor."	114

Sec. 4762.09.  An acupuncturist who holds a certificate of	115
registrationlicense issued under this chapter shall conspicuously	116
display at the acupuncturist's primary place of business both of	117
the following:	118

(A) The acupuncturist's certificate of registrationlicense,	119
as evidence that the acupuncturist is authorized to practice	120
acupuncture in this state;	121

(B) A notice specifying that the practice of acupuncture	122
under the certificate of registrationlicense is regulated by the	123
state medical board and the address and telephone number of the	124
board's office.	125

Sec. 4762.10. All(A) If a person licensed under this	126
chapter has held the license for less than twelve months, both of	127
the following apply to the acupuncturist's practice of a person	128
who holds a certificate of registration as an acupuncturist	129
issued under this chapterin addition to the requirements of	130
division (C) of this section:	131

(A)(1) The acupuncturist shall perform acupuncture for a	132
patient only if the patient has received a written referral or	133
prescription for acupuncture from a physician or chiropractor. As	134
specified in the referral or prescription, the acupuncturist shall	135
provide reports to the physician or chiropractor on the patient's	136
condition or progress in treatment and comply with the conditions	137
or restrictions on the acupuncturist's course of treatment.	138

(B)(2) The acupuncturist shall perform acupuncture under the	139
general supervision of the patient's referring or prescribing	140
physician or chiropractor. General supervision does not require	141
that the acupuncturist and physician or chiropractor practice in	142
the same office.	143

(C)(B) If a person licensed under this chapter has held the	144
license for twelve months or longer, both of the following apply	145
to the acupuncturist's practice in addition to the applicable	146
requirements of division (C) of this section:	147

(1) Before performing acupuncture on a patient, the	148
acupuncturist shall confirm that the patient has undergone a	149
diagnostic examination within the past twelve months by a	150
physician or chiropractor acting within the physician or	151
chiropractor's scope of practice by obtaining from the patient a	152
signed form stating that the patient has undergone the	153
examination.	154

(2) If the patient does not provide the signed form specified	155
in division (B)(1) of this section, the acupuncturist shall	156
provide to the patient a written recommendation to undergo a	157
diagnostic examination by a physician or chiropractor. The	158
recommendation shall be provided on a form prescribed by the state	159
medical board.	160

(C) In the practice of acupuncture pursuant to a license	161
issued under this chapter, all of the following apply:	162

(1) Prior to treating a patient, the acupuncturist shall	163
advise the patient that acupuncture is not a substitute for	164
conventional medical diagnosis and treatment.	165

(D)(2) On initially meeting a patient in person, the	166
acupuncturist shall provide in writing the acupuncturist's name,	167
business address, and business telephone number, and information	168
on acupuncture, including the techniques that are used.	169

(E)(3) While treating a patient, the acupuncturist shall not	170
make a diagnosis. If a patient's condition is not improving or a	171
patient requires emergency medical treatment, the acupuncturist	172
shall consult promptly with a physician.	173

(F) An(4) The acupuncturist shall maintain records for each	174
patient treated. In each patient's records, the acupuncturist	175
shall include the written referral or prescription pursuant to	176
which the acupuncturist is treating the patient. The records	177
shall be confidential and shall be retained for not less than	178
three years following termination of treatment.	179

In the case of an acupuncturist who has held a license under	180
this chapter for less than twelve months, the acupuncturist shall	181
include in a patient's records the written referral or	182
prescription pursuant to which the acupuncturist is treating the	183
patient.	184

Sec. 4762.11.  All of the following apply to an	185
acupuncturist's supervisinga physician or chiropractor for a	186
patientsupervising an acupuncturist who has been licensed under	187
this chapter for less than twelve months:	188

(A) Before making the referral or prescription for	189
acupuncture, the physician shall perform a medical diagnostic	190
examination of the patient or review the results of a medical	191
diagnostic examination recently performed by another physician,	192
or, in the case of a chiropractor, the chiropractor shall perform	193
a chiropractic diagnostic examination of the patient or review the	194
results of a chiropractic diagnostic examination recently	195
performed by another chiropractor.	196

(B) The physician or chiropractor shall make the referral or	197
prescription in writing and specify in the referral or	198
prescription all of the following:	199

(1) The physician's or chiropractor's diagnosis of the	200
ailment or condition that is to be treated by acupuncture;	201

(2) A time by which or the intervals at which the	202
acupuncturist must provide reports to the physician or	203
chiropractor regarding the patient's condition or progress in	204
treatment;	205

(3) The conditions or restrictions placed in accordance with	206
division (C) of this section on the acupuncturist's course of	207
treatment.	208

(C) The physician shall place conditions or restrictions on	209
the acupuncturist's course of treatment in compliance with	210
accepted or prevailing standards of medical care, or, in the case	211
of a chiropractor, the chiropractor shall place conditions or	212
restrictions on the acupuncturist's course of treatment in	213
compliance with accepted or prevailing standards of chiropractic	214
care.	215

(D) The physician or chiropractor shall be personally	216
available for consultation with the acupuncturist. If the	217
physician or chiropractor is not on the premises at which	218
acupuncture is performed, the physician or chiropractor shall be	219
readily available to the acupuncturist through some means of	220
telecommunication and be in a location that under normal	221
circumstances is not more than sixty minutes travel time away from	222
the location where the acupuncturist is practicing.	223

Sec. 4762.13.  (A) The state medical board, by an affirmative	224
vote of not fewer than six members, may revoke or may refuse to	225
grant a certificate of registrationlicense as an acupuncturist to	226
a person found by the board to have committed fraud,	227
misrepresentation, or deception in applying for or securing the	228
certificatelicense.	229

(B) The board, by an affirmative vote of not fewer than six	230
members, shall, to the extent permitted by law, limit, revoke, or	231
suspend an individual's certificate of registrationlicense as an	232
acupuncturist, refuse to issue a certificatelicense to an	233
applicant, refuse to reinstate a certificatelicense, or reprimand	234
or place on probation the holder of a certificatelicense for any	235
of the following reasons:	236

(1) Permitting the holder's name or certificatelicense to be	237
used by another person;	238

(2) Failure to comply with the requirements of this chapter,	239
Chapter 4731. of the Revised Code, or any rules adopted by the	240
board;	241

(3) Violating or attempting to violate, directly or	242
indirectly, or assisting in or abetting the violation of, or	243
conspiring to violate, any provision of this chapter, Chapter	244
4731. of the Revised Code, or the rules adopted by the board;	245

(4) A departure from, or failure to conform to, minimal	246
standards of care of similar practitioners under the same or	247
similar circumstances whether or not actual injury to the patient	248
is established;	249

(5) Inability to practice according to acceptable and	250
prevailing standards of care by reason of mental illness or	251
physical illness, including physical deterioration that adversely	252
affects cognitive, motor, or perceptive skills;	253

(6) Impairment of ability to practice according to acceptable	254
and prevailing standards of care because of habitual or excessive	255
use or abuse of drugs, alcohol, or other substances that impair	256
ability to practice;	257

(7) Willfully betraying a professional confidence;

258

(8) Making a false, fraudulent, deceptive, or misleading	259
statement in soliciting or advertising for patients or in securing	260
or attempting to secure a certificate of registrationlicense to	261
practice as an acupuncturist.	262

As used in this division, "false, fraudulent, deceptive, or	263
misleading statement" means a statement that includes a	264
misrepresentation of fact, is likely to mislead or deceive because	265
of a failure to disclose material facts, is intended or is likely	266
to create false or unjustified expectations of favorable results,	267
or includes representations or implications that in reasonable	268
probability will cause an ordinarily prudent person to	269
misunderstand or be deceived.	270

(9) Representing, with the purpose of obtaining compensation	271
or other advantage personally or for any other person, that an	272
incurable disease or injury, or other incurable condition, can be	273
permanently cured;	274

(10) The obtaining of, or attempting to obtain, money or a	275
thing of value by fraudulent misrepresentations in the course of	276
practice;	277

(11) A plea of guilty to, a judicial finding of guilt of, or	278
a judicial finding of eligibility for intervention in lieu of	279
conviction for, a felony;	280

(12) Commission of an act that constitutes a felony in this	281
state, regardless of the jurisdiction in which the act was	282
committed;	283

(13) A plea of guilty to, a judicial finding of guilt of, or	284
a judicial finding of eligibility for intervention in lieu of	285
conviction for, a misdemeanor committed in the course of practice;	286

(14) A plea of guilty to, a judicial finding of guilt of, or	287
a judicial finding of eligibility for intervention in lieu of	288
conviction for, a misdemeanor involving moral turpitude;	289

(15) Commission of an act in the course of practice that	290
constitutes a misdemeanor in this state, regardless of the	291
jurisdiction in which the act was committed;	292

(16) Commission of an act involving moral turpitude that	293
constitutes a misdemeanor in this state, regardless of the	294
jurisdiction in which the act was committed;	295

(17) A plea of guilty to, a judicial finding of guilt of, or	296
a judicial finding of eligibility for intervention in lieu of	297
conviction for violating any state or federal law regulating the	298
possession, distribution, or use of any drug, including	299
trafficking in drugs;	300

(18) Any of the following actions taken by the state agency	301
responsible for regulating the practice of acupuncture in another	302
jurisdiction, for any reason other than the nonpayment of fees:	303
the limitation, revocation, or suspension of an individual's	304
license to practice; acceptance of an individual's license	305
surrender; denial of a license; refusal to renew or reinstate a	306
license; imposition of probation; or issuance of an order of	307
censure or other reprimand;	308

(19) Violation of the conditions placed by the board on a	309
certificate of registrationlicense;	310

(20) Failure to use universal blood and body fluid	311
precautions established by rules adopted under section 4731.051 of	312
the Revised Code;	313

(21) Failure to cooperate in an investigation conducted by	314
the board under section 4762.14 of the Revised Code, including	315
failure to comply with a subpoena or order issued by the board or	316
failure to answer truthfully a question presented by the board at	317
a deposition or in written interrogatories, except that failure to	318
cooperate with an investigation shall not constitute grounds for	319
discipline under this section if a court of competent jurisdiction	320
has issued an order that either quashes a subpoena or permits the	321
individual to withhold the testimony or evidence in issue;	322

(22) Failure to comply with the standards of the national	323
certification commission for acupuncture and oriental medicine	324
regarding professional ethics, commitment to patients, commitment	325
to the profession, and commitment to the public;	326

(23) Failure to have adequate professional liability	327
insurance coverage in accordance with section 4762.22 of the	328
Revised Code.	329

(C) Disciplinary actions taken by the board under divisions	330
(A) and (B) of this section shall be taken pursuant to an	331
adjudication under Chapter 119. of the Revised Code, except that	332
in lieu of an adjudication, the board may enter into a consent	333
agreement with an acupuncturist or applicant to resolve an	334
allegation of a violation of this chapter or any rule adopted	335
under it. A consent agreement, when ratified by an affirmative	336
vote of not fewer than six members of the board, shall constitute	337
the findings and order of the board with respect to the matter	338
addressed in the agreement. If the board refuses to ratify a	339
consent agreement, the admissions and findings contained in the	340
consent agreement shall be of no force or effect.	341

(D) For purposes of divisions (B)(12), (15), and (16) of this	342
section, the commission of the act may be established by a finding	343
by the board, pursuant to an adjudication under Chapter 119. of	344
the Revised Code, that the applicant or certificatelicense holder	345
committed the act in question. The board shall have no	346
jurisdiction under these divisions in cases where the trial court	347
renders a final judgment in the certificatelicense holder's favor	348
and that judgment is based upon an adjudication on the merits. The	349
board shall have jurisdiction under these divisions in cases where	350
the trial court issues an order of dismissal upon technical or	351
procedural grounds.	352

(E) The sealing of conviction records by any court shall have	353
no effect upon a prior board order entered under the provisions of	354
this section or upon the board's jurisdiction to take action under	355
the provisions of this section if, based upon a plea of guilty, a	356
judicial finding of guilt, or a judicial finding of eligibility	357
for intervention in lieu of conviction, the board issued a notice	358
of opportunity for a hearing prior to the court's order to seal	359
the records. The board shall not be required to seal, destroy,	360
redact, or otherwise modify its records to reflect the court's	361
sealing of conviction records.	362

(F) For purposes of this division, any individual who holds a	363
certificate of registrationlicense issued under this chapter, or	364
applies for a certificate of registrationlicense, shall be deemed	365
to have given consent to submit to a mental or physical	366
examination when directed to do so in writing by the board and to	367
have waived all objections to the admissibility of testimony or	368
examination reports that constitute a privileged communication.	369

(1) In enforcing division (B)(5) of this section, the board,	370
upon a showing of a possible violation, may compel any individual	371
who holds a certificate of registrationlicense issued under this	372
chapter or who has applied for a certificate of registration	373
license pursuant to this chapter to submit to a mental	374
examination, physical examination, including an HIV test, or both	375
a mental and physical examination. The expense of the examination	376
is the responsibility of the individual compelled to be examined.	377
Failure to submit to a mental or physical examination or consent	378
to an HIV test ordered by the board constitutes an admission of	379
the allegations against the individual unless the failure is due	380
to circumstances beyond the individual's control, and a default	381
and final order may be entered without the taking of testimony or	382
presentation of evidence. If the board finds an acupuncturist	383
unable to practice because of the reasons set forth in division	384
(B)(5) of this section, the board shall require the acupuncturist	385
to submit to care, counseling, or treatment by physicians approved	386
or designated by the board, as a condition for an initial,	387
continued, reinstated, or renewed certificate of registration	388
license. An individual affected by this division shall be afforded	389
an opportunity to demonstrate to the board the ability to resume	390
practicing in compliance with acceptable and prevailing standards	391
of care.	392

(2) For purposes of division (B)(6) of this section, if the	393
board has reason to believe that any individual who holds a	394
certificate of registrationlicense issued under this chapter or	395
any applicant for a certificate of registrationlicense suffers	396
such impairment, the board may compel the individual to submit to	397
a mental or physical examination, or both. The expense of the	398
examination is the responsibility of the individual compelled to	399
be examined. Any mental or physical examination required under	400
this division shall be undertaken by a treatment provider or	401
physician qualified to conduct such examination and chosen by the	402
board.	403

Failure to submit to a mental or physical examination ordered	404
by the board constitutes an admission of the allegations against	405
the individual unless the failure is due to circumstances beyond	406
the individual's control, and a default and final order may be	407
entered without the taking of testimony or presentation of	408
evidence. If the board determines that the individual's ability to	409
practice is impaired, the board shall suspend the individual's	410
certificatelicense or deny the individual's application and shall	411
require the individual, as a condition for an initial, continued,	412
reinstated, or renewed certificate of registrationlicense, to	413
submit to treatment.	414

Before being eligible to apply for reinstatement of a	415
certificatelicense suspended under this division, the	416
acupuncturist shall demonstrate to the board the ability to resume	417
practice in compliance with acceptable and prevailing standards of	418
care. The demonstration shall include the following:	419

(a) Certification from a treatment provider approved under	420
section 4731.25 of the Revised Code that the individual has	421
successfully completed any required inpatient treatment;	422

(b) Evidence of continuing full compliance with an aftercare	423
contract or consent agreement;	424

(c) Two written reports indicating that the individual's	425
ability to practice has been assessed and that the individual has	426
been found capable of practicing according to acceptable and	427
prevailing standards of care. The reports shall be made by	428
individuals or providers approved by the board for making such	429
assessments and shall describe the basis for their determination.	430

The board may reinstate a certificatelicense suspended under	431
this division after such demonstration and after the individual	432
has entered into a written consent agreement.	433

When the impaired acupuncturist resumes practice, the board	434
shall require continued monitoring of the acupuncturist. The	435
monitoring shall include monitoring of compliance with the written	436
consent agreement entered into before reinstatement or with	437
conditions imposed by board order after a hearing, and, upon	438
termination of the consent agreement, submission to the board for	439
at least two years of annual written progress reports made under	440
penalty of falsification stating whether the acupuncturist has	441
maintained sobriety.	442

(G) If the secretary and supervising member determine that	443
there is clear and convincing evidence that an acupuncturist has	444
violated division (B) of this section and that the individual's	445
continued practice presents a danger of immediate and serious harm	446
to the public, they may recommend that the board suspend the	447
individual's certificate of registrationlicense without a prior	448
hearing. Written allegations shall be prepared for consideration	449
by the board.	450

The board, upon review of the allegations and by an	451
affirmative vote of not fewer than six of its members, excluding	452
the secretary and supervising member, may suspend a certificate	453
license without a prior hearing. A telephone conference call may	454
be utilized for reviewing the allegations and taking the vote on	455
the summary suspension.	456

The board shall issue a written order of suspension by	457
certified mail or in person in accordance with section 119.07 of	458
the Revised Code. The order shall not be subject to suspension by	459
the court during pendency of any appeal filed under section 119.12	460
of the Revised Code. If the acupuncturist requests an adjudicatory	461
hearing by the board, the date set for the hearing shall be within	462
fifteen days, but not earlier than seven days, after the	463
acupuncturist requests the hearing, unless otherwise agreed to by	464
both the board and the certificatelicense holder.	465

A summary suspension imposed under this division shall remain	466
in effect, unless reversed on appeal, until a final adjudicative	467
order issued by the board pursuant to this section and Chapter	468
119. of the Revised Code becomes effective. The board shall issue	469
its final adjudicative order within sixty days after completion of	470
its hearing. Failure to issue the order within sixty days shall	471
result in dissolution of the summary suspension order, but shall	472
not invalidate any subsequent, final adjudicative order.	473

(H) If the board takes action under division (B)(11), (13),	474
or (14) of this section, and the judicial finding of guilt, guilty	475
plea, or judicial finding of eligibility for intervention in lieu	476
of conviction is overturned on appeal, upon exhaustion of the	477
criminal appeal, a petition for reconsideration of the order may	478
be filed with the board along with appropriate court documents.	479
Upon receipt of a petition and supporting court documents, the	480
board shall reinstate the certificate of registrationlicense. The	481
board may then hold an adjudication under Chapter 119. of the	482
Revised Code to determine whether the individual committed the act	483
in question. Notice of opportunity for hearing shall be given in	484
accordance with Chapter 119. of the Revised Code. If the board	485
finds, pursuant to an adjudication held under this division, that	486
the individual committed the act, or if no hearing is requested,	487
it may order any of the sanctions specified in division (B) of	488
this section.	489

(I) The certificate of registrationlicense of an	490
acupuncturist and the acupuncturist's practice in this state are	491
automatically suspended as of the date the acupuncturist pleads	492
guilty to, is found by a judge or jury to be guilty of, or is	493
subject to a judicial finding of eligibility for intervention in	494
lieu of conviction in this state or treatment or intervention in	495
lieu of conviction in another jurisdiction for any of the	496
following criminal offenses in this state or a substantially	497
equivalent criminal offense in another jurisdiction: aggravated	498
murder, murder, voluntary manslaughter, felonious assault,	499
kidnapping, rape, sexual battery, gross sexual imposition,	500
aggravated arson, aggravated robbery, or aggravated burglary.	501
Continued practice after the suspension shall be considered	502
practicing without a certificatelicense.	503

The board shall notify the individual subject to the	504
suspension by certified mail or in person in accordance with	505
section 119.07 of the Revised Code. If an individual whose	506
certificatelicense is suspended under this division fails to make	507
a timely request for an adjudication under Chapter 119. of the	508
Revised Code, the board shall enter a final order permanently	509
revoking the individual's certificate of registrationlicense.	510

(J) In any instance in which the board is required by Chapter	511
119. of the Revised Code to give notice of opportunity for hearing	512
and the individual subject to the notice does not timely request a	513
hearing in accordance with section 119.07 of the Revised Code, the	514
board is not required to hold a hearing, but may adopt, by an	515
affirmative vote of not fewer than six of its members, a final	516
order that contains the board's findings. In the final order, the	517
board may order any of the sanctions identified under division (A)	518
or (B) of this section.	519

(K) Any action taken by the board under division (B) of this	520
section resulting in a suspension shall be accompanied by a	521
written statement of the conditions under which the	522
acupuncturist's certificatelicense may be reinstated. The board	523
shall adopt rules in accordance with Chapter 119. of the Revised	524
Code governing conditions to be imposed for reinstatement.	525
Reinstatement of a certificatelicense suspended pursuant to	526
division (B) of this section requires an affirmative vote of not	527
fewer than six members of the board.	528

(L) When the board refuses to grant a certificate of	529
registrationlicense as an acupuncturist to an applicant, revokes	530
an individual's certificate of registrationlicense, refuses to	531
renew a certificate of registrationlicense, or refuses to	532
reinstate an individual's certificate of registrationlicense, the	533
board may specify that its action is permanent. An individual	534
subject to a permanent action taken by the board is forever	535
thereafter ineligible to hold a certificate of registration	536
license as an acupuncturist and the board shall not accept an	537
application for reinstatement of the certificatelicense or for	538
issuance of a new certificatelicense.	539

(M) Notwithstanding any other provision of the Revised Code,	540
all of the following apply:	541

(1) The surrender of a certificate of registrationlicense as	542
an acupuncturist issued under this chapter is not effective unless	543
or until accepted by the board. Reinstatement of a certificate	544
license surrendered to the board requires an affirmative vote of	545
not fewer than six members of the board.	546

(2) An application made under this chapter for a certificate	547
of registrationlicense may not be withdrawn without approval of	548
the board.	549

(3) Failure by an individual to renew a certificate of	550
registrationlicense in accordance with section 4762.06 of the	551
Revised Code shall not remove or limit the board's jurisdiction to	552
take disciplinary action under this section against the	553
individual.	554

Sec. 4762.131.  On receipt of a notice pursuant to section	555
2301.373 of the Revised Code, the state medical board shall comply	556
with that section with respect to a certificate of registration	557
license issued pursuant to this chapter.	558

Sec. 4762.132.  If the state medical board has reason to	559
believe that any person who has been granted a certificatelicense	560
under this chapter is mentally ill or mentally incompetent, it may	561
file in the probate court of the county in which the person has a	562
legal residence an affidavit in the form prescribed in section	563
5122.11 of the Revised Code and signed by the board secretary or a	564
member of the board secretary's staff, whereupon the same	565
proceedings shall be had as provided in Chapter 5122. of the	566
Revised Code. The attorney general may represent the board in any	567
proceeding commenced under this section.	568

If any person who has been granted a certificatelicense is	569
adjudged by a probate court to be mentally ill or mentally	570
incompetent, the person's certificatelicense shall be	571
automatically suspended until the person has filed with the state	572
medical board a certified copy of an adjudication by a probate	573
court of the person's subsequent restoration to competency or has	574
submitted to the board proof, satisfactory to the board, that the	575
person has been discharged as having a restoration to competency	576
in the manner and form provided in section 5122.38 of the Revised	577
Code. The judge of the probate court shall forthwith notify the	578
state medical board of an adjudication of mental illness or mental	579
incompetence, and shall note any suspension of a certificate	580
license in the margin of the court's record of such certificate	581
license.	582

Sec. 4762.14.  (A) The state medical board shall investigate	583
evidence that appears to show that any person has violated this	584
chapter or the rules adopted under it. Any person may report to	585
the board in a signed writing any information the person has that	586
appears to show a violation of any provision of this chapter or	587
the rules adopted under it. In the absence of bad faith, a person	588
who reports such information or testifies before the board in an	589
adjudication conducted under Chapter 119. of the Revised Code	590
shall not be liable for civil damages as a result of reporting the	591
information or providing testimony. Each complaint or allegation	592
of a violation received by the board shall be assigned a case	593
number and be recorded by the board.	594

(B) Investigations of alleged violations of this chapter or	595
rules adopted under it shall be supervised by the supervising	596
member elected by the board in accordance with section 4731.02 of	597
the Revised Code and by the secretary as provided in section	598
4762.15 of the Revised Code. The board's president may designate	599
another member of the board to supervise the investigation in	600
place of the supervising member. A member of the board who	601
supervises the investigation of a case shall not participate in	602
further adjudication of the case.	603

(C) In investigating a possible violation of this chapter or	604
the rules adopted under it, the board may administer oaths, order	605
the taking of depositions, issue subpoenas, and compel the	606
attendance of witnesses and production of books, accounts, papers,	607
records, documents, and testimony, except that a subpoena for	608
patient record information shall not be issued without	609
consultation with the attorney general's office and approval of	610
the secretary and supervising member of the board. Before issuance	611
of a subpoena for patient record information, the secretary and	612
supervising member shall determine whether there is probable cause	613
to believe that the complaint filed alleges a violation of this	614
chapter or the rules adopted under it and that the records sought	615
are relevant to the alleged violation and material to the	616
investigation. The subpoena may apply only to records that cover a	617
reasonable period of time surrounding the alleged violation.	618

On failure to comply with any subpoena issued by the board	619
and after reasonable notice to the person being subpoenaed, the	620
board may move for an order compelling the production of persons	621
or records pursuant to the Rules of Civil Procedure.	622

A subpoena issued by the board may be served by a sheriff,	623
the sheriff's deputy, or a board employee designated by the board.	624
Service of a subpoena issued by the board may be made by	625
delivering a copy of the subpoena to the person named therein,	626
reading it to the person, or leaving it at the person's usual	627
place of residence. When the person being served is an	628
acupuncturist, service of the subpoena may be made by certified	629
mail, restricted delivery, return receipt requested, and the	630
subpoena shall be deemed served on the date delivery is made or	631
the date the person refuses to accept delivery.	632

A sheriff's deputy who serves a subpoena shall receive the	633
same fees as a sheriff. Each witness who appears before the board	634
in obedience to a subpoena shall receive the fees and mileage	635
provided for witnesses in civil cases in the courts of common	636
pleas.	637

(D) All hearings and investigations of the board shall be	638
considered civil actions for the purposes of section 2305.252 of	639
the Revised Code.	640

(E) Information received by the board pursuant to an	641
investigation is confidential and not subject to discovery in any	642
civil action.	643

The board shall conduct all investigations and proceedings in	644
a manner that protects the confidentiality of patients and persons	645
who file complaints with the board. The board shall not make	646
public the names or any other identifying information about	647
patients or complainants unless proper consent is given.	648

The board may share any information it receives pursuant to	649
an investigation, including patient records and patient record	650
information, with law enforcement agencies, other licensing	651
boards, and other governmental agencies that are prosecuting,	652
adjudicating, or investigating alleged violations of statutes or	653
administrative rules. An agency or board that receives the	654
information shall comply with the same requirements regarding	655
confidentiality as those with which the state medical board must	656
comply, notwithstanding any conflicting provision of the Revised	657
Code or procedure of the agency or board that applies when it is	658
dealing with other information in its possession. In a judicial	659
proceeding, the information may be admitted into evidence only in	660
accordance with the Rules of Evidence, but the court shall require	661
that appropriate measures are taken to ensure that confidentiality	662
is maintained with respect to any part of the information that	663
contains names or other identifying information about patients or	664
complainants whose confidentiality was protected by the state	665
medical board when the information was in the board's possession.	666
Measures to ensure confidentiality that may be taken by the court	667
include sealing its records or deleting specific information from	668
its records.	669

(F) The state medical board shall develop requirements for	670
and provide appropriate initial training and continuing education	671
for investigators employed by the board to carry out its duties	672
under this chapter. The training and continuing education may	673
include enrollment in courses operated or approved by the Ohio	674
peace officer training council that the board considers	675
appropriate under conditions set forth in section 109.79 of the	676
Revised Code.	677

(G) On a quarterly basis, the board shall prepare a report	678
that documents the disposition of all cases during the preceding	679
three months. The report shall contain the following information	680
for each case with which the board has completed its activities:	681

(1) The case number assigned to the complaint or alleged	682
violation;	683

(2) The type of certificatelicense to practice, if any, held	684
by the individual against whom the complaint is directed;	685

(3) A description of the allegations contained in the	686
complaint;	687

(4) The disposition of the case.

688

The report shall state how many cases are still pending, and	689
shall be prepared in a manner that protects the identity of each	690
person involved in each case. The report is a public record for	691
purposes of section 149.43 of the Revised Code.	692

Sec. 4762.15.  (A) As used in this section, "prosecutor" has	693
the same meaning as in section 2935.01 of the Revised Code.	694

(B) Whenever any person holding a valid certificatelicense	695
issued pursuant to this chapter pleads guilty to, is subject to a	696
judicial finding of guilt of, or is subject to a judicial finding	697
of eligibility for intervention in lieu of conviction for a	698
violation of Chapter 2907., 2925., or 3719. of the Revised Code or	699
of any substantively comparable ordinance of a municipal	700
corporation in connection with the person's practice, the	701
prosecutor in the case, on forms prescribed and provided by the	702
state medical board, shall promptly notify the board of the	703
conviction. Within thirty days of receipt of that information, the	704
board shall initiate action in accordance with Chapter 119. of the	705
Revised Code to determine whether to suspend or revoke the	706
certificatelicense under section 4762.13 of the Revised Code.	707

(C) The prosecutor in any case against any person holding a	708
valid certificatelicense issued pursuant to this chapter, on	709
forms prescribed and provided by the state medical board, shall	710
notify the board of any of the following:	711

(1) A plea of guilty to, a finding of guilt by a jury or	712
court of, or judicial finding of eligibility for intervention in	713
lieu of conviction for a felony, or a case in which the trial	714
court issues an order of dismissal upon technical or procedural	715
grounds of a felony charge;	716

(2) A plea of guilty to, a finding of guilt by a jury or	717
court of, or judicial finding of eligibility for intervention in	718
lieu of conviction for a misdemeanor committed in the course of	719
practice, or a case in which the trial court issues an order of	720
dismissal upon technical or procedural grounds of a charge of a	721
misdemeanor, if the alleged act was committed in the course of	722
practice;	723

(3) A plea of guilty to, a finding of guilt by a jury or	724
court of, or judicial finding of eligibility for intervention in	725
lieu of conviction for a misdemeanor involving moral turpitude, or	726
a case in which the trial court issues an order of dismissal upon	727
technical or procedural grounds of a charge of a misdemeanor	728
involving moral turpitude.	729

The report shall include the name and address of the	730
certificatelicense holder, the nature of the offense for which	731
the action was taken, and the certified court documents recording	732
the action.	733

Sec. 4762.16.  (A) Within sixty days after the imposition of	734
any formal disciplinary action taken by any health care facility,	735
including a hospital, health care facility operated by ana health	736
insuring corporation, ambulatory surgical center, or similar	737
facility, against any individual holding a valid certificate of	738
registrationlicense as an acupuncturist, the chief administrator	739
or executive officer of the facility shall report to the state	740
medical board the name of the individual, the action taken by the	741
facility, and a summary of the underlying facts leading to the	742
action taken. Upon request, the board shall be provided certified	743
copies of the patient records that were the basis for the	744
facility's action. Prior to release to the board, the summary	745
shall be approved by the peer review committee that reviewed the	746
case or by the governing board of the facility.	747

The filing of a report with the board or decision not to file	748
a report, investigation by the board, or any disciplinary action	749
taken by the board, does not preclude a health care facility from	750
taking disciplinary action against an acupuncturist.	751

In the absence of fraud or bad faith, no individual or entity	752
that provides patient records to the board shall be liable in	753
damages to any person as a result of providing the records.	754

(B) An acupuncturist, professional association or society of	755
acupuncturists, physician, or professional association or society	756
of physicians that believes a violation of any provision of this	757
chapter, Chapter 4731. of the Revised Code, or rule of the board	758
has occurred shall report to the board the information upon which	759
the belief is based. This division does not require any treatment	760
provider approved by the board under section 4731.25 of the	761
Revised Code or any employee, agent, or representative of such a	762
provider to make reports with respect to an acupuncturist	763
participating in treatment or aftercare for substance abuse as	764
long as the acupuncturist maintains participation in accordance	765
with the requirements of section 4731.25 of the Revised Code and	766
the treatment provider or employee, agent, or representative of	767
the provider has no reason to believe that the acupuncturist has	768
violated any provision of this chapter or rule adopted under it,	769
other than being impaired by alcohol, drugs, or other substances.	770
This division does not require reporting by any member of an	771
impaired practitioner committee established by a health care	772
facility or by any representative or agent of a committee or	773
program sponsored by a professional association or society of	774
acupuncturists to provide peer assistance to acupuncturists with	775
substance abuse problems with respect to an acupuncturist who has	776
been referred for examination to a treatment program approved by	777
the board under section 4731.25 of the Revised Code if the	778
acupuncturist cooperates with the referral for examination and	779
with any determination that the acupuncturist should enter	780
treatment and as long as the committee member, representative, or	781
agent has no reason to believe that the acupuncturist has ceased	782
to participate in the treatment program in accordance with section	783
4731.25 of the Revised Code or has violated any provision of this	784
chapter or rule adopted under it, other than being impaired by	785
alcohol, drugs, or other substances.	786

(C) Any professional association or society composed	787
primarily of acupuncturists that suspends or revokes an	788
individual's membership for violations of professional ethics, or	789
for reasons of professional incompetence or professional	790
malpractice, within sixty days after a final decision, shall	791
report to the board, on forms prescribed and provided by the	792
board, the name of the individual, the action taken by the	793
professional organization, and a summary of the underlying facts	794
leading to the action taken.	795

The filing of a report with the board or decision not to file	796
a report, investigation by the board, or any disciplinary action	797
taken by the board, does not preclude a professional organization	798
from taking disciplinary action against an acupuncturist.	799

(D) Any insurer providing professional liability insurance to	800
any person holding a valid certificate of registrationlicense as	801
an acupuncturist or any other entity that seeks to indemnify the	802
professional liability of an acupuncturist shall notify the board	803
within thirty days after the final disposition of any written	804
claim for damages where such disposition results in a payment	805
exceeding twenty-five thousand dollars. The notice shall contain	806
the following information:	807

(1) The name and address of the person submitting the	808
notification;	809

(2) The name and address of the insured who is the subject of	810
the claim;	811

(3) The name of the person filing the written claim;

812

(4) The date of final disposition;

813

(5) If applicable, the identity of the court in which the	814
final disposition of the claim took place.	815

(E) The board may investigate possible violations of this	816
chapter or the rules adopted under it that are brought to its	817
attention as a result of the reporting requirements of this	818
section, except that the board shall conduct an investigation if a	819
possible violation involves repeated malpractice. As used in this	820
division, "repeated malpractice" means three or more claims for	821
malpractice within the previous five-year period, each resulting	822
in a judgment or settlement in excess of twenty-five thousand	823
dollars in favor of the claimant, and each involving negligent	824
conduct by the acupuncturist.	825

(F) All summaries, reports, and records received and	826
maintained by the board pursuant to this section shall be held in	827
confidence and shall not be subject to discovery or introduction	828
in evidence in any federal or state civil action involving an	829
acupuncturist, supervising physician, or health care facility	830
arising out of matters that are the subject of the reporting	831
required by this section. The board may use the information	832
obtained only as the basis for an investigation, as evidence in a	833
disciplinary hearing against an acupuncturist or supervising	834
physician, or in any subsequent trial or appeal of a board action	835
or order.	836

The board may disclose the summaries and reports it receives	837
under this section only to health care facility committees within	838
or outside this state that are involved in credentialing or	839
recredentialing an acupuncturist or supervising physician or	840
reviewing their privilege to practice within a particular	841
facility. The board shall indicate whether or not the information	842
has been verified. Information transmitted by the board shall be	843
subject to the same confidentiality provisions as when maintained	844
by the board.	845

(G) Except for reports filed by an individual pursuant to	846
division (B) of this section, the board shall send a copy of any	847
reports or summaries it receives pursuant to this section to the	848
acupuncturist. The acupuncturist shall have the right to file a	849
statement with the board concerning the correctness or relevance	850
of the information. The statement shall at all times accompany	851
that part of the record in contention.	852

(H) An individual or entity that reports to the board or	853
refers an impaired acupuncturist to a treatment provider approved	854
by the board under section 4731.25 of the Revised Code shall not	855
be subject to suit for civil damages as a result of the report,	856
referral, or provision of the information.	857

(I) In the absence of fraud or bad faith, a professional	858
association or society of acupuncturists that sponsors a committee	859
or program to provide peer assistance to an acupuncturist with	860
substance abuse problems, a representative or agent of such a	861
committee or program, and a member of the state medical board	862
shall not be held liable in damages to any person by reason of	863
actions taken to refer an acupuncturist to a treatment provider	864
approved under section 4731.25 of the Revised Code for examination	865
or treatment.	866

Sec. 4762.18.  (A) Subject to division (E) of this section,	867
the attorney general, the prosecuting attorney of any county in	868
which the offense was committed or the offender resides, the state	869
medical board, or any other person having knowledge of a person	870
engaged either directly or by complicity in the practice of	871
acupuncture without having first obtained a certificate of	872
registrationlicense to do so pursuant to this chapter, may, in	873
accord with provisions of the Revised Code governing injunctions,	874
maintain an action in the name of the state to enjoin any person	875
from engaging either directly or by complicity in the unlawful	876
practice of acupuncture by applying for an injunction in any court	877
of competent jurisdiction.	878

(B) Prior to application for an injunction under division (A)	879
of this section, the secretary of the state medical board shall	880
notify the person allegedly engaged either directly or by	881
complicity in the unlawful practice of acupuncture by registered	882
mail that the secretary has received information indicating that	883
this person is so engaged. The person shall answer the secretary	884
within thirty days showing that the person is either properly	885
licensed for the stated activity or that the person is not in	886
violation of this chapter. If the answer is not forthcoming within	887
thirty days after notice by the secretary, the secretary shall	888
request that the attorney general, the prosecuting attorney of the	889
county in which the offense was committed or the offender resides,	890
or the state medical board proceed as authorized in this section.	891

(C) Upon the filing of a verified petition in court, the	892
court shall conduct a hearing on the petition and shall give the	893
same preference to this proceeding as is given all proceedings	894
under Chapter 119. of the Revised Code, irrespective of the	895
position of the proceeding on the calendar of the court.	896

(D) Injunction proceedings as authorized by this section	897
shall be in addition to, and not in lieu of, all penalties and	898
other remedies provided in this chapter.	899

(E) An injunction proceeding permitted by division (A) of	900
this section may not be maintained against a person described in	901
division (B) of section 4762.02 of the Revised Code or a	902
chiropractor who holds a valid certificate to practice acupuncture	903
issued under section 4734.283 of the Revised Code.	904

Sec. 4762.22.  An acupuncturist licensed under this chapter	905
shall have professional liability insurance coverage in an amount	906
not less than five hundred thousand dollars.	907

Section 2.  That existing sections 4762.02, 4762.03, 4762.04,	908
4762.05, 4762.06, 4762.08, 4762.09, 4762.10, 4762.11, 4762.13,	909
4762.131, 4762.132, 4762.14, 4762.15, 4762.16, and 4762.18 of the	910
Revised Code are hereby repealed.	911