S. B. No. 294 As Introduced

As Introduced

128th General Assembly

Regular Session

2009-2010

S. B. No. 294

Senator Morano

Cosponsors: Senators Miller, D., Miller, R., Turner, Fedor

A BILL

To amend sections 3702.30 and 3702.31 and to enact

sections 3702.40, 3727.60, and 3727.601 of the

Revised Code regarding the assignment of

circulating nurses in hospitals and ambulatory

surgical facilities.

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

Section 1. That sections 3702.30 and 3702.31 be amended and	6
sections 3702.40, 3727.60, and 3727.601 of the Revised Code be	7
enacted to read as follows:	8

Sec. 3702.30. (A) As used in this section:

(1) "Ambulatory surgical facility" means a facility, whether	10
or not part of the same organization as a hospital, that is	11
located in a building distinct from another in which inpatient	12
care is provided, and to which any of the following apply:	13

(a) Outpatient surgery is routinely performed in the	14
facility, and the facility functions separately from a hospital's	15
inpatient surgical service and from the offices of private	16
physicians, podiatrists, and dentists.	17

(b) Anesthesia is administered in the facility by an	18
anesthesiologist or certified registered nurse anesthetist, and	19
the facility functions separately from a hospital's inpatient	20
surgical service and from the offices of private physicians,	21
podiatrists, and dentists.	22

(c) The facility applies to be certified by the United States	23
centers for medicare and medicaid services as an ambulatory	24
surgical center for purposes of reimbursement under Part B of the	25
medicare program, Part B of Title XVIII of the "Social Security	26
Act," 79 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.	27

(d) The facility applies to be certified by a national	28
accrediting body approved by the centers for medicare and medicaid	29
services for purposes of deemed compliance with the conditions for	30
participating in the medicare program as an ambulatory surgical	31
center.	32

(e) The facility bills or receives from any third-party	33
payer, governmental health care program, or other person or	34
government entity any ambulatory surgical facility fee that is	35
billed or paid in addition to any fee for professional services.	36

(f) The facility is held out to any person or government	37
entity as an ambulatory surgical facility or similar facility by	38
means of signage, advertising, or other promotional efforts.	39

"Ambulatory surgical facility" does not include a hospital	40
emergency department.	41

(2) "Ambulatory surgical facility fee" means a fee for	42
certain overhead costs associated with providing surgical services	43
in an outpatient setting. A fee is an ambulatory surgical facility	44
fee only if it directly or indirectly pays for costs associated	45
with any of the following:	46

(a) Use of operating and recovery rooms, preparation areas,	47
and waiting rooms and lounges for patients and relatives;	48

(b) Administrative functions, record keeping, housekeeping,	49
utilities, and rent;	50

(c) Services provided by nurses, orderlies, technical	51
personnel, and others involved in patient care related to	52
providing surgery.	53

"Ambulatory surgical facility fee" does not include any	54
additional payment in excess of a professional fee that is	55
provided to encourage physicians, podiatrists, and dentists to	56
perform certain surgical procedures in their office or their group	57
practice's office rather than a health care facility, if the	58
purpose of the additional fee is to compensate for additional cost	59
incurred in performing office-based surgery.	60

(3) "Governmental health care program" has the same meaning	61
as in section 4731.65 of the Revised Code.	62

(4) "Health care facility" means any of the following:

(a) An ambulatory surgical facility;

(b) A freestanding dialysis center;

(d) A freestanding birthing center;

(e) A freestanding radiation therapy center;

(f) A freestanding or mobile diagnostic imaging center.

(5) "Third-party payer" has the same meaning as in section	70
3901.38 of the Revised Code.	71

(B) By rule adopted in accordance with sections 3702.12 and	72
3702.13 of the Revised Code, the director of health shall	73
establish quality standards for health care facilities. The	74
standards may incorporate accreditation standards or other quality	75
standards established by any entity recognized by the director.	76

(C) Every ambulatory surgical facility shall require that	77
each physician who practices at the facility comply with all	78
relevant provisions in the Revised Code that relate to the	79
obtaining of informed consent from a patient.	80

(D) The director shall issue a license to each health care	81
facility that makes application for a license and demonstrates to	82
the director that it meets the quality standards established by	83
the rules adopted under division (B) of this section and satisfies	84
the informed consent compliance requirements specified in division	85
(C) of this section.	86

(E)(1) Except as provided in division (H) of this section and	87
in section 3702.301 of the Revised Code, no health care facility	88
shall operate without a license issued under this section.	89

(2) If the department of health finds that a physician who	90
practices at a health care facility is not complying with any	91
provision of the Revised Code related to the obtaining of informed	92
consent from a patient, the department shall report its finding to	93
the state medical board, the physician, and the health care	94
facility.	95

(3) This division does not create, and shall not be construed	96
as creating, a new cause of action or substantive legal right	97
against a health care facility and in favor of a patient who	98
allegedly sustains harm as a result of the failure of the	99
patient's physician to obtain informed consent from the patient	100
prior to performing a procedure on or otherwise caring for the	101
patient in the health care facility.	102

(F) The rules adopted under division (B) of this section	103
shall include all of the following:	104

(1) Provisions governing application for, renewal,	105
suspension, and revocation of a license under this section;	106

(2) Provisions governing orders issued pursuant to section	107
3702.32 of the Revised Code for a health care facility to cease	108
its operations or to prohibit certain types of services provided	109
by a health care facility;	110

(3) Provisions governing the orders issued pursuant to	111
section 3702.40 of the Revised Code for an ambulatory surgical	112
facility to cease its operations or to prohibit specified types of	113
services provided by an ambulatory surgical facility;	114

(4) Provisions governing the imposition under ~~section~~	115
sections 3702.32 and 3702.40 of the Revised Code of civil	116
penalties for violations of this section or the rules adopted	117
under this section, including a scale for determining the amount	118
of the penalties.	119

(G) An ambulatory surgical facility that performs or induces	120
abortions shall comply with section 3701.791 of the Revised Code.	121

(H) The following entities are not required to obtain a	122
license as a freestanding diagnostic imaging center issued under	123
this section:	124

(1) A hospital registered under section 3701.07 of the	125
Revised Code that provides diagnostic imaging;	126

(2) An entity that is reviewed as part of a hospital	127
accreditation or certification program and that provides	128
diagnostic imaging;	129

(3) An ambulatory surgical facility that provides diagnostic	130
imaging in conjunction with or during any portion of a surgical	131
procedure.	132

Sec. 3702.31. (A) The quality monitoring and inspection fund	133
is hereby created in the state treasury. The director of health	134
shall use the fund to administer and enforce this section and	135
sections 3702.11 to 3702.20, 3702.30, 3702.301, ~~and~~ 3702.32, and	136
3702.40 of the Revised Code and rules adopted pursuant to those	137
sections. The director shall deposit in the fund any moneys	138
collected pursuant to this section or section 3702.32 or 3702.40	139
of the Revised Code. All investment earnings of the fund shall be	140
credited to the fund.	141

(B) The director of health shall adopt rules pursuant to	142
Chapter 119. of the Revised Code establishing fees for both of the	143
following:	144

(1) Initial and renewal license applications submitted under	145
section 3702.30 of the Revised Code. The fees established under	146
division (B)(1) of this section shall not exceed the actual and	147
necessary costs of performing the activities described in division	148
(A) of this section.	149

(2) Inspections conducted under section 3702.15 or 3702.30	150
of the Revised Code. The fees established under division (B)(2)	151
of this section shall not exceed the actual and necessary costs	152
incurred during an inspection, including any indirect costs	153
incurred by the department for staff, salary, or other	154
administrative costs. The director of health shall provide to	155
each health care facility or provider inspected pursuant to	156
section 3702.15 or 3702.30 of the Revised Code a written statement	157
of the fee. The statement shall itemize and total the costs	158
incurred. Within fifteen days after receiving a statement from	159
the director, the facility or provider shall forward the total	160
amount of the fee to the director.	161

(3) The fees described in divisions (B)(1) and (2) of this	162
section shall meet both of the following requirements:	163

(a) For each service described in section 3702.11 of the	164
Revised Code, the fee shall not exceed one thousand seven hundred	165
fifty dollars annually, except that the total fees charged to a	166
health care provider under this section shall not exceed five	167
thousand dollars annually.	168

(b) The fee shall exclude any costs reimbursable by the	169
United States centers for medicare and medicaid services as part	170
of the certification process for the medicare program established	171
under Title XVIII of the "Social Security Act," 79 Stat. 286	172
(1935), 42 U.S.C.A. 1395, as amended, and the medicaid program	173
established under Title XIX of the "Social Security Act," 79 Stat.	174
286 (1965), 42 U.S.C. 1396.	175

(4) The director shall not establish a fee for any service	176
for which a licensure or inspection fee is paid by the health care	177
provider to a state agency for the same or similar licensure or	178
inspection.	179

Sec. 3702.40. (A) As used in this section:

180

(1) "Circulating nurse" means a registered nurse who is	181
educated, trained, or experienced in perioperative nursing and who	182
is responsible for coordinating the nursing care and safety needs	183
of a patient in an operating room or invasive procedure room.	184

(2) "General anesthesia," "deep sedation," "moderate	185
sedation," and "minimal sedation" have the same meanings as in	186
rules the state medical board adopts under section 4731.05 of the	187
Revised Code for purposes of regulating office-based surgeries.	188

(3) "Registered nurse" means a person who is licensed as a	189
registered nurse under Chapter 4723. of the Revised Code.	190

(B) Except as provided in division (C) of this section, an	191
ambulatory surgical facility shall do all of the following:	192

(1) Assign a circulating nurse to each procedure performed	193
in an operating room or invasive procedure room of the facility;	194

(2) Ensure that the circulating nurse assigned to a procedure	195
described in division (B)(1) of this section is present in the	196
operating room or invasive procedure room for the entire duration	197
of the procedure unless it becomes necessary for the nurse to	198
leave the room as required by the procedure or the nurse is	199
relieved by another circulating nurse;	200

(3) Ensure that a circulating nurse assigned to a procedure	201
described in division (B)(1) of this section is not assigned to	202
another procedure that is scheduled to occur concurrently or that	203
may overlap in time with the procedure to which the nurse was	204
originally assigned;	205

(4) Prohibit a circulating nurse from administering	206
anesthesia or sedation and monitoring a patient to whom such drugs	207
have been administered.	208

(C) An ambulatory surgical facility is not required to comply	209
with division (B) of this section with respect to a surgical	210
procedure if either of the following is the case:	211

(1) The patient is not placed under general anesthesia, deep	212
sedation, moderate sedation, or minimal sedation and any one of	213
the following applies:	214

(a) The procedure involves the use of endoscopy;

215

(b) The procedure is performed for the primary purpose of	216
relieving pain;	217

(c) The procedure is a laser assisted in situ keratomileusis	218
(LASIK) surgery;	219

(d) The procedure uses extracorporeal shock wave therapy	220
(ESWT).	221

(2) The director of health or governor has declared a natural	222
disaster or public health emergency.	223

(D) If the director of health determines that an ambulatory	224
surgical facility has violated this section, the director may do	225
one or both of the following:	226

(1) Provide an opportunity for the ambulatory surgical	227
facility to correct the violation within a period of time	228
specified by the director;	229

(2) Prior to or during the pendency of an administrative	230
hearing under Chapter 119. of the Revised Code, issue an order	231
that requires the ambulatory surgical facility to cease operation	232
or prohibits the facility from performing the types of services	233
specified by the director.	234

(E) If an ambulatory surgical facility subject to an order	235
issued under division (D)(2) of this section continues to operate	236
or to perform the types of services prohibited by the order, the	237
director of health may file a petition in the court of common	238
pleas of the county in which the facility is located for an order	239
enjoining the facility from continuing to operate or continuing to	240
perform those types of services. The court shall grant the	241
injunction on a showing that the respondent named in the petition	242
is continuing to operate or perform the types of services	243
prohibited by the director's order.	244

Sec. 3727.60. (A) As used in this section:

245

(1) "Circulating nurse" means a registered nurse who is	246
educated, trained, or experienced in perioperative nursing and who	247
is responsible for coordinating the nursing care and safety needs	248
of a patient in an operating room or invasive procedure room.	249

(2) "General anesthesia," "deep sedation," "moderate	250
sedation," and "minimal sedation" have the same meanings as in	251
rules the state medical board adopts under section 4731.05 of the	252
Revised Code for purposes of regulating office-based surgeries.	253

(3) "Registered nurse" means a person who is licensed as a	254
registered nurse under Chapter 4723. of the Revised Code.	255

(B) Except as provided in division (C) of this section, a	256
hospital shall do all of the following:	257

(1) Assign a circulating nurse to each procedure performed	258
in an operating room or invasive procedure room of the hospital;	259

(2) Ensure that the circulating nurse assigned to a procedure	260
described in division (B)(1) of this section is present in the	261
operating room or invasive procedure room for the entire duration	262
of the procedure unless it becomes necessary for the nurse to	263
leave the room as required by the procedure or the nurse is	264
relieved by another circulating nurse;	265

(3) Ensure that a circulating nurse assigned to a procedure	266
described in division (B)(1) of this section is not assigned to	267
another procedure that is scheduled to occur concurrently or that	268
may overlap in time with the procedure to which the nurse was	269
originally assigned;	270

(4) Prohibit a circulating nurse from administering	271
anesthesia or sedation and monitoring a patient to whom such drugs	272
have been administered.	273

(C) A hospital is not required to comply with division (B) of	274
this section with respect to a surgical procedure if either of the	275
following is the case:	276

(1) The patient is not placed under general anesthesia, deep	277
sedation, moderate sedation, or minimal sedation and any one of	278
the following applies:	279

(a) The procedure involves the use of endoscopy;

280

(b) The procedure is performed for the primary purpose of	281
relieving pain;	282

(c) The procedure is a laser assisted in situ keratomileusis	283
(LASIK) surgery;	284

(d) The procedure uses extracorporeal shock wave therapy	285
(ESWT).	286

(2) The director of health or governor has declared a natural	287
disaster or public health emergency.	288

(D) If the director of health determines that a hospital has	289
violated this section, the director may provide an opportunity for	290
the hospital to correct the violation within a period of time	291
specified by the director.	292

(E) If a hospital fails to correct a violation determined by	293
the director under division (D) of this section within the amount	294
of time specified by the director, the director may file a	295
petition in the court of common pleas of the county in which the	296
hospital is located for an order enjoining the hospital from	297
continuing to operate or continuing to perform the types of	298
services that are associated with the violation. The court shall	299
grant the injunction on a showing that the respondent named in	300
the petition is continuing to operate or perform the types of	301
services associated with the violation.	302

(F) The director of health shall adopt rules regarding the	303
establishment and collection of fees from hospitals to cover the	304
costs of administering and enforcing this section. The rules shall	305
be adopted in accordance with Chapter 119. of the Revised Code.	306

Each hospital subject to the fees established in the rules	307
adopted under this division shall pay the fees in a manner that	308
complies with those rules.	309

Sec. 3727.601. Fees collected under section 3727.60 of the	310
Revised Code shall be deposited into the state treasury to the	311
credit of the hospital circulating nurse requirement fund, which	312
is hereby created. The fund shall be used by the department of	313
health for administering and enforcing section 3727.60 of the	314
Revised Code and rules adopted pursuant to that section. All	315
investment earnings from the fund shall be credited to the fund.	316

Section 2. That existing sections 3702.30 and 3702.31 of the	317
Revised Code are hereby repealed.	318