As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 125

Representative Wachtmann 

Cosponsors: Representatives Henne, Buchy, Blessing, Rosenberger, Amstutz, McClain, McKenney, Stautberg, Maag, Bubp, Adams, J., Snitchler, Sears, Roegner, Burke, Grossman, Hottinger, Johnson, Martin, Gardner, Combs, Beck, Schuring, Goodwin, Adams, R., Young, Brenner, Huffman, Hall, Mecklenborg, Slaby, Carey, Blair, Gonzales, Hackett, Kozlowski, Balderson, Hayes, Baker, Dovilla, Boose, Peterson, Derickson, Ruhl, Landis, Sprague, Newbold, Thompson, Uecker 

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A BILL

To amend section 4731.22 and to enact section 2919.19

1

of the Revised Code to generally prohibit an

2

abortion of an unborn human individual with a

3

detectable fetal heartbeat.

4

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

Section 1.  That section 4731.22 be amended and section	5
2919.19 of the Revised Code be enacted to read as follows:	6

Sec. 2919.19.  (A) The general assembly hereby declares that	7
it finds, according to contemporary medical research, all of the	8
following:	9

(1) As many as thirty per cent of natural pregnancies end in	10
spontaneous miscarriage;	11

(2) Less than five per cent of all natural pregnancies end in	12
spontaneous miscarriage after detection of fetal cardiac activity;	13

(3) Over ninety per cent of in vitro pregnancies survive the	14
first trimester if cardiac activity is detected in the gestational	15
sac;	16

(4) Nearly ninety per cent of in vitro pregnancies do not	17
survive the first trimester where cardiac activity is not detected	18
in the gestational sac;	19

(5) Fetal heartbeat, therefore, has become a key, medical	20
predictor that an unborn human individual will reach viability and	21
live birth;	22

(6) Cardiac activity begins at a biologically identifiable	23
moment in time, normally when the fetal heart is formed in the	24
gestational sac.	25

(B)(1) "Contraceptive" means a device, drug, or chemical that	26
prevents conception.	27

(2) "Fetal heartbeat" means cardiac activity or the steady	28
and repetitive rhythmic contraction of the fetal heart within the	29
gestational sac.	30

(3) "Fetus" means the human offspring developing during	31
pregnancy from the moment of conception and includes the embryonic	32
stage of development.	33

(4) "Gestational age" means the age of an unborn human	34
individual as calculated from the first day of the last menstrual	35
period of a pregnant woman.	36

(5) "Gestational sac" comprises the extra embryonic membranes	37
that envelop the fetus and that is typically visible by ultrasound	38
after the fourth week of pregnancy.	39

(6) "Medical emergency" means a condition that in the	40
physician's good faith medical judgment, based upon the facts	41
known to the physician at that time, so endangers the life of the	42
pregnant woman or a major bodily function of the pregnant woman as	43
to necessitate the immediate performance or inducement of an	44
abortion.	45

(7) "Physician" has the same meaning as in section 2305.113	46
of the Revised Code.	47

(8) "Pregnancy" means the human female reproductive condition	48
that begins with fertilization, when the woman is carrying the	49
developing human offspring, and that is calculated from the first	50
day of the last menstrual period of the woman.	51

(9) "Spontaneous miscarriage" means the natural or accidental	52
termination of a pregnancy and the expulsion of the fetus,	53
typically caused by genetic defects in the fetus or physical	54
abnormalities in the pregnant woman.	55

(10) "Unborn human individual" means an individual organism	56
of the species homo sapiens from fertilization until live birth.	57

(C)(1) Except when a medical emergency exists that prevents	58
compliance with this division, no person shall perform an abortion	59
on a pregnant woman prior to determining if the fetus the pregnant	60
woman is carrying has a detectible fetal heartbeat.	61

(2) A person who intends to perform an abortion on a pregnant	62
woman shall determine if there is the presence of a fetal	63
heartbeat of the unborn human individual that the pregnant woman	64
is carrying according to standard medical practice. A person shall	65
comply with division (C)(2) of this section regardless of whether	66
or not the director of health promulgated rules under division	67
(C)(3) of this section.	68

(3) The director of the department of health may promulgate	69
rules pursuant to section 111.15 of the Revised Code for the	70
appropriate methods of performing an examination for the presence	71
of a fetal heartbeat of an unborn human individual based on	72
standard medical practice.	73

(4) If a physician performs an abortion on a pregnant woman	74
prior to determining if the fetus the pregnant woman is carrying	75
has a detectible fetal heartbeat, that physician is subject to	76
disciplinary action under division (B)(41) of section 4731.22 of	77
the Revised Code.	78

(D)(1) Division (D) of this section applies to all abortions	79
that are not prohibited under sections 2919.12, 2919.121, and	80
2919.151 of the Revised Code, except those abortions that are	81
necessary to save the life of the pregnant woman.	82

(2) If the person who intends to perform an abortion on a	83
pregnant woman detects a fetal heartbeat in the unborn human	84
individual that the pregnant woman is carrying, no later than	85
twenty-four hours prior to the performance of the intended	86
abortion, both of the following apply:	87

(a) The person intending to perform the abortion shall inform	88
the pregnant woman in writing that the unborn human individual	89
that the pregnant woman is carrying has a fetal heartbeat and	90
shall inform the pregnant woman, to the best of the person's	91
knowledge, of the statistical probability of bringing the unborn	92
human individual to term based on the gestational age of the	93
unborn human individual possessing a detectible fetal heartbeat. A	94
person shall comply with division (D)(2)(a) of this section	95
regardless of whether or not the director of health promulgated	96
rules under division (D)(3) of this section.	97

(b) The pregnant woman shall sign a form acknowledging that	98
the pregnant woman has received information from the person	99
intending to perform the abortion that the unborn human individual	100
that the pregnant woman is carrying has a fetal heartbeat and that	101
the pregnant woman is aware of the statistical probability of	102
bringing the unborn human individual that the pregnant woman is	103
carrying to term.	104

(3) The director of the department of health may define and	105
promulgate by rules adopted pursuant to section 111.15 of the	106
Revised Code and based upon available medical evidence the	107
statistical probability of bringing an unborn human individual to	108
term based on the gestational age of an unborn human individual	109
who possesses a detectible fetal heartbeat.	110

(4) Division (D) of this section does not repeal any other	111
provision of the Revised Code relating to informed consent for an	112
abortion.	113

(E)(1) Except as provided in division (E)(2) or (3) of this	114
section, no person shall knowingly perform an abortion on a	115
pregnant woman with the specific intent of causing or abetting the	116
termination of the life of the unborn human individual that the	117
pregnant woman is carrying and whose fetal heartbeat has been	118
detected according to the requirements of division (C) of this	119
section.	120

(2) A person is not in violation of division (E)(1) of this	121
section if that person performs a medical procedure designed to or	122
intended to prevent the death of a pregnant woman or, in that	123
person's reasonable medical judgment, to preserve the life or	124
health of the pregnant woman.	125

(3) A person is not in violation of division (E)(1) of this	126
section if that person has performed an examination for the	127
presence of a fetal heartbeat in the fetus utilizing standard	128
medical practice and that examination does not reveal a fetal	129
heartbeat or the person has been informed by a physician who has	130
performed the examination for fetal heartbeat that the examination	131
did not reveal a fetal heartbeat.	132

(4) Division (E) of this section does not repeal any other	133
provision of the Revised Code that restricts or regulates the	134
performance of an abortion by a particular method or during a	135
particular stage of a pregnancy.	136

(5) Whoever violates division (E) of this section is guilty	137
of performing an abortion after the detection of a fetal	138
heartbeat, a felony of the fifth degree.	139

(F) A pregnant woman on whom an abortion is performed in	140
violation of division (C) or (E) of this section is not guilty of	141
violating division (C) or (E) of this section or of attempting to	142
commit, conspiring to commit, or complicity in committing a	143
violation of division (C) or (E) of this section and is not	144
subject to a civil penalty based on that violation.	145

(G) Nothing in this section prohibits the sale, use,	146
prescription, or administration of a measure, drug, or chemical	147
designed for contraceptive purposes.	148

Sec. 4731.22.  (A) The state medical board, by an affirmative	149
vote of not fewer than six of its members, may revoke or may	150
refuse to grant a certificate to a person found by the board to	151
have committed fraud during the administration of the examination	152
for a certificate to practice or to have committed fraud,	153
misrepresentation, or deception in applying for or securing any	154
certificate to practice or certificate of registration issued by	155
the board.	156

(B) The board, by an affirmative vote of not fewer than six	157
members, shall, to the extent permitted by law, limit, revoke, or	158
suspend an individual's certificate to practice, refuse to	159
register an individual, refuse to reinstate a certificate, or	160
reprimand or place on probation the holder of a certificate for	161
one or more of the following reasons:	162

(1) Permitting one's name or one's certificate to practice or	163
certificate of registration to be used by a person, group, or	164
corporation when the individual concerned is not actually	165
directing the treatment given;	166

(2) Failure to maintain minimal standards applicable to the	167
selection or administration of drugs, or failure to employ	168
acceptable scientific methods in the selection of drugs or other	169
modalities for treatment of disease;	170

(3) Selling, giving away, personally furnishing, prescribing,	171
or administering drugs for other than legal and legitimate	172
therapeutic purposes or a plea of guilty to, a judicial finding of	173
guilt of, or a judicial finding of eligibility for intervention in	174
lieu of conviction of, a violation of any federal or state law	175
regulating the possession, distribution, or use of any drug;	176

(4) Willfully betraying a professional confidence.

177

For purposes of this division, "willfully betraying a	178
professional confidence" does not include providing any	179
information, documents, or reports to a child fatality review	180
board under sections 307.621 to 307.629 of the Revised Code and	181
does not include the making of a report of an employee's use of a	182
drug of abuse, or a report of a condition of an employee other	183
than one involving the use of a drug of abuse, to the employer of	184
the employee as described in division (B) of section 2305.33 of	185
the Revised Code. Nothing in this division affects the immunity	186
from civil liability conferred by that section upon a physician	187
who makes either type of report in accordance with division (B) of	188
that section. As used in this division, "employee," "employer,"	189
and "physician" have the same meanings as in section 2305.33 of	190
the Revised Code.	191

(5) Making a false, fraudulent, deceptive, or misleading	192
statement in the solicitation of or advertising for patients; in	193
relation to the practice of medicine and surgery, osteopathic	194
medicine and surgery, podiatric medicine and surgery, or a limited	195
branch of medicine; or in securing or attempting to secure any	196
certificate to practice or certificate of registration issued by	197
the board.	198

As used in this division, "false, fraudulent, deceptive, or	199
misleading statement" means a statement that includes a	200
misrepresentation of fact, is likely to mislead or deceive because	201
of a failure to disclose material facts, is intended or is likely	202
to create false or unjustified expectations of favorable results,	203
or includes representations or implications that in reasonable	204
probability will cause an ordinarily prudent person to	205
misunderstand or be deceived.	206

(6) A departure from, or the failure to conform to, minimal	207
standards of care of similar practitioners under the same or	208
similar circumstances, whether or not actual injury to a patient	209
is established;	210

(7) Representing, with the purpose of obtaining compensation	211
or other advantage as personal gain or for any other person, that	212
an incurable disease or injury, or other incurable condition, can	213
be permanently cured;	214

(8) The obtaining of, or attempting to obtain, money or	215
anything of value by fraudulent misrepresentations in the course	216
of practice;	217

(9) A plea of guilty to, a judicial finding of guilt of, or a	218
judicial finding of eligibility for intervention in lieu of	219
conviction for, a felony;	220

(10) Commission of an act that constitutes a felony in this	221
state, regardless of the jurisdiction in which the act was	222
committed;	223

(11) A plea of guilty to, a judicial finding of guilt of, or	224
a judicial finding of eligibility for intervention in lieu of	225
conviction for, a misdemeanor committed in the course of practice;	226

(12) Commission of an act in the course of practice that	227
constitutes a misdemeanor in this state, regardless of the	228
jurisdiction in which the act was committed;	229

(13) A plea of guilty to, a judicial finding of guilt of, or	230
a judicial finding of eligibility for intervention in lieu of	231
conviction for, a misdemeanor involving moral turpitude;	232

(14) Commission of an act involving moral turpitude that	233
constitutes a misdemeanor in this state, regardless of the	234
jurisdiction in which the act was committed;	235

(15) Violation of the conditions of limitation placed by the	236
board upon a certificate to practice;	237

(16) Failure to pay license renewal fees specified in this	238
chapter;	239

(17) Except as authorized in section 4731.31 of the Revised	240
Code, engaging in the division of fees for referral of patients,	241
or the receiving of a thing of value in return for a specific	242
referral of a patient to utilize a particular service or business;	243

(18) Subject to section 4731.226 of the Revised Code,	244
violation of any provision of a code of ethics of the American	245
medical association, the American osteopathic association, the	246
American podiatric medical association, or any other national	247
professional organizations that the board specifies by rule. The	248
state medical board shall obtain and keep on file current copies	249
of the codes of ethics of the various national professional	250
organizations. The individual whose certificate is being suspended	251
or revoked shall not be found to have violated any provision of a	252
code of ethics of an organization not appropriate to the	253
individual's profession.	254

For purposes of this division, a "provision of a code of	255
ethics of a national professional organization" does not include	256
any provision that would preclude the making of a report by a	257
physician of an employee's use of a drug of abuse, or of a	258
condition of an employee other than one involving the use of a	259
drug of abuse, to the employer of the employee as described in	260
division (B) of section 2305.33 of the Revised Code. Nothing in	261
this division affects the immunity from civil liability conferred	262
by that section upon a physician who makes either type of report	263
in accordance with division (B) of that section. As used in this	264
division, "employee," "employer," and "physician" have the same	265
meanings as in section 2305.33 of the Revised Code.	266

(19) Inability to practice according to acceptable and	267
prevailing standards of care by reason of mental illness or	268
physical illness, including, but not limited to, physical	269
deterioration that adversely affects cognitive, motor, or	270
perceptive skills.	271

In enforcing this division, the board, upon a showing of a	272
possible violation, may compel any individual authorized to	273
practice by this chapter or who has submitted an application	274
pursuant to this chapter to submit to a mental examination,	275
physical examination, including an HIV test, or both a mental and	276
a physical examination. The expense of the examination is the	277
responsibility of the individual compelled to be examined. Failure	278
to submit to a mental or physical examination or consent to an HIV	279
test ordered by the board constitutes an admission of the	280
allegations against the individual unless the failure is due to	281
circumstances beyond the individual's control, and a default and	282
final order may be entered without the taking of testimony or	283
presentation of evidence. If the board finds an individual unable	284
to practice because of the reasons set forth in this division, the	285
board shall require the individual to submit to care, counseling,	286
or treatment by physicians approved or designated by the board, as	287
a condition for initial, continued, reinstated, or renewed	288
authority to practice. An individual affected under this division	289
shall be afforded an opportunity to demonstrate to the board the	290
ability to resume practice in compliance with acceptable and	291
prevailing standards under the provisions of the individual's	292
certificate. For the purpose of this division, any individual who	293
applies for or receives a certificate to practice under this	294
chapter accepts the privilege of practicing in this state and, by	295
so doing, shall be deemed to have given consent to submit to a	296
mental or physical examination when directed to do so in writing	297
by the board, and to have waived all objections to the	298
admissibility of testimony or examination reports that constitute	299
a privileged communication.	300

(20) Except when civil penalties are imposed under section	301
4731.225 or 4731.281 of the Revised Code, and subject to section	302
4731.226 of the Revised Code, violating or attempting to violate,	303
directly or indirectly, or assisting in or abetting the violation	304
of, or conspiring to violate, any provisions of this chapter or	305
any rule promulgated by the board.	306

This division does not apply to a violation or attempted	307
violation of, assisting in or abetting the violation of, or a	308
conspiracy to violate, any provision of this chapter or any rule	309
adopted by the board that would preclude the making of a report by	310
a physician of an employee's use of a drug of abuse, or of a	311
condition of an employee other than one involving the use of a	312
drug of abuse, to the employer of the employee as described in	313
division (B) of section 2305.33 of the Revised Code. Nothing in	314
this division affects the immunity from civil liability conferred	315
by that section upon a physician who makes either type of report	316
in accordance with division (B) of that section. As used in this	317
division, "employee," "employer," and "physician" have the same	318
meanings as in section 2305.33 of the Revised Code.	319

(21) The violation of section 3701.79 of the Revised Code or	320
of any abortion rule adopted by the public health council pursuant	321
to section 3701.341 of the Revised Code;	322

(22) Any of the following actions taken by the agency	323
responsible for regulating the practice of medicine and surgery,	324
osteopathic medicine and surgery, podiatric medicine and surgery,	325
or the limited branches of medicine in another jurisdiction, for	326
any reason other than the nonpayment of fees: the limitation,	327
revocation, or suspension of an individual's license to practice;	328
acceptance of an individual's license surrender; denial of a	329
license; refusal to renew or reinstate a license; imposition of	330
probation; or issuance of an order of censure or other reprimand;	331

(23) The violation of section 2919.12 of the Revised Code or	332
the performance or inducement of an abortion upon a pregnant woman	333
with actual knowledge that the conditions specified in division	334
(B) of section 2317.56 of the Revised Code have not been satisfied	335
or with a heedless indifference as to whether those conditions	336
have been satisfied, unless an affirmative defense as specified in	337
division (H)(2) of that section would apply in a civil action	338
authorized by division (H)(1) of that section;	339

(24) The revocation, suspension, restriction, reduction, or	340
termination of clinical privileges by the United States department	341
of defense or department of veterans affairs or the termination or	342
suspension of a certificate of registration to prescribe drugs by	343
the drug enforcement administration of the United States	344
department of justice;	345

(25) Termination or suspension from participation in the	346
medicare or medicaid programs by the department of health and	347
human services or other responsible agency for any act or acts	348
that also would constitute a violation of division (B)(2), (3),	349
(6), (8), or (19) of this section;	350

(26) Impairment of ability to practice according to	351
acceptable and prevailing standards of care because of habitual or	352
excessive use or abuse of drugs, alcohol, or other substances that	353
impair ability to practice.	354

For the purposes of this division, any individual authorized	355
to practice by this chapter accepts the privilege of practicing in	356
this state subject to supervision by the board. By filing an	357
application for or holding a certificate to practice under this	358
chapter, an individual shall be deemed to have given consent to	359
submit to a mental or physical examination when ordered to do so	360
by the board in writing, and to have waived all objections to the	361
admissibility of testimony or examination reports that constitute	362
privileged communications.	363

If it has reason to believe that any individual authorized to	364
practice by this chapter or any applicant for certification to	365
practice suffers such impairment, the board may compel the	366
individual to submit to a mental or physical examination, or both.	367
The expense of the examination is the responsibility of the	368
individual compelled to be examined. Any mental or physical	369
examination required under this division shall be undertaken by a	370
treatment provider or physician who is qualified to conduct the	371
examination and who is chosen by the board.	372

Failure to submit to a mental or physical examination ordered	373
by the board constitutes an admission of the allegations against	374
the individual unless the failure is due to circumstances beyond	375
the individual's control, and a default and final order may be	376
entered without the taking of testimony or presentation of	377
evidence. If the board determines that the individual's ability to	378
practice is impaired, the board shall suspend the individual's	379
certificate or deny the individual's application and shall require	380
the individual, as a condition for initial, continued, reinstated,	381
or renewed certification to practice, to submit to treatment.	382

Before being eligible to apply for reinstatement of a	383
certificate suspended under this division, the impaired	384
practitioner shall demonstrate to the board the ability to resume	385
practice in compliance with acceptable and prevailing standards of	386
care under the provisions of the practitioner's certificate. The	387
demonstration shall include, but shall not be limited to, the	388
following:	389

(a) Certification from a treatment provider approved under	390
section 4731.25 of the Revised Code that the individual has	391
successfully completed any required inpatient treatment;	392

(b) Evidence of continuing full compliance with an aftercare	393
contract or consent agreement;	394

(c) Two written reports indicating that the individual's	395
ability to practice has been assessed and that the individual has	396
been found capable of practicing according to acceptable and	397
prevailing standards of care. The reports shall be made by	398
individuals or providers approved by the board for making the	399
assessments and shall describe the basis for their determination.	400

The board may reinstate a certificate suspended under this	401
division after that demonstration and after the individual has	402
entered into a written consent agreement.	403

When the impaired practitioner resumes practice, the board	404
shall require continued monitoring of the individual. The	405
monitoring shall include, but not be limited to, compliance with	406
the written consent agreement entered into before reinstatement or	407
with conditions imposed by board order after a hearing, and, upon	408
termination of the consent agreement, submission to the board for	409
at least two years of annual written progress reports made under	410
penalty of perjury stating whether the individual has maintained	411
sobriety.	412

(27) A second or subsequent violation of section 4731.66 or	413
4731.69 of the Revised Code;	414

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

415

(a) Waiving the payment of all or any part of a deductible or	416
copayment that a patient, pursuant to a health insurance or health	417
care policy, contract, or plan that covers the individual's	418
services, otherwise would be required to pay if the waiver is used	419
as an enticement to a patient or group of patients to receive	420
health care services from that individual;	421

(b) Advertising that the individual will waive the payment of	422
all or any part of a deductible or copayment that a patient,	423
pursuant to a health insurance or health care policy, contract, or	424
plan that covers the individual's services, otherwise would be	425
required to pay.	426

(29) Failure to use universal blood and body fluid	427
precautions established by rules adopted under section 4731.051 of	428
the Revised Code;	429

(30) Failure to provide notice to, and receive acknowledgment	430
of the notice from, a patient when required by section 4731.143 of	431
the Revised Code prior to providing nonemergency professional	432
services, or failure to maintain that notice in the patient's	433
file;	434

(31) Failure of a physician supervising a physician assistant	435
to maintain supervision in accordance with the requirements of	436
Chapter 4730. of the Revised Code and the rules adopted under that	437
chapter;	438

(32) Failure of a physician or podiatrist to enter into a	439
standard care arrangement with a clinical nurse specialist,	440
certified nurse-midwife, or certified nurse practitioner with whom	441
the physician or podiatrist is in collaboration pursuant to	442
section 4731.27 of the Revised Code or failure to fulfill the	443
responsibilities of collaboration after entering into a standard	444
care arrangement;	445

(33) Failure to comply with the terms of a consult agreement	446
entered into with a pharmacist pursuant to section 4729.39 of the	447
Revised Code;	448

(34) Failure to cooperate in an investigation conducted by	449
the board under division (F) of this section, including failure to	450
comply with a subpoena or order issued by the board or failure to	451
answer truthfully a question presented by the board at a	452
deposition or in written interrogatories, except that failure to	453
cooperate with an investigation shall not constitute grounds for	454
discipline under this section if a court of competent jurisdiction	455
has issued an order that either quashes a subpoena or permits the	456
individual to withhold the testimony or evidence in issue;	457

(35) Failure to supervise an acupuncturist in accordance with	458
Chapter 4762. of the Revised Code and the board's rules for	459
supervision of an acupuncturist;	460

(36) Failure to supervise an anesthesiologist assistant in	461
accordance with Chapter 4760. of the Revised Code and the board's	462
rules for supervision of an anesthesiologist assistant;	463

(37) Assisting suicide as defined in section 3795.01 of the	464
Revised Code;	465

(38) Failure to comply with the requirements of section	466
2317.561 of the Revised Code;	467

(39) Failure to supervise a radiologist assistant in	468
accordance with Chapter 4774. of the Revised Code and the board's	469
rules for supervision of radiologist assistants;	470

(40) Performing or inducing an abortion at an office or	471
facility with knowledge that the office or facility fails to post	472
the notice required under section 3701.791 of the Revised Code;	473

(41) Performing an abortion on a pregnant woman prior to	474
determining if the fetus the pregnant woman is carrying has a	475
detectible fetal heartbeat, as provided in division (C) of section	476
2919.19 of the Revised Code.	477

(C) Disciplinary actions taken by the board under divisions	478
(A) and (B) of this section shall be taken pursuant to an	479
adjudication under Chapter 119. of the Revised Code, except that	480
in lieu of an adjudication, the board may enter into a consent	481
agreement with an individual to resolve an allegation of a	482
violation of this chapter or any rule adopted under it. A consent	483
agreement, when ratified by an affirmative vote of not fewer than	484
six members of the board, shall constitute the findings and order	485
of the board with respect to the matter addressed in the	486
agreement. If the board refuses to ratify a consent agreement, the	487
admissions and findings contained in the consent agreement shall	488
be of no force or effect.	489

If the board takes disciplinary action against an individual	490
under division (B) of this section for a second or subsequent plea	491
of guilty to, or judicial finding of guilt of, a violation of	492
section 2919.123 of the Revised Code, the disciplinary action	493
shall consist of a suspension of the individual's certificate to	494
practice for a period of at least one year or, if determined	495
appropriate by the board, a more serious sanction involving the	496
individual's certificate to practice. Any consent agreement	497
entered into under this division with an individual that pertains	498
to a second or subsequent plea of guilty to, or judicial finding	499
of guilt of, a violation of that section shall provide for a	500
suspension of the individual's certificate to practice for a	501
period of at least one year or, if determined appropriate by the	502
board, a more serious sanction involving the individual's	503
certificate to practice.	504

(D) For purposes of divisions (B)(10), (12), and (14) of this	505
section, the commission of the act may be established by a finding	506
by the board, pursuant to an adjudication under Chapter 119. of	507
the Revised Code, that the individual committed the act. The board	508
does not have jurisdiction under those divisions if the trial	509
court renders a final judgment in the individual's favor and that	510
judgment is based upon an adjudication on the merits. The board	511
has jurisdiction under those divisions if the trial court issues	512
an order of dismissal upon technical or procedural grounds.	513

(E) The sealing of conviction records by any court shall have	514
no effect upon a prior board order entered under this section or	515
upon the board's jurisdiction to take action under this section	516
if, based upon a plea of guilty, a judicial finding of guilt, or a	517
judicial finding of eligibility for intervention in lieu of	518
conviction, the board issued a notice of opportunity for a hearing	519
prior to the court's order to seal the records. The board shall	520
not be required to seal, destroy, redact, or otherwise modify its	521
records to reflect the court's sealing of conviction records.	522

(F)(1) The board shall investigate evidence that appears to	523
show that a person has violated any provision of this chapter or	524
any rule adopted under it. Any person may report to the board in a	525
signed writing any information that the person may have that	526
appears to show a violation of any provision of this chapter or	527
any rule adopted under it. In the absence of bad faith, any person	528
who reports information of that nature or who testifies before the	529
board in any adjudication conducted under Chapter 119. of the	530
Revised Code shall not be liable in damages in a civil action as a	531
result of the report or testimony. Each complaint or allegation of	532
a violation received by the board shall be assigned a case number	533
and shall be recorded by the board.	534

(2) Investigations of alleged violations of this chapter or	535
any rule adopted under it shall be supervised by the supervising	536
member elected by the board in accordance with section 4731.02 of	537
the Revised Code and by the secretary as provided in section	538
4731.39 of the Revised Code. The president may designate another	539
member of the board to supervise the investigation in place of the	540
supervising member. No member of the board who supervises the	541
investigation of a case shall participate in further adjudication	542
of the case.	543

(3) In investigating a possible violation of this chapter or	544
any rule adopted under this chapter, the board may administer	545
oaths, order the taking of depositions, issue subpoenas, and	546
compel the attendance of witnesses and production of books,	547
accounts, papers, records, documents, and testimony, except that a	548
subpoena for patient record information shall not be issued	549
without consultation with the attorney general's office and	550
approval of the secretary and supervising member of the board.	551
Before issuance of a subpoena for patient record information, the	552
secretary and supervising member shall determine whether there is	553
probable cause to believe that the complaint filed alleges a	554
violation of this chapter or any rule adopted under it and that	555
the records sought are relevant to the alleged violation and	556
material to the investigation. The subpoena may apply only to	557
records that cover a reasonable period of time surrounding the	558
alleged violation.	559

On failure to comply with any subpoena issued by the board	560
and after reasonable notice to the person being subpoenaed, the	561
board may move for an order compelling the production of persons	562
or records pursuant to the Rules of Civil Procedure.	563

A subpoena issued by the board may be served by a sheriff,	564
the sheriff's deputy, or a board employee designated by the board.	565
Service of a subpoena issued by the board may be made by	566
delivering a copy of the subpoena to the person named therein,	567
reading it to the person, or leaving it at the person's usual	568
place of residence. When the person being served is a person whose	569
practice is authorized by this chapter, service of the subpoena	570
may be made by certified mail, restricted delivery, return receipt	571
requested, and the subpoena shall be deemed served on the date	572
delivery is made or the date the person refuses to accept	573
delivery.	574

A sheriff's deputy who serves a subpoena shall receive the	575
same fees as a sheriff. Each witness who appears before the board	576
in obedience to a subpoena shall receive the fees and mileage	577
provided for under section 119.094 of the Revised Code.	578

(4) All hearings and investigations of the board shall be	579
considered civil actions for the purposes of section 2305.252 of	580
the Revised Code.	581

(5) Information received by the board pursuant to an	582
investigation is confidential and not subject to discovery in any	583
civil action.	584

The board shall conduct all investigations and proceedings in	585
a manner that protects the confidentiality of patients and persons	586
who file complaints with the board. The board shall not make	587
public the names or any other identifying information about	588
patients or complainants unless proper consent is given or, in the	589
case of a patient, a waiver of the patient privilege exists under	590
division (B) of section 2317.02 of the Revised Code, except that	591
consent or a waiver of that nature is not required if the board	592
possesses reliable and substantial evidence that no bona fide	593
physician-patient relationship exists.	594

The board may share any information it receives pursuant to	595
an investigation, including patient records and patient record	596
information, with law enforcement agencies, other licensing	597
boards, and other governmental agencies that are prosecuting,	598
adjudicating, or investigating alleged violations of statutes or	599
administrative rules. An agency or board that receives the	600
information shall comply with the same requirements regarding	601
confidentiality as those with which the state medical board must	602
comply, notwithstanding any conflicting provision of the Revised	603
Code or procedure of the agency or board that applies when it is	604
dealing with other information in its possession. In a judicial	605
proceeding, the information may be admitted into evidence only in	606
accordance with the Rules of Evidence, but the court shall require	607
that appropriate measures are taken to ensure that confidentiality	608
is maintained with respect to any part of the information that	609
contains names or other identifying information about patients or	610
complainants whose confidentiality was protected by the state	611
medical board when the information was in the board's possession.	612
Measures to ensure confidentiality that may be taken by the court	613
include sealing its records or deleting specific information from	614
its records.	615

(6) On a quarterly basis, the board shall prepare a report	616
that documents the disposition of all cases during the preceding	617
three months. The report shall contain the following information	618
for each case with which the board has completed its activities:	619

(a) The case number assigned to the complaint or alleged	620
violation;	621

(b) The type of certificate to practice, if any, held by the	622
individual against whom the complaint is directed;	623

(c) A description of the allegations contained in the	624
complaint;	625

(d) The disposition of the case.

626

The report shall state how many cases are still pending and	627
shall be prepared in a manner that protects the identity of each	628
person involved in each case. The report shall be a public record	629
under section 149.43 of the Revised Code.	630

(G) If the secretary and supervising member determine that	631
there is clear and convincing evidence that an individual has	632
violated division (B) of this section and that the individual's	633
continued practice presents a danger of immediate and serious harm	634
to the public, they may recommend that the board suspend the	635
individual's certificate to practice without a prior hearing.	636
Written allegations shall be prepared for consideration by the	637
board.	638

The board, upon review of those allegations and by an	639
affirmative vote of not fewer than six of its members, excluding	640
the secretary and supervising member, may suspend a certificate	641
without a prior hearing. A telephone conference call may be	642
utilized for reviewing the allegations and taking the vote on the	643
summary suspension.	644

The board shall issue a written order of suspension by	645
certified mail or in person in accordance with section 119.07 of	646
the Revised Code. The order shall not be subject to suspension by	647
the court during pendency of any appeal filed under section 119.12	648
of the Revised Code. If the individual subject to the summary	649
suspension requests an adjudicatory hearing by the board, the date	650
set for the hearing shall be within fifteen days, but not earlier	651
than seven days, after the individual requests the hearing, unless	652
otherwise agreed to by both the board and the individual.	653

Any summary suspension imposed under this division shall	654
remain in effect, unless reversed on appeal, until a final	655
adjudicative order issued by the board pursuant to this section	656
and Chapter 119. of the Revised Code becomes effective. The board	657
shall issue its final adjudicative order within seventy-five days	658
after completion of its hearing. A failure to issue the order	659
within seventy-five days shall result in dissolution of the	660
summary suspension order but shall not invalidate any subsequent,	661
final adjudicative order.	662

(H) If the board takes action under division (B)(9), (11), or	663
(13) of this section and the judicial finding of guilt, guilty	664
plea, or judicial finding of eligibility for intervention in lieu	665
of conviction is overturned on appeal, upon exhaustion of the	666
criminal appeal, a petition for reconsideration of the order may	667
be filed with the board along with appropriate court documents.	668
Upon receipt of a petition of that nature and supporting court	669
documents, the board shall reinstate the individual's certificate	670
to practice. The board may then hold an adjudication under Chapter	671
119. of the Revised Code to determine whether the individual	672
committed the act in question. Notice of an opportunity for a	673
hearing shall be given in accordance with Chapter 119. of the	674
Revised Code. If the board finds, pursuant to an adjudication held	675
under this division, that the individual committed the act or if	676
no hearing is requested, the board may order any of the sanctions	677
identified under division (B) of this section.	678

(I) The certificate to practice issued to an individual under	679
this chapter and the individual's practice in this state are	680
automatically suspended as of the date of the individual's second	681
or subsequent plea of guilty to, or judicial finding of guilt of,	682
a violation of section 2919.123 of the Revised Code, or the date	683
the individual pleads guilty to, is found by a judge or jury to be	684
guilty of, or is subject to a judicial finding of eligibility for	685
intervention in lieu of conviction in this state or treatment or	686
intervention in lieu of conviction in another jurisdiction for any	687
of the following criminal offenses in this state or a	688
substantially equivalent criminal offense in another jurisdiction:	689
aggravated murder, murder, voluntary manslaughter, felonious	690
assault, kidnapping, rape, sexual battery, gross sexual	691
imposition, aggravated arson, aggravated robbery, or aggravated	692
burglary. Continued practice after suspension shall be considered	693
practicing without a certificate.	694

The board shall notify the individual subject to the	695
suspension by certified mail or in person in accordance with	696
section 119.07 of the Revised Code. If an individual whose	697
certificate is automatically suspended under this division fails	698
to make a timely request for an adjudication under Chapter 119. of	699
the Revised Code, the board shall do whichever of the following is	700
applicable:	701

(1) If the automatic suspension under this division is for a	702
second or subsequent plea of guilty to, or judicial finding of	703
guilt of, a violation of section 2919.123 of the Revised Code, the	704
board shall enter an order suspending the individual's certificate	705
to practice for a period of at least one year or, if determined	706
appropriate by the board, imposing a more serious sanction	707
involving the individual's certificate to practice.	708

(2) In all circumstances in which division (I)(1) of this	709
section does not apply, enter a final order permanently revoking	710
the individual's certificate to practice.	711

(J) If the board is required by Chapter 119. of the Revised	712
Code to give notice of an opportunity for a hearing and if the	713
individual subject to the notice does not timely request a hearing	714
in accordance with section 119.07 of the Revised Code, the board	715
is not required to hold a hearing, but may adopt, by an	716
affirmative vote of not fewer than six of its members, a final	717
order that contains the board's findings. In that final order, the	718
board may order any of the sanctions identified under division (A)	719
or (B) of this section.	720

(K) Any action taken by the board under division (B) of this	721
section resulting in a suspension from practice shall be	722
accompanied by a written statement of the conditions under which	723
the individual's certificate to practice may be reinstated. The	724
board shall adopt rules governing conditions to be imposed for	725
reinstatement. Reinstatement of a certificate suspended pursuant	726
to division (B) of this section requires an affirmative vote of	727
not fewer than six members of the board.	728

(L) When the board refuses to grant a certificate to an	729
applicant, revokes an individual's certificate to practice,	730
refuses to register an applicant, or refuses to reinstate an	731
individual's certificate to practice, the board may specify that	732
its action is permanent. An individual subject to a permanent	733
action taken by the board is forever thereafter ineligible to hold	734
a certificate to practice and the board shall not accept an	735
application for reinstatement of the certificate or for issuance	736
of a new certificate.	737

(M) Notwithstanding any other provision of the Revised Code,	738
all of the following apply:	739

(1) The surrender of a certificate issued under this chapter	740
shall not be effective unless or until accepted by the board.	741
Reinstatement of a certificate surrendered to the board requires	742
an affirmative vote of not fewer than six members of the board.	743

(2) An application for a certificate made under the	744
provisions of this chapter may not be withdrawn without approval	745
of the board.	746

(3) Failure by an individual to renew a certificate of	747
registration in accordance with this chapter shall not remove or	748
limit the board's jurisdiction to take any disciplinary action	749
under this section against the individual.	750

(N) Sanctions shall not be imposed under division (B)(28) of	751
this section against any person who waives deductibles and	752
copayments as follows:	753

(1) In compliance with the health benefit plan that expressly	754
allows such a practice. Waiver of the deductibles or copayments	755
shall be made only with the full knowledge and consent of the plan	756
purchaser, payer, and third-party administrator. Documentation of	757
the consent shall be made available to the board upon request.	758

(2) For professional services rendered to any other person	759
authorized to practice pursuant to this chapter, to the extent	760
allowed by this chapter and rules adopted by the board.	761

(O) Under the board's investigative duties described in this	762
section and subject to division (F) of this section, the board	763
shall develop and implement a quality intervention program	764
designed to improve through remedial education the clinical and	765
communication skills of individuals authorized under this chapter	766
to practice medicine and surgery, osteopathic medicine and	767
surgery, and podiatric medicine and surgery. In developing and	768
implementing the quality intervention program, the board may do	769
all of the following:	770

(1) Offer in appropriate cases as determined by the board an	771
educational and assessment program pursuant to an investigation	772
the board conducts under this section;	773

(2) Select providers of educational and assessment services,	774
including a quality intervention program panel of case reviewers;	775

(3) Make referrals to educational and assessment service	776
providers and approve individual educational programs recommended	777
by those providers. The board shall monitor the progress of each	778
individual undertaking a recommended individual educational	779
program.	780

(4) Determine what constitutes successful completion of an	781
individual educational program and require further monitoring of	782
the individual who completed the program or other action that the	783
board determines to be appropriate;	784

(5) Adopt rules in accordance with Chapter 119. of the	785
Revised Code to further implement the quality intervention	786
program.	787

An individual who participates in an individual educational	788
program pursuant to this division shall pay the financial	789
obligations arising from that educational program.	790

Section 2.  That existing section 4731.22 of the Revised Code	791
is hereby repealed.	792

Section 3.  (A) If a state or federal court of competent	793
jurisdiction finds that a provision of this act is	794
unconstitutional, the effective date of that provision is tolled	795
until either of the following occur:	796

(1) That provision is found to be constitutional by an	797
appellate tribunal.	798

(2) The Attorney General of the State of Ohio certifies in an	799
opinion to the Governor of the State of Ohio that, due to a	800
subsequent decision or decisions by the United States Supreme	801
Court, it is reasonably probable that the provision would be	802
upheld as constitutional by a court of competent jurisdiction.	803

(B) If a provision of this act is found constitutional by an	804
appellate tribunal or the Attorney General issues an opinion as	805
described in division (A)(2) of this section, the provision shall	806
be prospective.	807

Section 4.  Section 4731.22 of the Revised Code is presented	808
in this act as a composite of the section as amended by Am. Sub.	809
H.B. 280, Sub. H.B. 525, and Sub. S.B. 229 of the 127th General	810
Assembly. The General Assembly, applying the principle stated in	811
division (B) of section 1.52 of the Revised Code that amendments	812
are to be harmonized if reasonably capable of simultaneous	813
operation, finds that the composite is the resulting version of	814
the section in effect prior to the effective date of the section	815
as presented in this act.	816