As Reported by the House Health and Aging Committee

129th General Assembly Regular Session 2011-2012

Sub. H. B. No. 125

Representative Wachtmann 

Cosponsors: Representatives Henne, Buchy, Blessing, Rosenberger, Amstutz, McClain, 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 detectable 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 health may promulgate rules pursuant to	69
section 111.15 of the Revised Code for the appropriate methods of	70
performing an examination for the presence of a fetal heartbeat of	71
an unborn human individual based on standard medical practice.	72

(4) If a physician performs an abortion on a pregnant woman	73
prior to determining if the fetus the pregnant woman is carrying	74
has a detectable fetal heartbeat, that physician is subject to	75
disciplinary action under division (B)(41) of section 4731.22 of	76
the Revised Code.	77

(D)(1) Division (D) of this section applies to all abortions	78
that are not prohibited under sections 2919.12, 2919.121, and	79
2919.151 of the Revised Code, except when a medical emergency	80
exists that prevents compliance with this division.	81

(2) If the person who intends to perform an abortion on a	82
pregnant woman detects a fetal heartbeat in the unborn human	83
individual that the pregnant woman is carrying, no later than	84
twenty-four hours prior to the performance of the intended	85
abortion, both of the following apply:	86

(a) The person intending to perform the abortion shall inform	87
the pregnant woman in writing that the unborn human individual	88
that the pregnant woman is carrying has a fetal heartbeat and	89
shall inform the pregnant woman, to the best of the person's	90
knowledge, of the statistical probability of bringing the unborn	91
human individual to term based on the gestational age of the	92
unborn human individual possessing a detectable fetal heartbeat. A	93
person shall comply with division (D)(2)(a) of this section	94
regardless of whether or not the director of health promulgated	95
rules under division (D)(3) of this section.	96

(b) The pregnant woman shall sign a form acknowledging that	97
the pregnant woman has received information from the person	98
intending to perform the abortion that the unborn human individual	99
that the pregnant woman is carrying has a fetal heartbeat and that	100
the pregnant woman is aware of the statistical probability of	101
bringing the unborn human individual that the pregnant woman is	102
carrying to term.	103

(3) The director of health may define and promulgate by rules	104
adopted pursuant to section 111.15 of the Revised Code and based	105
upon available medical evidence the statistical probability of	106
bringing an unborn human individual to term based on the	107
gestational age of an unborn human individual who possesses a	108
detectable fetal heartbeat.	109

(4) Division (D) of this section does not repeal any other	110
provision of the Revised Code relating to informed consent for an	111
abortion.	112

(E)(1) Except as provided in division (E)(2) or (3) of this	113
section, no person shall knowingly perform an abortion on a	114
pregnant woman with the specific intent of causing or abetting the	115
termination of the life of the unborn human individual that the	116
pregnant woman is carrying and whose fetal heartbeat has been	117
detected according to the requirements of division (C) of this	118
section.	119

(2) A person is not in violation of division (E)(1) of this	120
section if that person performs a medical procedure designed to or	121
intended to prevent the death of a pregnant woman or, in that	122
person's reasonable medical judgment, to preserve the life of the	123
pregnant woman.	124

(3) A person is not in violation of division (E)(1) of this	125
section if that person has performed an examination for the	126
presence of a fetal heartbeat in the fetus utilizing standard	127
medical practice and that examination does not reveal a fetal	128
heartbeat or the person has been informed by a physician who has	129
performed the examination for fetal heartbeat that the examination	130
did not reveal a fetal heartbeat.	131

(4) Division (E) of this section does not repeal any other	132
provision of the Revised Code that restricts or regulates the	133
performance of an abortion by a particular method or during a	134
particular stage of a pregnancy.	135

(5) Whoever violates division (E) of this section is guilty	136
of performing an abortion after the detection of a fetal	137
heartbeat, a felony of the fifth degree.	138

(F) A pregnant woman on whom an abortion is performed in	139
violation of division (C) or (E) of this section is not guilty of	140
violating division (C) or (E) of this section or of attempting to	141
commit, conspiring to commit, or complicity in committing a	142
violation of division (C) or (E) of this section and is not	143
subject to a civil penalty based on that violation.	144

(G) Nothing in this section prohibits the sale, use,	145
prescription, or administration of a measure, drug, or chemical	146
designed for contraceptive purposes.	147

(H) If a state or federal court of competent jurisdiction	148
finds that a provision of this section is unconstitutional, the	149
effective date of that provision is tolled until either of the	150
following occur:	151

(1) An appellate tribunal finds that provision to be	152
constitutional.	153

(2) The attorney general certifies in an opinion to the	154
governor that, due to a subsequent decision or decisions by the	155
supreme court of the United States, it is reasonably probable that	156
the provision would be upheld as constitutional by a court of	157
competent jurisdiction.	158

(I) If a provision of this section is found constitutional by	159
an appellate tribunal or the attorney general issues an opinion as	160
described in division (H)(2) of this section, the provision shall	161
be prospective.	162

(J) If any provisions of this section or its application to	163
any person or circumstance is held invalid, the invalidity does	164
not affect other provisions or applications of this section that	165
can be given effect without the invalid provision or application,	166
and to this end the provisions of this section are severable.	167

Sec. 4731.22.  (A) The state medical board, by an affirmative	168
vote of not fewer than six of its members, may revoke or may	169
refuse to grant a certificate to a person found by the board to	170
have committed fraud during the administration of the examination	171
for a certificate to practice or to have committed fraud,	172
misrepresentation, or deception in applying for or securing any	173
certificate to practice or certificate of registration issued by	174
the board.	175

(B) The board, by an affirmative vote of not fewer than six	176
members, shall, to the extent permitted by law, limit, revoke, or	177
suspend an individual's certificate to practice, refuse to	178
register an individual, refuse to reinstate a certificate, or	179
reprimand or place on probation the holder of a certificate for	180
one or more of the following reasons:	181

(1) Permitting one's name or one's certificate to practice or	182
certificate of registration to be used by a person, group, or	183
corporation when the individual concerned is not actually	184
directing the treatment given;	185

(2) Failure to maintain minimal standards applicable to the	186
selection or administration of drugs, or failure to employ	187
acceptable scientific methods in the selection of drugs or other	188
modalities for treatment of disease;	189

(3) Selling, giving away, personally furnishing, prescribing,	190
or administering drugs for other than legal and legitimate	191
therapeutic purposes or a plea of guilty to, a judicial finding of	192
guilt of, or a judicial finding of eligibility for intervention in	193
lieu of conviction of, a violation of any federal or state law	194
regulating the possession, distribution, or use of any drug;	195

(4) Willfully betraying a professional confidence.

196

For purposes of this division, "willfully betraying a	197
professional confidence" does not include providing any	198
information, documents, or reports to a child fatality review	199
board under sections 307.621 to 307.629 of the Revised Code and	200
does not include the making of a report of an employee's use of a	201
drug of abuse, or a report of a condition of an employee other	202
than one involving the use of a drug of abuse, to the employer of	203
the employee as described in division (B) of section 2305.33 of	204
the Revised Code. Nothing in this division affects the immunity	205
from civil liability conferred by that section upon a physician	206
who makes either type of report in accordance with division (B) of	207
that section. As used in this division, "employee," "employer,"	208
and "physician" have the same meanings as in section 2305.33 of	209
the Revised Code.	210

(5) Making a false, fraudulent, deceptive, or misleading	211
statement in the solicitation of or advertising for patients; in	212
relation to the practice of medicine and surgery, osteopathic	213
medicine and surgery, podiatric medicine and surgery, or a limited	214
branch of medicine; or in securing or attempting to secure any	215
certificate to practice or certificate of registration issued by	216
the board.	217

As used in this division, "false, fraudulent, deceptive, or	218
misleading statement" means a statement that includes a	219
misrepresentation of fact, is likely to mislead or deceive because	220
of a failure to disclose material facts, is intended or is likely	221
to create false or unjustified expectations of favorable results,	222
or includes representations or implications that in reasonable	223
probability will cause an ordinarily prudent person to	224
misunderstand or be deceived.	225

(6) A departure from, or the failure to conform to, minimal	226
standards of care of similar practitioners under the same or	227
similar circumstances, whether or not actual injury to a patient	228
is established;	229

(7) Representing, with the purpose of obtaining compensation	230
or other advantage as personal gain or for any other person, that	231
an incurable disease or injury, or other incurable condition, can	232
be permanently cured;	233

(8) The obtaining of, or attempting to obtain, money or	234
anything of value by fraudulent misrepresentations in the course	235
of practice;	236

(9) A plea of guilty to, a judicial finding of guilt of, or a	237
judicial finding of eligibility for intervention in lieu of	238
conviction for, a felony;	239

(10) Commission of an act that constitutes a felony in this	240
state, regardless of the jurisdiction in which the act was	241
committed;	242

(11) A plea of guilty to, a judicial finding of guilt of, or	243
a judicial finding of eligibility for intervention in lieu of	244
conviction for, a misdemeanor committed in the course of practice;	245

(12) Commission of an act in the course of practice that	246
constitutes a misdemeanor in this state, regardless of the	247
jurisdiction in which the act was committed;	248

(13) A plea of guilty to, a judicial finding of guilt of, or	249
a judicial finding of eligibility for intervention in lieu of	250
conviction for, a misdemeanor involving moral turpitude;	251

(14) Commission of an act involving moral turpitude that	252
constitutes a misdemeanor in this state, regardless of the	253
jurisdiction in which the act was committed;	254

(15) Violation of the conditions of limitation placed by the	255
board upon a certificate to practice;	256

(16) Failure to pay license renewal fees specified in this	257
chapter;	258

(17) Except as authorized in section 4731.31 of the Revised	259
Code, engaging in the division of fees for referral of patients,	260
or the receiving of a thing of value in return for a specific	261
referral of a patient to utilize a particular service or business;	262

(18) Subject to section 4731.226 of the Revised Code,	263
violation of any provision of a code of ethics of the American	264
medical association, the American osteopathic association, the	265
American podiatric medical association, or any other national	266
professional organizations that the board specifies by rule. The	267
state medical board shall obtain and keep on file current copies	268
of the codes of ethics of the various national professional	269
organizations. The individual whose certificate is being suspended	270
or revoked shall not be found to have violated any provision of a	271
code of ethics of an organization not appropriate to the	272
individual's profession.	273

For purposes of this division, a "provision of a code of	274
ethics of a national professional organization" does not include	275
any provision that would preclude the making of a report by a	276
physician of an employee's use of a drug of abuse, or of a	277
condition of an employee other than one involving the use of a	278
drug of abuse, to the employer of the employee as described in	279
division (B) of section 2305.33 of the Revised Code. Nothing in	280
this division affects the immunity from civil liability conferred	281
by that section upon a physician who makes either type of report	282
in accordance with division (B) of that section. As used in this	283
division, "employee," "employer," and "physician" have the same	284
meanings as in section 2305.33 of the Revised Code.	285

(19) Inability to practice according to acceptable and	286
prevailing standards of care by reason of mental illness or	287
physical illness, including, but not limited to, physical	288
deterioration that adversely affects cognitive, motor, or	289
perceptive skills.	290

In enforcing this division, the board, upon a showing of a	291
possible violation, may compel any individual authorized to	292
practice by this chapter or who has submitted an application	293
pursuant to this chapter to submit to a mental examination,	294
physical examination, including an HIV test, or both a mental and	295
a physical examination. The expense of the examination is the	296
responsibility of the individual compelled to be examined. Failure	297
to submit to a mental or physical examination or consent to an HIV	298
test ordered by the board constitutes an admission of the	299
allegations against the individual unless the failure is due to	300
circumstances beyond the individual's control, and a default and	301
final order may be entered without the taking of testimony or	302
presentation of evidence. If the board finds an individual unable	303
to practice because of the reasons set forth in this division, the	304
board shall require the individual to submit to care, counseling,	305
or treatment by physicians approved or designated by the board, as	306
a condition for initial, continued, reinstated, or renewed	307
authority to practice. An individual affected under this division	308
shall be afforded an opportunity to demonstrate to the board the	309
ability to resume practice in compliance with acceptable and	310
prevailing standards under the provisions of the individual's	311
certificate. For the purpose of this division, any individual who	312
applies for or receives a certificate to practice under this	313
chapter accepts the privilege of practicing in this state and, by	314
so doing, shall be deemed to have given consent to submit to a	315
mental or physical examination when directed to do so in writing	316
by the board, and to have waived all objections to the	317
admissibility of testimony or examination reports that constitute	318
a privileged communication.	319

(20) Except when civil penalties are imposed under section	320
4731.225 or 4731.281 of the Revised Code, and subject to section	321
4731.226 of the Revised Code, violating or attempting to violate,	322
directly or indirectly, or assisting in or abetting the violation	323
of, or conspiring to violate, any provisions of this chapter or	324
any rule promulgated by the board.	325

This division does not apply to a violation or attempted	326
violation of, assisting in or abetting the violation of, or a	327
conspiracy to violate, any provision of this chapter or any rule	328
adopted by the board that would preclude the making of a report by	329
a physician of an employee's use of a drug of abuse, or of a	330
condition of an employee other than one involving the use of a	331
drug of abuse, to the employer of the employee as described in	332
division (B) of section 2305.33 of the Revised Code. Nothing in	333
this division affects the immunity from civil liability conferred	334
by that section upon a physician who makes either type of report	335
in accordance with division (B) of that section. As used in this	336
division, "employee," "employer," and "physician" have the same	337
meanings as in section 2305.33 of the Revised Code.	338

(21) The violation of section 3701.79 of the Revised Code or	339
of any abortion rule adopted by the public health council pursuant	340
to section 3701.341 of the Revised Code;	341

(22) Any of the following actions taken by the agency	342
responsible for regulating the practice of medicine and surgery,	343
osteopathic medicine and surgery, podiatric medicine and surgery,	344
or the limited branches of medicine in another jurisdiction, for	345
any reason other than the nonpayment of fees: the limitation,	346
revocation, or suspension of an individual's license to practice;	347
acceptance of an individual's license surrender; denial of a	348
license; refusal to renew or reinstate a license; imposition of	349
probation; or issuance of an order of censure or other reprimand;	350

(23) The violation of section 2919.12 of the Revised Code or	351
the performance or inducement of an abortion upon a pregnant woman	352
with actual knowledge that the conditions specified in division	353
(B) of section 2317.56 of the Revised Code have not been satisfied	354
or with a heedless indifference as to whether those conditions	355
have been satisfied, unless an affirmative defense as specified in	356
division (H)(2) of that section would apply in a civil action	357
authorized by division (H)(1) of that section;	358

(24) The revocation, suspension, restriction, reduction, or	359
termination of clinical privileges by the United States department	360
of defense or department of veterans affairs or the termination or	361
suspension of a certificate of registration to prescribe drugs by	362
the drug enforcement administration of the United States	363
department of justice;	364

(25) Termination or suspension from participation in the	365
medicare or medicaid programs by the department of health and	366
human services or other responsible agency for any act or acts	367
that also would constitute a violation of division (B)(2), (3),	368
(6), (8), or (19) of this section;	369

(26) Impairment of ability to practice according to	370
acceptable and prevailing standards of care because of habitual or	371
excessive use or abuse of drugs, alcohol, or other substances that	372
impair ability to practice.	373

For the purposes of this division, any individual authorized	374
to practice by this chapter accepts the privilege of practicing in	375
this state subject to supervision by the board. By filing an	376
application for or holding a certificate to practice under this	377
chapter, an individual shall be deemed to have given consent to	378
submit to a mental or physical examination when ordered to do so	379
by the board in writing, and to have waived all objections to the	380
admissibility of testimony or examination reports that constitute	381
privileged communications.	382

If it has reason to believe that any individual authorized to	383
practice by this chapter or any applicant for certification to	384
practice suffers such impairment, the board may compel the	385
individual to submit to a mental or physical examination, or both.	386
The expense of the examination is the responsibility of the	387
individual compelled to be examined. Any mental or physical	388
examination required under this division shall be undertaken by a	389
treatment provider or physician who is qualified to conduct the	390
examination and who is chosen by the board.	391

Failure to submit to a mental or physical examination ordered	392
by the board constitutes an admission of the allegations against	393
the individual unless the failure is due to circumstances beyond	394
the individual's control, and a default and final order may be	395
entered without the taking of testimony or presentation of	396
evidence. If the board determines that the individual's ability to	397
practice is impaired, the board shall suspend the individual's	398
certificate or deny the individual's application and shall require	399
the individual, as a condition for initial, continued, reinstated,	400
or renewed certification to practice, to submit to treatment.	401

Before being eligible to apply for reinstatement of a	402
certificate suspended under this division, the impaired	403
practitioner shall demonstrate to the board the ability to resume	404
practice in compliance with acceptable and prevailing standards of	405
care under the provisions of the practitioner's certificate. The	406
demonstration shall include, but shall not be limited to, the	407
following:	408

(a) Certification from a treatment provider approved under	409
section 4731.25 of the Revised Code that the individual has	410
successfully completed any required inpatient treatment;	411

(b) Evidence of continuing full compliance with an aftercare	412
contract or consent agreement;	413

(c) Two written reports indicating that the individual's	414
ability to practice has been assessed and that the individual has	415
been found capable of practicing according to acceptable and	416
prevailing standards of care. The reports shall be made by	417
individuals or providers approved by the board for making the	418
assessments and shall describe the basis for their determination.	419

The board may reinstate a certificate suspended under this	420
division after that demonstration and after the individual has	421
entered into a written consent agreement.	422

When the impaired practitioner resumes practice, the board	423
shall require continued monitoring of the individual. The	424
monitoring shall include, but not be limited to, compliance with	425
the written consent agreement entered into before reinstatement or	426
with conditions imposed by board order after a hearing, and, upon	427
termination of the consent agreement, submission to the board for	428
at least two years of annual written progress reports made under	429
penalty of perjury stating whether the individual has maintained	430
sobriety.	431

(27) A second or subsequent violation of section 4731.66 or	432
4731.69 of the Revised Code;	433

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

434

(a) Waiving the payment of all or any part of a deductible or	435
copayment that a patient, pursuant to a health insurance or health	436
care policy, contract, or plan that covers the individual's	437
services, otherwise would be required to pay if the waiver is used	438
as an enticement to a patient or group of patients to receive	439
health care services from that individual;	440

(b) Advertising that the individual will waive the payment of	441
all or any part of a deductible or copayment that a patient,	442
pursuant to a health insurance or health care policy, contract, or	443
plan that covers the individual's services, otherwise would be	444
required to pay.	445

(29) Failure to use universal blood and body fluid	446
precautions established by rules adopted under section 4731.051 of	447
the Revised Code;	448

(30) Failure to provide notice to, and receive acknowledgment	449
of the notice from, a patient when required by section 4731.143 of	450
the Revised Code prior to providing nonemergency professional	451
services, or failure to maintain that notice in the patient's	452
file;	453

(31) Failure of a physician supervising a physician assistant	454
to maintain supervision in accordance with the requirements of	455
Chapter 4730. of the Revised Code and the rules adopted under that	456
chapter;	457

(32) Failure of a physician or podiatrist to enter into a	458
standard care arrangement with a clinical nurse specialist,	459
certified nurse-midwife, or certified nurse practitioner with whom	460
the physician or podiatrist is in collaboration pursuant to	461
section 4731.27 of the Revised Code or failure to fulfill the	462
responsibilities of collaboration after entering into a standard	463
care arrangement;	464

(33) Failure to comply with the terms of a consult agreement	465
entered into with a pharmacist pursuant to section 4729.39 of the	466
Revised Code;	467

(34) Failure to cooperate in an investigation conducted by	468
the board under division (F) of this section, including failure to	469
comply with a subpoena or order issued by the board or failure to	470
answer truthfully a question presented by the board at a	471
deposition or in written interrogatories, except that failure to	472
cooperate with an investigation shall not constitute grounds for	473
discipline under this section if a court of competent jurisdiction	474
has issued an order that either quashes a subpoena or permits the	475
individual to withhold the testimony or evidence in issue;	476

(35) Failure to supervise an acupuncturist in accordance with	477
Chapter 4762. of the Revised Code and the board's rules for	478
supervision of an acupuncturist;	479

(36) Failure to supervise an anesthesiologist assistant in	480
accordance with Chapter 4760. of the Revised Code and the board's	481
rules for supervision of an anesthesiologist assistant;	482

(37) Assisting suicide as defined in section 3795.01 of the	483
Revised Code;	484

(38) Failure to comply with the requirements of section	485
2317.561 of the Revised Code;	486

(39) Failure to supervise a radiologist assistant in	487
accordance with Chapter 4774. of the Revised Code and the board's	488
rules for supervision of radiologist assistants;	489

(40) Performing or inducing an abortion at an office or	490
facility with knowledge that the office or facility fails to post	491
the notice required under section 3701.791 of the Revised Code;	492

(41) Performing an abortion on a pregnant woman prior to	493
determining if the fetus the pregnant woman is carrying has a	494
detectable fetal heartbeat, as provided in division (C) of section	495
2919.19 of the Revised Code.	496

(C) Disciplinary actions taken by the board under divisions	497
(A) and (B) of this section shall be taken pursuant to an	498
adjudication under Chapter 119. of the Revised Code, except that	499
in lieu of an adjudication, the board may enter into a consent	500
agreement with an individual to resolve an allegation of a	501
violation of this chapter or any rule adopted under it. A consent	502
agreement, when ratified by an affirmative vote of not fewer than	503
six members of the board, shall constitute the findings and order	504
of the board with respect to the matter addressed in the	505
agreement. If the board refuses to ratify a consent agreement, the	506
admissions and findings contained in the consent agreement shall	507
be of no force or effect.	508

If the board takes disciplinary action against an individual	509
under division (B) of this section for a second or subsequent plea	510
of guilty to, or judicial finding of guilt of, a violation of	511
section 2919.123 of the Revised Code, the disciplinary action	512
shall consist of a suspension of the individual's certificate to	513
practice for a period of at least one year or, if determined	514
appropriate by the board, a more serious sanction involving the	515
individual's certificate to practice. Any consent agreement	516
entered into under this division with an individual that pertains	517
to a second or subsequent plea of guilty to, or judicial finding	518
of guilt of, a violation of that section shall provide for a	519
suspension of the individual's certificate to practice for a	520
period of at least one year or, if determined appropriate by the	521
board, a more serious sanction involving the individual's	522
certificate to practice.	523

(D) For purposes of divisions (B)(10), (12), and (14) of this	524
section, the commission of the act may be established by a finding	525
by the board, pursuant to an adjudication under Chapter 119. of	526
the Revised Code, that the individual committed the act. The board	527
does not have jurisdiction under those divisions if the trial	528
court renders a final judgment in the individual's favor and that	529
judgment is based upon an adjudication on the merits. The board	530
has jurisdiction under those divisions if the trial court issues	531
an order of dismissal upon technical or procedural grounds.	532

(E) The sealing of conviction records by any court shall have	533
no effect upon a prior board order entered under this section or	534
upon the board's jurisdiction to take action under this section	535
if, based upon a plea of guilty, a judicial finding of guilt, or a	536
judicial finding of eligibility for intervention in lieu of	537
conviction, the board issued a notice of opportunity for a hearing	538
prior to the court's order to seal the records. The board shall	539
not be required to seal, destroy, redact, or otherwise modify its	540
records to reflect the court's sealing of conviction records.	541

(F)(1) The board shall investigate evidence that appears to	542
show that a person has violated any provision of this chapter or	543
any rule adopted under it. Any person may report to the board in a	544
signed writing any information that the person may have that	545
appears to show a violation of any provision of this chapter or	546
any rule adopted under it. In the absence of bad faith, any person	547
who reports information of that nature or who testifies before the	548
board in any adjudication conducted under Chapter 119. of the	549
Revised Code shall not be liable in damages in a civil action as a	550
result of the report or testimony. Each complaint or allegation of	551
a violation received by the board shall be assigned a case number	552
and shall be recorded by the board.	553

(2) Investigations of alleged violations of this chapter or	554
any rule adopted under it shall be supervised by the supervising	555
member elected by the board in accordance with section 4731.02 of	556
the Revised Code and by the secretary as provided in section	557
4731.39 of the Revised Code. The president may designate another	558
member of the board to supervise the investigation in place of the	559
supervising member. No member of the board who supervises the	560
investigation of a case shall participate in further adjudication	561
of the case.	562

(3) In investigating a possible violation of this chapter or	563
any rule adopted under this chapter, the board may administer	564
oaths, order the taking of depositions, issue subpoenas, and	565
compel the attendance of witnesses and production of books,	566
accounts, papers, records, documents, and testimony, except that a	567
subpoena for patient record information shall not be issued	568
without consultation with the attorney general's office and	569
approval of the secretary and supervising member of the board.	570
Before issuance of a subpoena for patient record information, the	571
secretary and supervising member shall determine whether there is	572
probable cause to believe that the complaint filed alleges a	573
violation of this chapter or any rule adopted under it and that	574
the records sought are relevant to the alleged violation and	575
material to the investigation. The subpoena may apply only to	576
records that cover a reasonable period of time surrounding the	577
alleged violation.	578

On failure to comply with any subpoena issued by the board	579
and after reasonable notice to the person being subpoenaed, the	580
board may move for an order compelling the production of persons	581
or records pursuant to the Rules of Civil Procedure.	582

A subpoena issued by the board may be served by a sheriff,	583
the sheriff's deputy, or a board employee designated by the board.	584
Service of a subpoena issued by the board may be made by	585
delivering a copy of the subpoena to the person named therein,	586
reading it to the person, or leaving it at the person's usual	587
place of residence. When the person being served is a person whose	588
practice is authorized by this chapter, service of the subpoena	589
may be made by certified mail, restricted delivery, return receipt	590
requested, and the subpoena shall be deemed served on the date	591
delivery is made or the date the person refuses to accept	592
delivery.	593

A sheriff's deputy who serves a subpoena shall receive the	594
same fees as a sheriff. Each witness who appears before the board	595
in obedience to a subpoena shall receive the fees and mileage	596
provided for under section 119.094 of the Revised Code.	597

(4) All hearings and investigations of the board shall be	598
considered civil actions for the purposes of section 2305.252 of	599
the Revised Code.	600

(5) Information received by the board pursuant to an	601
investigation is confidential and not subject to discovery in any	602
civil action.	603

The board shall conduct all investigations and proceedings in	604
a manner that protects the confidentiality of patients and persons	605
who file complaints with the board. The board shall not make	606
public the names or any other identifying information about	607
patients or complainants unless proper consent is given or, in the	608
case of a patient, a waiver of the patient privilege exists under	609
division (B) of section 2317.02 of the Revised Code, except that	610
consent or a waiver of that nature is not required if the board	611
possesses reliable and substantial evidence that no bona fide	612
physician-patient relationship exists.	613

The board may share any information it receives pursuant to	614
an investigation, including patient records and patient record	615
information, with law enforcement agencies, other licensing	616
boards, and other governmental agencies that are prosecuting,	617
adjudicating, or investigating alleged violations of statutes or	618
administrative rules. An agency or board that receives the	619
information shall comply with the same requirements regarding	620
confidentiality as those with which the state medical board must	621
comply, notwithstanding any conflicting provision of the Revised	622
Code or procedure of the agency or board that applies when it is	623
dealing with other information in its possession. In a judicial	624
proceeding, the information may be admitted into evidence only in	625
accordance with the Rules of Evidence, but the court shall require	626
that appropriate measures are taken to ensure that confidentiality	627
is maintained with respect to any part of the information that	628
contains names or other identifying information about patients or	629
complainants whose confidentiality was protected by the state	630
medical board when the information was in the board's possession.	631
Measures to ensure confidentiality that may be taken by the court	632
include sealing its records or deleting specific information from	633
its records.	634

(6) On a quarterly basis, the board shall prepare a report	635
that documents the disposition of all cases during the preceding	636
three months. The report shall contain the following information	637
for each case with which the board has completed its activities:	638

(a) The case number assigned to the complaint or alleged	639
violation;	640

(b) The type of certificate to practice, if any, held by the	641
individual against whom the complaint is directed;	642

(c) A description of the allegations contained in the	643
complaint;	644

(d) The disposition of the case.

645

The report shall state how many cases are still pending and	646
shall be prepared in a manner that protects the identity of each	647
person involved in each case. The report shall be a public record	648
under section 149.43 of the Revised Code.	649

(G) If the secretary and supervising member determine that	650
there is clear and convincing evidence that an individual has	651
violated division (B) of this section and that the individual's	652
continued practice presents a danger of immediate and serious harm	653
to the public, they may recommend that the board suspend the	654
individual's certificate to practice without a prior hearing.	655
Written allegations shall be prepared for consideration by the	656
board.	657

The board, upon review of those allegations and by an	658
affirmative vote of not fewer than six of its members, excluding	659
the secretary and supervising member, may suspend a certificate	660
without a prior hearing. A telephone conference call may be	661
utilized for reviewing the allegations and taking the vote on the	662
summary suspension.	663

The board shall issue a written order of suspension by	664
certified mail or in person in accordance with section 119.07 of	665
the Revised Code. The order shall not be subject to suspension by	666
the court during pendency of any appeal filed under section 119.12	667
of the Revised Code. If the individual subject to the summary	668
suspension requests an adjudicatory hearing by the board, the date	669
set for the hearing shall be within fifteen days, but not earlier	670
than seven days, after the individual requests the hearing, unless	671
otherwise agreed to by both the board and the individual.	672

Any summary suspension imposed under this division shall	673
remain in effect, unless reversed on appeal, until a final	674
adjudicative order issued by the board pursuant to this section	675
and Chapter 119. of the Revised Code becomes effective. The board	676
shall issue its final adjudicative order within seventy-five days	677
after completion of its hearing. A failure to issue the order	678
within seventy-five days shall result in dissolution of the	679
summary suspension order but shall not invalidate any subsequent,	680
final adjudicative order.	681

(H) If the board takes action under division (B)(9), (11), or	682
(13) of this section and the judicial finding of guilt, guilty	683
plea, or judicial finding of eligibility for intervention in lieu	684
of conviction is overturned on appeal, upon exhaustion of the	685
criminal appeal, a petition for reconsideration of the order may	686
be filed with the board along with appropriate court documents.	687
Upon receipt of a petition of that nature and supporting court	688
documents, the board shall reinstate the individual's certificate	689
to practice. The board may then hold an adjudication under Chapter	690
119. of the Revised Code to determine whether the individual	691
committed the act in question. Notice of an opportunity for a	692
hearing shall be given in accordance with Chapter 119. of the	693
Revised Code. If the board finds, pursuant to an adjudication held	694
under this division, that the individual committed the act or if	695
no hearing is requested, the board may order any of the sanctions	696
identified under division (B) of this section.	697

(I) The certificate to practice issued to an individual under	698
this chapter and the individual's practice in this state are	699
automatically suspended as of the date of the individual's second	700
or subsequent plea of guilty to, or judicial finding of guilt of,	701
a violation of section 2919.123 of the Revised Code, or the date	702
the individual pleads guilty to, is found by a judge or jury to be	703
guilty of, or is subject to a judicial finding of eligibility for	704
intervention in lieu of conviction in this state or treatment or	705
intervention in lieu of conviction in another jurisdiction for any	706
of the following criminal offenses in this state or a	707
substantially equivalent criminal offense in another jurisdiction:	708
aggravated murder, murder, voluntary manslaughter, felonious	709
assault, kidnapping, rape, sexual battery, gross sexual	710
imposition, aggravated arson, aggravated robbery, or aggravated	711
burglary. Continued practice after suspension shall be considered	712
practicing without a certificate.	713

The board shall notify the individual subject to the	714
suspension by certified mail or in person in accordance with	715
section 119.07 of the Revised Code. If an individual whose	716
certificate is automatically suspended under this division fails	717
to make a timely request for an adjudication under Chapter 119. of	718
the Revised Code, the board shall do whichever of the following is	719
applicable:	720

(1) If the automatic suspension under this division is for a	721
second or subsequent plea of guilty to, or judicial finding of	722
guilt of, a violation of section 2919.123 of the Revised Code, the	723
board shall enter an order suspending the individual's certificate	724
to practice for a period of at least one year or, if determined	725
appropriate by the board, imposing a more serious sanction	726
involving the individual's certificate to practice.	727

(2) In all circumstances in which division (I)(1) of this	728
section does not apply, enter a final order permanently revoking	729
the individual's certificate to practice.	730

(J) If the board is required by Chapter 119. of the Revised	731
Code to give notice of an opportunity for a hearing and if the	732
individual subject to the notice does not timely request a hearing	733
in accordance with section 119.07 of the Revised Code, the board	734
is not required to hold a hearing, but may adopt, by an	735
affirmative vote of not fewer than six of its members, a final	736
order that contains the board's findings. In that final order, the	737
board may order any of the sanctions identified under division (A)	738
or (B) of this section.	739

(K) Any action taken by the board under division (B) of this	740
section resulting in a suspension from practice shall be	741
accompanied by a written statement of the conditions under which	742
the individual's certificate to practice may be reinstated. The	743
board shall adopt rules governing conditions to be imposed for	744
reinstatement. Reinstatement of a certificate suspended pursuant	745
to division (B) of this section requires an affirmative vote of	746
not fewer than six members of the board.	747

(L) When the board refuses to grant a certificate to an	748
applicant, revokes an individual's certificate to practice,	749
refuses to register an applicant, or refuses to reinstate an	750
individual's certificate to practice, the board may specify that	751
its action is permanent. An individual subject to a permanent	752
action taken by the board is forever thereafter ineligible to hold	753
a certificate to practice and the board shall not accept an	754
application for reinstatement of the certificate or for issuance	755
of a new certificate.	756

(M) Notwithstanding any other provision of the Revised Code,	757
all of the following apply:	758

(1) The surrender of a certificate issued under this chapter	759
shall not be effective unless or until accepted by the board.	760
Reinstatement of a certificate surrendered to the board requires	761
an affirmative vote of not fewer than six members of the board.	762

(2) An application for a certificate made under the	763
provisions of this chapter may not be withdrawn without approval	764
of the board.	765

(3) Failure by an individual to renew a certificate of	766
registration in accordance with this chapter shall not remove or	767
limit the board's jurisdiction to take any disciplinary action	768
under this section against the individual.	769

(N) Sanctions shall not be imposed under division (B)(28) of	770
this section against any person who waives deductibles and	771
copayments as follows:	772

(1) In compliance with the health benefit plan that expressly	773
allows such a practice. Waiver of the deductibles or copayments	774
shall be made only with the full knowledge and consent of the plan	775
purchaser, payer, and third-party administrator. Documentation of	776
the consent shall be made available to the board upon request.	777

(2) For professional services rendered to any other person	778
authorized to practice pursuant to this chapter, to the extent	779
allowed by this chapter and rules adopted by the board.	780

(O) Under the board's investigative duties described in this	781
section and subject to division (F) of this section, the board	782
shall develop and implement a quality intervention program	783
designed to improve through remedial education the clinical and	784
communication skills of individuals authorized under this chapter	785
to practice medicine and surgery, osteopathic medicine and	786
surgery, and podiatric medicine and surgery. In developing and	787
implementing the quality intervention program, the board may do	788
all of the following:	789

(1) Offer in appropriate cases as determined by the board an	790
educational and assessment program pursuant to an investigation	791
the board conducts under this section;	792

(2) Select providers of educational and assessment services,	793
including a quality intervention program panel of case reviewers;	794

(3) Make referrals to educational and assessment service	795
providers and approve individual educational programs recommended	796
by those providers. The board shall monitor the progress of each	797
individual undertaking a recommended individual educational	798
program.	799

(4) Determine what constitutes successful completion of an	800
individual educational program and require further monitoring of	801
the individual who completed the program or other action that the	802
board determines to be appropriate;	803

(5) Adopt rules in accordance with Chapter 119. of the	804
Revised Code to further implement the quality intervention	805
program.	806

An individual who participates in an individual educational	807
program pursuant to this division shall pay the financial	808
obligations arising from that educational program.	809

Section 2.  That existing section 4731.22 of the Revised Code	810
is hereby repealed.	811

Section 3.  Section 4731.22 of the Revised Code is presented	812
in this act as a composite of the section as amended by Am. Sub.	813
H.B. 280, Sub. H.B. 525, and Sub. S.B. 229 of the 127th General	814
Assembly. The General Assembly, applying the principle stated in	815
division (B) of section 1.52 of the Revised Code that amendments	816
are to be harmonized if reasonably capable of simultaneous	817
operation, finds that the composite is the resulting version of	818
the section in effect prior to the effective date of the section	819
as presented in this act.	820