Section 1. That sections 4731.22, 4731.36, 4734.31, 4762.01, | 9 |
4762.02, 4762.03, 4762.031, 4762.04, 4762.05, 4762.06, 4762.08, | 10 |
4762.09, 4762.10, 4762.11, 4762.12, 4762.13, 4762.131, 4762.132, | 11 |
4762.14, 4762.15, 4762.16, 4762.17, 4762.18, 4762.19, and 4762.22 | 12 |
of the Revised Code be amended to read as follows: | 13 |
(B) The board, by an affirmative vote of not fewer than six | 22 |
members, shall, to the extent permitted by law, limit, revoke, or | 23 |
suspend an individual's certificate to practice, refuse to | 24 |
register an individual, refuse to reinstate a certificate, or | 25 |
reprimand or place on probation the holder of a certificate for | 26 |
one or more of the following reasons: | 27 |
(3) Selling, giving away, personally furnishing, prescribing, | 36 |
or administering drugs for other than legal and legitimate | 37 |
therapeutic purposes or a plea of guilty to, a judicial finding of | 38 |
guilt of, or a judicial finding of eligibility for intervention in | 39 |
lieu of conviction of, a violation of any federal or state law | 40 |
regulating the possession, distribution, or use of any drug; | 41 |
For purposes of this division, "willfully betraying a | 43 |
professional confidence" does not include providing any | 44 |
information, documents, or reports to a child fatality review | 45 |
board under sections 307.621 to 307.629 of the Revised Code and | 46 |
does not include the making of a report of an employee's use of a | 47 |
drug of abuse, or a report of a condition of an employee other | 48 |
than one involving the use of a drug of abuse, to the employer of | 49 |
the employee as described in division (B) of section 2305.33 of | 50 |
the Revised Code. Nothing in this division affects the immunity | 51 |
from civil liability conferred by that section upon a physician | 52 |
who makes either type of report in accordance with division (B) of | 53 |
that section. As used in this division, "employee," "employer," | 54 |
and "physician" have the same meanings as in section 2305.33 of | 55 |
the Revised Code. | 56 |
As used in this division, "false, fraudulent, deceptive, or | 64 |
misleading statement" means a statement that includes a | 65 |
misrepresentation of fact, is likely to mislead or deceive because | 66 |
of a failure to disclose material facts, is intended or is likely | 67 |
to create false or unjustified expectations of favorable results, | 68 |
or includes representations or implications that in reasonable | 69 |
probability will cause an ordinarily prudent person to | 70 |
misunderstand or be deceived. | 71 |
(18) Subject to section 4731.226 of the Revised Code, | 109 |
violation of any provision of a code of ethics of the American | 110 |
medical association, the American osteopathic association, the | 111 |
American podiatric medical association, or any other national | 112 |
professional organizations that the board specifies by rule. The | 113 |
state medical board shall obtain and keep on file current copies | 114 |
of the codes of ethics of the various national professional | 115 |
organizations. The individual whose certificate is being suspended | 116 |
or revoked shall not be found to have violated any provision of a | 117 |
code of ethics of an organization not appropriate to the | 118 |
individual's profession. | 119 |
For purposes of this division, a "provision of a code of | 120 |
ethics of a national professional organization" does not include | 121 |
any provision that would preclude the making of a report by a | 122 |
physician of an employee's use of a drug of abuse, or of a | 123 |
condition of an employee other than one involving the use of a | 124 |
drug of abuse, to the employer of the employee as described in | 125 |
division (B) of section 2305.33 of the Revised Code. Nothing in | 126 |
this division affects the immunity from civil liability conferred | 127 |
by that section upon a physician who makes either type of report | 128 |
in accordance with division (B) of that section. As used in this | 129 |
division, "employee," "employer," and "physician" have the same | 130 |
meanings as in section 2305.33 of the Revised Code. | 131 |
In enforcing this division, the board, upon a showing of a | 137 |
possible violation, may compel any individual authorized to | 138 |
practice by this chapter or who has submitted an application | 139 |
pursuant to this chapter to submit to a mental examination, | 140 |
physical examination, including an HIV test, or both a mental and | 141 |
a physical examination. The expense of the examination is the | 142 |
responsibility of the individual compelled to be examined. Failure | 143 |
to submit to a mental or physical examination or consent to an HIV | 144 |
test ordered by the board constitutes an admission of the | 145 |
allegations against the individual unless the failure is due to | 146 |
circumstances beyond the individual's control, and a default and | 147 |
final order may be entered without the taking of testimony or | 148 |
presentation of evidence. If the board finds an individual unable | 149 |
to practice because of the reasons set forth in this division, the | 150 |
board shall require the individual to submit to care, counseling, | 151 |
or treatment by physicians approved or designated by the board, as | 152 |
a condition for initial, continued, reinstated, or renewed | 153 |
authority to practice. An individual affected under this division | 154 |
shall be afforded an opportunity to demonstrate to the board the | 155 |
ability to resume practice in compliance with acceptable and | 156 |
prevailing standards under the provisions of the individual's | 157 |
certificate. For the purpose of this division, any individual who | 158 |
applies for or receives a certificate to practice under this | 159 |
chapter accepts the privilege of practicing in this state and, by | 160 |
so doing, shall be deemed to have given consent to submit to a | 161 |
mental or physical examination when directed to do so in writing | 162 |
by the board, and to have waived all objections to the | 163 |
admissibility of testimony or examination reports that constitute | 164 |
a privileged communication. | 165 |
This division does not apply to a violation or attempted | 172 |
violation of, assisting in or abetting the violation of, or a | 173 |
conspiracy to violate, any provision of this chapter or any rule | 174 |
adopted by the board that would preclude the making of a report by | 175 |
a physician of an employee's use of a drug of abuse, or of a | 176 |
condition of an employee other than one involving the use of a | 177 |
drug of abuse, to the employer of the employee as described in | 178 |
division (B) of section 2305.33 of the Revised Code. Nothing in | 179 |
this division affects the immunity from civil liability conferred | 180 |
by that section upon a physician who makes either type of report | 181 |
in accordance with division (B) of that section. As used in this | 182 |
division, "employee," "employer," and "physician" have the same | 183 |
meanings as in section 2305.33 of the Revised Code. | 184 |
(22) Any of the following actions taken by the agency | 188 |
responsible for regulating the practice of medicine and surgery, | 189 |
osteopathic medicine and surgery, podiatric medicine and surgery, | 190 |
or the limited branches of medicine in another jurisdiction, for | 191 |
any reason other than the nonpayment of fees: the limitation, | 192 |
revocation, or suspension of an individual's license to practice; | 193 |
acceptance of an individual's license surrender; denial of a | 194 |
license; refusal to renew or reinstate a license; imposition of | 195 |
probation; or issuance of an order of censure or other reprimand; | 196 |
For the purposes of this division, any individual authorized | 220 |
to practice by this chapter accepts the privilege of practicing in | 221 |
this state subject to supervision by the board. By filing an | 222 |
application for or holding a certificate to practice under this | 223 |
chapter, an individual shall be deemed to have given consent to | 224 |
submit to a mental or physical examination when ordered to do so | 225 |
by the board in writing, and to have waived all objections to the | 226 |
admissibility of testimony or examination reports that constitute | 227 |
privileged communications. | 228 |
If it has reason to believe that any individual authorized to | 229 |
practice by this chapter or any applicant for certification to | 230 |
practice suffers such impairment, the board may compel the | 231 |
individual to submit to a mental or physical examination, or both. | 232 |
The expense of the examination is the responsibility of the | 233 |
individual compelled to be examined. Any mental or physical | 234 |
examination required under this division shall be undertaken by a | 235 |
treatment provider or physician who is qualified to conduct the | 236 |
examination and who is chosen by the board. | 237 |
Failure to submit to a mental or physical examination ordered | 238 |
by the board constitutes an admission of the allegations against | 239 |
the individual unless the failure is due to circumstances beyond | 240 |
the individual's control, and a default and final order may be | 241 |
entered without the taking of testimony or presentation of | 242 |
evidence. If the board determines that the individual's ability to | 243 |
practice is impaired, the board shall suspend the individual's | 244 |
certificate or deny the individual's application and shall require | 245 |
the individual, as a condition for initial, continued, reinstated, | 246 |
or renewed certification to practice, to submit to treatment. | 247 |
When the impaired practitioner resumes practice, the board | 269 |
shall require continued monitoring of the individual. The | 270 |
monitoring shall include, but not be limited to, compliance with | 271 |
the written consent agreement entered into before reinstatement or | 272 |
with conditions imposed by board order after a hearing, and, upon | 273 |
termination of the consent agreement, submission to the board for | 274 |
at least two years of annual written progress reports made under | 275 |
penalty of perjury stating whether the individual has maintained | 276 |
sobriety. | 277 |
(34) Failure to cooperate in an investigation conducted by | 314 |
the board under division (F) of this section, including failure to | 315 |
comply with a subpoena or order issued by the board or failure to | 316 |
answer truthfully a question presented by the board at a | 317 |
deposition or in written interrogatories, except that failure to | 318 |
cooperate with an investigation shall not constitute grounds for | 319 |
discipline under this section if a court of competent jurisdiction | 320 |
has issued an order that either quashes a subpoena or permits the | 321 |
individual to withhold the testimony or evidence in issue; | 322 |
(C) Disciplinary actions taken by the board under divisions | 340 |
(A) and (B) of this section shall be taken pursuant to an | 341 |
adjudication under Chapter 119. of the Revised Code, except that | 342 |
in lieu of an adjudication, the board may enter into a consent | 343 |
agreement with an individual to resolve an allegation of a | 344 |
violation of this chapter or any rule adopted under it. A consent | 345 |
agreement, when ratified by an affirmative vote of not fewer than | 346 |
six members of the board, shall constitute the findings and order | 347 |
of the board with respect to the matter addressed in the | 348 |
agreement. If the board refuses to ratify a consent agreement, the | 349 |
admissions and findings contained in the consent agreement shall | 350 |
be of no force or effect. | 351 |
If the board takes disciplinary action against an individual | 352 |
under division (B) of this section for a second or subsequent plea | 353 |
of guilty to, or judicial finding of guilt of, a violation of | 354 |
section 2919.123 of the Revised Code, the disciplinary action | 355 |
shall consist of a suspension of the individual's certificate to | 356 |
practice for a period of at least one year or, if determined | 357 |
appropriate by the board, a more serious sanction involving the | 358 |
individual's certificate to practice. Any consent agreement | 359 |
entered into under this division with an individual that pertains | 360 |
to a second or subsequent plea of guilty to, or judicial finding | 361 |
of guilt of, a violation of that section shall provide for a | 362 |
suspension of the individual's certificate to practice for a | 363 |
period of at least one year or, if determined appropriate by the | 364 |
board, a more serious sanction involving the individual's | 365 |
certificate to practice. | 366 |
(D) For purposes of divisions (B)(10), (12), and (14) of this | 367 |
section, the commission of the act may be established by a finding | 368 |
by the board, pursuant to an adjudication under Chapter 119. of | 369 |
the Revised Code, that the individual committed the act. The board | 370 |
does not have jurisdiction under those divisions if the trial | 371 |
court renders a final judgment in the individual's favor and that | 372 |
judgment is based upon an adjudication on the merits. The board | 373 |
has jurisdiction under those divisions if the trial court issues | 374 |
an order of dismissal upon technical or procedural grounds. | 375 |
(E) The sealing of conviction records by any court shall have | 376 |
no effect upon a prior board order entered under this section or | 377 |
upon the board's jurisdiction to take action under this section | 378 |
if, based upon a plea of guilty, a judicial finding of guilt, or a | 379 |
judicial finding of eligibility for intervention in lieu of | 380 |
conviction, the board issued a notice of opportunity for a hearing | 381 |
prior to the court's order to seal the records. The board shall | 382 |
not be required to seal, destroy, redact, or otherwise modify its | 383 |
records to reflect the court's sealing of conviction records. | 384 |
(F)(1) The board shall investigate evidence that appears to | 385 |
show that a person has violated any provision of this chapter or | 386 |
any rule adopted under it. Any person may report to the board in a | 387 |
signed writing any information that the person may have that | 388 |
appears to show a violation of any provision of this chapter or | 389 |
any rule adopted under it. In the absence of bad faith, any person | 390 |
who reports information of that nature or who testifies before the | 391 |
board in any adjudication conducted under Chapter 119. of the | 392 |
Revised Code shall not be liable in damages in a civil action as a | 393 |
result of the report or testimony. Each complaint or allegation of | 394 |
a violation received by the board shall be assigned a case number | 395 |
and shall be recorded by the board. | 396 |
(3) In investigating a possible violation of this chapter or | 406 |
any rule adopted under this chapter, the board may administer | 407 |
oaths, order the taking of depositions, issue subpoenas, and | 408 |
compel the attendance of witnesses and production of books, | 409 |
accounts, papers, records, documents, and testimony, except that a | 410 |
subpoena for patient record information shall not be issued | 411 |
without consultation with the attorney general's office and | 412 |
approval of the secretary and supervising member of the board. | 413 |
Before issuance of a subpoena for patient record information, the | 414 |
secretary and supervising member shall determine whether there is | 415 |
probable cause to believe that the complaint filed alleges a | 416 |
violation of this chapter or any rule adopted under it and that | 417 |
the records sought are relevant to the alleged violation and | 418 |
material to the investigation. The subpoena may apply only to | 419 |
records that cover a reasonable period of time surrounding the | 420 |
alleged violation. | 421 |
A subpoena issued by the board may be served by a sheriff, | 426 |
the sheriff's deputy, or a board employee designated by the board. | 427 |
Service of a subpoena issued by the board may be made by | 428 |
delivering a copy of the subpoena to the person named therein, | 429 |
reading it to the person, or leaving it at the person's usual | 430 |
place of residence. When the person being served is a person whose | 431 |
practice is authorized by this chapter, service of the subpoena | 432 |
may be made by certified mail, restricted delivery, return receipt | 433 |
requested, and the subpoena shall be deemed served on the date | 434 |
delivery is made or the date the person refuses to accept | 435 |
delivery. | 436 |
The board shall conduct all investigations and proceedings in | 447 |
a manner that protects the confidentiality of patients and persons | 448 |
who file complaints with the board. The board shall not make | 449 |
public the names or any other identifying information about | 450 |
patients or complainants unless proper consent is given or, in the | 451 |
case of a patient, a waiver of the patient privilege exists under | 452 |
division (B) of section 2317.02 of the Revised Code, except that | 453 |
consent or a waiver of that nature is not required if the board | 454 |
possesses reliable and substantial evidence that no bona fide | 455 |
physician-patient relationship exists. | 456 |
The board may share any information it receives pursuant to | 457 |
an investigation, including patient records and patient record | 458 |
information, with law enforcement agencies, other licensing | 459 |
boards, and other governmental agencies that are prosecuting, | 460 |
adjudicating, or investigating alleged violations of statutes or | 461 |
administrative rules. An agency or board that receives the | 462 |
information shall comply with the same requirements regarding | 463 |
confidentiality as those with which the state medical board must | 464 |
comply, notwithstanding any conflicting provision of the Revised | 465 |
Code or procedure of the agency or board that applies when it is | 466 |
dealing with other information in its possession. In a judicial | 467 |
proceeding, the information may be admitted into evidence only in | 468 |
accordance with the Rules of Evidence, but the court shall require | 469 |
that appropriate measures are taken to ensure that confidentiality | 470 |
is maintained with respect to any part of the information that | 471 |
contains names or other identifying information about patients or | 472 |
complainants whose confidentiality was protected by the state | 473 |
medical board when the information was in the board's possession. | 474 |
Measures to ensure confidentiality that may be taken by the court | 475 |
include sealing its records or deleting specific information from | 476 |
its records. | 477 |
The board shall issue a written order of suspension by | 507 |
certified mail or in person in accordance with section 119.07 of | 508 |
the Revised Code. The order shall not be subject to suspension by | 509 |
the court during pendency of any appeal filed under section 119.12 | 510 |
of the Revised Code. If the individual subject to the summary | 511 |
suspension requests an adjudicatory hearing by the board, the date | 512 |
set for the hearing shall be within fifteen days, but not earlier | 513 |
than seven days, after the individual requests the hearing, unless | 514 |
otherwise agreed to by both the board and the individual. | 515 |
Any summary suspension imposed under this division shall | 516 |
remain in effect, unless reversed on appeal, until a final | 517 |
adjudicative order issued by the board pursuant to this section | 518 |
and Chapter 119. of the Revised Code becomes effective. The board | 519 |
shall issue its final adjudicative order within seventy-five days | 520 |
after completion of its hearing. A failure to issue the order | 521 |
within seventy-five days shall result in dissolution of the | 522 |
summary suspension order but shall not invalidate any subsequent, | 523 |
final adjudicative order. | 524 |
(H) If the board takes action under division (B)(9), (11), or | 525 |
(13) of this section and the judicial finding of guilt, guilty | 526 |
plea, or judicial finding of eligibility for intervention in lieu | 527 |
of conviction is overturned on appeal, upon exhaustion of the | 528 |
criminal appeal, a petition for reconsideration of the order may | 529 |
be filed with the board along with appropriate court documents. | 530 |
Upon receipt of a petition of that nature and supporting court | 531 |
documents, the board shall reinstate the individual's certificate | 532 |
to practice. The board may then hold an adjudication under Chapter | 533 |
119. of the Revised Code to determine whether the individual | 534 |
committed the act in question. Notice of an opportunity for a | 535 |
hearing shall be given in accordance with Chapter 119. of the | 536 |
Revised Code. If the board finds, pursuant to an adjudication held | 537 |
under this division, that the individual committed the act or if | 538 |
no hearing is requested, the board may order any of the sanctions | 539 |
identified under division (B) of this section. | 540 |
(I) The certificate to practice issued to an individual under | 541 |
this chapter and the individual's practice in this state are | 542 |
automatically suspended as of the date of the individual's second | 543 |
or subsequent plea of guilty to, or judicial finding of guilt of, | 544 |
a violation of section 2919.123 of the Revised Code, or the date | 545 |
the individual pleads guilty to, is found by a judge or jury to be | 546 |
guilty of, or is subject to a judicial finding of eligibility for | 547 |
intervention in lieu of conviction in this state or treatment or | 548 |
intervention in lieu of conviction in another jurisdiction for any | 549 |
of the following criminal offenses in this state or a | 550 |
substantially equivalent criminal offense in another jurisdiction: | 551 |
aggravated murder, murder, voluntary manslaughter, felonious | 552 |
assault, kidnapping, rape, sexual battery, gross sexual | 553 |
imposition, aggravated arson, aggravated robbery, or aggravated | 554 |
burglary. Continued practice after suspension shall be considered | 555 |
practicing without a certificate. | 556 |
(1) If the automatic suspension under this division is for a | 564 |
second or subsequent plea of guilty to, or judicial finding of | 565 |
guilt of, a violation of section 2919.123 of the Revised Code, the | 566 |
board shall enter an order suspending the individual's certificate | 567 |
to practice for a period of at least one year or, if determined | 568 |
appropriate by the board, imposing a more serious sanction | 569 |
involving the individual's certificate to practice. | 570 |
(J) If the board is required by Chapter 119. of the Revised | 574 |
Code to give notice of an opportunity for a hearing and if the | 575 |
individual subject to the notice does not timely request a hearing | 576 |
in accordance with section 119.07 of the Revised Code, the board | 577 |
is not required to hold a hearing, but may adopt, by an | 578 |
affirmative vote of not fewer than six of its members, a final | 579 |
order that contains the board's findings. In that final order, the | 580 |
board may order any of the sanctions identified under division (A) | 581 |
or (B) of this section. | 582 |
(L) When the board refuses to grant a certificate to an | 591 |
applicant, revokes an individual's certificate to practice, | 592 |
refuses to register an applicant, or refuses to reinstate an | 593 |
individual's certificate to practice, the board may specify that | 594 |
its action is permanent. An individual subject to a permanent | 595 |
action taken by the board is forever thereafter ineligible to hold | 596 |
a certificate to practice and the board shall not accept an | 597 |
application for reinstatement of the certificate or for issuance | 598 |
of a new certificate. | 599 |
(O) Under the board's investigative duties described in this | 624 |
section and subject to division (F) of this section, the board | 625 |
shall develop and implement a quality intervention program | 626 |
designed to improve through remedial education the clinical and | 627 |
communication skills of individuals authorized under this chapter | 628 |
to practice medicine and surgery, osteopathic medicine and | 629 |
surgery, and podiatric medicine and surgery. In developing and | 630 |
implementing the quality intervention program, the board may do | 631 |
all of the following: | 632 |
(4) A physician or surgeon in another state or territory who | 683 |
is a legal practitioner of medicine or surgery therein and | 684 |
provided services to a patient in that state or territory, when | 685 |
providing, not later than one year after the last date services | 686 |
were provided in another state or territory, follow-up services in | 687 |
person or through the use of any communication, including oral, | 688 |
written, or electronic communication, in this state to the patient | 689 |
for the same condition; | 690 |
(5) A physician or surgeon residing on the border of a | 691 |
contiguous state and authorized under the laws thereof to practice | 692 |
medicine and surgery therein, whose practice extends within the | 693 |
limits of this state. Such practitioner shall not either in person | 694 |
or through the use of any communication, including oral, written, | 695 |
or electronic communication, open an office or appoint a place to | 696 |
see patients or receive calls within the limits of this state. | 697 |
Sec. 4734.31. (A) The state chiropractic board may take any | 734 |
of the actions specified in division (B) of this section against | 735 |
an individual who has applied for or holds a license to practice | 736 |
chiropractic in this state if any of the reasons specified in | 737 |
division (C) of this section for taking action against an | 738 |
individual are applicable. Except as provided in division (D) of | 739 |
this section, actions taken against an individual shall be taken | 740 |
in accordance with Chapter 119. of the Revised Code. The board may | 741 |
specify that any action it takes is a permanent action. The | 742 |
board's authority to take action against an individual is not | 743 |
removed or limited by the individual's failure to renew a license. | 744 |
(8) Failure to cooperate in an investigation conducted by the | 791 |
board, including failure to comply with a subpoena or order issued | 792 |
by the board or failure to answer truthfully a question presented | 793 |
by the board at a deposition or in written interrogatories, except | 794 |
that failure to cooperate with an investigation shall not | 795 |
constitute grounds for discipline under this section if the board | 796 |
or a court of competent jurisdiction has issued an order that | 797 |
either quashes a subpoena or permits the individual to withhold | 798 |
the testimony or evidence in issue; | 799 |
(11) Aiding, abetting, assisting, counseling, or conspiring | 810 |
with any person in that person's violation of any provision of | 811 |
this chapter or the rules adopted under it, including the practice | 812 |
of chiropractic without a license, the practice of acupuncture | 813 |
without a certificate, or aiding, abetting, assisting, counseling, | 814 |
or conspiring with any person in that person's unlicensed practice | 815 |
of any other health care profession that has licensing | 816 |
requirements; | 817 |
(12) With respect to a report or record that is made, filed, | 818 |
or signed in connection with the practice of chiropractic or | 819 |
acupuncture, knowingly making or filing a report or record that is | 820 |
false, intentionally or negligently failing to file a report or | 821 |
record required by federal, state, or local law or willfully | 822 |
impeding or obstructing the required filing, or inducing another | 823 |
person to engage in any such acts; | 824 |
(17) Inability to practice chiropractic or acupuncture | 838 |
according to acceptable and prevailing standards of care by reason | 839 |
of chemical dependency, mental illness, or physical illness, | 840 |
including conditions in which physical deterioration has adversely | 841 |
affected the person's cognitive, motor, or perceptive skills and | 842 |
conditions in which a chiropractor's continued practice may pose a | 843 |
danger to the chiropractor or the public; | 844 |
(20) Failing to maintain proper, accurate, and legible | 849 |
records in the English language documenting each patient's care, | 850 |
including, as appropriate, records of the following: dates of | 851 |
treatment, services rendered, examinations, tests, x-ray reports, | 852 |
referrals, and the diagnosis or clinical impression and clinical | 853 |
treatment plan provided to the patient; | 854 |
(4) In lieu of an adjudication, the board may enter into a | 942 |
consent agreement with an individual to resolve an allegation of a | 943 |
violation of this chapter or any rule adopted under it. A consent | 944 |
agreement, when ratified by the board, shall constitute the | 945 |
findings and order of the board with respect to the matter | 946 |
addressed in the agreement. If the board refuses to ratify a | 947 |
consent agreement, the admissions and findings contained in the | 948 |
consent agreement shall be of no force or effect. | 949 |
(E) This section does not require the board to hire, contract | 950 |
with, or retain the services of an expert witness when the board | 951 |
takes action against a chiropractor concerning compliance with | 952 |
acceptable and prevailing standards of care in the practice of | 953 |
chiropractic or acupuncture. As part of an action taken concerning | 954 |
compliance with acceptable and prevailing standards of care, the | 955 |
board may rely on the knowledge of its members for purposes of | 956 |
making a determination of compliance, notwithstanding any expert | 957 |
testimony presented by the chiropractor that contradicts the | 958 |
knowledge and opinions of the members of the board. | 959 |
(F) The sealing of conviction records by a court shall have | 960 |
no effect on a prior board order entered under this section or on | 961 |
the board's jurisdiction to take action under this section if, | 962 |
based on a plea of guilty, a judicial finding of guilt, or a | 963 |
judicial finding of eligibility for intervention in lieu of | 964 |
conviction, the board issued a notice of opportunity for a hearing | 965 |
prior to the court's order to seal the records. The board shall | 966 |
not be required to seal, destroy, redact, or otherwise modify its | 967 |
records to reflect the court's sealing of conviction records. | 968 |
(F) "Supplemental techniques" means the use of traditional | 999 |
and modern oriental therapeutics, heat therapy, moxibustion, | 1000 |
acupressure and other forms of Chinese massage, and counseling | 1001 |
that includes the provision of information regarding lifestyle | 1002 |
modifications and the therapeutic use of foods and supplements, | 1003 |
including homeopathics, glandulars, vitamins, and minerals. | 1004 |
Sec. 4762.031. In addition to any other eligibility | 1091 |
requirement set forth in this chapter, each applicant for a | 1092 |
certificate to practice as an acupuncturistissued under this | 1093 |
chapter shall comply with sections 4776.01 to 4776.04 of the | 1094 |
Revised Code. The state medical board shall not grant to an | 1095 |
applicant a certificate to practice as an acupuncturist unless the | 1096 |
board, in its discretion, decides that the results of the criminal | 1097 |
records check do not make the applicant ineligible for a | 1098 |
certificate issued pursuant to section 4762.04 of the Revised | 1099 |
Code. | 1100 |
Sec. 4762.04. If the state medical board determines under | 1101 |
section 4762.03 of the Revised Code that an applicant meets the | 1102 |
requirements for a certificate to practice as an acupuncturist | 1103 |
issued under this chapter, the secretary of the board shall | 1104 |
register the applicant as an oriental medicine practitioner or | 1105 |
acupuncturist, as appropriate, and issue to the applicant a | 1106 |
certificate to practice as an acupuncturist. The certificate shall | 1107 |
expire biennially and may be renewed in accordance with section | 1108 |
4762.06 of the Revised Code. | 1109 |
(D) A certificate to practice that is not renewed on or | 1166 |
before its expiration date is automatically suspended on its | 1167 |
expiration date. If a certificate has been suspended pursuant to | 1168 |
this division for two years or less, the board shall reinstate the | 1169 |
certificate upon an applicant's submission of a renewal | 1170 |
application, the biennial renewal fee, and the applicable monetary | 1171 |
penalty. The penalty for reinstatement is twenty-five dollars. If | 1172 |
a certificate has been suspended pursuant to this division for | 1173 |
more than two years, it may be restored upon an applicant's | 1174 |
submission of a restoration application, the biennial registration | 1175 |
fee, and the applicable monetary penalty and compliance with | 1176 |
sections 4776.01 to 4776.04 of the Revised Code. The board shall | 1177 |
not restore a certificate to practice unless the board, in its | 1178 |
discretion, decides that the results of the criminal records check | 1179 |
do not make the applicant ineligible for a certificate issued | 1180 |
pursuant to section 4762.04 of the Revised Code. The penalty for | 1181 |
restoration is fifty dollars. | 1182 |
Sec. 4762.08. (A) A person who holds a certificate to | 1183 |
practice as an oriental medicine practitioner issued under this | 1184 |
chapter may use the following titles, initials, or abbreviations, | 1185 |
or the equivalent of such titles, initials, or abbreviations, to | 1186 |
identify the person as an oriental medicine practitioner: | 1187 |
"Oriental Medicine Practitioner," "Licensed Oriental Medicine | 1188 |
Practitioner," "L.O.M.," "Diplomate in Oriental Medicine | 1189 |
(NCCAOM)," "Dipl. O.M. (NCCAOM)," "National Board Certified in | 1190 |
Oriental Medicine (NCCAOM)," "Acupuncturist," "Licensed | 1191 |
Acupuncturist," "L.Ac. and L.C.H.," "Diplomate of Acupuncture and | 1192 |
Chinese Herbology (NCCAOM)," "Dipl. Ac. and Dipl. C.H. (NCCAOM)," | 1193 |
or "National Board Certified in Acupuncture and Chinese Herbology | 1194 |
(NCCAOM)." The person shall not use other titles, initials, or | 1195 |
abbreviations in conjunction with the person's practice of | 1196 |
oriental medicine, including the title "doctor."
| 1197 |
(B) A person who holds a certificate to practice as an | 1198 |
acupuncturist issued under this chapter may use the following | 1199 |
titles, initials, or abbreviations, or the equivalent of such | 1200 |
titles, initials, or abbreviations, to identify the person as an | 1201 |
acupuncturist: "Acupuncturist," "Licensed Acupuncturist," "L.Ac.," | 1202 |
"Diplomate ofin Acupuncture (NCCAOM)," "Dipl. Ac. (NCCAOM)," or | 1203 |
"National Board Certified in Acupuncture (NCCAOM)." The person | 1204 |
shall not use other titles, initials, or abbreviations in | 1205 |
conjunction with the person's practice of acupuncture, including | 1206 |
the title "doctor." | 1207 |
(1) Except as otherwise provided in division (B)(1) of this | 1226 |
section, if an acupuncturist practicing on the effective date of | 1227 |
this amendmentAugust 22, 2008, has practiced for less than one | 1228 |
year and is not subject to any disciplinary action, supervision | 1229 |
shall be for a period beginning on the effective date of this | 1230 |
amendmentAugust 22, 2008, and ending when the acupuncturist has | 1231 |
practiced for one year from the date the initial certificate was | 1232 |
granted. If the acupuncturist is subject to disciplinary action | 1233 |
during that period, the supervision shall continue until the | 1234 |
acupuncturist has not been subject to any disciplinary action for | 1235 |
one year. | 1236 |
(2) Except as otherwise provided in division (B)(2) of this | 1237 |
section, if an acupuncturista certificate holder is granted an | 1238 |
initial certificate to practice on or after the effective date of | 1239 |
this amendmentsection, as amended by this act, the supervisory | 1240 |
period shall begin on the date the certificate is granted and end | 1241 |
one year thereafter. If the acupuncturistcertificate holder is | 1242 |
subject to disciplinary action during that year, the supervision | 1243 |
shall continue until the acupuncturistcertificate holder has not | 1244 |
been subject to any disciplinary action for one year. | 1245 |
(1) TheAn oriental medicine practitioner shall perform | 1250 |
oriental medicine or acupuncture for a patient only if the patient | 1251 |
has received a written referral or prescription for oriental | 1252 |
medicine or acupuncture from a physician or for acupuncture from a | 1253 |
chiropractor. An acupuncturist shall perform acupuncture for a | 1254 |
patient only if the patient has received a written referral or | 1255 |
prescription for acupuncture from a physician or chiropractor. As | 1256 |
specified in the referral or prescription, the acupuncturist | 1257 |
certificate holder shall provide reports to the physician or | 1258 |
chiropractor on the patient's condition or progress in treatment | 1259 |
and comply with the conditions or restrictions on the | 1260 |
acupuncturist'scertificate holder's course of treatment. | 1261 |
(1) Before treating a patient for a particular condition, the | 1272 |
acupuncturistcertificate holder shall confirm whether the patient | 1273 |
has undergone within the past six months a diagnostic examination | 1274 |
that was related to the condition for which the patient is seeking | 1275 |
oriental medicine or acupuncture and was performed by a physician | 1276 |
or chiropractor acting within the physicianphysician's or | 1277 |
chiropractor's scope of practice. Confirmation that the diagnostic | 1278 |
examination was performed may be made by obtaining from the | 1279 |
patient a signed form stating that the patient has undergone the | 1280 |
examination. | 1281 |
(A) Before making the referral or prescription for oriental | 1329 |
medicine or acupuncture, the physician shall perform a medical | 1330 |
diagnostic examination of the patient or review the results of a | 1331 |
medical diagnostic examination recently performed by another | 1332 |
physician, or, in the case of a chiropractor, the chiropractor | 1333 |
shall perform a chiropractic diagnostic examination of the patient | 1334 |
or review the results of a chiropractic diagnostic examination | 1335 |
recently performed by another chiropractor. | 1336 |
(D) The physician or chiropractor shall be personally | 1358 |
available for consultation with the acupuncturistcertificate | 1359 |
holder. If the physician or chiropractor is not on the premises at | 1360 |
which oriental medicine or acupuncture is performed, the physician | 1361 |
or chiropractor shall be readily available to the
acupuncturist | 1362 |
certificate holder through some means of telecommunication and be | 1363 |
in a location that under normal circumstances is not more than | 1364 |
sixty minutes travel time away from the location where the | 1365 |
acupuncturistcertificate holder is practicing. | 1366 |
Sec. 4762.12. In the case of a patient with a claim under | 1367 |
Chapter 4121. or 4123. of the Revised Code, an acupuncturist'sa | 1368 |
supervising physician or chiropractor is eligible to be reimbursed | 1369 |
for referring the patient to an oriental medicine practitioner or | 1370 |
acupuncturist or for prescribing oriental medicine or acupuncture | 1371 |
for the patient only if the physician has attained knowledge in | 1372 |
the treatment of patients with oriental medicine or acupuncture, | 1373 |
or
the chiropractor has attained knowledge in the treatment of | 1374 |
patients with acupuncture, as demonstrated by successful | 1375 |
completion of a relevant course of study in acupuncture | 1376 |
administered by a college of medicine, osteopathic medicine, | 1377 |
podiatric medicine, or chiropractic acceptable to the bureau of | 1378 |
workers' compensation or administered by another entity acceptable | 1379 |
to the bureau. | 1380 |
(B) The board, by an affirmative vote of not fewer than six | 1387 |
members, shall, to the extent permitted by law, limit, revoke, or | 1388 |
suspend an individual's certificate to practice as an | 1389 |
acupuncturist, refuse to issue a certificate to an applicant, | 1390 |
refuse to reinstate a certificate, or reprimand or place on | 1391 |
probation the holder of a certificate for any of the following | 1392 |
reasons: | 1393 |
As used in this division, "false, fraudulent, deceptive, or | 1424 |
misleading statement" means a statement that includes a | 1425 |
misrepresentation of fact, is likely to mislead or deceive because | 1426 |
of a failure to disclose material facts, is intended or is likely | 1427 |
to create false or unjustified expectations of favorable results, | 1428 |
or includes representations or implications that in reasonable | 1429 |
probability will cause an ordinarily prudent person to | 1430 |
misunderstand or be deceived. | 1431 |
(18) Any of the following actions taken by the state agency | 1462 |
responsible for regulating the practice of oriental medicine or | 1463 |
acupuncture in another jurisdiction, for any reason other than the | 1464 |
nonpayment of fees: the limitation, revocation, or suspension of | 1465 |
an individual's license to practice; acceptance of an individual's | 1466 |
license surrender; denial of a license; refusal to renew or | 1467 |
reinstate a license; imposition of probation; or issuance of an | 1468 |
order of censure or other reprimand; | 1469 |
(21) Failure to cooperate in an investigation conducted by | 1475 |
the board under section 4762.14 of the Revised Code, including | 1476 |
failure to comply with a subpoena or order issued by the board or | 1477 |
failure to answer truthfully a question presented by the board at | 1478 |
a deposition or in written interrogatories, except that failure to | 1479 |
cooperate with an investigation shall not constitute grounds for | 1480 |
discipline under this section if a court of competent jurisdiction | 1481 |
has issued an order that either quashes a subpoena or permits the | 1482 |
individual to withhold the testimony or evidence in issue; | 1483 |
(C) The board, by an affirmative vote of not fewer than six | 1492 |
members, shall, to the extent permitted by law, permanently revoke | 1493 |
a certificate to practice issued under this chapter if the | 1494 |
certificate holder's designation as a diplomate in oriental | 1495 |
medicine, diplomate of acupuncture and Chinese herbology, or | 1496 |
diplomate in acupuncture, has been revoked by the national | 1497 |
certification commission for acupuncture and oriental medicine for | 1498 |
a violation of professional ethics.
| 1499 |
The board, by an affirmative vote of not fewer than six | 1500 |
members, may revoke a certificate to practice oriental medicine if | 1501 |
the board determines a professional ethics violation exists but | 1502 |
the violation is not covered by the national certification | 1503 |
commission for acupuncture and oriental medicine standards for | 1504 |
professional ethics. If the board takes this action, the board may | 1505 |
determine whether the individual who is subject to the revocation | 1506 |
is eligible to apply for a certificate to practice acupuncture.
| 1507 |
(D) Disciplinary actions taken by the board under divisions | 1508 |
(A) and, (B), and (C) of this section shall be taken pursuant to | 1509 |
an adjudication under Chapter 119. of the Revised Code, except | 1510 |
that in lieu of an adjudication, the board may enter into a | 1511 |
consent agreement with an acupuncturista certificate holder or | 1512 |
applicant to resolve an allegation of a violation of this chapter | 1513 |
or any rule adopted under it. A consent agreement, when ratified | 1514 |
by an affirmative vote of not fewer than six members of the board, | 1515 |
shall constitute the findings and order of the board with respect | 1516 |
to the matter addressed in the agreement. If the board refuses to | 1517 |
ratify a consent agreement, the admissions and findings contained | 1518 |
in the consent agreement shall be of no force or effect. | 1519 |
(D)(E) For purposes of divisions (B)(12), (15), and (16) of | 1520 |
this section, the commission of the act may be established by a | 1521 |
finding by the board, pursuant to an adjudication under Chapter | 1522 |
119. of the Revised Code, that the applicant or certificate holder | 1523 |
committed the act in question. The board shall have no | 1524 |
jurisdiction under these divisions in cases where the trial court | 1525 |
renders a final judgment in the certificate holder's favor and | 1526 |
that judgment is based upon an adjudication on the merits. The | 1527 |
board shall have jurisdiction under these divisions in cases where | 1528 |
the trial court issues an order of dismissal upon technical or | 1529 |
procedural grounds. | 1530 |
(E)(F) The sealing of conviction records by any court shall | 1531 |
have no effect upon a prior board order entered under the | 1532 |
provisions of this section or upon the board's jurisdiction to | 1533 |
take action under the provisions of this section if, based upon a | 1534 |
plea of guilty, a judicial finding of guilt, or a judicial finding | 1535 |
of eligibility for intervention in lieu of conviction, the board | 1536 |
issued a notice of opportunity for a hearing prior to the court's | 1537 |
order to seal the records. The board shall not be required to | 1538 |
seal, destroy, redact, or otherwise modify its records to reflect | 1539 |
the court's sealing of conviction records. | 1540 |
(1) In enforcing division (B)(5) of this section, the board, | 1548 |
upon a showing of a possible violation, may compel any individual | 1549 |
who holds a certificate to practice issued under this chapter or | 1550 |
who has applied for a certificate pursuant to this chapter to | 1551 |
submit to a mental examination, physical examination, including an | 1552 |
HIV test, or both a mental and physical examination. The expense | 1553 |
of the examination is the responsibility of the individual | 1554 |
compelled to be examined. Failure to submit to a mental or | 1555 |
physical examination or consent to an HIV test ordered by the | 1556 |
board constitutes an admission of the allegations against the | 1557 |
individual unless the failure is due to circumstances beyond the | 1558 |
individual's control, and a default and final order may be entered | 1559 |
without the taking of testimony or presentation of evidence. If | 1560 |
the board finds an acupuncturista certificate holder unable to | 1561 |
practice because of the reasons set forth in division (B)(5) of | 1562 |
this section, the board shall require the acupuncturist | 1563 |
certificate holder to submit to care, counseling, or treatment by | 1564 |
physicians approved or designated by the board, as a condition for | 1565 |
an initial, continued, reinstated, or renewed certificate to | 1566 |
practice. An individual affected by this division shall be | 1567 |
afforded an opportunity to demonstrate to the board the ability to | 1568 |
resume practicing in compliance with acceptable and prevailing | 1569 |
standards of care. | 1570 |
(2) For purposes of division (B)(6) of this section, if the | 1571 |
board has reason to believe that any individual who holds a | 1572 |
certificate to practice issued under this chapter or any applicant | 1573 |
for a certificate suffers such impairment, the board may compel | 1574 |
the individual to submit to a mental or physical examination, or | 1575 |
both. The expense of the examination is the responsibility of the | 1576 |
individual compelled to be examined. Any mental or physical | 1577 |
examination required under this division shall be undertaken by a | 1578 |
treatment provider or physician qualified to conduct such | 1579 |
examination and chosen by the board. | 1580 |
Failure to submit to a mental or physical examination ordered | 1581 |
by the board constitutes an admission of the allegations against | 1582 |
the individual unless the failure is due to circumstances beyond | 1583 |
the individual's control, and a default and final order may be | 1584 |
entered without the taking of testimony or presentation of | 1585 |
evidence. If the board determines that the individual's ability to | 1586 |
practice is impaired, the board shall suspend the individual's | 1587 |
certificate or deny the individual's application and shall require | 1588 |
the individual, as a condition for an initial, continued, | 1589 |
reinstated, or renewed certificate, to submit to treatment. | 1590 |
When the impaired acupuncturistcertificate holder resumes | 1610 |
practice, the board shall require continued monitoring of the | 1611 |
acupuncturistcertificate holder. The monitoring shall include | 1612 |
monitoring of compliance with the written consent agreement | 1613 |
entered into before reinstatement or with conditions imposed by | 1614 |
board order after a hearing, and, upon termination of the consent | 1615 |
agreement, submission to the board for at least two years of | 1616 |
annual written progress reports made under penalty of | 1617 |
falsification stating whether the acupuncturistcertificate holder | 1618 |
has maintained sobriety. | 1619 |
The board shall issue a written order of suspension by | 1634 |
certified mail or in person in accordance with section 119.07 of | 1635 |
the Revised Code. The order shall not be subject to suspension by | 1636 |
the court during pendency of any appeal filed under section 119.12 | 1637 |
of the Revised Code. If the acupuncturistcertificate holder | 1638 |
requests an adjudicatory hearing by the board, the date set for | 1639 |
the hearing shall be within fifteen days, but not earlier than | 1640 |
seven days, after the
acupuncturistcertificate holder requests | 1641 |
the hearing, unless otherwise agreed to by both the board and the | 1642 |
certificate holder. | 1643 |
A summary suspension imposed under this division shall remain | 1644 |
in effect, unless reversed on appeal, until a final adjudicative | 1645 |
order issued by the board pursuant to this section and Chapter | 1646 |
119. of the Revised Code becomes effective. The board shall issue | 1647 |
its final adjudicative order within sixty days after completion of | 1648 |
its hearing. Failure to issue the order within sixty days shall | 1649 |
result in dissolution of the summary suspension order, but shall | 1650 |
not invalidate any subsequent, final adjudicative order. | 1651 |
(H)(I) If the board takes action under division (B)(11), | 1652 |
(13), or (14) of this section, and the judicial finding of guilt, | 1653 |
guilty plea, or judicial finding of eligibility for intervention | 1654 |
in lieu of conviction is overturned on appeal, upon exhaustion of | 1655 |
the criminal appeal, a petition for reconsideration of the order | 1656 |
may be filed with the board along with appropriate court | 1657 |
documents. Upon receipt of a petition and supporting court | 1658 |
documents, the board shall reinstate the certificate to practice. | 1659 |
The board may then hold an adjudication under Chapter 119. of the | 1660 |
Revised Code to determine whether the individual committed the act | 1661 |
in question. Notice of opportunity for hearing shall be given in | 1662 |
accordance with Chapter 119. of the Revised Code. If the board | 1663 |
finds, pursuant to an adjudication held under this division, that | 1664 |
the individual committed the act, or if no hearing is requested, | 1665 |
it may order any of the sanctions specified in division (B) of | 1666 |
this section. | 1667 |
(I)(J) The certificate to practice of an oriental medicine | 1668 |
practitioner or acupuncturist and the practitioner's or | 1669 |
acupuncturist's practice in this state are automatically suspended | 1670 |
as of the date the practitioner or acupuncturist pleads guilty to, | 1671 |
is found by a judge or jury to be guilty of, or is subject to a | 1672 |
judicial finding of eligibility for intervention in lieu of | 1673 |
conviction in this state or treatment or intervention in lieu of | 1674 |
conviction in another jurisdiction for any of the following | 1675 |
criminal offenses in this state or a substantially equivalent | 1676 |
criminal offense in another jurisdiction: aggravated murder, | 1677 |
murder, voluntary manslaughter, felonious assault, kidnapping, | 1678 |
rape, sexual battery, gross sexual imposition, aggravated arson, | 1679 |
aggravated robbery, or aggravated burglary. Continued practice | 1680 |
after the suspension shall be considered practicing without a | 1681 |
certificate. | 1682 |
(J)(K) In any instance in which the board is required by | 1690 |
Chapter 119. of the Revised Code to give notice of opportunity for | 1691 |
hearing and the individual subject to the notice does not timely | 1692 |
request a hearing in accordance with section 119.07 of the Revised | 1693 |
Code, the board is not required to hold a hearing, but may adopt, | 1694 |
by an affirmative vote of not fewer than six of its members, a | 1695 |
final order that contains the board's findings. In the final | 1696 |
order, the board may order any of the sanctions identified under | 1697 |
division (A)
or, (B), or (C) of this section. | 1698 |
(L)(M) When the board refuses to grant a certificate to | 1708 |
practice
as an acupuncturist to an applicant, revokes an | 1709 |
individual's certificate, refuses to renew a certificate, or | 1710 |
refuses to reinstate an individual's certificate, the board may | 1711 |
specify that its action is permanent. An individual subject to a | 1712 |
permanent action taken by the board is forever thereafter | 1713 |
ineligible to hold a certificate to practice as an acupuncturist | 1714 |
issued under this chapter and the board shall not accept an | 1715 |
application for reinstatement of the certificate or for issuance | 1716 |
of a new certificate. | 1717 |
Sec. 4762.132. If the state medical board has reason to | 1737 |
believe that any person who has been granted under this chapter a | 1738 |
certificate to practice as an acupuncturist is mentally ill or | 1739 |
mentally incompetent, it may file in the probate court of the | 1740 |
county in which the person has a legal residence an affidavit in | 1741 |
the form prescribed in section 5122.11 of the Revised Code and | 1742 |
signed by the board secretary or a member of the board secretary's | 1743 |
staff, whereupon the same proceedings shall be had as provided in | 1744 |
Chapter 5122. of the Revised Code. The attorney general may | 1745 |
represent the board in any proceeding commenced under this | 1746 |
section. | 1747 |
If any person who has been granted a certificate is adjudged | 1748 |
by a probate court to be mentally ill or mentally incompetent, the | 1749 |
person's certificate shall be automatically suspended until the | 1750 |
person has filed with the state medical board a certified copy of | 1751 |
an adjudication by a probate court of the person's subsequent | 1752 |
restoration to competency or has submitted to the board proof, | 1753 |
satisfactory to the board, that the person has been discharged as | 1754 |
having a restoration to competency in the manner and form provided | 1755 |
in section 5122.38 of the Revised Code. The judge of the probate | 1756 |
court shall forthwith notify the state medical board of an | 1757 |
adjudication of mental illness or mental incompetence, and shall | 1758 |
note any suspension of a certificate in the margin of the court's | 1759 |
record of such certificate. | 1760 |
Sec. 4762.14. (A) The state medical board shall investigate | 1761 |
evidence that appears to show that any person has violated this | 1762 |
chapter or the rules adopted under it. Any person may report to | 1763 |
the board in a signed writing any information the person has that | 1764 |
appears to show a violation of any provision of this chapter or | 1765 |
the rules adopted under it. In the absence of bad faith, a person | 1766 |
who reports such information or testifies before the board in an | 1767 |
adjudication conducted under Chapter 119. of the Revised Code | 1768 |
shall not be liable for civil damages as a result of reporting the | 1769 |
information or providing testimony. Each complaint or allegation | 1770 |
of a violation received by the board shall be assigned a case | 1771 |
number and be recorded by the board. | 1772 |
(B) Investigations of alleged violations of this chapter or | 1773 |
rules adopted under it shall be supervised by the supervising | 1774 |
member elected by the board in accordance with section 4731.02 of | 1775 |
the Revised Code and by the secretary as provided in section | 1776 |
4762.15 of the Revised Code. The board's president may designate | 1777 |
another member of the board to supervise the investigation in | 1778 |
place of the supervising member. A member of the board who | 1779 |
supervises the investigation of a case shall not participate in | 1780 |
further adjudication of the case. | 1781 |
(C) In investigating a possible violation of this chapter or | 1782 |
the rules adopted under it, the board may administer oaths, order | 1783 |
the taking of depositions, issue subpoenas, and compel the | 1784 |
attendance of witnesses and production of books, accounts, papers, | 1785 |
records, documents, and testimony, except that a subpoena for | 1786 |
patient record information shall not be issued without | 1787 |
consultation with the attorney general's office and approval of | 1788 |
the secretary and supervising member of the board. Before issuance | 1789 |
of a subpoena for patient record information, the secretary and | 1790 |
supervising member shall determine whether there is probable cause | 1791 |
to believe that the complaint filed alleges a violation of this | 1792 |
chapter or the rules adopted under it and that the records sought | 1793 |
are relevant to the alleged violation and material to the | 1794 |
investigation. The subpoena may apply only to records that cover a | 1795 |
reasonable period of time surrounding the alleged violation. | 1796 |
A subpoena issued by the board may be served by a sheriff, | 1801 |
the sheriff's deputy, or a board employee designated by the board. | 1802 |
Service of a subpoena issued by the board may be made by | 1803 |
delivering a copy of the subpoena to the person named therein, | 1804 |
reading it to the person, or leaving it at the person's usual | 1805 |
place of residence. When the person being served is an oriental | 1806 |
medicine practitioner or acupuncturist, service of the subpoena | 1807 |
may be made by certified mail, restricted delivery, return receipt | 1808 |
requested, and the subpoena shall be deemed served on the date | 1809 |
delivery is made or the date the person refuses to accept | 1810 |
delivery. | 1811 |
The board may share any information it receives pursuant to | 1827 |
an investigation, including patient records and patient record | 1828 |
information, with law enforcement agencies, other licensing | 1829 |
boards, and other governmental agencies that are prosecuting, | 1830 |
adjudicating, or investigating alleged violations of statutes or | 1831 |
administrative rules. An agency or board that receives the | 1832 |
information shall comply with the same requirements regarding | 1833 |
confidentiality as those with which the state medical board must | 1834 |
comply, notwithstanding any conflicting provision of the Revised | 1835 |
Code or procedure of the agency or board that applies when it is | 1836 |
dealing with other information in its possession. In a judicial | 1837 |
proceeding, the information may be admitted into evidence only in | 1838 |
accordance with the Rules of Evidence, but the court shall require | 1839 |
that appropriate measures are taken to ensure that confidentiality | 1840 |
is maintained with respect to any part of the information that | 1841 |
contains names or other identifying information about patients or | 1842 |
complainants whose confidentiality was protected by the state | 1843 |
medical board when the information was in the board's possession. | 1844 |
Measures to ensure confidentiality that may be taken by the court | 1845 |
include sealing its records or deleting specific information from | 1846 |
its records. | 1847 |
(B) Whenever any person holding a valid certificate to | 1873 |
practice as an acupuncturist issued pursuant to this chapter | 1874 |
pleads guilty to, is subject to a judicial finding of guilt of, or | 1875 |
is subject to a judicial finding of eligibility for intervention | 1876 |
in lieu of conviction for a violation of Chapter 2907., 2925., or | 1877 |
3719. of the Revised Code or of any substantively comparable | 1878 |
ordinance of a municipal corporation in connection with the | 1879 |
person's practice, the prosecutor in the case, on forms prescribed | 1880 |
and provided by the state medical board, shall promptly notify the | 1881 |
board of the conviction. Within thirty days of receipt of that | 1882 |
information, the board shall initiate action in accordance with | 1883 |
Chapter 119. of the Revised Code to determine whether to suspend | 1884 |
or revoke the certificate under section 4762.13 of the Revised | 1885 |
Code. | 1886 |
Sec. 4762.16. (A) Within sixty days after the imposition of | 1912 |
any formal disciplinary action taken by any health care facility, | 1913 |
including a hospital, health care facility operated by a health | 1914 |
insuring corporation, ambulatory surgical center, or similar | 1915 |
facility, against any individual holding a valid certificate to | 1916 |
practice as an acupuncturistissued pursuant to this chapter, the | 1917 |
chief administrator or executive officer of the facility shall | 1918 |
report to the state medical board the name of the individual, the | 1919 |
action taken by the facility, and a summary of the underlying | 1920 |
facts leading to the action taken. Upon request, the board shall | 1921 |
be provided certified copies of the patient records that were the | 1922 |
basis for the facility's action. Prior to release to the board, | 1923 |
the summary shall be approved by the peer review committee that | 1924 |
reviewed the case or by the governing board of the facility. | 1925 |
(B) An oriental medicine practitioner or acupuncturist, | 1934 |
professional association or society of oriental medicine | 1935 |
practitioners or acupuncturists, physician, or professional | 1936 |
association or society of physicians that believes a violation of | 1937 |
any provision of this chapter, Chapter 4731. of the Revised Code, | 1938 |
or rule of the board has occurred shall report to the board the | 1939 |
information upon which the belief is based. This division does not | 1940 |
require any treatment provider approved by the board under section | 1941 |
4731.25 of the Revised Code or any employee, agent, or | 1942 |
representative of such a provider to make reports with respect to | 1943 |
an acupuncturista certificate holder participating in treatment | 1944 |
or aftercare for substance abuse as long as the acupuncturist | 1945 |
certificate holder maintains participation in accordance with the | 1946 |
requirements of section 4731.25 of the Revised Code and the | 1947 |
treatment provider or employee, agent, or representative of the | 1948 |
provider has no reason to believe that the acupuncturist | 1949 |
certificate holder has violated any provision of this chapter or | 1950 |
rule adopted under it, other than being impaired by alcohol, | 1951 |
drugs, or other substances. This division does not require | 1952 |
reporting by any member of an impaired practitioner committee | 1953 |
established by a health care facility or by any representative or | 1954 |
agent of a committee or program sponsored by a professional | 1955 |
association or society of oriental medicine practitioners or | 1956 |
acupuncturists to provide peer assistance to oriental medicine | 1957 |
practitioners or acupuncturists with substance abuse problems with | 1958 |
respect to an acupuncturista certificate holder who has been | 1959 |
referred for examination to a treatment program approved by the | 1960 |
board under section 4731.25 of the Revised Code if the | 1961 |
acupuncturistcertificate holder cooperates with the referral for | 1962 |
examination and with any determination that the acupuncturist | 1963 |
certificate holder should enter treatment and as long as the | 1964 |
committee member, representative, or agent has no reason to | 1965 |
believe that the acupuncturistcertificate holder has ceased to | 1966 |
participate in the treatment program in accordance with section | 1967 |
4731.25 of the Revised Code or has violated any provision of this | 1968 |
chapter or rule adopted under it, other than being impaired by | 1969 |
alcohol, drugs, or other substances. | 1970 |
(C) Any professional association or society composed | 1971 |
primarily of oriental medicine practitioners or acupuncturists | 1972 |
that suspends or revokes an individual's membership for violations | 1973 |
of professional ethics, or for reasons of professional | 1974 |
incompetence or professional malpractice, within sixty days after | 1975 |
a final decision, shall report to the board, on forms prescribed | 1976 |
and provided by the board, the name of the individual, the action | 1977 |
taken by the professional organization, and a summary of the | 1978 |
underlying facts leading to the action taken. | 1979 |
(E) The board may investigate possible violations of this | 2002 |
chapter or the rules adopted under it that are brought to its | 2003 |
attention as a result of the reporting requirements of this | 2004 |
section, except that the board shall conduct an investigation if a | 2005 |
possible violation involves repeated malpractice. As used in this | 2006 |
division, "repeated malpractice" means three or more claims for | 2007 |
malpractice within the previous five-year period, each resulting | 2008 |
in a judgment or settlement in excess of twenty-five thousand | 2009 |
dollars in favor of the claimant, and each involving negligent | 2010 |
conduct by the acupuncturista certificate holder. | 2011 |
(F) All summaries, reports, and records received and | 2012 |
maintained by the board pursuant to this section shall be held in | 2013 |
confidence and shall not be subject to discovery or introduction | 2014 |
in evidence in any federal or state civil action involving an | 2015 |
acupuncturista certificate holder, supervising physician, or | 2016 |
health care facility arising out of matters that are the subject | 2017 |
of the reporting required by this section. The board may use the | 2018 |
information obtained only as the basis for an investigation, as | 2019 |
evidence in a disciplinary hearing against
an acupuncturista | 2020 |
certificate holder or supervising physician, or in any subsequent | 2021 |
trial or appeal of a board action or order. | 2022 |
The board may disclose the summaries and reports it receives | 2023 |
under this section only to health care facility committees within | 2024 |
or outside this state that are involved in credentialing or | 2025 |
recredentialing an oriental medicine practitioner or acupuncturist | 2026 |
or supervising physician or reviewing their privilege to practice | 2027 |
within a particular facility. The board shall indicate whether or | 2028 |
not the information has been verified. Information transmitted by | 2029 |
the board shall be subject to the same confidentiality provisions | 2030 |
as when maintained by the board. | 2031 |
(I) In the absence of fraud or bad faith, a professional | 2045 |
association or society of oriental medicine practitioners or | 2046 |
acupuncturists that sponsors a committee or program to provide | 2047 |
peer assistance to an oriental medicine practitioner or | 2048 |
acupuncturist with substance abuse problems, a representative or | 2049 |
agent of such a committee or program, and a member of the state | 2050 |
medical board shall not be held liable in damages to any person by | 2051 |
reason of actions taken to refer an acupuncturista certificate | 2052 |
holder to a treatment provider approved under section 4731.25 of | 2053 |
the Revised Code for examination or treatment. | 2054 |
Sec. 4762.17. The secretary of the state medical board shall | 2055 |
enforce the laws relating to the practice of oriental medicine and | 2056 |
acupuncture. If the secretary has knowledge or notice of a | 2057 |
violation of this chapter or the rules adopted under it, the | 2058 |
secretary shall investigate the matter, and, upon probable cause | 2059 |
appearing, file a complaint and prosecute the offender. When | 2060 |
requested by the secretary, the prosecuting attorney of the proper | 2061 |
county shall take charge of and conduct the prosecution. | 2062 |
Sec. 4762.18. (A) Subject to division (E) of this section, | 2063 |
the attorney general, the prosecuting attorney of any county in | 2064 |
which the offense was committed or the offender resides, the state | 2065 |
medical board, or any other person having knowledge of a person | 2066 |
engaged either directly or by complicity in the practice of | 2067 |
oriental medicine or acupuncture without having first obtained a | 2068 |
certificate to do so pursuant to this chapter, may, in accord with | 2069 |
provisions of the Revised Code governing injunctions, maintain an | 2070 |
action in the name of the state to enjoin any person from engaging | 2071 |
either directly or by complicity in the unlawful practice of | 2072 |
oriental medicine or acupuncture by applying for an injunction in | 2073 |
any court of competent jurisdiction. | 2074 |
(B) Prior to application for an injunction under division (A) | 2075 |
of this section, the secretary of the state medical board shall | 2076 |
notify the person allegedly engaged either directly or by | 2077 |
complicity in the unlawful practice of oriental medicine or | 2078 |
acupuncture by registered mail that the secretary has received | 2079 |
information indicating that this person is so engaged. The person | 2080 |
shall answer the secretary within thirty days showing that the | 2081 |
person is either properly licensed for the stated activity or that | 2082 |
the person is not in violation of this chapter. If the answer is | 2083 |
not forthcoming within thirty days after notice by the secretary, | 2084 |
the secretary shall request that the attorney general, the | 2085 |
prosecuting attorney of the county in which the offense was | 2086 |
committed or the offender resides, or the state medical board | 2087 |
proceed as authorized in this section. | 2088 |
Section 2. That existing sections 4731.22, 4731.36, 4734.31, | 2113 |
4762.01, 4762.02, 4762.03, 4762.031, 4762.04, 4762.05, 4762.06, | 2114 |
4762.08, 4762.09, 4762.10, 4762.11, 4762.12, 4762.13, 4762.131, | 2115 |
4762.132, 4762.14, 4762.15, 4762.16, 4762.17, 4762.18, 4762.19, | 2116 |
and 4762.22 of the Revised Code are hereby repealed. | 2117 |
Section 3. Section 4731.22 of the Revised Code is presented | 2118 |
in this act as a composite of the section as amended by Am. Sub. | 2119 |
H.B. 280, Sub. H.B. 525, and Sub. S.B. 229 of the 127th General | 2120 |
Assembly. The General Assembly, applying the principle stated in | 2121 |
division (B) of section 1.52 of the Revised Code that amendments | 2122 |
are to be harmonized if reasonably capable of simultaneous | 2123 |
operation, finds that the composite is the resulting version of | 2124 |
the section in effect prior to the effective date of the section | 2125 |
as presented in this act. | 2126 |