Section 1. That sections 4731.02, 4731.06, 4731.07, 4731.22, | 12 |
4731.36, 4734.31, 4762.01, 4762.02, 4762.03, 4762.031, 4762.04, | 13 |
4762.05, 4762.06, 4762.08, 4762.09, 4762.10, 4762.11, 4762.12, | 14 |
4762.13, 4762.131, 4762.132, 4762.14, 4762.15, 4762.16, 4762.17, | 15 |
4762.18, 4762.19, and 4762.22 of the Revised Code be amended to | 16 |
read as follows: | 17 |
(B) The board shall also keep a register of applicants for | 34 |
certificates of registration and certificates to practice issued | 35 |
under this chapter and Chapters 4730., 4760., 4762., and 4774. of | 36 |
the Revised Code. The register shall show the name of the | 37 |
applicant and whether the applicant was granted or refused a | 38 |
certificate. With respect to applicants to practice medicine and | 39 |
surgery or osteopathic medicine and surgery, the register shall | 40 |
show the name of the institution that granted the applicant the | 41 |
degree of doctor of medicine or osteopathic medicine. The books | 42 |
and records of the board shall be prima-facie evidence of matters | 43 |
therein contained. | 44 |
(B) The board, by an affirmative vote of not fewer than six | 53 |
members, shall, to the extent permitted by law, limit, revoke, or | 54 |
suspend an individual's certificate to practice, refuse to | 55 |
register an individual, refuse to reinstate a certificate, or | 56 |
reprimand or place on probation the holder of a certificate for | 57 |
one or more of the following reasons: | 58 |
(3) Selling, giving away, personally furnishing, prescribing, | 67 |
or administering drugs for other than legal and legitimate | 68 |
therapeutic purposes or a plea of guilty to, a judicial finding of | 69 |
guilt of, or a judicial finding of eligibility for intervention in | 70 |
lieu of conviction of, a violation of any federal or state law | 71 |
regulating the possession, distribution, or use of any drug; | 72 |
For purposes of this division, "willfully betraying a | 74 |
professional confidence" does not include providing any | 75 |
information, documents, or reports to a child fatality review | 76 |
board under sections 307.621 to 307.629 of the Revised Code and | 77 |
does not include the making of a report of an employee's use of a | 78 |
drug of abuse, or a report of a condition of an employee other | 79 |
than one involving the use of a drug of abuse, to the employer of | 80 |
the employee as described in division (B) of section 2305.33 of | 81 |
the Revised Code. Nothing in this division affects the immunity | 82 |
from civil liability conferred by that section upon a physician | 83 |
who makes either type of report in accordance with division (B) of | 84 |
that section. As used in this division, "employee," "employer," | 85 |
and "physician" have the same meanings as in section 2305.33 of | 86 |
the Revised Code. | 87 |
As used in this division, "false, fraudulent, deceptive, or | 95 |
misleading statement" means a statement that includes a | 96 |
misrepresentation of fact, is likely to mislead or deceive because | 97 |
of a failure to disclose material facts, is intended or is likely | 98 |
to create false or unjustified expectations of favorable results, | 99 |
or includes representations or implications that in reasonable | 100 |
probability will cause an ordinarily prudent person to | 101 |
misunderstand or be deceived. | 102 |
(18) Subject to section 4731.226 of the Revised Code, | 140 |
violation of any provision of a code of ethics of the American | 141 |
medical association, the American osteopathic association, the | 142 |
American podiatric medical association, or any other national | 143 |
professional organizations that the board specifies by rule. The | 144 |
state medical board shall obtain and keep on file current copies | 145 |
of the codes of ethics of the various national professional | 146 |
organizations. The individual whose certificate is being suspended | 147 |
or revoked shall not be found to have violated any provision of a | 148 |
code of ethics of an organization not appropriate to the | 149 |
individual's profession. | 150 |
For purposes of this division, a "provision of a code of | 151 |
ethics of a national professional organization" does not include | 152 |
any provision that would preclude the making of a report by a | 153 |
physician of an employee's use of a drug of abuse, or of a | 154 |
condition of an employee other than one involving the use of a | 155 |
drug of abuse, to the employer of the employee as described in | 156 |
division (B) of section 2305.33 of the Revised Code. Nothing in | 157 |
this division affects the immunity from civil liability conferred | 158 |
by that section upon a physician who makes either type of report | 159 |
in accordance with division (B) of that section. As used in this | 160 |
division, "employee," "employer," and "physician" have the same | 161 |
meanings as in section 2305.33 of the Revised Code. | 162 |
In enforcing this division, the board, upon a showing of a | 168 |
possible violation, may compel any individual authorized to | 169 |
practice by this chapter or who has submitted an application | 170 |
pursuant to this chapter to submit to a mental examination, | 171 |
physical examination, including an HIV test, or both a mental and | 172 |
a physical examination. The expense of the examination is the | 173 |
responsibility of the individual compelled to be examined. Failure | 174 |
to submit to a mental or physical examination or consent to an HIV | 175 |
test ordered by the board constitutes an admission of the | 176 |
allegations against the individual unless the failure is due to | 177 |
circumstances beyond the individual's control, and a default and | 178 |
final order may be entered without the taking of testimony or | 179 |
presentation of evidence. If the board finds an individual unable | 180 |
to practice because of the reasons set forth in this division, the | 181 |
board shall require the individual to submit to care, counseling, | 182 |
or treatment by physicians approved or designated by the board, as | 183 |
a condition for initial, continued, reinstated, or renewed | 184 |
authority to practice. An individual affected under this division | 185 |
shall be afforded an opportunity to demonstrate to the board the | 186 |
ability to resume practice in compliance with acceptable and | 187 |
prevailing standards under the provisions of the individual's | 188 |
certificate. For the purpose of this division, any individual who | 189 |
applies for or receives a certificate to practice under this | 190 |
chapter accepts the privilege of practicing in this state and, by | 191 |
so doing, shall be deemed to have given consent to submit to a | 192 |
mental or physical examination when directed to do so in writing | 193 |
by the board, and to have waived all objections to the | 194 |
admissibility of testimony or examination reports that constitute | 195 |
a privileged communication. | 196 |
This division does not apply to a violation or attempted | 203 |
violation of, assisting in or abetting the violation of, or a | 204 |
conspiracy to violate, any provision of this chapter or any rule | 205 |
adopted by the board that would preclude the making of a report by | 206 |
a physician of an employee's use of a drug of abuse, or of a | 207 |
condition of an employee other than one involving the use of a | 208 |
drug of abuse, to the employer of the employee as described in | 209 |
division (B) of section 2305.33 of the Revised Code. Nothing in | 210 |
this division affects the immunity from civil liability conferred | 211 |
by that section upon a physician who makes either type of report | 212 |
in accordance with division (B) of that section. As used in this | 213 |
division, "employee," "employer," and "physician" have the same | 214 |
meanings as in section 2305.33 of the Revised Code. | 215 |
(22) Any of the following actions taken by an agency | 219 |
responsible for authorizing, certifying, or regulating an | 220 |
individual to practice a health care occupation or provide health | 221 |
care services in this state or another jurisdiction, for any | 222 |
reason other than the nonpayment of fees: the limitation, | 223 |
revocation, or suspension of an individual's license to practice; | 224 |
acceptance of an individual's license surrender; denial of a | 225 |
license; refusal to renew or reinstate a license; imposition of | 226 |
probation; or issuance of an order of censure or other reprimand; | 227 |
For the purposes of this division, any individual authorized | 251 |
to practice by this chapter accepts the privilege of practicing in | 252 |
this state subject to supervision by the board. By filing an | 253 |
application for or holding a certificate to practice under this | 254 |
chapter, an individual shall be deemed to have given consent to | 255 |
submit to a mental or physical examination when ordered to do so | 256 |
by the board in writing, and to have waived all objections to the | 257 |
admissibility of testimony or examination reports that constitute | 258 |
privileged communications. | 259 |
If it has reason to believe that any individual authorized to | 260 |
practice by this chapter or any applicant for certification to | 261 |
practice suffers such impairment, the board may compel the | 262 |
individual to submit to a mental or physical examination, or both. | 263 |
The expense of the examination is the responsibility of the | 264 |
individual compelled to be examined. Any mental or physical | 265 |
examination required under this division shall be undertaken by a | 266 |
treatment provider or physician who is qualified to conduct the | 267 |
examination and who is chosen by the board. | 268 |
Failure to submit to a mental or physical examination ordered | 269 |
by the board constitutes an admission of the allegations against | 270 |
the individual unless the failure is due to circumstances beyond | 271 |
the individual's control, and a default and final order may be | 272 |
entered without the taking of testimony or presentation of | 273 |
evidence. If the board determines that the individual's ability to | 274 |
practice is impaired, the board shall suspend the individual's | 275 |
certificate or deny the individual's application and shall require | 276 |
the individual, as a condition for initial, continued, reinstated, | 277 |
or renewed certification to practice, to submit to treatment. | 278 |
When the impaired practitioner resumes practice, the board | 300 |
shall require continued monitoring of the individual. The | 301 |
monitoring shall include, but not be limited to, compliance with | 302 |
the written consent agreement entered into before reinstatement or | 303 |
with conditions imposed by board order after a hearing, and, upon | 304 |
termination of the consent agreement, submission to the board for | 305 |
at least two years of annual written progress reports made under | 306 |
penalty of perjury stating whether the individual has maintained | 307 |
sobriety. | 308 |
(34) Failure to cooperate in an investigation conducted by | 345 |
the board under division (F) of this section, including failure to | 346 |
comply with a subpoena or order issued by the board or failure to | 347 |
answer truthfully a question presented by the board at a | 348 |
deposition or in written interrogatories, except that failure to | 349 |
cooperate with an investigation shall not constitute grounds for | 350 |
discipline under this section if a court of competent jurisdiction | 351 |
has issued an order that either quashes a subpoena or permits the | 352 |
individual to withhold the testimony or evidence in issue; | 353 |
(C) Disciplinary actions taken by the board under divisions | 387 |
(A) and (B) of this section shall be taken pursuant to an | 388 |
adjudication under Chapter 119. of the Revised Code, except that | 389 |
in lieu of an adjudication, the board may enter into a consent | 390 |
agreement with an individual to resolve an allegation of a | 391 |
violation of this chapter or any rule adopted under it. A consent | 392 |
agreement, when ratified by an affirmative vote of not fewer than | 393 |
six members of the board, shall constitute the findings and order | 394 |
of the board with respect to the matter addressed in the | 395 |
agreement. If the board refuses to ratify a consent agreement, the | 396 |
admissions and findings contained in the consent agreement shall | 397 |
be of no force or effect. | 398 |
If the board takes disciplinary action against an individual | 404 |
under division (B) of this section for a second or subsequent plea | 405 |
of guilty to, or judicial finding of guilt of, a violation of | 406 |
section 2919.123 of the Revised Code, the disciplinary action | 407 |
shall consist of a suspension of the individual's certificate to | 408 |
practice for a period of at least one year or, if determined | 409 |
appropriate by the board, a more serious sanction involving the | 410 |
individual's certificate to practice. Any consent agreement | 411 |
entered into under this division with an individual that pertains | 412 |
to a second or subsequent plea of guilty to, or judicial finding | 413 |
of guilt of, a violation of that section shall provide for a | 414 |
suspension of the individual's certificate to practice for a | 415 |
period of at least one year or, if determined appropriate by the | 416 |
board, a more serious sanction involving the individual's | 417 |
certificate to practice. | 418 |
(D) For purposes of divisions (B)(10), (12), and (14) of this | 419 |
section, the commission of the act may be established by a finding | 420 |
by the board, pursuant to an adjudication under Chapter 119. of | 421 |
the Revised Code, that the individual committed the act. The board | 422 |
does not have jurisdiction under those divisions if the trial | 423 |
court renders a final judgment in the individual's favor and that | 424 |
judgment is based upon an adjudication on the merits. The board | 425 |
has jurisdiction under those divisions if the trial court issues | 426 |
an order of dismissal upon technical or procedural grounds. | 427 |
(E) The sealing of conviction records by any court shall have | 428 |
no effect upon a prior board order entered under this section or | 429 |
upon the board's jurisdiction to take action under this section | 430 |
if, based upon a plea of guilty, a judicial finding of guilt, or a | 431 |
judicial finding of eligibility for intervention in lieu of | 432 |
conviction, the board issued a notice of opportunity for a hearing | 433 |
prior to the court's order to seal the records. The board shall | 434 |
not be required to seal, destroy, redact, or otherwise modify its | 435 |
records to reflect the court's sealing of conviction records. | 436 |
(F)(1) The board shall investigate evidence that appears to | 437 |
show that a person has violated any provision of this chapter or | 438 |
any rule adopted under it. Any person may report to the board in a | 439 |
signed writing any information that the person may have that | 440 |
appears to show a violation of any provision of this chapter or | 441 |
any rule adopted under it. In the absence of bad faith, any person | 442 |
who reports information of that nature or who testifies before the | 443 |
board in any adjudication conducted under Chapter 119. of the | 444 |
Revised Code shall not be liable in damages in a civil action as a | 445 |
result of the report or testimony. Each complaint or allegation of | 446 |
a violation received by the board shall be assigned a case number | 447 |
and shall be recorded by the board. | 448 |
(3) In investigating a possible violation of this chapter or | 458 |
any rule adopted under this chapter, the board may administer | 459 |
oaths, order the taking of depositions, inspect and copy any | 460 |
books, accounts, papers, records, or documents, issue subpoenas, | 461 |
and compel the attendance of witnesses and production of books, | 462 |
accounts, papers, records, documents, and testimony, except that a | 463 |
subpoena for patient record information shall not be issued | 464 |
without consultation with the attorney general's office and | 465 |
approval of the secretary and supervising member of the board. | 466 |
Before issuance of a subpoena for patient record information, the | 467 |
secretary and supervising member shall determine whether there is | 468 |
probable cause to believe that the complaint filed alleges a | 469 |
violation of this chapter or any rule adopted under it and that | 470 |
the records sought are relevant to the alleged violation and | 471 |
material to the investigation. The subpoena may apply only to | 472 |
records that cover a reasonable period of time surrounding the | 473 |
alleged violation. | 474 |
A subpoena issued by the board may be served by a sheriff, | 479 |
the sheriff's deputy, or a board employee designated by the board. | 480 |
Service of a subpoena issued by the board may be made by | 481 |
delivering a copy of the subpoena to the person named therein, | 482 |
reading it to the person, or leaving it at the person's usual | 483 |
place of residence. When the person being served is a person whose | 484 |
practice is authorized by this chapter, service of the subpoena | 485 |
may be made by certified mail, restricted delivery, return receipt | 486 |
requested, and the subpoena shall be deemed served on the date | 487 |
delivery is made or the date the person refuses to accept | 488 |
delivery. | 489 |
The board shall conduct all investigations and proceedings in | 500 |
a manner that protects the confidentiality of patients and persons | 501 |
who file complaints with the board. The board shall not make | 502 |
public the names or any other identifying information about | 503 |
patients or complainants unless proper consent is given or, in the | 504 |
case of a patient, a waiver of the patient privilege exists under | 505 |
division (B) of section 2317.02 of the Revised Code, except that | 506 |
consent or a waiver of that nature is not required if the board | 507 |
possesses reliable and substantial evidence that no bona fide | 508 |
physician-patient relationship exists. | 509 |
The board may share any information it receives pursuant to | 510 |
an investigation, including patient records and patient record | 511 |
information, with law enforcement agencies, other licensing | 512 |
boards, and other governmental agencies that are prosecuting, | 513 |
adjudicating, or investigating alleged violations of statutes or | 514 |
administrative rules. An agency or board that receives the | 515 |
information shall comply with the same requirements regarding | 516 |
confidentiality as those with which the state medical board must | 517 |
comply, notwithstanding any conflicting provision of the Revised | 518 |
Code or procedure of the agency or board that applies when it is | 519 |
dealing with other information in its possession. In a judicial | 520 |
proceeding, the information may be admitted into evidence only in | 521 |
accordance with the Rules of Evidence, but the court shall require | 522 |
that appropriate measures are taken to ensure that confidentiality | 523 |
is maintained with respect to any part of the information that | 524 |
contains names or other identifying information about patients or | 525 |
complainants whose confidentiality was protected by the state | 526 |
medical board when the information was in the board's possession. | 527 |
Measures to ensure confidentiality that may be taken by the court | 528 |
include sealing its records or deleting specific information from | 529 |
its records. | 530 |
The board shall issue a written order of suspension by | 560 |
certified mail or in person in accordance with section 119.07 of | 561 |
the Revised Code. The order shall not be subject to suspension by | 562 |
the court during pendency of any appeal filed under section 119.12 | 563 |
of the Revised Code. If the individual subject to the summary | 564 |
suspension requests an adjudicatory hearing by the board, the date | 565 |
set for the hearing shall be within fifteen days, but not earlier | 566 |
than seven days, after the individual requests the hearing, unless | 567 |
otherwise agreed to by both the board and the individual. | 568 |
Any summary suspension imposed under this division shall | 569 |
remain in effect, unless reversed on appeal, until a final | 570 |
adjudicative order issued by the board pursuant to this section | 571 |
and Chapter 119. of the Revised Code becomes effective. The board | 572 |
shall issue its final adjudicative order within seventy-five days | 573 |
after completion of its hearing. A failure to issue the order | 574 |
within seventy-five days shall result in dissolution of the | 575 |
summary suspension order but shall not invalidate any subsequent, | 576 |
final adjudicative order. | 577 |
(H) If the board takes action under division (B)(9), (11), or | 578 |
(13) of this section and the judicial finding of guilt, guilty | 579 |
plea, or judicial finding of eligibility for intervention in lieu | 580 |
of conviction is overturned on appeal, upon exhaustion of the | 581 |
criminal appeal, a petition for reconsideration of the order may | 582 |
be filed with the board along with appropriate court documents. | 583 |
Upon receipt of a petition of that nature and supporting court | 584 |
documents, the board shall reinstate the individual's certificate | 585 |
to practice. The board may then hold an adjudication under Chapter | 586 |
119. of the Revised Code to determine whether the individual | 587 |
committed the act in question. Notice of an opportunity for a | 588 |
hearing shall be given in accordance with Chapter 119. of the | 589 |
Revised Code. If the board finds, pursuant to an adjudication held | 590 |
under this division, that the individual committed the act or if | 591 |
no hearing is requested, the board may order any of the sanctions | 592 |
identified under division (B) of this section. | 593 |
(I) The certificate to practice issued to an individual under | 594 |
this chapter and the individual's practice in this state are | 595 |
automatically suspended as of the date of the individual's second | 596 |
or subsequent plea of guilty to, or judicial finding of guilt of, | 597 |
a violation of section 2919.123 of the Revised Code, or the date | 598 |
the individual pleads guilty to, is found by a judge or jury to be | 599 |
guilty of, or is subject to a judicial finding of eligibility for | 600 |
intervention in lieu of conviction in this state or treatment or | 601 |
intervention in lieu of conviction in another jurisdiction for any | 602 |
of the following criminal offenses in this state or a | 603 |
substantially equivalent criminal offense in another jurisdiction: | 604 |
aggravated murder, murder, voluntary manslaughter, felonious | 605 |
assault, kidnapping, rape, sexual battery, gross sexual | 606 |
imposition, aggravated arson, aggravated robbery, or aggravated | 607 |
burglary. Continued practice after suspension shall be considered | 608 |
practicing without a certificate. | 609 |
(1) If the automatic suspension under this division is for a | 617 |
second or subsequent plea of guilty to, or judicial finding of | 618 |
guilt of, a violation of section 2919.123 of the Revised Code, the | 619 |
board shall enter an order suspending the individual's certificate | 620 |
to practice for a period of at least one year or, if determined | 621 |
appropriate by the board, imposing a more serious sanction | 622 |
involving the individual's certificate to practice. | 623 |
(J) If the board is required by Chapter 119. of the Revised | 627 |
Code to give notice of an opportunity for a hearing and if the | 628 |
individual subject to the notice does not timely request a hearing | 629 |
in accordance with section 119.07 of the Revised Code, the board | 630 |
is not required to hold a hearing, but may adopt, by an | 631 |
affirmative vote of not fewer than six of its members, a final | 632 |
order that contains the board's findings. In that final order, the | 633 |
board may order any of the sanctions identified under division (A) | 634 |
or (B) of this section. | 635 |
(L) When the board refuses to grant a certificate to an | 644 |
applicant, revokes an individual's certificate to practice, | 645 |
refuses to register an applicant, or refuses to reinstate an | 646 |
individual's certificate to practice, the board may specify that | 647 |
its action is permanent. An individual subject to a permanent | 648 |
action taken by the board is forever thereafter ineligible to hold | 649 |
a certificate to practice and the board shall not accept an | 650 |
application for reinstatement of the certificate or for issuance | 651 |
of a new certificate. | 652 |
(O) Under the board's investigative duties described in this | 681 |
section and subject to division (F) of this section, the board | 682 |
shall develop and implement a quality intervention program | 683 |
designed to improve through remedial education the clinical and | 684 |
communication skills of individuals authorized under this chapter | 685 |
to practice medicine and surgery, osteopathic medicine and | 686 |
surgery, and podiatric medicine and surgery. In developing and | 687 |
implementing the quality intervention program, the board may do | 688 |
all of the following: | 689 |
(4) A physician or surgeon in another state or territory who | 740 |
is a legal practitioner of medicine or surgery therein and | 741 |
provided services to a patient in that state or territory, when | 742 |
providing, not later than one year after the last date services | 743 |
were provided in another state or territory, follow-up services in | 744 |
person or through the use of any communication, including oral, | 745 |
written, or electronic communication, in this state to the patient | 746 |
for the same condition; | 747 |
(5) A physician or surgeon residing on the border of a | 748 |
contiguous state and authorized under the laws thereof to practice | 749 |
medicine and surgery therein, whose practice extends within the | 750 |
limits of this state. Such practitioner shall not either in person | 751 |
or through the use of any communication, including oral, written, | 752 |
or electronic communication, open an office or appoint a place to | 753 |
see patients or receive calls within the limits of this state. | 754 |
Sec. 4734.31. (A) The state chiropractic board may take any | 790 |
of the actions specified in division (B) of this section against | 791 |
an individual who has applied for or holds a license to practice | 792 |
chiropractic in this state if any of the reasons specified in | 793 |
division (C) of this section for taking action against an | 794 |
individual are applicable. Except as provided in division (D) of | 795 |
this section, actions taken against an individual shall be taken | 796 |
in accordance with Chapter 119. of the Revised Code. The board may | 797 |
specify that any action it takes is a permanent action. The | 798 |
board's authority to take action against an individual is not | 799 |
removed or limited by the individual's failure to renew a license. | 800 |
(8) Failure to cooperate in an investigation conducted by the | 847 |
board, including failure to comply with a subpoena or order issued | 848 |
by the board or failure to answer truthfully a question presented | 849 |
by the board at a deposition or in written interrogatories, except | 850 |
that failure to cooperate with an investigation shall not | 851 |
constitute grounds for discipline under this section if the board | 852 |
or a court of competent jurisdiction has issued an order that | 853 |
either quashes a subpoena or permits the individual to withhold | 854 |
the testimony or evidence in issue; | 855 |
(11) Aiding, abetting, assisting, counseling, or conspiring | 866 |
with any person in that person's violation of any provision of | 867 |
this chapter or the rules adopted under it, including the practice | 868 |
of chiropractic without a license, the practice of acupuncture | 869 |
without a certificate, or aiding, abetting, assisting, counseling, | 870 |
or conspiring with any person in that person's unlicensed practice | 871 |
of any other health care profession that has licensing | 872 |
requirements; | 873 |
(12) With respect to a report or record that is made, filed, | 874 |
or signed in connection with the practice of chiropractic or | 875 |
acupuncture, knowingly making or filing a report or record that is | 876 |
false, intentionally or negligently failing to file a report or | 877 |
record required by federal, state, or local law or willfully | 878 |
impeding or obstructing the required filing, or inducing another | 879 |
person to engage in any such acts; | 880 |
(17) Inability to practice chiropractic or acupuncture | 894 |
according to acceptable and prevailing standards of care by reason | 895 |
of chemical dependency, mental illness, or physical illness, | 896 |
including conditions in which physical deterioration has adversely | 897 |
affected the person's cognitive, motor, or perceptive skills and | 898 |
conditions in which a chiropractor's continued practice may pose a | 899 |
danger to the chiropractor or the public; | 900 |
(20) Failing to maintain proper, accurate, and legible | 905 |
records in the English language documenting each patient's care, | 906 |
including, as appropriate, records of the following: dates of | 907 |
treatment, services rendered, examinations, tests, x-ray reports, | 908 |
referrals, and the diagnosis or clinical impression and clinical | 909 |
treatment plan provided to the patient; | 910 |
(4) In lieu of an adjudication, the board may enter into a | 998 |
consent agreement with an individual to resolve an allegation of a | 999 |
violation of this chapter or any rule adopted under it. A consent | 1000 |
agreement, when ratified by the board, shall constitute the | 1001 |
findings and order of the board with respect to the matter | 1002 |
addressed in the agreement. If the board refuses to ratify a | 1003 |
consent agreement, the admissions and findings contained in the | 1004 |
consent agreement shall be of no force or effect. | 1005 |
(E) This section does not require the board to hire, contract | 1006 |
with, or retain the services of an expert witness when the board | 1007 |
takes action against a chiropractor concerning compliance with | 1008 |
acceptable and prevailing standards of care in the practice of | 1009 |
chiropractic or acupuncture. As part of an action taken concerning | 1010 |
compliance with acceptable and prevailing standards of care, the | 1011 |
board may rely on the knowledge of its members for purposes of | 1012 |
making a determination of compliance, notwithstanding any expert | 1013 |
testimony presented by the chiropractor that contradicts the | 1014 |
knowledge and opinions of the members of the board. | 1015 |
(F) The sealing of conviction records by a court shall have | 1016 |
no effect on a prior board order entered under this section or on | 1017 |
the board's jurisdiction to take action under this section if, | 1018 |
based on a plea of guilty, a judicial finding of guilt, or a | 1019 |
judicial finding of eligibility for intervention in lieu of | 1020 |
conviction, the board issued a notice of opportunity for a hearing | 1021 |
prior to the court's order to seal the records. The board shall | 1022 |
not be required to seal, destroy, redact, or otherwise modify its | 1023 |
records to reflect the court's sealing of conviction records. | 1024 |
(4) The applicant shall demonstrate to the board proficiency | 1164 |
in spoken English by either passing the examination described in | 1165 |
section 4731.142 of the Revised Code or submitting evidence | 1166 |
satisfactory to the board that the applicant was required to | 1167 |
demonstrate proficiency in spoken English as a condition of | 1168 |
obtaining designation from the national certification commission | 1169 |
for acupuncture and oriental medicine as a diplomate in oriental | 1170 |
medicine, diplomate of acupuncture and Chinese herbology, or | 1171 |
diplomate in acupuncture. | 1172 |
Sec. 4762.031. In addition to any other eligibility | 1187 |
requirement set forth in this chapter, each applicant for a | 1188 |
certificate to practice as an oriental medicine practitioner or | 1189 |
certificate to practice as an acupuncturist shall comply with | 1190 |
sections 4776.01 to 4776.04 of the Revised Code. The state medical | 1191 |
board shall not grant to an applicant a certificate to practice as | 1192 |
an acupuncturist unless the board, in its discretion, decides that | 1193 |
the results of the criminal records check do not make the | 1194 |
applicant ineligible for a certificate issued pursuant to section | 1195 |
4762.04 of the Revised Code. | 1196 |
Sec. 4762.04. If the state medical board determines under | 1197 |
section 4762.03 of the Revised Code that an applicant meets the | 1198 |
requirements for a certificate to practice as an oriental medicine | 1199 |
practitioner or certificate to practice as an acupuncturist, the | 1200 |
secretary of the board shall register the applicant as an oriental | 1201 |
medicine practitioner or acupuncturist, as appropriate, and issue | 1202 |
to the applicant athe appropriate certificate to practice as an | 1203 |
acupuncturist. The certificate shall expire biennially and may be | 1204 |
renewed in accordance with section 4762.06 of the Revised Code. | 1205 |
The applicant shall report any criminal offense that | 1222 |
constitutes grounds for refusing to issue a certificate under | 1223 |
section 4762.13 of the Revised Code to which the applicant has | 1224 |
pleaded guilty, of which the applicant has been found guilty, or | 1225 |
for which the applicant has been found eligible for intervention | 1226 |
in lieu of conviction, since last signing an application for a | 1227 |
certificate to practice as an oriental medicine practitioner or | 1228 |
certificate to practice as an acupuncturist. | 1229 |
(D) A certificate to practice that is not renewed on or | 1255 |
before its expiration date is automatically suspended on its | 1256 |
expiration date. If a certificate has been suspended pursuant to | 1257 |
this division for two years or less, the board shall reinstate the | 1258 |
certificate upon an applicant's submission of a renewal | 1259 |
application, the biennial renewal fee, and the applicable monetary | 1260 |
penalty. The penalty for reinstatement is twenty-five dollars. If | 1261 |
a certificate has been suspended pursuant to this division for | 1262 |
more than two years, it may be restored upon an applicant's | 1263 |
submission of a restoration application, the biennial registration | 1264 |
fee, and the applicable monetary penalty and compliance with | 1265 |
sections 4776.01 to 4776.04 of the Revised Code. The board shall | 1266 |
not restore a certificate to practice unless the board, in its | 1267 |
discretion, decides that the results of the criminal records check | 1268 |
do not make the applicant ineligible for a certificate issued | 1269 |
pursuant to section 4762.04 of the Revised Code. The penalty for | 1270 |
restoration is fifty dollars. | 1271 |
Sec. 4762.08. (A) A person who holds a certificate to | 1272 |
practice as an oriental medicine practitioner issued under this | 1273 |
chapter may use the following titles, initials, or abbreviations, | 1274 |
or the equivalent of such titles, initials, or abbreviations, to | 1275 |
identify the person as an oriental medicine practitioner: | 1276 |
"Oriental Medicine Practitioner," "Licensed Oriental Medicine | 1277 |
Practitioner," "L.O.M.," "Diplomate in Oriental Medicine | 1278 |
(NCCAOM)," "Dipl. O.M. (NCCAOM)," "National Board Certified in | 1279 |
Oriental Medicine (NCCAOM)," "Acupuncturist," "Licensed | 1280 |
Acupuncturist," "L.Ac. and L.C.H.," "Diplomate of Acupuncture and | 1281 |
Chinese Herbology (NCCAOM)," "Dipl. Ac. and Dipl. C.H. (NCCAOM)," | 1282 |
or "National Board Certified in Acupuncture and Chinese Herbology | 1283 |
(NCCAOM)." The person shall not use other titles, initials, or | 1284 |
abbreviations in conjunction with the person's practice of | 1285 |
oriental medicine, including the title "doctor."
| 1286 |
(B) A person who holds a certificate to practice as an | 1287 |
acupuncturist issued under this chapter may use the following | 1288 |
titles, initials, or abbreviations, or the equivalent of such | 1289 |
titles, initials, or abbreviations, to identify the person as an | 1290 |
acupuncturist: "Acupuncturist," "Licensed Acupuncturist," "L.Ac.," | 1291 |
"Diplomate ofin Acupuncture (NCCAOM)," "Dipl. Ac. (NCCAOM)," or | 1292 |
"National Board Certified in Acupuncture (NCCAOM)." The person | 1293 |
shall not use other titles, initials, or abbreviations in | 1294 |
conjunction with the person's practice of acupuncture, including | 1295 |
the title "doctor." | 1296 |
(1) Except as otherwise provided in division (B)(1) of this | 1319 |
section, if an acupuncturist practicing on the effective date of | 1320 |
this amendment has practiced for less than one year and is not | 1321 |
subject to any disciplinary action, supervision shall be for a | 1322 |
period beginning on the effective date of this amendment and | 1323 |
ending when the acupuncturist has practiced for one year from the | 1324 |
date the initial certificate was granted. If the acupuncturist is | 1325 |
subject to disciplinary action during that period, the supervision | 1326 |
shall continue until the acupuncturist has not been subject to any | 1327 |
disciplinary action for one year. | 1328 |
(2) Except as otherwise provided in division (B)(2) of this | 1329 |
section, if an acupuncturist is granted an initial certificate to | 1330 |
practice on or after the effective date of this amendment, the. | 1331 |
The supervisory period shall begin on the date the initial | 1332 |
certificate is granted and end one year thereafter. If, except | 1333 |
that if the oriental medicine practitioner or acupuncturist is | 1334 |
subject to disciplinary action during that year to disciplinary | 1335 |
action taken by the state medical board pursuant to section | 1336 |
4762.13 of the Revised Code, the supervision shall continue until | 1337 |
the practitioner or acupuncturist has not been subject to any | 1338 |
disciplinary action for one year. | 1339 |
(1) TheAn oriental medicine practitioner shall perform | 1344 |
oriental medicine or acupuncture for a patient only if the patient | 1345 |
has received a written referral or prescription for oriental | 1346 |
medicine or acupuncture from a physician or for acupuncture from a | 1347 |
chiropractor. An acupuncturist shall perform acupuncture for a | 1348 |
patient only if the patient has received a written referral or | 1349 |
prescription for acupuncture from a physician or chiropractor. As | 1350 |
specified in the referral or prescription, the oriental medicine | 1351 |
practitioner or acupuncturist shall provide reports to the | 1352 |
physician or chiropractor on the patient's condition or progress | 1353 |
in treatment and comply with the conditions or restrictions on the | 1354 |
practitioner's or acupuncturist's course of treatment. | 1355 |
(2) The oriental medicine practitioner or acupuncturist shall | 1356 |
perform
oriental medicine or acupuncture under the general | 1357 |
supervision of the patient's referring or prescribing physician or | 1358 |
chiropractor, except that an oriental medicine practitioner using | 1359 |
herbal therapy in the treatment of a patient shall not provide | 1360 |
herbal therapy under the general supervision of a chiropractor. | 1361 |
General supervision does not require that the oriental medicine | 1362 |
practitioner or acupuncturist and supervising physician or | 1363 |
chiropractor practice in the same office. | 1364 |
(1) Before treating a patient for a particular condition, the | 1370 |
an oriental medicine practitioner or acupuncturist shall confirm | 1371 |
whether the patient has undergone within the past six months a | 1372 |
diagnostic examination that was related to the condition for which | 1373 |
the patient is seeking
oriental medicine or acupuncture and was | 1374 |
performed by a physician or chiropractor acting within the | 1375 |
physicianphysician's or chiropractor's scope of practice. | 1376 |
Confirmation that the diagnostic examination was performed may be | 1377 |
made by obtaining from the patient a signed form stating that the | 1378 |
patient has undergone the examination. | 1379 |
(A) Before makinga physician makes the referral or issues a | 1444 |
prescription for oriental medicine or acupuncture, the physician | 1445 |
shall perform a medical diagnostic examination of the patient or | 1446 |
review the results of a medical diagnostic examination recently | 1447 |
performed by another physician, or, in the case of. Before a | 1448 |
chiropractor makes a referral or issues a prescription for | 1449 |
oriental medicine or acupuncture, the chiropractor shall perform a | 1450 |
chiropractic diagnostic examination of the patient or review the | 1451 |
results of a chiropractic diagnostic examination recently | 1452 |
performed by another chiropractor. | 1453 |
(D) The physician or chiropractor shall be personally | 1475 |
available for consultation with the oriental medicine practitioner | 1476 |
or acupuncturist. If the physician or chiropractor is not on the | 1477 |
premises at which oriental medicine or acupuncture is performed, | 1478 |
the physician or chiropractor shall be readily available to the | 1479 |
practitioner or acupuncturist through some means of | 1480 |
telecommunication and be in a location that under normal | 1481 |
circumstances is not more than sixty minutes travel time away from | 1482 |
the location where the practitioner or acupuncturist is | 1483 |
practicing. | 1484 |
Sec. 4762.12. In the case of a patient with a claim under | 1488 |
Chapter 4121. or 4123. of the Revised Code, an acupuncturist'sa | 1489 |
supervising physician or chiropractor is eligible to be reimbursed | 1490 |
for referring the patient to an oriental medicine practitioner or | 1491 |
acupuncturist or for prescribing oriental medicine or acupuncture | 1492 |
for the patient only if the physician has attained knowledge in | 1493 |
the treatment of patients with oriental medicine or acupuncture, | 1494 |
or
the chiropractor has attained knowledge in the treatment of | 1495 |
patients with acupuncture, as demonstrated by successful | 1496 |
completion of a relevant course of study in acupuncture | 1497 |
administered by a college of medicine, osteopathic medicine, | 1498 |
podiatric medicine, or chiropractic acceptable to the bureau of | 1499 |
workers' compensation or administered by another entity acceptable | 1500 |
to the bureau. | 1501 |
(B) The board, by an affirmative vote of not fewer than six | 1509 |
members, shall, to the extent permitted by law, limit, revoke, or | 1510 |
suspend an individual's certificate to practice as an | 1511 |
acupuncturist, refuse to issue a certificate to an applicant, | 1512 |
refuse to reinstate a certificate, or reprimand or place on | 1513 |
probation the holder of a certificate for any of the following | 1514 |
reasons: | 1515 |
As used in this division, "false, fraudulent, deceptive, or | 1543 |
misleading statement" means a statement that includes a | 1544 |
misrepresentation of fact, is likely to mislead or deceive because | 1545 |
of a failure to disclose material facts, is intended or is likely | 1546 |
to create false or unjustified expectations of favorable results, | 1547 |
or includes representations or implications that in reasonable | 1548 |
probability will cause an ordinarily prudent person to | 1549 |
misunderstand or be deceived. | 1550 |
(18) Any of the following actions taken by the state agency | 1581 |
responsible for regulating the practice of oriental medicine or | 1582 |
acupuncture in another jurisdiction, for any reason other than the | 1583 |
nonpayment of fees: the limitation, revocation, or suspension of | 1584 |
an individual's license to practice; acceptance of an individual's | 1585 |
license surrender; denial of a license; refusal to renew or | 1586 |
reinstate a license; imposition of probation; or issuance of an | 1587 |
order of censure or other reprimand; | 1588 |
(21) Failure to cooperate in an investigation conducted by | 1595 |
the board under section 4762.14 of the Revised Code, including | 1596 |
failure to comply with a subpoena or order issued by the board or | 1597 |
failure to answer truthfully a question presented by the board at | 1598 |
a deposition or in written interrogatories, except that failure to | 1599 |
cooperate with an investigation shall not constitute grounds for | 1600 |
discipline under this section if a court of competent jurisdiction | 1601 |
has issued an order that either quashes a subpoena or permits the | 1602 |
individual to withhold the testimony or evidence in issue; | 1603 |
(24) Failure to maintain a current and active designation as | 1611 |
a diplomate in oriental medicine, diplomate of acupuncture and | 1612 |
Chinese herbology, or diplomate in acupuncture, as applicable, | 1613 |
from the national certification commission for acupuncture and | 1614 |
oriental medicine, including revocation by the commission of the | 1615 |
individual's designation, failure by the individual to meet the | 1616 |
commission's requirements for redesignation, or failure to notify | 1617 |
the board that the appropriate designation has not been | 1618 |
maintained. | 1619 |
(C) Disciplinary actions taken by the board under divisions | 1620 |
(A) and (B) of this section shall be taken pursuant to an | 1621 |
adjudication under Chapter 119. of the Revised Code, except that | 1622 |
in lieu of an adjudication, the board may enter into a consent | 1623 |
agreement with an oriental medicine practitioner or acupuncturist | 1624 |
or applicant to resolve an allegation of a violation of this | 1625 |
chapter or any rule adopted under it. A consent agreement, when | 1626 |
ratified by an affirmative vote of not fewer than six members of | 1627 |
the board, shall constitute the findings and order of the board | 1628 |
with respect to the matter addressed in the agreement. If the | 1629 |
board refuses to ratify a consent agreement, the admissions and | 1630 |
findings contained in the consent agreement shall be of no force | 1631 |
or effect. | 1632 |
(D) For purposes of divisions (B)(12), (15), and (16) of this | 1633 |
section, the commission of the act may be established by a finding | 1634 |
by the board, pursuant to an adjudication under Chapter 119. of | 1635 |
the Revised Code, that the applicant or certificate holder | 1636 |
committed the act in question. The board shall have no | 1637 |
jurisdiction under these divisions in cases where the trial court | 1638 |
renders a final judgment in the certificate holder's favor and | 1639 |
that judgment is based upon an adjudication on the merits. The | 1640 |
board shall have jurisdiction under these divisions in cases where | 1641 |
the trial court issues an order of dismissal upon technical or | 1642 |
procedural grounds. | 1643 |
(E) The sealing of conviction records by any court shall have | 1644 |
no effect upon a prior board order entered under the provisions of | 1645 |
this section or upon the board's jurisdiction to take action under | 1646 |
the provisions of this section if, based upon a plea of guilty, a | 1647 |
judicial finding of guilt, or a judicial finding of eligibility | 1648 |
for intervention in lieu of conviction, the board issued a notice | 1649 |
of opportunity for a hearing or entered into a consent agreement | 1650 |
prior to the court's order to seal the records. The board shall | 1651 |
not be required to seal, destroy, redact, or otherwise modify its | 1652 |
records to reflect the court's sealing of conviction records. | 1653 |
(1) In enforcing division (B)(5) of this section, the board, | 1661 |
upon a showing of a possible violation, may compel any individual | 1662 |
who holds a certificate to practice issued under this chapter or | 1663 |
who has applied for a certificate pursuant to this chapter to | 1664 |
submit to a mental examination, physical examination, including an | 1665 |
HIV test, or both a mental and physical examination. The expense | 1666 |
of the examination is the responsibility of the individual | 1667 |
compelled to be examined. Failure to submit to a mental or | 1668 |
physical examination or consent to an HIV test ordered by the | 1669 |
board constitutes an admission of the allegations against the | 1670 |
individual unless the failure is due to circumstances beyond the | 1671 |
individual's control, and a default and final order may be entered | 1672 |
without the taking of testimony or presentation of evidence. If | 1673 |
the board finds an oriental medicine practitioner or acupuncturist | 1674 |
unable to practice because of the reasons set forth in division | 1675 |
(B)(5) of this section, the board shall require the acupuncturist | 1676 |
individual to submit to care, counseling, or treatment by | 1677 |
physicians approved or designated by the board, as a condition for | 1678 |
an initial, continued, reinstated, or renewed certificate to | 1679 |
practice. An individual affected by this division shall be | 1680 |
afforded an opportunity to demonstrate to the board the ability to | 1681 |
resume practicing in compliance with acceptable and prevailing | 1682 |
standards of care. | 1683 |
(2) For purposes of division (B)(6) of this section, if the | 1684 |
board has reason to believe that any individual who holds a | 1685 |
certificate to practice issued under this chapter or any applicant | 1686 |
for a certificate suffers such impairment, the board may compel | 1687 |
the individual to submit to a mental or physical examination, or | 1688 |
both. The expense of the examination is the responsibility of the | 1689 |
individual compelled to be examined. Any mental or physical | 1690 |
examination required under this division shall be undertaken by a | 1691 |
treatment provider or physician qualified to conduct such | 1692 |
examination and chosen by the board. | 1693 |
Failure to submit to a mental or physical examination ordered | 1694 |
by the board constitutes an admission of the allegations against | 1695 |
the individual unless the failure is due to circumstances beyond | 1696 |
the individual's control, and a default and final order may be | 1697 |
entered without the taking of testimony or presentation of | 1698 |
evidence. If the board determines that the individual's ability to | 1699 |
practice is impaired, the board shall suspend the individual's | 1700 |
certificate or deny the individual's application and shall require | 1701 |
the individual, as a condition for an initial, continued, | 1702 |
reinstated, or renewed certificate, to submit to treatment. | 1703 |
When the impaired acupuncturistindividual resumes practice, | 1724 |
the board shall require continued monitoring of the
acupuncturist | 1725 |
individual. The monitoring shall include monitoring of compliance | 1726 |
with the written consent agreement entered into before | 1727 |
reinstatement or with conditions imposed by board order after a | 1728 |
hearing, and, upon termination of the consent agreement, | 1729 |
submission to the board for at least two years of annual written | 1730 |
progress reports made under penalty of falsification stating | 1731 |
whether the acupuncturistindividual has maintained sobriety. | 1732 |
The board shall issue a written order of suspension by | 1752 |
certified mail or in person in accordance with section 119.07 of | 1753 |
the Revised Code. The order shall not be subject to suspension by | 1754 |
the court during pendency of any appeal filed under section 119.12 | 1755 |
of the Revised Code. If the oriental medicine practitioner or | 1756 |
acupuncturist requests an adjudicatory hearing by the board, the | 1757 |
date set for the hearing shall be within fifteen days, but not | 1758 |
earlier than seven days, after the acupuncturist requests the | 1759 |
hearing is requested, unless otherwise agreed to by both the board | 1760 |
and the certificate holder. | 1761 |
A summary suspension imposed under this division shall remain | 1762 |
in effect, unless reversed on appeal, until a final adjudicative | 1763 |
order issued by the board pursuant to this section and Chapter | 1764 |
119. of the Revised Code becomes effective. The board shall issue | 1765 |
its final adjudicative order within sixty days after completion of | 1766 |
its hearing. Failure to issue the order within sixty days shall | 1767 |
result in dissolution of the summary suspension order, but shall | 1768 |
not invalidate any subsequent, final adjudicative order. | 1769 |
(H) If the board takes action under division (B)(11), (13), | 1770 |
or (14) of this section, and the judicial finding of guilt, guilty | 1771 |
plea, or judicial finding of eligibility for intervention in lieu | 1772 |
of conviction is overturned on appeal, upon exhaustion of the | 1773 |
criminal appeal, a petition for reconsideration of the order may | 1774 |
be filed with the board along with appropriate court documents. | 1775 |
Upon receipt of a petition and supporting court documents, the | 1776 |
board shall reinstate the certificate to practice. The board may | 1777 |
then hold an adjudication under Chapter 119. of the Revised Code | 1778 |
to determine whether the individual committed the act in question. | 1779 |
Notice of opportunity for hearing shall be given in accordance | 1780 |
with Chapter 119. of the Revised Code. If the board finds, | 1781 |
pursuant to an adjudication held under this division, that the | 1782 |
individual committed the act, or if no hearing is requested, it | 1783 |
may order any of the sanctions specified in division (B) of this | 1784 |
section. | 1785 |
(I) The certificate to practice of an oriental medicine | 1786 |
practitioner or acupuncturist and the practitioner's or | 1787 |
acupuncturist's practice in this state are automatically suspended | 1788 |
as of the date the practitioner or acupuncturist pleads guilty to, | 1789 |
is found by a judge or jury to be guilty of, or is subject to a | 1790 |
judicial finding of eligibility for intervention in lieu of | 1791 |
conviction in this state or treatment or intervention in lieu of | 1792 |
conviction in another jurisdiction for any of the following | 1793 |
criminal offenses in this state or a substantially equivalent | 1794 |
criminal offense in another jurisdiction: aggravated murder, | 1795 |
murder, voluntary manslaughter, felonious assault, kidnapping, | 1796 |
rape, sexual battery, gross sexual imposition, aggravated arson, | 1797 |
aggravated robbery, or aggravated burglary. Continued practice | 1798 |
after the suspension shall be considered practicing without a | 1799 |
certificate. | 1800 |
(J) In any instance in which the board is required by Chapter | 1808 |
119. of the Revised Code to give notice of opportunity for hearing | 1809 |
and the individual subject to the notice does not timely request a | 1810 |
hearing in accordance with section 119.07 of the Revised Code, the | 1811 |
board is not required to hold a hearing, but may adopt, by an | 1812 |
affirmative vote of not fewer than six of its members, a final | 1813 |
order that contains the board's findings. In the final order, the | 1814 |
board may order any of the sanctions identified under division (A) | 1815 |
or (B) of this section. | 1816 |
(L) When the board refuses to grant a certificate to practice | 1826 |
as an acupuncturist to an applicant, revokes an individual's | 1827 |
certificate, refuses to renew a certificate, or refuses to | 1828 |
reinstate an individual's certificate, the board may specify that | 1829 |
its action is permanent. An individual subject to a permanent | 1830 |
action taken by the board is forever thereafter ineligible to hold | 1831 |
a certificate to practice as an oriental medicine practitioner or | 1832 |
certificate to practice as an acupuncturist and the board shall | 1833 |
not accept an application for reinstatement of the certificate or | 1834 |
for issuance of a new certificate. | 1835 |
Sec. 4762.132. If the state medical board has reason to | 1857 |
believe that any person who has been granted under this chapter a | 1858 |
certificate to practice as an oriental medicine practitioner or | 1859 |
certificate to practice as an acupuncturist is mentally ill or | 1860 |
mentally incompetent, it may file in the probate court of the | 1861 |
county in which the person has a legal residence an affidavit in | 1862 |
the form prescribed in section 5122.11 of the Revised Code and | 1863 |
signed by the board secretary or a member of the board secretary's | 1864 |
staff, whereupon the same proceedings shall be had as provided in | 1865 |
Chapter 5122. of the Revised Code. The attorney general may | 1866 |
represent the board in any proceeding commenced under this | 1867 |
section. | 1868 |
If any person who has been granted a certificate is adjudged | 1869 |
by a probate court to be mentally ill or mentally incompetent, the | 1870 |
person's certificate shall be automatically suspended until the | 1871 |
person has filed with the state medical board a certified copy of | 1872 |
an adjudication by a probate court of the person's subsequent | 1873 |
restoration to competency or has submitted to the board proof, | 1874 |
satisfactory to the board, that the person has been discharged as | 1875 |
having a restoration to competency in the manner and form provided | 1876 |
in section 5122.38 of the Revised Code. The judge of the probate | 1877 |
court shall forthwith notify the state medical board of an | 1878 |
adjudication of mental illness or mental incompetence, and shall | 1879 |
note any suspension of a certificate in the margin of the court's | 1880 |
record of such certificate. | 1881 |
Sec. 4762.14. (A) The state medical board shall investigate | 1882 |
evidence that appears to show that any person has violated this | 1883 |
chapter or the rules adopted under it. Any person may report to | 1884 |
the board in a signed writing any information the person has that | 1885 |
appears to show a violation of any provision of this chapter or | 1886 |
the rules adopted under it. In the absence of bad faith, a person | 1887 |
who reports such information or testifies before the board in an | 1888 |
adjudication conducted under Chapter 119. of the Revised Code | 1889 |
shall not be liable for civil damages as a result of reporting the | 1890 |
information or providing testimony. Each complaint or allegation | 1891 |
of a violation received by the board shall be assigned a case | 1892 |
number and be recorded by the board. | 1893 |
(B) Investigations of alleged violations of this chapter or | 1894 |
rules adopted under it shall be supervised by the supervising | 1895 |
member elected by the board in accordance with section 4731.02 of | 1896 |
the Revised Code and by the secretary as provided in section | 1897 |
4762.15 of the Revised Code. The board's president may designate | 1898 |
another member of the board to supervise the investigation in | 1899 |
place of the supervising member. A member of the board who | 1900 |
supervises the investigation of a case shall not participate in | 1901 |
further adjudication of the case. | 1902 |
(C) In investigating a possible violation of this chapter or | 1903 |
the rules adopted under it, the board may administer oaths, order | 1904 |
the taking of depositions, issue subpoenas, and compel the | 1905 |
attendance of witnesses and production of books, accounts, papers, | 1906 |
records, documents, and testimony, except that a subpoena for | 1907 |
patient record information shall not be issued without | 1908 |
consultation with the attorney general's office and approval of | 1909 |
the secretary and supervising member of the board. Before issuance | 1910 |
of a subpoena for patient record information, the secretary and | 1911 |
supervising member shall determine whether there is probable cause | 1912 |
to believe that the complaint filed alleges a violation of this | 1913 |
chapter or the rules adopted under it and that the records sought | 1914 |
are relevant to the alleged violation and material to the | 1915 |
investigation. The subpoena may apply only to records that cover a | 1916 |
reasonable period of time surrounding the alleged violation. | 1917 |
A subpoena issued by the board may be served by a sheriff, | 1922 |
the sheriff's deputy, or a board employee designated by the board. | 1923 |
Service of a subpoena issued by the board may be made by | 1924 |
delivering a copy of the subpoena to the person named therein, | 1925 |
reading it to the person, or leaving it at the person's usual | 1926 |
place of residence. When the person being served is an oriental | 1927 |
medicine practitioner or acupuncturist, service of the subpoena | 1928 |
may be made by certified mail, restricted delivery, return receipt | 1929 |
requested, and the subpoena shall be deemed served on the date | 1930 |
delivery is made or the date the person refuses to accept | 1931 |
delivery. | 1932 |
The board may share any information it receives pursuant to | 1948 |
an investigation, including patient records and patient record | 1949 |
information, with law enforcement agencies, other licensing | 1950 |
boards, and other governmental agencies that are prosecuting, | 1951 |
adjudicating, or investigating alleged violations of statutes or | 1952 |
administrative rules. An agency or board that receives the | 1953 |
information shall comply with the same requirements regarding | 1954 |
confidentiality as those with which the state medical board must | 1955 |
comply, notwithstanding any conflicting provision of the Revised | 1956 |
Code or procedure of the agency or board that applies when it is | 1957 |
dealing with other information in its possession. In a judicial | 1958 |
proceeding, the information may be admitted into evidence only in | 1959 |
accordance with the Rules of Evidence, but the court shall require | 1960 |
that appropriate measures are taken to ensure that confidentiality | 1961 |
is maintained with respect to any part of the information that | 1962 |
contains names or other identifying information about patients or | 1963 |
complainants whose confidentiality was protected by the state | 1964 |
medical board when the information was in the board's possession. | 1965 |
Measures to ensure confidentiality that may be taken by the court | 1966 |
include sealing its records or deleting specific information from | 1967 |
its records. | 1968 |
(B) Whenever any person holding a valid certificate to | 1994 |
practice as an oriental medicine practitioner or valid certificate | 1995 |
to practice as an acupuncturist issued pursuant to this chapter | 1996 |
pleads guilty to, is subject to a judicial finding of guilt of, or | 1997 |
is subject to a judicial finding of eligibility for intervention | 1998 |
in lieu of conviction for a violation of Chapter 2907., 2925., or | 1999 |
3719. of the Revised Code or of any substantively comparable | 2000 |
ordinance of a municipal corporation in connection with the | 2001 |
person's practice, the prosecutor in the case, on forms prescribed | 2002 |
and provided by the state medical board, shall promptly notify the | 2003 |
board of the conviction. Within thirty days of receipt of that | 2004 |
information, the board shall initiate action in accordance with | 2005 |
Chapter 119. of the Revised Code to determine whether to suspend | 2006 |
or revoke the certificate under section 4762.13 of the Revised | 2007 |
Code. | 2008 |
Sec. 4762.16. (A) Within sixty days after the imposition of | 2034 |
any formal disciplinary action taken by any health care facility, | 2035 |
including a hospital, health care facility operated by a health | 2036 |
insuring corporation, ambulatory surgical center, or similar | 2037 |
facility, against any individual holding a valid certificate to | 2038 |
practice as an oriental medicine practitioner or valid certificate | 2039 |
to practice as an acupuncturist, the chief administrator or | 2040 |
executive officer of the facility shall report to the state | 2041 |
medical board the name of the individual, the action taken by the | 2042 |
facility, and a summary of the underlying facts leading to the | 2043 |
action taken. Upon request, the board shall be provided certified | 2044 |
copies of the patient records that were the basis for the | 2045 |
facility's action. Prior to release to the board, the summary | 2046 |
shall be approved by the peer review committee that reviewed the | 2047 |
case or by the governing board of the facility. | 2048 |
(B) An oriental medicine practitioner or acupuncturist, | 2057 |
professional association or society of oriental medicine | 2058 |
practitioners or acupuncturists, physician, or professional | 2059 |
association or society of physicians that believes a violation of | 2060 |
any provision of this chapter, Chapter 4731. of the Revised Code, | 2061 |
or rule of the board has occurred shall report to the board the | 2062 |
information upon which the belief is based. This division does not | 2063 |
require any treatment provider approved by the board under section | 2064 |
4731.25 of the Revised Code or any employee, agent, or | 2065 |
representative of such a provider to make reports with respect to | 2066 |
an oriental medicine practitioner or acupuncturist participating | 2067 |
in treatment or aftercare for substance abuse as long as the | 2068 |
practitioner or acupuncturist maintains participation in | 2069 |
accordance with the requirements of section 4731.25 of the Revised | 2070 |
Code and the treatment provider or employee, agent, or | 2071 |
representative of the provider has no reason to believe that the | 2072 |
practitioner or acupuncturist has violated any provision of this | 2073 |
chapter or rule adopted under it, other than being impaired by | 2074 |
alcohol, drugs, or other substances. This division does not | 2075 |
require reporting by any member of an impaired practitioner | 2076 |
committee established by a health care facility or by any | 2077 |
representative or agent of a committee or program sponsored by a | 2078 |
professional association or society of oriental medicine | 2079 |
practitioners or acupuncturists to provide peer assistance to | 2080 |
oriental medicine practitioners or acupuncturists with substance | 2081 |
abuse problems with respect to an oriental medicine practitioner | 2082 |
or acupuncturist who has been referred for examination to a | 2083 |
treatment program approved by the board under section 4731.25 of | 2084 |
the Revised Code if the
acupuncturistindividual cooperates with | 2085 |
the referral for examination and with any determination that the | 2086 |
acupuncturistindividual should enter treatment and as long as | 2087 |
the committee member, representative, or agent has no reason to | 2088 |
believe that the acupuncturistindividual has ceased to | 2089 |
participate in the treatment program in accordance with section | 2090 |
4731.25 of the Revised Code or has violated any provision of this | 2091 |
chapter or rule adopted under it, other than being impaired by | 2092 |
alcohol, drugs, or other substances. | 2093 |
(C) Any professional association or society composed | 2094 |
primarily of oriental medicine practitioners or acupuncturists | 2095 |
that suspends or revokes an individual's membership for violations | 2096 |
of professional ethics, or for reasons of professional | 2097 |
incompetence or professional malpractice, within sixty days after | 2098 |
a final decision, shall report to the board, on forms prescribed | 2099 |
and provided by the board, the name of the individual, the action | 2100 |
taken by the professional organization, and a summary of the | 2101 |
underlying facts leading to the action taken. | 2102 |
(D) Any insurer providing professional liability insurance to | 2108 |
any person holding a valid certificate to practice as an oriental | 2109 |
medicine practitioner or valid certificate to practice as an | 2110 |
acupuncturist or any other entity that seeks to indemnify the | 2111 |
professional liability of an oriental medicine practitioner or | 2112 |
acupuncturist shall notify the board within thirty days after the | 2113 |
final disposition of any written claim for damages where such | 2114 |
disposition results in a payment exceeding twenty-five thousand | 2115 |
dollars. The notice shall contain the following information: | 2116 |
(E) The board may investigate possible violations of this | 2125 |
chapter or the rules adopted under it that are brought to its | 2126 |
attention as a result of the reporting requirements of this | 2127 |
section, except that the board shall conduct an investigation if a | 2128 |
possible violation involves repeated malpractice. As used in this | 2129 |
division, "repeated malpractice" means three or more claims for | 2130 |
malpractice within the previous five-year period, each resulting | 2131 |
in a judgment or settlement in excess of twenty-five thousand | 2132 |
dollars in favor of the claimant, and each involving negligent | 2133 |
conduct by the oriental medicine practitioner or acupuncturist. | 2134 |
(F) All summaries, reports, and records received and | 2135 |
maintained by the board pursuant to this section shall be held in | 2136 |
confidence and shall not be subject to discovery or introduction | 2137 |
in evidence in any federal or state civil action involving an | 2138 |
oriental medicine practitioner, acupuncturist, supervising | 2139 |
physician, or health care facility arising out of matters that are | 2140 |
the subject of the reporting required by this section. The board | 2141 |
may use the information obtained only as the basis for an | 2142 |
investigation, as evidence in a disciplinary hearing against an | 2143 |
oriental medicine practitioner, acupuncturist, or supervising | 2144 |
physician, or in any subsequent trial or appeal of a board action | 2145 |
or order. | 2146 |
The board may disclose the summaries and reports it receives | 2147 |
under this section only to health care facility committees within | 2148 |
or outside this state that are involved in credentialing or | 2149 |
recredentialing an oriental medicine practitioner, acupuncturist, | 2150 |
or supervising physician or reviewing their privilege to practice | 2151 |
within a particular facility. The board shall indicate whether or | 2152 |
not the information has been verified. Information transmitted by | 2153 |
the board shall be subject to the same confidentiality provisions | 2154 |
as when maintained by the board. | 2155 |
(I) In the absence of fraud or bad faith, a professional | 2170 |
association or society of oriental medicine practitioners or | 2171 |
acupuncturists that sponsors a committee or program to provide | 2172 |
peer assistance to an oriental medicine practitioner or | 2173 |
acupuncturist with substance abuse problems, a representative or | 2174 |
agent of such a committee or program, and a member of the state | 2175 |
medical board shall not be held liable in damages to any person by | 2176 |
reason of actions taken to refer an oriental medicine practitioner | 2177 |
or acupuncturist to a treatment provider approved under section | 2178 |
4731.25 of the Revised Code for examination or treatment. | 2179 |
Sec. 4762.17. The secretary of the state medical board shall | 2180 |
enforce the laws relating to the practice of oriental medicine and | 2181 |
acupuncture. If the secretary has knowledge or notice of a | 2182 |
violation of this chapter or the rules adopted under it, the | 2183 |
secretary shall investigate the matter, and, upon probable cause | 2184 |
appearing, file a complaint and prosecute the offender. When | 2185 |
requested by the secretary, the prosecuting attorney of the proper | 2186 |
county shall take charge of and conduct the prosecution. | 2187 |
Sec. 4762.18. (A) Subject to division (E) of this section, | 2188 |
the attorney general, the prosecuting attorney of any county in | 2189 |
which the offense was committed or the offender resides, the state | 2190 |
medical board, or any other person having knowledge of a person | 2191 |
engaged either directly or by complicity in the practice of | 2192 |
oriental medicine or acupuncture without having first obtained a | 2193 |
certificate to do so pursuant to this chapter, may, in accord with | 2194 |
provisions of the Revised Code governing injunctions, maintain an | 2195 |
action in the name of the state to enjoin any person from engaging | 2196 |
either directly or by complicity in the unlawful practice of | 2197 |
oriental medicine or acupuncture by applying for an injunction in | 2198 |
any court of competent jurisdiction. | 2199 |
(B) Prior to application for an injunction under division (A) | 2200 |
of this section, the secretary of the state medical board shall | 2201 |
notify the person allegedly engaged either directly or by | 2202 |
complicity in the unlawful practice of oriental medicine or | 2203 |
acupuncture by registered mail that the secretary has received | 2204 |
information indicating that this person is so engaged. The person | 2205 |
shall answer the secretary within thirty days showing that the | 2206 |
person is either properly licensed for the stated activity or that | 2207 |
the person is not in violation of this chapter. If the answer is | 2208 |
not forthcoming within thirty days after notice by the secretary, | 2209 |
the secretary shall request that the attorney general, the | 2210 |
prosecuting attorney of the county in which the offense was | 2211 |
committed or the offender resides, or the state medical board | 2212 |
proceed as authorized in this section. | 2213 |
Sec. 4762.19. The state medical board may adopt any rules | 2227 |
necessary to govern the practice of oriental medicine, the | 2228 |
practice of acupuncture, the supervisory relationship between | 2229 |
oriental medicine practitioners or acupuncturists and supervising | 2230 |
physicians, the use of herbal therapy by oriental medicine | 2231 |
practitioners, and the administration and enforcement of this | 2232 |
chapter. Rules adopted under this section shall be adopted in | 2233 |
accordance with Chapter 119. of the Revised Code. | 2234 |
Section 2. That existing sections 4731.02, 4731.06, 4731.07, | 2240 |
4731.22, 4731.36, 4734.31, 4762.01, 4762.02, 4762.03, 4762.031, | 2241 |
4762.04, 4762.05, 4762.06, 4762.08, 4762.09, 4762.10, 4762.11, | 2242 |
4762.12, 4762.13, 4762.131, 4762.132, 4762.14, 4762.15, 4762.16, | 2243 |
4762.17, 4762.18, 4762.19, and 4762.22 and section 4731.04 of the | 2244 |
Revised Code are hereby repealed. | 2245 |
Section 3. Section 4731.22 of the Revised Code is presented | 2246 |
in this act as a composite of the section as amended by both H.B. | 2247 |
78 and Am. Sub. H.B. 93 of the 129th General Assembly. The General | 2248 |
Assembly, applying the principle stated in division (B) of section | 2249 |
1.52 of the Revised Code that amendments are to be harmonized if | 2250 |
reasonably capable of simultaneous operation, finds that the | 2251 |
composite is the resulting version of the section in effect prior | 2252 |
to the effective date of the section as presented in this act. | 2253 |