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 and licenses issued under Chapter 4778. of the | 37 |
Revised Code. The register shall show the name of the applicant | 38 |
and whether the applicant was granted or refused a certificate or | 39 |
license. With respect to applicants to practice medicine and | 40 |
surgery or osteopathic medicine and surgery, the register shall | 41 |
show the name of the institution that granted the applicant the | 42 |
degree of doctor of medicine or osteopathic medicine. The books | 43 |
and records of the board shall be prima-facie evidence of matters | 44 |
therein contained. | 45 |
(B) The board, by an affirmative vote of not fewer than six | 54 |
members, shall, to the extent permitted by law, limit, revoke, or | 55 |
suspend an individual's certificate to practice, refuse to | 56 |
register an individual, refuse to reinstate a certificate, or | 57 |
reprimand or place on probation the holder of a certificate for | 58 |
one or more of the following reasons: | 59 |
(3) Selling, giving away, personally furnishing, prescribing, | 68 |
or administering drugs for other than legal and legitimate | 69 |
therapeutic purposes or a plea of guilty to, a judicial finding of | 70 |
guilt of, or a judicial finding of eligibility for intervention in | 71 |
lieu of conviction of, a violation of any federal or state law | 72 |
regulating the possession, distribution, or use of any drug; | 73 |
For purposes of this division, "willfully betraying a | 75 |
professional confidence" does not include providing any | 76 |
information, documents, or reports to a child fatality review | 77 |
board under sections 307.621 to 307.629 of the Revised Code and | 78 |
does not include the making of a report of an employee's use of a | 79 |
drug of abuse, or a report of a condition of an employee other | 80 |
than one involving the use of a drug of abuse, to the employer of | 81 |
the employee as described in division (B) of section 2305.33 of | 82 |
the Revised Code. Nothing in this division affects the immunity | 83 |
from civil liability conferred by that section upon a physician | 84 |
who makes either type of report in accordance with division (B) of | 85 |
that section. As used in this division, "employee," "employer," | 86 |
and "physician" have the same meanings as in section 2305.33 of | 87 |
the Revised Code. | 88 |
As used in this division, "false, fraudulent, deceptive, or | 96 |
misleading statement" means a statement that includes a | 97 |
misrepresentation of fact, is likely to mislead or deceive because | 98 |
of a failure to disclose material facts, is intended or is likely | 99 |
to create false or unjustified expectations of favorable results, | 100 |
or includes representations or implications that in reasonable | 101 |
probability will cause an ordinarily prudent person to | 102 |
misunderstand or be deceived. | 103 |
(18) Subject to section 4731.226 of the Revised Code, | 141 |
violation of any provision of a code of ethics of the American | 142 |
medical association, the American osteopathic association, the | 143 |
American podiatric medical association, or any other national | 144 |
professional organizations that the board specifies by rule. The | 145 |
state medical board shall obtain and keep on file current copies | 146 |
of the codes of ethics of the various national professional | 147 |
organizations. The individual whose certificate is being suspended | 148 |
or revoked shall not be found to have violated any provision of a | 149 |
code of ethics of an organization not appropriate to the | 150 |
individual's profession. | 151 |
For purposes of this division, a "provision of a code of | 152 |
ethics of a national professional organization" does not include | 153 |
any provision that would preclude the making of a report by a | 154 |
physician of an employee's use of a drug of abuse, or of a | 155 |
condition of an employee other than one involving the use of a | 156 |
drug of abuse, to the employer of the employee as described in | 157 |
division (B) of section 2305.33 of the Revised Code. Nothing in | 158 |
this division affects the immunity from civil liability conferred | 159 |
by that section upon a physician who makes either type of report | 160 |
in accordance with division (B) of that section. As used in this | 161 |
division, "employee," "employer," and "physician" have the same | 162 |
meanings as in section 2305.33 of the Revised Code. | 163 |
In enforcing this division, the board, upon a showing of a | 169 |
possible violation, may compel any individual authorized to | 170 |
practice by this chapter or who has submitted an application | 171 |
pursuant to this chapter to submit to a mental examination, | 172 |
physical examination, including an HIV test, or both a mental and | 173 |
a physical examination. The expense of the examination is the | 174 |
responsibility of the individual compelled to be examined. Failure | 175 |
to submit to a mental or physical examination or consent to an HIV | 176 |
test ordered by the board constitutes an admission of the | 177 |
allegations against the individual unless the failure is due to | 178 |
circumstances beyond the individual's control, and a default and | 179 |
final order may be entered without the taking of testimony or | 180 |
presentation of evidence. If the board finds an individual unable | 181 |
to practice because of the reasons set forth in this division, the | 182 |
board shall require the individual to submit to care, counseling, | 183 |
or treatment by physicians approved or designated by the board, as | 184 |
a condition for initial, continued, reinstated, or renewed | 185 |
authority to practice. An individual affected under this division | 186 |
shall be afforded an opportunity to demonstrate to the board the | 187 |
ability to resume practice in compliance with acceptable and | 188 |
prevailing standards under the provisions of the individual's | 189 |
certificate. For the purpose of this division, any individual who | 190 |
applies for or receives a certificate to practice under this | 191 |
chapter accepts the privilege of practicing in this state and, by | 192 |
so doing, shall be deemed to have given consent to submit to a | 193 |
mental or physical examination when directed to do so in writing | 194 |
by the board, and to have waived all objections to the | 195 |
admissibility of testimony or examination reports that constitute | 196 |
a privileged communication. | 197 |
This division does not apply to a violation or attempted | 204 |
violation of, assisting in or abetting the violation of, or a | 205 |
conspiracy to violate, any provision of this chapter or any rule | 206 |
adopted by the board that would preclude the making of a report by | 207 |
a physician of an employee's use of a drug of abuse, or of a | 208 |
condition of an employee other than one involving the use of a | 209 |
drug of abuse, to the employer of the employee as described in | 210 |
division (B) of section 2305.33 of the Revised Code. Nothing in | 211 |
this division affects the immunity from civil liability conferred | 212 |
by that section upon a physician who makes either type of report | 213 |
in accordance with division (B) of that section. As used in this | 214 |
division, "employee," "employer," and "physician" have the same | 215 |
meanings as in section 2305.33 of the Revised Code. | 216 |
(22) Any of the following actions taken by an agency | 220 |
responsible for authorizing, certifying, or regulating an | 221 |
individual to practice a health care occupation or provide health | 222 |
care services in this state or another jurisdiction, for any | 223 |
reason other than the nonpayment of fees: the limitation, | 224 |
revocation, or suspension of an individual's license to practice; | 225 |
acceptance of an individual's license surrender; denial of a | 226 |
license; refusal to renew or reinstate a license; imposition of | 227 |
probation; or issuance of an order of censure or other reprimand; | 228 |
For the purposes of this division, any individual authorized | 252 |
to practice by this chapter accepts the privilege of practicing in | 253 |
this state subject to supervision by the board. By filing an | 254 |
application for or holding a certificate to practice under this | 255 |
chapter, an individual shall be deemed to have given consent to | 256 |
submit to a mental or physical examination when ordered to do so | 257 |
by the board in writing, and to have waived all objections to the | 258 |
admissibility of testimony or examination reports that constitute | 259 |
privileged communications. | 260 |
If it has reason to believe that any individual authorized to | 261 |
practice by this chapter or any applicant for certification to | 262 |
practice suffers such impairment, the board may compel the | 263 |
individual to submit to a mental or physical examination, or both. | 264 |
The expense of the examination is the responsibility of the | 265 |
individual compelled to be examined. Any mental or physical | 266 |
examination required under this division shall be undertaken by a | 267 |
treatment provider or physician who is qualified to conduct the | 268 |
examination and who is chosen by the board. | 269 |
Failure to submit to a mental or physical examination ordered | 270 |
by the board constitutes an admission of the allegations against | 271 |
the individual unless the failure is due to circumstances beyond | 272 |
the individual's control, and a default and final order may be | 273 |
entered without the taking of testimony or presentation of | 274 |
evidence. If the board determines that the individual's ability to | 275 |
practice is impaired, the board shall suspend the individual's | 276 |
certificate or deny the individual's application and shall require | 277 |
the individual, as a condition for initial, continued, reinstated, | 278 |
or renewed certification to practice, to submit to treatment. | 279 |
When the impaired practitioner resumes practice, the board | 301 |
shall require continued monitoring of the individual. The | 302 |
monitoring shall include, but not be limited to, compliance with | 303 |
the written consent agreement entered into before reinstatement or | 304 |
with conditions imposed by board order after a hearing, and, upon | 305 |
termination of the consent agreement, submission to the board for | 306 |
at least two years of annual written progress reports made under | 307 |
penalty of perjury stating whether the individual has maintained | 308 |
sobriety. | 309 |
(34) Failure to cooperate in an investigation conducted by | 346 |
the board under division (F) of this section, including failure to | 347 |
comply with a subpoena or order issued by the board or failure to | 348 |
answer truthfully a question presented by the board at a | 349 |
deposition or in written interrogatories, except that failure to | 350 |
cooperate with an investigation shall not constitute grounds for | 351 |
discipline under this section if a court of competent jurisdiction | 352 |
has issued an order that either quashes a subpoena or permits the | 353 |
individual to withhold the testimony or evidence in issue; | 354 |
(C) Disciplinary actions taken by the board under divisions | 397 |
(A) and (B) of this section shall be taken pursuant to an | 398 |
adjudication under Chapter 119. of the Revised Code, except that | 399 |
in lieu of an adjudication, the board may enter into a consent | 400 |
agreement with an individual to resolve an allegation of a | 401 |
violation of this chapter or any rule adopted under it. A consent | 402 |
agreement, when ratified by an affirmative vote of not fewer than | 403 |
six members of the board, shall constitute the findings and order | 404 |
of the board with respect to the matter addressed in the | 405 |
agreement. If the board refuses to ratify a consent agreement, the | 406 |
admissions and findings contained in the consent agreement shall | 407 |
be of no force or effect. | 408 |
If the board takes disciplinary action against an individual | 414 |
under division (B) of this section for a second or subsequent plea | 415 |
of guilty to, or judicial finding of guilt of, a violation of | 416 |
section 2919.123 of the Revised Code, the disciplinary action | 417 |
shall consist of a suspension of the individual's certificate to | 418 |
practice for a period of at least one year or, if determined | 419 |
appropriate by the board, a more serious sanction involving the | 420 |
individual's certificate to practice. Any consent agreement | 421 |
entered into under this division with an individual that pertains | 422 |
to a second or subsequent plea of guilty to, or judicial finding | 423 |
of guilt of, a violation of that section shall provide for a | 424 |
suspension of the individual's certificate to practice for a | 425 |
period of at least one year or, if determined appropriate by the | 426 |
board, a more serious sanction involving the individual's | 427 |
certificate to practice. | 428 |
(D) For purposes of divisions (B)(10), (12), and (14) of this | 429 |
section, the commission of the act may be established by a finding | 430 |
by the board, pursuant to an adjudication under Chapter 119. of | 431 |
the Revised Code, that the individual committed the act. The board | 432 |
does not have jurisdiction under those divisions if the trial | 433 |
court renders a final judgment in the individual's favor and that | 434 |
judgment is based upon an adjudication on the merits. The board | 435 |
has jurisdiction under those divisions if the trial court issues | 436 |
an order of dismissal upon technical or procedural grounds. | 437 |
(E) The sealing of conviction records by any court shall have | 438 |
no effect upon a prior board order entered under this section or | 439 |
upon the board's jurisdiction to take action under this section | 440 |
if, based upon a plea of guilty, a judicial finding of guilt, or a | 441 |
judicial finding of eligibility for intervention in lieu of | 442 |
conviction, the board issued a notice of opportunity for a hearing | 443 |
prior to the court's order to seal the records. The board shall | 444 |
not be required to seal, destroy, redact, or otherwise modify its | 445 |
records to reflect the court's sealing of conviction records. | 446 |
(F)(1) The board shall investigate evidence that appears to | 447 |
show that a person has violated any provision of this chapter or | 448 |
any rule adopted under it. Any person may report to the board in a | 449 |
signed writing any information that the person may have that | 450 |
appears to show a violation of any provision of this chapter or | 451 |
any rule adopted under it. In the absence of bad faith, any person | 452 |
who reports information of that nature or who testifies before the | 453 |
board in any adjudication conducted under Chapter 119. of the | 454 |
Revised Code shall not be liable in damages in a civil action as a | 455 |
result of the report or testimony. Each complaint or allegation of | 456 |
a violation received by the board shall be assigned a case number | 457 |
and shall be recorded by the board. | 458 |
(3) In investigating a possible violation of this chapter or | 468 |
any rule adopted under this chapter, the board may administer | 469 |
oaths, order the taking of depositions, inspect and copy any | 470 |
books, accounts, papers, records, or documents, issue subpoenas, | 471 |
and compel the attendance of witnesses and production of books, | 472 |
accounts, papers, records, documents, and testimony, except that a | 473 |
subpoena for patient record information shall not be issued | 474 |
without consultation with the attorney general's office and | 475 |
approval of the secretary and supervising member of the board. | 476 |
Before issuance of a subpoena for patient record information, the | 477 |
secretary and supervising member shall determine whether there is | 478 |
probable cause to believe that the complaint filed alleges a | 479 |
violation of this chapter or any rule adopted under it and that | 480 |
the records sought are relevant to the alleged violation and | 481 |
material to the investigation. The subpoena may apply only to | 482 |
records that cover a reasonable period of time surrounding the | 483 |
alleged violation. | 484 |
A subpoena issued by the board may be served by a sheriff, | 489 |
the sheriff's deputy, or a board employee designated by the board. | 490 |
Service of a subpoena issued by the board may be made by | 491 |
delivering a copy of the subpoena to the person named therein, | 492 |
reading it to the person, or leaving it at the person's usual | 493 |
place of residence. When the person being served is a person whose | 494 |
practice is authorized by this chapter, service of the subpoena | 495 |
may be made by certified mail, restricted delivery, return receipt | 496 |
requested, and the subpoena shall be deemed served on the date | 497 |
delivery is made or the date the person refuses to accept | 498 |
delivery. | 499 |
The board shall conduct all investigations and proceedings in | 510 |
a manner that protects the confidentiality of patients and persons | 511 |
who file complaints with the board. The board shall not make | 512 |
public the names or any other identifying information about | 513 |
patients or complainants unless proper consent is given or, in the | 514 |
case of a patient, a waiver of the patient privilege exists under | 515 |
division (B) of section 2317.02 of the Revised Code, except that | 516 |
consent or a waiver of that nature is not required if the board | 517 |
possesses reliable and substantial evidence that no bona fide | 518 |
physician-patient relationship exists. | 519 |
The board may share any information it receives pursuant to | 520 |
an investigation, including patient records and patient record | 521 |
information, with law enforcement agencies, other licensing | 522 |
boards, and other governmental agencies that are prosecuting, | 523 |
adjudicating, or investigating alleged violations of statutes or | 524 |
administrative rules. An agency or board that receives the | 525 |
information shall comply with the same requirements regarding | 526 |
confidentiality as those with which the state medical board must | 527 |
comply, notwithstanding any conflicting provision of the Revised | 528 |
Code or procedure of the agency or board that applies when it is | 529 |
dealing with other information in its possession. In a judicial | 530 |
proceeding, the information may be admitted into evidence only in | 531 |
accordance with the Rules of Evidence, but the court shall require | 532 |
that appropriate measures are taken to ensure that confidentiality | 533 |
is maintained with respect to any part of the information that | 534 |
contains names or other identifying information about patients or | 535 |
complainants whose confidentiality was protected by the state | 536 |
medical board when the information was in the board's possession. | 537 |
Measures to ensure confidentiality that may be taken by the court | 538 |
include sealing its records or deleting specific information from | 539 |
its records. | 540 |
The board shall issue a written order of suspension by | 570 |
certified mail or in person in accordance with section 119.07 of | 571 |
the Revised Code. The order shall not be subject to suspension by | 572 |
the court during pendency of any appeal filed under section 119.12 | 573 |
of the Revised Code. If the individual subject to the summary | 574 |
suspension requests an adjudicatory hearing by the board, the date | 575 |
set for the hearing shall be within fifteen days, but not earlier | 576 |
than seven days, after the individual requests the hearing, unless | 577 |
otherwise agreed to by both the board and the individual. | 578 |
Any summary suspension imposed under this division shall | 579 |
remain in effect, unless reversed on appeal, until a final | 580 |
adjudicative order issued by the board pursuant to this section | 581 |
and Chapter 119. of the Revised Code becomes effective. The board | 582 |
shall issue its final adjudicative order within seventy-five days | 583 |
after completion of its hearing. A failure to issue the order | 584 |
within seventy-five days shall result in dissolution of the | 585 |
summary suspension order but shall not invalidate any subsequent, | 586 |
final adjudicative order. | 587 |
(H) If the board takes action under division (B)(9), (11), or | 588 |
(13) of this section and the judicial finding of guilt, guilty | 589 |
plea, or judicial finding of eligibility for intervention in lieu | 590 |
of conviction is overturned on appeal, upon exhaustion of the | 591 |
criminal appeal, a petition for reconsideration of the order may | 592 |
be filed with the board along with appropriate court documents. | 593 |
Upon receipt of a petition of that nature and supporting court | 594 |
documents, the board shall reinstate the individual's certificate | 595 |
to practice. The board may then hold an adjudication under Chapter | 596 |
119. of the Revised Code to determine whether the individual | 597 |
committed the act in question. Notice of an opportunity for a | 598 |
hearing shall be given in accordance with Chapter 119. of the | 599 |
Revised Code. If the board finds, pursuant to an adjudication held | 600 |
under this division, that the individual committed the act or if | 601 |
no hearing is requested, the board may order any of the sanctions | 602 |
identified under division (B) of this section. | 603 |
(I) The certificate to practice issued to an individual under | 604 |
this chapter and the individual's practice in this state are | 605 |
automatically suspended as of the date of the individual's second | 606 |
or subsequent plea of guilty to, or judicial finding of guilt of, | 607 |
a violation of section 2919.123 of the Revised Code, or the date | 608 |
the individual pleads guilty to, is found by a judge or jury to be | 609 |
guilty of, or is subject to a judicial finding of eligibility for | 610 |
intervention in lieu of conviction in this state or treatment or | 611 |
intervention in lieu of conviction in another jurisdiction for any | 612 |
of the following criminal offenses in this state or a | 613 |
substantially equivalent criminal offense in another jurisdiction: | 614 |
aggravated murder, murder, voluntary manslaughter, felonious | 615 |
assault, kidnapping, rape, sexual battery, gross sexual | 616 |
imposition, aggravated arson, aggravated robbery, or aggravated | 617 |
burglary. Continued practice after suspension shall be considered | 618 |
practicing without a certificate. | 619 |
(1) If the automatic suspension under this division is for a | 627 |
second or subsequent plea of guilty to, or judicial finding of | 628 |
guilt of, a violation of section 2919.123 of the Revised Code, the | 629 |
board shall enter an order suspending the individual's certificate | 630 |
to practice for a period of at least one year or, if determined | 631 |
appropriate by the board, imposing a more serious sanction | 632 |
involving the individual's certificate to practice. | 633 |
(J) If the board is required by Chapter 119. of the Revised | 637 |
Code to give notice of an opportunity for a hearing and if the | 638 |
individual subject to the notice does not timely request a hearing | 639 |
in accordance with section 119.07 of the Revised Code, the board | 640 |
is not required to hold a hearing, but may adopt, by an | 641 |
affirmative vote of not fewer than six of its members, a final | 642 |
order that contains the board's findings. In that final order, the | 643 |
board may order any of the sanctions identified under division (A) | 644 |
or (B) of this section. | 645 |
(L) When the board refuses to grant a certificate to an | 654 |
applicant, revokes an individual's certificate to practice, | 655 |
refuses to register an applicant, or refuses to reinstate an | 656 |
individual's certificate to practice, the board may specify that | 657 |
its action is permanent. An individual subject to a permanent | 658 |
action taken by the board is forever thereafter ineligible to hold | 659 |
a certificate to practice and the board shall not accept an | 660 |
application for reinstatement of the certificate or for issuance | 661 |
of a new certificate. | 662 |
(O) Under the board's investigative duties described in this | 691 |
section and subject to division (F) of this section, the board | 692 |
shall develop and implement a quality intervention program | 693 |
designed to improve through remedial education the clinical and | 694 |
communication skills of individuals authorized under this chapter | 695 |
to practice medicine and surgery, osteopathic medicine and | 696 |
surgery, and podiatric medicine and surgery. In developing and | 697 |
implementing the quality intervention program, the board may do | 698 |
all of the following: | 699 |
(4) A physician or surgeon in another state or territory who | 750 |
is a legal practitioner of medicine or surgery therein and | 751 |
provided services to a patient in that state or territory, when | 752 |
providing, not later than one year after the last date services | 753 |
were provided in another state or territory, follow-up services in | 754 |
person or through the use of any communication, including oral, | 755 |
written, or electronic communication, in this state to the patient | 756 |
for the same condition; | 757 |
(5) A physician or surgeon residing on the border of a | 758 |
contiguous state and authorized under the laws thereof to practice | 759 |
medicine and surgery therein, whose practice extends within the | 760 |
limits of this state. Such practitioner shall not either in person | 761 |
or through the use of any communication, including oral, written, | 762 |
or electronic communication, open an office or appoint a place to | 763 |
see patients or receive calls within the limits of this state. | 764 |
Sec. 4734.31. (A) The state chiropractic board may take any | 800 |
of the actions specified in division (B) of this section against | 801 |
an individual who has applied for or holds a license to practice | 802 |
chiropractic in this state if any of the reasons specified in | 803 |
division (C) of this section for taking action against an | 804 |
individual are applicable. Except as provided in division (D) of | 805 |
this section, actions taken against an individual shall be taken | 806 |
in accordance with Chapter 119. of the Revised Code. The board may | 807 |
specify that any action it takes is a permanent action. The | 808 |
board's authority to take action against an individual is not | 809 |
removed or limited by the individual's failure to renew a license. | 810 |
(8) Failure to cooperate in an investigation conducted by the | 857 |
board, including failure to comply with a subpoena or order issued | 858 |
by the board or failure to answer truthfully a question presented | 859 |
by the board at a deposition or in written interrogatories, except | 860 |
that failure to cooperate with an investigation shall not | 861 |
constitute grounds for discipline under this section if the board | 862 |
or a court of competent jurisdiction has issued an order that | 863 |
either quashes a subpoena or permits the individual to withhold | 864 |
the testimony or evidence in issue; | 865 |
(11) Aiding, abetting, assisting, counseling, or conspiring | 876 |
with any person in that person's violation of any provision of | 877 |
this chapter or the rules adopted under it, including the practice | 878 |
of chiropractic without a license, the practice of acupuncture | 879 |
without a certificate, or aiding, abetting, assisting, counseling, | 880 |
or conspiring with any person in that person's unlicensed practice | 881 |
of any other health care profession that has licensing | 882 |
requirements; | 883 |
(12) With respect to a report or record that is made, filed, | 884 |
or signed in connection with the practice of chiropractic or | 885 |
acupuncture, knowingly making or filing a report or record that is | 886 |
false, intentionally or negligently failing to file a report or | 887 |
record required by federal, state, or local law or willfully | 888 |
impeding or obstructing the required filing, or inducing another | 889 |
person to engage in any such acts; | 890 |
(17) Inability to practice chiropractic or acupuncture | 904 |
according to acceptable and prevailing standards of care by reason | 905 |
of chemical dependency, mental illness, or physical illness, | 906 |
including conditions in which physical deterioration has adversely | 907 |
affected the person's cognitive, motor, or perceptive skills and | 908 |
conditions in which a chiropractor's continued practice may pose a | 909 |
danger to the chiropractor or the public; | 910 |
(20) Failing to maintain proper, accurate, and legible | 915 |
records in the English language documenting each patient's care, | 916 |
including, as appropriate, records of the following: dates of | 917 |
treatment, services rendered, examinations, tests, x-ray reports, | 918 |
referrals, and the diagnosis or clinical impression and clinical | 919 |
treatment plan provided to the patient; | 920 |
(4) In lieu of an adjudication, the board may enter into a | 1008 |
consent agreement with an individual to resolve an allegation of a | 1009 |
violation of this chapter or any rule adopted under it. A consent | 1010 |
agreement, when ratified by the board, shall constitute the | 1011 |
findings and order of the board with respect to the matter | 1012 |
addressed in the agreement. If the board refuses to ratify a | 1013 |
consent agreement, the admissions and findings contained in the | 1014 |
consent agreement shall be of no force or effect. | 1015 |
(E) This section does not require the board to hire, contract | 1016 |
with, or retain the services of an expert witness when the board | 1017 |
takes action against a chiropractor concerning compliance with | 1018 |
acceptable and prevailing standards of care in the practice of | 1019 |
chiropractic or acupuncture. As part of an action taken concerning | 1020 |
compliance with acceptable and prevailing standards of care, the | 1021 |
board may rely on the knowledge of its members for purposes of | 1022 |
making a determination of compliance, notwithstanding any expert | 1023 |
testimony presented by the chiropractor that contradicts the | 1024 |
knowledge and opinions of the members of the board. | 1025 |
(F) The sealing of conviction records by a court shall have | 1026 |
no effect on a prior board order entered under this section or on | 1027 |
the board's jurisdiction to take action under this section if, | 1028 |
based on a plea of guilty, a judicial finding of guilt, or a | 1029 |
judicial finding of eligibility for intervention in lieu of | 1030 |
conviction, the board issued a notice of opportunity for a hearing | 1031 |
prior to the court's order to seal the records. The board shall | 1032 |
not be required to seal, destroy, redact, or otherwise modify its | 1033 |
records to reflect the court's sealing of conviction records. | 1034 |
(4) The applicant shall demonstrate to the board proficiency | 1174 |
in spoken English by either passing the examination described in | 1175 |
section 4731.142 of the Revised Code or submitting evidence | 1176 |
satisfactory to the board that the applicant was required to | 1177 |
demonstrate proficiency in spoken English as a condition of | 1178 |
obtaining designation from the national certification commission | 1179 |
for acupuncture and oriental medicine as a diplomate in oriental | 1180 |
medicine, diplomate of acupuncture and Chinese herbology, or | 1181 |
diplomate in acupuncture. | 1182 |
Sec. 4762.031. In addition to any other eligibility | 1197 |
requirement set forth in this chapter, each applicant for a | 1198 |
certificate to practice as an oriental medicine practitioner or | 1199 |
certificate to practice as an acupuncturist shall comply with | 1200 |
sections 4776.01 to 4776.04 of the Revised Code. The state medical | 1201 |
board shall not grant to an applicant a certificate to practice as | 1202 |
an acupuncturist unless the board, in its discretion, decides that | 1203 |
the results of the criminal records check do not make the | 1204 |
applicant ineligible for a certificate issued pursuant to section | 1205 |
4762.04 of the Revised Code. | 1206 |
Sec. 4762.04. If the state medical board determines under | 1207 |
section 4762.03 of the Revised Code that an applicant meets the | 1208 |
requirements for a certificate to practice as an oriental medicine | 1209 |
practitioner or certificate to practice as an acupuncturist, the | 1210 |
secretary of the board shall register the applicant as an oriental | 1211 |
medicine practitioner or acupuncturist, as appropriate, and issue | 1212 |
to the applicant athe appropriate certificate to practice as an | 1213 |
acupuncturist. The certificate shall expire biennially and may be | 1214 |
renewed in accordance with section 4762.06 of the Revised Code. | 1215 |
The applicant shall report any criminal offense that | 1232 |
constitutes grounds for refusing to issue a certificate under | 1233 |
section 4762.13 of the Revised Code to which the applicant has | 1234 |
pleaded guilty, of which the applicant has been found guilty, or | 1235 |
for which the applicant has been found eligible for intervention | 1236 |
in lieu of conviction, since last signing an application for a | 1237 |
certificate to practice as an oriental medicine practitioner or | 1238 |
certificate to practice as an acupuncturist. | 1239 |
(D) A certificate to practice that is not renewed on or | 1265 |
before its expiration date is automatically suspended on its | 1266 |
expiration date. If a certificate has been suspended pursuant to | 1267 |
this division for two years or less, the board shall reinstate the | 1268 |
certificate upon an applicant's submission of a renewal | 1269 |
application, the biennial renewal fee, and the applicable monetary | 1270 |
penalty. The penalty for reinstatement is twenty-five dollars. If | 1271 |
a certificate has been suspended pursuant to this division for | 1272 |
more than two years, it may be restored upon an applicant's | 1273 |
submission of a restoration application, the biennial registration | 1274 |
fee, and the applicable monetary penalty and compliance with | 1275 |
sections 4776.01 to 4776.04 of the Revised Code. The board shall | 1276 |
not restore a certificate to practice unless the board, in its | 1277 |
discretion, decides that the results of the criminal records check | 1278 |
do not make the applicant ineligible for a certificate issued | 1279 |
pursuant to section 4762.04 of the Revised Code. The penalty for | 1280 |
restoration is fifty dollars. | 1281 |
Sec. 4762.08. (A) A person who holds a certificate to | 1282 |
practice as an oriental medicine practitioner issued under this | 1283 |
chapter may use the following titles, initials, or abbreviations, | 1284 |
or the equivalent of such titles, initials, or abbreviations, to | 1285 |
identify the person as an oriental medicine practitioner: | 1286 |
"Oriental Medicine Practitioner," "Licensed Oriental Medicine | 1287 |
Practitioner," "L.O.M.," "Diplomate in Oriental Medicine | 1288 |
(NCCAOM)," "Dipl. O.M. (NCCAOM)," "National Board Certified in | 1289 |
Oriental Medicine (NCCAOM)," "Acupuncturist," "Licensed | 1290 |
Acupuncturist," "L.Ac. and L.C.H.," "Diplomate of Acupuncture and | 1291 |
Chinese Herbology (NCCAOM)," "Dipl. Ac. and Dipl. C.H. (NCCAOM)," | 1292 |
or "National Board Certified in Acupuncture and Chinese Herbology | 1293 |
(NCCAOM)." The person shall not use other titles, initials, or | 1294 |
abbreviations in conjunction with the person's practice of | 1295 |
oriental medicine, including the title "doctor."
| 1296 |
(B) A person who holds a certificate to practice as an | 1297 |
acupuncturist issued under this chapter may use the following | 1298 |
titles, initials, or abbreviations, or the equivalent of such | 1299 |
titles, initials, or abbreviations, to identify the person as an | 1300 |
acupuncturist: "Acupuncturist," "Licensed Acupuncturist," "L.Ac.," | 1301 |
"Diplomate ofin Acupuncture (NCCAOM)," "Dipl. Ac. (NCCAOM)," or | 1302 |
"National Board Certified in Acupuncture (NCCAOM)." The person | 1303 |
shall not use other titles, initials, or abbreviations in | 1304 |
conjunction with the person's practice of acupuncture, including | 1305 |
the title "doctor." | 1306 |
(1) Except as otherwise provided in division (B)(1) of this | 1329 |
section, if an acupuncturist practicing on the effective date of | 1330 |
this amendment has practiced for less than one year and is not | 1331 |
subject to any disciplinary action, supervision shall be for a | 1332 |
period beginning on the effective date of this amendment and | 1333 |
ending when the acupuncturist has practiced for one year from the | 1334 |
date the initial certificate was granted. If the acupuncturist is | 1335 |
subject to disciplinary action during that period, the supervision | 1336 |
shall continue until the acupuncturist has not been subject to any | 1337 |
disciplinary action for one year. | 1338 |
(2) Except as otherwise provided in division (B)(2) of this | 1339 |
section, if an acupuncturist is granted an initial certificate to | 1340 |
practice on or after the effective date of this amendment, the. | 1341 |
The supervisory period shall begin on the date the initial | 1342 |
certificate is granted and end one year thereafter. If, except | 1343 |
that if the oriental medicine practitioner or acupuncturist is | 1344 |
subject to disciplinary action during that year to disciplinary | 1345 |
action taken by the state medical board pursuant to section | 1346 |
4762.13 of the Revised Code, the supervision shall continue until | 1347 |
the practitioner or acupuncturist has not been subject to any | 1348 |
disciplinary action for one year. | 1349 |
(1) TheAn oriental medicine practitioner shall perform | 1354 |
oriental medicine or acupuncture for a patient only if the patient | 1355 |
has received a written referral or prescription for oriental | 1356 |
medicine or acupuncture from a physician or for acupuncture from a | 1357 |
chiropractor. An acupuncturist shall perform acupuncture for a | 1358 |
patient only if the patient has received a written referral or | 1359 |
prescription for acupuncture from a physician or chiropractor. As | 1360 |
specified in the referral or prescription, the oriental medicine | 1361 |
practitioner or acupuncturist shall provide reports to the | 1362 |
physician or chiropractor on the patient's condition or progress | 1363 |
in treatment and comply with the conditions or restrictions on the | 1364 |
practitioner's or acupuncturist's course of treatment. | 1365 |
(2) The oriental medicine practitioner or acupuncturist shall | 1366 |
perform
oriental medicine or acupuncture under the general | 1367 |
supervision of the patient's referring or prescribing physician or | 1368 |
chiropractor, except that an oriental medicine practitioner using | 1369 |
herbal therapy in the treatment of a patient shall not provide | 1370 |
herbal therapy under the general supervision of a chiropractor. | 1371 |
General supervision does not require that the oriental medicine | 1372 |
practitioner or acupuncturist and supervising physician or | 1373 |
chiropractor practice in the same office. | 1374 |
(1) Before treating a patient for a particular condition, the | 1380 |
an oriental medicine practitioner or acupuncturist shall confirm | 1381 |
whether the patient has undergone within the past six months a | 1382 |
diagnostic examination that was related to the condition for which | 1383 |
the patient is seeking
oriental medicine or acupuncture and was | 1384 |
performed by a physician or chiropractor acting within the | 1385 |
physicianphysician's or chiropractor's scope of practice. | 1386 |
Confirmation that the diagnostic examination was performed may be | 1387 |
made by obtaining from the patient a signed form stating that the | 1388 |
patient has undergone the examination. | 1389 |
(A) Before makinga physician makes the referral or issues a | 1454 |
prescription for oriental medicine or acupuncture, the physician | 1455 |
shall perform a medical diagnostic examination of the patient or | 1456 |
review the results of a medical diagnostic examination recently | 1457 |
performed by another physician, or, in the case of. Before a | 1458 |
chiropractor makes a referral or issues a prescription for | 1459 |
oriental medicine or acupuncture, the chiropractor shall perform a | 1460 |
chiropractic diagnostic examination of the patient or review the | 1461 |
results of a chiropractic diagnostic examination recently | 1462 |
performed by another chiropractor. | 1463 |
(D) The physician or chiropractor shall be personally | 1485 |
available for consultation with the oriental medicine practitioner | 1486 |
or acupuncturist. If the physician or chiropractor is not on the | 1487 |
premises at which oriental medicine or acupuncture is performed, | 1488 |
the physician or chiropractor shall be readily available to the | 1489 |
practitioner or acupuncturist through some means of | 1490 |
telecommunication and be in a location that under normal | 1491 |
circumstances is not more than sixty minutes travel time away from | 1492 |
the location where the practitioner or acupuncturist is | 1493 |
practicing. | 1494 |
Sec. 4762.12. In the case of a patient with a claim under | 1498 |
Chapter 4121. or 4123. of the Revised Code, an acupuncturist'sa | 1499 |
supervising physician or chiropractor is eligible to be reimbursed | 1500 |
for referring the patient to an oriental medicine practitioner or | 1501 |
acupuncturist or for prescribing oriental medicine or acupuncture | 1502 |
for the patient only if the physician has attained knowledge in | 1503 |
the treatment of patients with oriental medicine or acupuncture, | 1504 |
or
the chiropractor has attained knowledge in the treatment of | 1505 |
patients with acupuncture, as demonstrated by successful | 1506 |
completion of a relevant course of study in acupuncture | 1507 |
administered by a college of medicine, osteopathic medicine, | 1508 |
podiatric medicine, or chiropractic acceptable to the bureau of | 1509 |
workers' compensation or administered by another entity acceptable | 1510 |
to the bureau. | 1511 |
(B) The board, by an affirmative vote of not fewer than six | 1519 |
members, shall, to the extent permitted by law, limit, revoke, or | 1520 |
suspend an individual's certificate to practice as an | 1521 |
acupuncturist, refuse to issue a certificate to an applicant, | 1522 |
refuse to reinstate a certificate, or reprimand or place on | 1523 |
probation the holder of a certificate for any of the following | 1524 |
reasons: | 1525 |
As used in this division, "false, fraudulent, deceptive, or | 1553 |
misleading statement" means a statement that includes a | 1554 |
misrepresentation of fact, is likely to mislead or deceive because | 1555 |
of a failure to disclose material facts, is intended or is likely | 1556 |
to create false or unjustified expectations of favorable results, | 1557 |
or includes representations or implications that in reasonable | 1558 |
probability will cause an ordinarily prudent person to | 1559 |
misunderstand or be deceived. | 1560 |
(18) Any of the following actions taken by the state agency | 1591 |
responsible for regulating the practice of oriental medicine or | 1592 |
acupuncture in another jurisdiction, for any reason other than the | 1593 |
nonpayment of fees: the limitation, revocation, or suspension of | 1594 |
an individual's license to practice; acceptance of an individual's | 1595 |
license surrender; denial of a license; refusal to renew or | 1596 |
reinstate a license; imposition of probation; or issuance of an | 1597 |
order of censure or other reprimand; | 1598 |
(21) Failure to cooperate in an investigation conducted by | 1605 |
the board under section 4762.14 of the Revised Code, including | 1606 |
failure to comply with a subpoena or order issued by the board or | 1607 |
failure to answer truthfully a question presented by the board at | 1608 |
a deposition or in written interrogatories, except that failure to | 1609 |
cooperate with an investigation shall not constitute grounds for | 1610 |
discipline under this section if a court of competent jurisdiction | 1611 |
has issued an order that either quashes a subpoena or permits the | 1612 |
individual to withhold the testimony or evidence in issue; | 1613 |
(24) Failure to maintain a current and active designation as | 1621 |
a diplomate in oriental medicine, diplomate of acupuncture and | 1622 |
Chinese herbology, or diplomate in acupuncture, as applicable, | 1623 |
from the national certification commission for acupuncture and | 1624 |
oriental medicine, including revocation by the commission of the | 1625 |
individual's designation, failure by the individual to meet the | 1626 |
commission's requirements for redesignation, or failure to notify | 1627 |
the board that the appropriate designation has not been | 1628 |
maintained. | 1629 |
(C) Disciplinary actions taken by the board under divisions | 1630 |
(A) and (B) of this section shall be taken pursuant to an | 1631 |
adjudication under Chapter 119. of the Revised Code, except that | 1632 |
in lieu of an adjudication, the board may enter into a consent | 1633 |
agreement with an oriental medicine practitioner or acupuncturist | 1634 |
or applicant to resolve an allegation of a violation of this | 1635 |
chapter or any rule adopted under it. A consent agreement, when | 1636 |
ratified by an affirmative vote of not fewer than six members of | 1637 |
the board, shall constitute the findings and order of the board | 1638 |
with respect to the matter addressed in the agreement. If the | 1639 |
board refuses to ratify a consent agreement, the admissions and | 1640 |
findings contained in the consent agreement shall be of no force | 1641 |
or effect. | 1642 |
(D) For purposes of divisions (B)(12), (15), and (16) of this | 1643 |
section, the commission of the act may be established by a finding | 1644 |
by the board, pursuant to an adjudication under Chapter 119. of | 1645 |
the Revised Code, that the applicant or certificate holder | 1646 |
committed the act in question. The board shall have no | 1647 |
jurisdiction under these divisions in cases where the trial court | 1648 |
renders a final judgment in the certificate holder's favor and | 1649 |
that judgment is based upon an adjudication on the merits. The | 1650 |
board shall have jurisdiction under these divisions in cases where | 1651 |
the trial court issues an order of dismissal upon technical or | 1652 |
procedural grounds. | 1653 |
(E) The sealing of conviction records by any court shall have | 1654 |
no effect upon a prior board order entered under the provisions of | 1655 |
this section or upon the board's jurisdiction to take action under | 1656 |
the provisions of this section if, based upon a plea of guilty, a | 1657 |
judicial finding of guilt, or a judicial finding of eligibility | 1658 |
for intervention in lieu of conviction, the board issued a notice | 1659 |
of opportunity for a hearing or entered into a consent agreement | 1660 |
prior to the court's order to seal the records. The board shall | 1661 |
not be required to seal, destroy, redact, or otherwise modify its | 1662 |
records to reflect the court's sealing of conviction records. | 1663 |
(1) In enforcing division (B)(5) of this section, the board, | 1671 |
upon a showing of a possible violation, may compel any individual | 1672 |
who holds a certificate to practice issued under this chapter or | 1673 |
who has applied for a certificate pursuant to this chapter to | 1674 |
submit to a mental examination, physical examination, including an | 1675 |
HIV test, or both a mental and physical examination. The expense | 1676 |
of the examination is the responsibility of the individual | 1677 |
compelled to be examined. Failure to submit to a mental or | 1678 |
physical examination or consent to an HIV test ordered by the | 1679 |
board constitutes an admission of the allegations against the | 1680 |
individual unless the failure is due to circumstances beyond the | 1681 |
individual's control, and a default and final order may be entered | 1682 |
without the taking of testimony or presentation of evidence. If | 1683 |
the board finds an oriental medicine practitioner or acupuncturist | 1684 |
unable to practice because of the reasons set forth in division | 1685 |
(B)(5) of this section, the board shall require the acupuncturist | 1686 |
individual to submit to care, counseling, or treatment by | 1687 |
physicians approved or designated by the board, as a condition for | 1688 |
an initial, continued, reinstated, or renewed certificate to | 1689 |
practice. An individual affected by this division shall be | 1690 |
afforded an opportunity to demonstrate to the board the ability to | 1691 |
resume practicing in compliance with acceptable and prevailing | 1692 |
standards of care. | 1693 |
(2) For purposes of division (B)(6) of this section, if the | 1694 |
board has reason to believe that any individual who holds a | 1695 |
certificate to practice issued under this chapter or any applicant | 1696 |
for a certificate suffers such impairment, the board may compel | 1697 |
the individual to submit to a mental or physical examination, or | 1698 |
both. The expense of the examination is the responsibility of the | 1699 |
individual compelled to be examined. Any mental or physical | 1700 |
examination required under this division shall be undertaken by a | 1701 |
treatment provider or physician qualified to conduct such | 1702 |
examination and chosen by the board. | 1703 |
Failure to submit to a mental or physical examination ordered | 1704 |
by the board constitutes an admission of the allegations against | 1705 |
the individual unless the failure is due to circumstances beyond | 1706 |
the individual's control, and a default and final order may be | 1707 |
entered without the taking of testimony or presentation of | 1708 |
evidence. If the board determines that the individual's ability to | 1709 |
practice is impaired, the board shall suspend the individual's | 1710 |
certificate or deny the individual's application and shall require | 1711 |
the individual, as a condition for an initial, continued, | 1712 |
reinstated, or renewed certificate, to submit to treatment. | 1713 |
When the impaired acupuncturistindividual resumes practice, | 1734 |
the board shall require continued monitoring of the
acupuncturist | 1735 |
individual. The monitoring shall include monitoring of compliance | 1736 |
with the written consent agreement entered into before | 1737 |
reinstatement or with conditions imposed by board order after a | 1738 |
hearing, and, upon termination of the consent agreement, | 1739 |
submission to the board for at least two years of annual written | 1740 |
progress reports made under penalty of falsification stating | 1741 |
whether the acupuncturistindividual has maintained sobriety. | 1742 |
The board shall issue a written order of suspension by | 1762 |
certified mail or in person in accordance with section 119.07 of | 1763 |
the Revised Code. The order shall not be subject to suspension by | 1764 |
the court during pendency of any appeal filed under section 119.12 | 1765 |
of the Revised Code. If the oriental medicine practitioner or | 1766 |
acupuncturist requests an adjudicatory hearing by the board, the | 1767 |
date set for the hearing shall be within fifteen days, but not | 1768 |
earlier than seven days, after the acupuncturist requests the | 1769 |
hearing is requested, unless otherwise agreed to by both the board | 1770 |
and the certificate holder. | 1771 |
A summary suspension imposed under this division shall remain | 1772 |
in effect, unless reversed on appeal, until a final adjudicative | 1773 |
order issued by the board pursuant to this section and Chapter | 1774 |
119. of the Revised Code becomes effective. The board shall issue | 1775 |
its final adjudicative order within sixty days after completion of | 1776 |
its hearing. Failure to issue the order within sixty days shall | 1777 |
result in dissolution of the summary suspension order, but shall | 1778 |
not invalidate any subsequent, final adjudicative order. | 1779 |
(H) If the board takes action under division (B)(11), (13), | 1780 |
or (14) of this section, and the judicial finding of guilt, guilty | 1781 |
plea, or judicial finding of eligibility for intervention in lieu | 1782 |
of conviction is overturned on appeal, upon exhaustion of the | 1783 |
criminal appeal, a petition for reconsideration of the order may | 1784 |
be filed with the board along with appropriate court documents. | 1785 |
Upon receipt of a petition and supporting court documents, the | 1786 |
board shall reinstate the certificate to practice. The board may | 1787 |
then hold an adjudication under Chapter 119. of the Revised Code | 1788 |
to determine whether the individual committed the act in question. | 1789 |
Notice of opportunity for hearing shall be given in accordance | 1790 |
with Chapter 119. of the Revised Code. If the board finds, | 1791 |
pursuant to an adjudication held under this division, that the | 1792 |
individual committed the act, or if no hearing is requested, it | 1793 |
may order any of the sanctions specified in division (B) of this | 1794 |
section. | 1795 |
(I) The certificate to practice of an oriental medicine | 1796 |
practitioner or acupuncturist and the practitioner's or | 1797 |
acupuncturist's practice in this state are automatically suspended | 1798 |
as of the date the practitioner or acupuncturist pleads guilty to, | 1799 |
is found by a judge or jury to be guilty of, or is subject to a | 1800 |
judicial finding of eligibility for intervention in lieu of | 1801 |
conviction in this state or treatment or intervention in lieu of | 1802 |
conviction in another jurisdiction for any of the following | 1803 |
criminal offenses in this state or a substantially equivalent | 1804 |
criminal offense in another jurisdiction: aggravated murder, | 1805 |
murder, voluntary manslaughter, felonious assault, kidnapping, | 1806 |
rape, sexual battery, gross sexual imposition, aggravated arson, | 1807 |
aggravated robbery, or aggravated burglary. Continued practice | 1808 |
after the suspension shall be considered practicing without a | 1809 |
certificate. | 1810 |
(J) In any instance in which the board is required by Chapter | 1818 |
119. of the Revised Code to give notice of opportunity for hearing | 1819 |
and the individual subject to the notice does not timely request a | 1820 |
hearing in accordance with section 119.07 of the Revised Code, the | 1821 |
board is not required to hold a hearing, but may adopt, by an | 1822 |
affirmative vote of not fewer than six of its members, a final | 1823 |
order that contains the board's findings. In the final order, the | 1824 |
board may order any of the sanctions identified under division (A) | 1825 |
or (B) of this section. | 1826 |
(L) When the board refuses to grant a certificate to practice | 1836 |
as an acupuncturist to an applicant, revokes an individual's | 1837 |
certificate, refuses to renew a certificate, or refuses to | 1838 |
reinstate an individual's certificate, the board may specify that | 1839 |
its action is permanent. An individual subject to a permanent | 1840 |
action taken by the board is forever thereafter ineligible to hold | 1841 |
a certificate to practice as an oriental medicine practitioner or | 1842 |
certificate to practice as an acupuncturist and the board shall | 1843 |
not accept an application for reinstatement of the certificate or | 1844 |
for issuance of a new certificate. | 1845 |
Sec. 4762.132. If the state medical board has reason to | 1867 |
believe that any person who has been granted under this chapter a | 1868 |
certificate to practice as an oriental medicine practitioner or | 1869 |
certificate to practice as an acupuncturist is mentally ill or | 1870 |
mentally incompetent, it may file in the probate court of the | 1871 |
county in which the person has a legal residence an affidavit in | 1872 |
the form prescribed in section 5122.11 of the Revised Code and | 1873 |
signed by the board secretary or a member of the board secretary's | 1874 |
staff, whereupon the same proceedings shall be had as provided in | 1875 |
Chapter 5122. of the Revised Code. The attorney general may | 1876 |
represent the board in any proceeding commenced under this | 1877 |
section. | 1878 |
If any person who has been granted a certificate is adjudged | 1879 |
by a probate court to be mentally ill or mentally incompetent, the | 1880 |
person's certificate shall be automatically suspended until the | 1881 |
person has filed with the state medical board a certified copy of | 1882 |
an adjudication by a probate court of the person's subsequent | 1883 |
restoration to competency or has submitted to the board proof, | 1884 |
satisfactory to the board, that the person has been discharged as | 1885 |
having a restoration to competency in the manner and form provided | 1886 |
in section 5122.38 of the Revised Code. The judge of the probate | 1887 |
court shall forthwith notify the state medical board of an | 1888 |
adjudication of mental illness or mental incompetence, and shall | 1889 |
note any suspension of a certificate in the margin of the court's | 1890 |
record of such certificate. | 1891 |
Sec. 4762.14. (A) The state medical board shall investigate | 1892 |
evidence that appears to show that any person has violated this | 1893 |
chapter or the rules adopted under it. Any person may report to | 1894 |
the board in a signed writing any information the person has that | 1895 |
appears to show a violation of any provision of this chapter or | 1896 |
the rules adopted under it. In the absence of bad faith, a person | 1897 |
who reports such information or testifies before the board in an | 1898 |
adjudication conducted under Chapter 119. of the Revised Code | 1899 |
shall not be liable for civil damages as a result of reporting the | 1900 |
information or providing testimony. Each complaint or allegation | 1901 |
of a violation received by the board shall be assigned a case | 1902 |
number and be recorded by the board. | 1903 |
(B) Investigations of alleged violations of this chapter or | 1904 |
rules adopted under it shall be supervised by the supervising | 1905 |
member elected by the board in accordance with section 4731.02 of | 1906 |
the Revised Code and by the secretary as provided in section | 1907 |
4762.15 of the Revised Code. The board's president may designate | 1908 |
another member of the board to supervise the investigation in | 1909 |
place of the supervising member. A member of the board who | 1910 |
supervises the investigation of a case shall not participate in | 1911 |
further adjudication of the case. | 1912 |
(C) In investigating a possible violation of this chapter or | 1913 |
the rules adopted under it, the board may administer oaths, order | 1914 |
the taking of depositions, issue subpoenas, and compel the | 1915 |
attendance of witnesses and production of books, accounts, papers, | 1916 |
records, documents, and testimony, except that a subpoena for | 1917 |
patient record information shall not be issued without | 1918 |
consultation with the attorney general's office and approval of | 1919 |
the secretary and supervising member of the board. Before issuance | 1920 |
of a subpoena for patient record information, the secretary and | 1921 |
supervising member shall determine whether there is probable cause | 1922 |
to believe that the complaint filed alleges a violation of this | 1923 |
chapter or the rules adopted under it and that the records sought | 1924 |
are relevant to the alleged violation and material to the | 1925 |
investigation. The subpoena may apply only to records that cover a | 1926 |
reasonable period of time surrounding the alleged violation. | 1927 |
A subpoena issued by the board may be served by a sheriff, | 1932 |
the sheriff's deputy, or a board employee designated by the board. | 1933 |
Service of a subpoena issued by the board may be made by | 1934 |
delivering a copy of the subpoena to the person named therein, | 1935 |
reading it to the person, or leaving it at the person's usual | 1936 |
place of residence. When the person being served is an oriental | 1937 |
medicine practitioner or acupuncturist, service of the subpoena | 1938 |
may be made by certified mail, restricted delivery, return receipt | 1939 |
requested, and the subpoena shall be deemed served on the date | 1940 |
delivery is made or the date the person refuses to accept | 1941 |
delivery. | 1942 |
The board may share any information it receives pursuant to | 1958 |
an investigation, including patient records and patient record | 1959 |
information, with law enforcement agencies, other licensing | 1960 |
boards, and other governmental agencies that are prosecuting, | 1961 |
adjudicating, or investigating alleged violations of statutes or | 1962 |
administrative rules. An agency or board that receives the | 1963 |
information shall comply with the same requirements regarding | 1964 |
confidentiality as those with which the state medical board must | 1965 |
comply, notwithstanding any conflicting provision of the Revised | 1966 |
Code or procedure of the agency or board that applies when it is | 1967 |
dealing with other information in its possession. In a judicial | 1968 |
proceeding, the information may be admitted into evidence only in | 1969 |
accordance with the Rules of Evidence, but the court shall require | 1970 |
that appropriate measures are taken to ensure that confidentiality | 1971 |
is maintained with respect to any part of the information that | 1972 |
contains names or other identifying information about patients or | 1973 |
complainants whose confidentiality was protected by the state | 1974 |
medical board when the information was in the board's possession. | 1975 |
Measures to ensure confidentiality that may be taken by the court | 1976 |
include sealing its records or deleting specific information from | 1977 |
its records. | 1978 |
(B) Whenever any person holding a valid certificate to | 2004 |
practice as an oriental medicine practitioner or valid certificate | 2005 |
to practice as an acupuncturist issued pursuant to this chapter | 2006 |
pleads guilty to, is subject to a judicial finding of guilt of, or | 2007 |
is subject to a judicial finding of eligibility for intervention | 2008 |
in lieu of conviction for a violation of Chapter 2907., 2925., or | 2009 |
3719. of the Revised Code or of any substantively comparable | 2010 |
ordinance of a municipal corporation in connection with the | 2011 |
person's practice, the prosecutor in the case, on forms prescribed | 2012 |
and provided by the state medical board, shall promptly notify the | 2013 |
board of the conviction. Within thirty days of receipt of that | 2014 |
information, the board shall initiate action in accordance with | 2015 |
Chapter 119. of the Revised Code to determine whether to suspend | 2016 |
or revoke the certificate under section 4762.13 of the Revised | 2017 |
Code. | 2018 |
Sec. 4762.16. (A) Within sixty days after the imposition of | 2044 |
any formal disciplinary action taken by any health care facility, | 2045 |
including a hospital, health care facility operated by a health | 2046 |
insuring corporation, ambulatory surgical center, or similar | 2047 |
facility, against any individual holding a valid certificate to | 2048 |
practice as an oriental medicine practitioner or valid certificate | 2049 |
to practice as an acupuncturist, the chief administrator or | 2050 |
executive officer of the facility shall report to the state | 2051 |
medical board the name of the individual, the action taken by the | 2052 |
facility, and a summary of the underlying facts leading to the | 2053 |
action taken. Upon request, the board shall be provided certified | 2054 |
copies of the patient records that were the basis for the | 2055 |
facility's action. Prior to release to the board, the summary | 2056 |
shall be approved by the peer review committee that reviewed the | 2057 |
case or by the governing board of the facility. | 2058 |
(B) An oriental medicine practitioner or acupuncturist, | 2067 |
professional association or society of oriental medicine | 2068 |
practitioners or acupuncturists, physician, or professional | 2069 |
association or society of physicians that believes a violation of | 2070 |
any provision of this chapter, Chapter 4731. of the Revised Code, | 2071 |
or rule of the board has occurred shall report to the board the | 2072 |
information upon which the belief is based. This division does not | 2073 |
require any treatment provider approved by the board under section | 2074 |
4731.25 of the Revised Code or any employee, agent, or | 2075 |
representative of such a provider to make reports with respect to | 2076 |
an oriental medicine practitioner or acupuncturist participating | 2077 |
in treatment or aftercare for substance abuse as long as the | 2078 |
practitioner or acupuncturist maintains participation in | 2079 |
accordance with the requirements of section 4731.25 of the Revised | 2080 |
Code and the treatment provider or employee, agent, or | 2081 |
representative of the provider has no reason to believe that the | 2082 |
practitioner or acupuncturist has violated any provision of this | 2083 |
chapter or rule adopted under it, other than being impaired by | 2084 |
alcohol, drugs, or other substances. This division does not | 2085 |
require reporting by any member of an impaired practitioner | 2086 |
committee established by a health care facility or by any | 2087 |
representative or agent of a committee or program sponsored by a | 2088 |
professional association or society of oriental medicine | 2089 |
practitioners or acupuncturists to provide peer assistance to | 2090 |
oriental medicine practitioners or acupuncturists with substance | 2091 |
abuse problems with respect to an oriental medicine practitioner | 2092 |
or acupuncturist who has been referred for examination to a | 2093 |
treatment program approved by the board under section 4731.25 of | 2094 |
the Revised Code if the
acupuncturistindividual cooperates with | 2095 |
the referral for examination and with any determination that the | 2096 |
acupuncturistindividual should enter treatment and as long as | 2097 |
the committee member, representative, or agent has no reason to | 2098 |
believe that the acupuncturistindividual has ceased to | 2099 |
participate in the treatment program in accordance with section | 2100 |
4731.25 of the Revised Code or has violated any provision of this | 2101 |
chapter or rule adopted under it, other than being impaired by | 2102 |
alcohol, drugs, or other substances. | 2103 |
(C) Any professional association or society composed | 2104 |
primarily of oriental medicine practitioners or acupuncturists | 2105 |
that suspends or revokes an individual's membership for violations | 2106 |
of professional ethics, or for reasons of professional | 2107 |
incompetence or professional malpractice, within sixty days after | 2108 |
a final decision, shall report to the board, on forms prescribed | 2109 |
and provided by the board, the name of the individual, the action | 2110 |
taken by the professional organization, and a summary of the | 2111 |
underlying facts leading to the action taken. | 2112 |
(D) Any insurer providing professional liability insurance to | 2118 |
any person holding a valid certificate to practice as an oriental | 2119 |
medicine practitioner or valid certificate to practice as an | 2120 |
acupuncturist or any other entity that seeks to indemnify the | 2121 |
professional liability of an oriental medicine practitioner or | 2122 |
acupuncturist shall notify the board within thirty days after the | 2123 |
final disposition of any written claim for damages where such | 2124 |
disposition results in a payment exceeding twenty-five thousand | 2125 |
dollars. The notice shall contain the following information: | 2126 |
(E) The board may investigate possible violations of this | 2135 |
chapter or the rules adopted under it that are brought to its | 2136 |
attention as a result of the reporting requirements of this | 2137 |
section, except that the board shall conduct an investigation if a | 2138 |
possible violation involves repeated malpractice. As used in this | 2139 |
division, "repeated malpractice" means three or more claims for | 2140 |
malpractice within the previous five-year period, each resulting | 2141 |
in a judgment or settlement in excess of twenty-five thousand | 2142 |
dollars in favor of the claimant, and each involving negligent | 2143 |
conduct by the oriental medicine practitioner or acupuncturist. | 2144 |
(F) All summaries, reports, and records received and | 2145 |
maintained by the board pursuant to this section shall be held in | 2146 |
confidence and shall not be subject to discovery or introduction | 2147 |
in evidence in any federal or state civil action involving an | 2148 |
oriental medicine practitioner, acupuncturist, supervising | 2149 |
physician, or health care facility arising out of matters that are | 2150 |
the subject of the reporting required by this section. The board | 2151 |
may use the information obtained only as the basis for an | 2152 |
investigation, as evidence in a disciplinary hearing against an | 2153 |
oriental medicine practitioner, acupuncturist, or supervising | 2154 |
physician, or in any subsequent trial or appeal of a board action | 2155 |
or order. | 2156 |
The board may disclose the summaries and reports it receives | 2157 |
under this section only to health care facility committees within | 2158 |
or outside this state that are involved in credentialing or | 2159 |
recredentialing an oriental medicine practitioner, acupuncturist, | 2160 |
or supervising physician or reviewing their privilege to practice | 2161 |
within a particular facility. The board shall indicate whether or | 2162 |
not the information has been verified. Information transmitted by | 2163 |
the board shall be subject to the same confidentiality provisions | 2164 |
as when maintained by the board. | 2165 |
(I) In the absence of fraud or bad faith, a professional | 2180 |
association or society of oriental medicine practitioners or | 2181 |
acupuncturists that sponsors a committee or program to provide | 2182 |
peer assistance to an oriental medicine practitioner or | 2183 |
acupuncturist with substance abuse problems, a representative or | 2184 |
agent of such a committee or program, and a member of the state | 2185 |
medical board shall not be held liable in damages to any person by | 2186 |
reason of actions taken to refer an oriental medicine practitioner | 2187 |
or acupuncturist to a treatment provider approved under section | 2188 |
4731.25 of the Revised Code for examination or treatment. | 2189 |
Sec. 4762.17. The secretary of the state medical board shall | 2190 |
enforce the laws relating to the practice of oriental medicine and | 2191 |
acupuncture. If the secretary has knowledge or notice of a | 2192 |
violation of this chapter or the rules adopted under it, the | 2193 |
secretary shall investigate the matter, and, upon probable cause | 2194 |
appearing, file a complaint and prosecute the offender. When | 2195 |
requested by the secretary, the prosecuting attorney of the proper | 2196 |
county shall take charge of and conduct the prosecution. | 2197 |
Sec. 4762.18. (A) Subject to division (E) of this section, | 2198 |
the attorney general, the prosecuting attorney of any county in | 2199 |
which the offense was committed or the offender resides, the state | 2200 |
medical board, or any other person having knowledge of a person | 2201 |
engaged either directly or by complicity in the practice of | 2202 |
oriental medicine or acupuncture without having first obtained a | 2203 |
certificate to do so pursuant to this chapter, may, in accord with | 2204 |
provisions of the Revised Code governing injunctions, maintain an | 2205 |
action in the name of the state to enjoin any person from engaging | 2206 |
either directly or by complicity in the unlawful practice of | 2207 |
oriental medicine or acupuncture by applying for an injunction in | 2208 |
any court of competent jurisdiction. | 2209 |
(B) Prior to application for an injunction under division (A) | 2210 |
of this section, the secretary of the state medical board shall | 2211 |
notify the person allegedly engaged either directly or by | 2212 |
complicity in the unlawful practice of oriental medicine or | 2213 |
acupuncture by registered mail that the secretary has received | 2214 |
information indicating that this person is so engaged. The person | 2215 |
shall answer the secretary within thirty days showing that the | 2216 |
person is either properly licensed for the stated activity or that | 2217 |
the person is not in violation of this chapter. If the answer is | 2218 |
not forthcoming within thirty days after notice by the secretary, | 2219 |
the secretary shall request that the attorney general, the | 2220 |
prosecuting attorney of the county in which the offense was | 2221 |
committed or the offender resides, or the state medical board | 2222 |
proceed as authorized in this section. | 2223 |
Sec. 4762.19. The state medical board may adopt any rules | 2237 |
necessary to govern the practice of oriental medicine, the | 2238 |
practice of acupuncture, the supervisory relationship between | 2239 |
oriental medicine practitioners or acupuncturists and supervising | 2240 |
physicians, the use of herbal therapy by oriental medicine | 2241 |
practitioners, and the administration and enforcement of this | 2242 |
chapter. Rules adopted under this section shall be adopted in | 2243 |
accordance with Chapter 119. of the Revised Code. | 2244 |
Section 2. That existing sections 4731.02, 4731.06, 4731.07, | 2250 |
4731.22, 4731.36, 4734.31, 4762.01, 4762.02, 4762.03, 4762.031, | 2251 |
4762.04, 4762.05, 4762.06, 4762.08, 4762.09, 4762.10, 4762.11, | 2252 |
4762.12, 4762.13, 4762.131, 4762.132, 4762.14, 4762.15, 4762.16, | 2253 |
4762.17, 4762.18, 4762.19, and 4762.22 and section 4731.04 of the | 2254 |
Revised Code are hereby repealed. | 2255 |
Section 3. Section 4731.22 of the Revised Code is presented | 2256 |
in this act as a composite of the section as amended by both Am. | 2257 |
Sub. H.B. 292 and Am. Sub. H.B. 487 of the 129th General Assembly. | 2258 |
The General Assembly, applying the principle stated in division | 2259 |
(B) of section 1.52 of the Revised Code that amendments are to be | 2260 |
harmonized if reasonably capable of simultaneous operation, finds | 2261 |
that the composite is the resulting version of the section in | 2262 |
effect prior to the effective date of the section as presented in | 2263 |
this act. | 2264 |