As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 421

Representatives Slaby, O'Brien 

Cosponsors: Representatives Johnson, Combs, Stebelton, Anielski, McGregor, Maag 

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A BILL

To amend sections 2305.33, 2317.02, and 4731.22 and

1

to enact section 2305.331 of the Revised Code to

2

grant civil immunity to physicians who report a

3

patient's use of a drug of abuse or other

4

condition not involving such use to specified

5

persons or entities, to exclude the making of

6

those reports from the grounds for disciplinary

7

action against physicians, and to apply the civil

8

immunity of physicians who report to an employer

9

in the business of public transportation an

10

employee's use of a drug of abuse or other

11

condition not involving such use to any violation

12

of a patient's privacy rights.

13

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

Section 1.  That sections 2305.33, 2317.02, and 4731.22 be	14
amended and section 2305.331 of the Revised Code be enacted to	15
read as follows:	16

Sec. 2305.33.  (A) As used in this section:

17

(1) "Bus" has the same meaning as in section 4511.78 of the	18
Revised Code.	19

(2) "Business of public transportation" means a business that	20
includes among its functions the transporting of passengers in	21
interstate or intrastate commerce by aircraft, railroad train,	22
school or other bus, taxicab, or other type of common carrier,	23
whether or not a charge is imposed for the transportation.	24
"Business of public transportation" includes, but is not limited	25
to, an Ohio transit system.	26

(3) "Civil action" means a tort or contract action for	27
damages for harm.	28

(4) "Employee" means an individual who is employed by an	29
employer to operate any aircraft, railroad train, school or other	30
bus, taxicab, or other type of common carrier.	31

(5) "Employer" means a person that is engaged in the business	32
of public transportation.	33

(6) "Harm" means any injury, death, or loss to person or	34
property or any violation of a patient's privacy or	35
confidentiality rights under federal or state law.	36

(7) "Ohio transit system" means a county transit system	37
operated in accordance with sections 306.01 to 306.13 of the	38
Revised Code, a regional transit authority operated in accordance	39
with sections 306.30 to 306.71 of the Revised Code, a regional	40
transit commission operated in accordance with sections 306.80 to	41
306.90 of the Revised Code, any municipally owned transportation	42
system, and any mass transit company that operates exclusively	43
within the territorial limits of a municipal corporation, or	44
within the territorial limits of a municipal corporation and one	45
or more municipal corporations immediately contiguous to that	46
municipal corporation.	47

(8) "Physician" means a person who is licensed pursuant to	48
Chapter 4731. of the Revised Code to practice medicine or surgery	49
or osteopathic medicine and surgery.	50

(9) "Prescription" has the same meaning as in section 4729.01	51
of the Revised Code.	52

(10) "School bus" has the same meaning as in section 4511.01	53
of the Revised Code.	54

(11) "Tort action" means a civil action for damages for	55
injury, death, or loss to person or property, other than a civil	56
action for damages for a breach of contract or another agreement	57
between persons. "Tort action" includes, but is not limited to, a	58
civil action for damages against a physician on the ground of a	59
breach of the confidentiality of the physician-patient	60
relationship.	61

(B) A physician is not liable in damages in a civil action	62
for harm that allegedly is incurred by an employee as a result of	63
the physician reporting any of the following to the employer of	64
the employee:	65

(1) The physician has determined that the employee is using a	66
drug of abuse dispensed pursuant to a prescription and that the	67
employee's use of the drug of abuse represents a potential risk of	68
harminjury, death, or loss to person or property of passengers on	69
any aircraft, railroad train, school or other bus, taxicab, or	70
other type of common carrier operated by the employee;	71

(2) The physician has determined that the employee is using a	72
drug of abuse otherwise than pursuant to a prescription.	73

(3) The physician has determined that the employee has a	74
condition, other than one involving the use of a drug of abuse,	75
that represents a potential risk of harminjury, death, or loss to	76
person or property of passengers on any aircraft, railroad train,	77
school or other bus, taxicab, or other type of common carrier	78
operated by the employee.	79

(C)(1) This section does not create, and shall not be	80
construed as creating, a new cause of action or substantive legal	81
right against a physician and in favor of an employee who was a	82
patient of the physician, who was the subject of a report	83
described in division (B) of this section, and who allegedly	84
sustained harm as a result of the report, or in favor of any other	85
person who allegedly sustained harm as a result of the report.	86

(2) This section does not impose, and shall not be construed	87
as imposing, a duty upon a physician to make a report as described	88
in division (B) of this section to an employer of an employee who	89
the physician determines is using a drug of abuse dispensed	90
pursuant to a prescription or is using a drug of abuse other than	91
pursuant to a prescription, or who the physician determines has a	92
condition, other than one involving the use of a drug of abuse,	93
that represents a potential risk of harminjury, death, or loss to	94
person or property of passengers on the type of common carrier	95
operated by the employee.	96

(3) This section does not affect and shall not be construed	97
as affecting, any immunities from civil liability or defenses	98
established by another section of the Revised Code or available at	99
common law, to which a physician may be entitled.	100

(D) In the event thatIf a physician makes a report described	101
in division (B) of this section, the physician also shall make a	102
report to the employee who was the subject of the report. If the	103
report to the employer is in writing, the report to the employee	104
shall be in writing.	105

Sec. 2305.331.  (A) As used in this section:

106

(1) "Civil action" means a tort or contract action for	107
damages for harm.	108

(2) "Harm" means any injury, death, or loss to person or	109
property or any violation of a patient's privacy or	110
confidentiality rights under federal or state law.	111

(3) "Motor vehicle" has the same meaning as in section	112
4511.01 of the Revised Code.	113

(4) "Physician" means a person who is licensed pursuant to	114
Chapter 4731. of the Revised Code to practice medicine and surgery	115
or osteopathic medicine and surgery.	116

(5) "Prescription" has the same meaning as in section 4729.01	117
of the Revised Code.	118

(B) A physician is not liable in damages in a civil action	119
for harm that allegedly is incurred by a patient of the physician	120
as a result of the physician reporting any of the following to the	121
registrar of motor vehicles as provided in section 4507.20 of the	122
Revised Code, to another physician, to a police or other law	123
enforcement entity, to a family member or other individual	124
involved in the medical treatment of the patient, to a court	125
official, or to any other governmental body:	126

(1) The physician has determined that the patient is using a	127
drug of abuse dispensed pursuant to a prescription and that the	128
patient's use of the drug of abuse represents a potential risk of	129
injury, death, or loss to person or property arising from the	130
patient's operation of a motor vehicle.	131

(2) The physician has determined that the patient is using a	132
drug of abuse otherwise than pursuant to a prescription.	133

(3) The physician has determined that the patient has a	134
condition, other than one involving the use of a drug of abuse,	135
that represents a potential risk of injury, death, or loss to	136
person or property arising from the patient's operation of a motor	137
vehicle.	138

(C)(1) This section does not create, and shall not be	139
construed as creating, a new cause of action or substantive legal	140
right against a physician and in favor of a patient of the	141
physician who was the subject of a report described in division	142
(B) of this section and who allegedly sustained harm as a result	143
of the report or in favor of any other person who allegedly	144
sustained harm as a result of the report.	145

(2) This section does not impose, and shall not be construed	146
as imposing, a duty upon a physician to make a report as described	147
in division (B) of this section to any person or entity regarding	148
a patient who the physician determines is using a drug of abuse	149
dispensed pursuant to a prescription or is using a drug of abuse	150
other than pursuant to a prescription or who the physician	151
determines has a condition, other than one involving the use of a	152
drug of abuse, that represents a potential risk of injury, death,	153
or loss to person or property arising from the patient's operation	154
of a motor vehicle.	155

(3) This section does not affect and shall not be construed	156
as affecting any immunities from civil liability or defenses	157
established by another section of the Revised Code or available at	158
common law to which a physician may be entitled.	159

(D) If a physician makes a report described in division (B)	160
of this section, the physician also shall make a report to the	161
patient who was the subject of the report. If the report to a	162
person or entity described in division (B) of this section is in	163
writing, the report to the patient shall be in writing.	164

Sec. 2317.02.  The following persons shall not testify in	165
certain respects:	166

(A)(1) An attorney, concerning a communication made to the	167
attorney by a client in that relation or the attorney's advice to	168
a client, except that the attorney may testify by express consent	169
of the client or, if the client is deceased, by the express	170
consent of the surviving spouse or the executor or administrator	171
of the estate of the deceased client. However, if the client	172
voluntarily testifies or is deemed by section 2151.421 of the	173
Revised Code to have waived any testimonial privilege under this	174
division, the attorney may be compelled to testify on the same	175
subject.	176

The testimonial privilege established under this division	177
does not apply concerning a communication between a client who has	178
since died and the deceased client's attorney if the communication	179
is relevant to a dispute between parties who claim through that	180
deceased client, regardless of whether the claims are by testate	181
or intestate succession or by inter vivos transaction, and the	182
dispute addresses the competency of the deceased client when the	183
deceased client executed a document that is the basis of the	184
dispute or whether the deceased client was a victim of fraud,	185
undue influence, or duress when the deceased client executed a	186
document that is the basis of the dispute.	187

(2) An attorney, concerning a communication made to the	188
attorney by a client in that relationship or the attorney's advice	189
to a client, except that if the client is an insurance company,	190
the attorney may be compelled to testify, subject to an in camera	191
inspection by a court, about communications made by the client to	192
the attorney or by the attorney to the client that are related to	193
the attorney's aiding or furthering an ongoing or future	194
commission of bad faith by the client, if the party seeking	195
disclosure of the communications has made a prima-facie showing of	196
bad faith, fraud, or criminal misconduct by the client.	197

(B)(1) A physician or a dentist concerning a communication	198
made to the physician or dentist by a patient in that relation or	199
the physician's or dentist's advice to a patient, except as	200
otherwise provided in this division, division (B)(2), and division	201
(B)(3) of this section, and except that, if the patient is deemed	202
by section 2151.421 of the Revised Code to have waived any	203
testimonial privilege under this division, the physician may be	204
compelled to testify on the same subject.	205

The testimonial privilege established under this division	206
does not apply, and a physician or dentist may testify or may be	207
compelled to testify, in any of the following circumstances:	208

(a) In any civil action, in accordance with the discovery	209
provisions of the Rules of Civil Procedure in connection with a	210
civil action, or in connection with a claim under Chapter 4123. of	211
the Revised Code, under any of the following circumstances:	212

(i) If the patient or the guardian or other legal	213
representative of the patient gives express consent;	214

(ii) If the patient is deceased, the spouse of the patient or	215
the executor or administrator of the patient's estate gives	216
express consent;	217

(iii) If a medical claim, dental claim, chiropractic claim,	218
or optometric claim, as defined in section 2305.113 of the Revised	219
Code, an action for wrongful death, any other type of civil	220
action, or a claim under Chapter 4123. of the Revised Code is	221
filed by the patient, the personal representative of the estate of	222
the patient if deceased, or the patient's guardian or other legal	223
representative.	224

(b) In any civil action concerning court-ordered treatment or	225
services received by a patient, if the court-ordered treatment or	226
services were ordered as part of a case plan journalized under	227
section 2151.412 of the Revised Code or the court-ordered	228
treatment or services are necessary or relevant to dependency,	229
neglect, or abuse or temporary or permanent custody proceedings	230
under Chapter 2151. of the Revised Code.	231

(c) In any criminal action concerning any test or the results	232
of any test that determines the presence or concentration of	233
alcohol, a drug of abuse, a combination of them, a controlled	234
substance, or a metabolite of a controlled substance in the	235
patient's whole blood, blood serum or plasma, breath, urine, or	236
other bodily substance at any time relevant to the criminal	237
offense in question.	238

(d) In any criminal action against a physician or dentist. In	239
such an action, the testimonial privilege established under this	240
division does not prohibit the admission into evidence, in	241
accordance with the Rules of Evidence, of a patient's medical or	242
dental records or other communications between a patient and the	243
physician or dentist that are related to the action and obtained	244
by subpoena, search warrant, or other lawful means. A court that	245
permits or compels a physician or dentist to testify in such an	246
action or permits the introduction into evidence of patient	247
records or other communications in such an action shall require	248
that appropriate measures be taken to ensure that the	249
confidentiality of any patient named or otherwise identified in	250
the records is maintained. Measures to ensure confidentiality that	251
may be taken by the court include sealing its records or deleting	252
specific information from its records.	253

(e)(i) If the communication was between a patient who has	254
since died and the deceased patient's physician or dentist, the	255
communication is relevant to a dispute between parties who claim	256
through that deceased patient, regardless of whether the claims	257
are by testate or intestate succession or by inter vivos	258
transaction, and the dispute addresses the competency of the	259
deceased patient when the deceased patient executed a document	260
that is the basis of the dispute or whether the deceased patient	261
was a victim of fraud, undue influence, or duress when the	262
deceased patient executed a document that is the basis of the	263
dispute.	264

(ii) If neither the spouse of a patient nor the executor or	265
administrator of that patient's estate gives consent under	266
division (B)(1)(a)(ii) of this section, testimony or the	267
disclosure of the patient's medical records by a physician,	268
dentist, or other health care provider under division (B)(1)(e)(i)	269
of this section is a permitted use or disclosure of protected	270
health information, as defined in 45 C.F.R. 160.103, and an	271
authorization or opportunity to be heard shall not be required.	272

(iii) Division (B)(1)(e)(i) of this section does not require	273
a mental health professional to disclose psychotherapy notes, as	274
defined in 45 C.F.R. 164.501.	275

(iv) An interested person who objects to testimony or	276
disclosure under division (B)(1)(e)(i) of this section may seek a	277
protective order pursuant to Civil Rule 26.	278

(v) A person to whom protected health information is	279
disclosed under division (B)(1)(e)(i) of this section shall not	280
use or disclose the protected health information for any purpose	281
other than the litigation or proceeding for which the information	282
was requested and shall return the protected health information to	283
the covered entity or destroy the protected health information,	284
including all copies made, at the conclusion of the litigation or	285
proceeding.	286

(2)(a) If any law enforcement officer submits a written	287
statement to a health care provider that states that an official	288
criminal investigation has begun regarding a specified person or	289
that a criminal action or proceeding has been commenced against a	290
specified person, that requests the provider to supply to the	291
officer copies of any records the provider possesses that pertain	292
to any test or the results of any test administered to the	293
specified person to determine the presence or concentration of	294
alcohol, a drug of abuse, a combination of them, a controlled	295
substance, or a metabolite of a controlled substance in the	296
person's whole blood, blood serum or plasma, breath, or urine at	297
any time relevant to the criminal offense in question, and that	298
conforms to section 2317.022 of the Revised Code, the provider,	299
except to the extent specifically prohibited by any law of this	300
state or of the United States, shall supply to the officer a copy	301
of any of the requested records the provider possesses. If the	302
health care provider does not possess any of the requested	303
records, the provider shall give the officer a written statement	304
that indicates that the provider does not possess any of the	305
requested records.	306

(b) If a health care provider possesses any records of the	307
type described in division (B)(2)(a) of this section regarding the	308
person in question at any time relevant to the criminal offense in	309
question, in lieu of personally testifying as to the results of	310
the test in question, the custodian of the records may submit a	311
certified copy of the records, and, upon its submission, the	312
certified copy is qualified as authentic evidence and may be	313
admitted as evidence in accordance with the Rules of Evidence.	314
Division (A) of section 2317.422 of the Revised Code does not	315
apply to any certified copy of records submitted in accordance	316
with this division. Nothing in this division shall be construed to	317
limit the right of any party to call as a witness the person who	318
administered the test to which the records pertain, the person	319
under whose supervision the test was administered, the custodian	320
of the records, the person who made the records, or the person	321
under whose supervision the records were made.	322

(3)(a) If the testimonial privilege described in division	323
(B)(1) of this section does not apply as provided in division	324
(B)(1)(a)(iii) of this section, a physician or dentist may be	325
compelled to testify or to submit to discovery under the Rules of	326
Civil Procedure only as to a communication made to the physician	327
or dentist by the patient in question in that relation, or the	328
physician's or dentist's advice to the patient in question, that	329
related causally or historically to physical or mental injuries	330
that are relevant to issues in the medical claim, dental claim,	331
chiropractic claim, or optometric claim, action for wrongful	332
death, other civil action, or claim under Chapter 4123. of the	333
Revised Code.	334

(b) If the testimonial privilege described in division (B)(1)	335
of this section does not apply to a physician or dentist as	336
provided in division (B)(1)(c) of this section, the physician or	337
dentist, in lieu of personally testifying as to the results of the	338
test in question, may submit a certified copy of those results,	339
and, upon its submission, the certified copy is qualified as	340
authentic evidence and may be admitted as evidence in accordance	341
with the Rules of Evidence. Division (A) of section 2317.422 of	342
the Revised Code does not apply to any certified copy of results	343
submitted in accordance with this division. Nothing in this	344
division shall be construed to limit the right of any party to	345
call as a witness the person who administered the test in	346
question, the person under whose supervision the test was	347
administered, the custodian of the results of the test, the person	348
who compiled the results, or the person under whose supervision	349
the results were compiled.	350

(4) The testimonial privilege described in division (B)(1) of	351
this section is not waived when a communication is made by a	352
physician to a pharmacist or when there is communication between a	353
patient and a pharmacist in furtherance of the physician-patient	354
relation.	355

(5)(a) As used in divisions (B)(1) to (4) of this section,	356
"communication" means acquiring, recording, or transmitting any	357
information, in any manner, concerning any facts, opinions, or	358
statements necessary to enable a physician or dentist to diagnose,	359
treat, prescribe, or act for a patient. A "communication" may	360
include, but is not limited to, any medical or dental, office, or	361
hospital communication such as a record, chart, letter,	362
memorandum, laboratory test and results, x-ray, photograph,	363
financial statement, diagnosis, or prognosis.	364

(b) As used in division (B)(2) of this section, "health care	365
provider" means a hospital, ambulatory care facility, long-term	366
care facility, pharmacy, emergency facility, or health care	367
practitioner.	368

(c) As used in division (B)(5)(b) of this section:

369

(i) "Ambulatory care facility" means a facility that provides	370
medical, diagnostic, or surgical treatment to patients who do not	371
require hospitalization, including a dialysis center, ambulatory	372
surgical facility, cardiac catheterization facility, diagnostic	373
imaging center, extracorporeal shock wave lithotripsy center, home	374
health agency, inpatient hospice, birthing center, radiation	375
therapy center, emergency facility, and an urgent care center.	376
"Ambulatory health care facility" does not include the private	377
office of a physician or dentist, whether the office is for an	378
individual or group practice.	379

(ii) "Emergency facility" means a hospital emergency	380
department or any other facility that provides emergency medical	381
services.	382

(iii) "Health care practitioner" has the same meaning as in	383
section 4769.01 of the Revised Code.	384

(iv) "Hospital" has the same meaning as in section 3727.01 of	385
the Revised Code.	386

(v) "Long-term care facility" means a nursing home,	387
residential care facility, or home for the aging, as those terms	388
are defined in section 3721.01 of the Revised Code; an adult care	389
facility, as defined in section 5119.70 of the Revised Code; a	390
nursing facility or intermediate care facility for the mentally	391
retarded, as those terms are defined in section 5111.20 of the	392
Revised Code; a facility or portion of a facility certified as a	393
skilled nursing facility under Title XVIII of the "Social Security	394
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.	395

(vi) "Pharmacy" has the same meaning as in section 4729.01 of	396
the Revised Code.	397

(d) As used in divisions (B)(1) and (2) of this section,	398
"drug of abuse" has the same meaning as in section 4506.01 of the	399
Revised Code.	400

(6) Divisions (B)(1), (2), (3), (4), and (5) of this section	401
apply to doctors of medicine, doctors of osteopathic medicine,	402
doctors of podiatry, and dentists.	403

(7) Nothing in divisions (B)(1) to (6) of this section	404
affects, or shall be construed as affecting, the immunity from	405
civil liability conferred by sectionany of the following:	406

(a) Section 307.628 of the Revised Code or the immunity from	407
civil liability conferred by section;	408

(b) Section 2305.33 of the Revised Code upon physicians who	409
report an employee's use of a drug of abuse, or a condition of an	410
employee other than one involving the use of a drug of abuse, to	411
the employer of the employee in accordance with division (B) of	412
that section. As used in division (B)(7)(b) of this section,	413
"employee," "employer," and "physician" have the same meanings as	414
in section 2305.33 of the Revised Code.	415

(c) Section 2305.331 of the Revised Code upon physicians who,	416
in accordance with division (B) of that section, report a	417
patient's use of a drug of abuse or a condition of a patient other	418
than one involving the use of a drug of abuse to any of the	419
persons or entities described in that division. As used in	420
division (B)(7)(c) of this section, "physician" has the same	421
meaning as in section 2305.331 of the Revised Code.	422

(C)(1) A cleric, when the cleric remains accountable to the	423
authority of that cleric's church, denomination, or sect,	424
concerning a confession made, or any information confidentially	425
communicated, to the cleric for a religious counseling purpose in	426
the cleric's professional character. The cleric may testify by	427
express consent of the person making the communication, except	428
when the disclosure of the information is in violation of a sacred	429
trust and except that, if the person voluntarily testifies or is	430
deemed by division (A)(4)(c) of section 2151.421 of the Revised	431
Code to have waived any testimonial privilege under this division,	432
the cleric may be compelled to testify on the same subject except	433
when disclosure of the information is in violation of a sacred	434
trust.	435

(2) As used in division (C) of this section:

436

(a) "Cleric" means a member of the clergy, rabbi, priest,	437
Christian Science practitioner, or regularly ordained, accredited,	438
or licensed minister of an established and legally cognizable	439
church, denomination, or sect.	440

(b) "Sacred trust" means a confession or confidential	441
communication made to a cleric in the cleric's ecclesiastical	442
capacity in the course of discipline enjoined by the church to	443
which the cleric belongs, including, but not limited to, the	444
Catholic Church, if both of the following apply:	445

(i) The confession or confidential communication was made	446
directly to the cleric.	447

(ii) The confession or confidential communication was made in	448
the manner and context that places the cleric specifically and	449
strictly under a level of confidentiality that is considered	450
inviolate by canon law or church doctrine.	451

(D) Husband or wife, concerning any communication made by one	452
to the other, or an act done by either in the presence of the	453
other, during coverture, unless the communication was made, or act	454
done, in the known presence or hearing of a third person competent	455
to be a witness; and such rule is the same if the marital relation	456
has ceased to exist;	457

(E) A person who assigns a claim or interest, concerning any	458
matter in respect to which the person would not, if a party, be	459
permitted to testify;	460

(F) A person who, if a party, would be restricted under	461
section 2317.03 of the Revised Code, when the property or thing is	462
sold or transferred by an executor, administrator, guardian,	463
trustee, heir, devisee, or legatee, shall be restricted in the	464
same manner in any action or proceeding concerning the property or	465
thing.	466

(G)(1) A school guidance counselor who holds a valid educator	467
license from the state board of education as provided for in	468
section 3319.22 of the Revised Code, a person licensed under	469
Chapter 4757. of the Revised Code as a professional clinical	470
counselor, professional counselor, social worker, independent	471
social worker, marriage and family therapist or independent	472
marriage and family therapist, or registered under Chapter 4757.	473
of the Revised Code as a social work assistant concerning a	474
confidential communication received from a client in that relation	475
or the person's advice to a client unless any of the following	476
applies:	477

(a) The communication or advice indicates clear and present	478
danger to the client or other persons. For the purposes of this	479
division, cases in which there are indications of present or past	480
child abuse or neglect of the client constitute a clear and	481
present danger.	482

(b) The client gives express consent to the testimony.

483

(c) If the client is deceased, the surviving spouse or the	484
executor or administrator of the estate of the deceased client	485
gives express consent.	486

(d) The client voluntarily testifies, in which case the	487
school guidance counselor or person licensed or registered under	488
Chapter 4757. of the Revised Code may be compelled to testify on	489
the same subject.	490

(e) The court in camera determines that the information	491
communicated by the client is not germane to the counselor-client,	492
marriage and family therapist-client, or social worker-client	493
relationship.	494

(f) A court, in an action brought against a school, its	495
administration, or any of its personnel by the client, rules after	496
an in-camera inspection that the testimony of the school guidance	497
counselor is relevant to that action.	498

(g) The testimony is sought in a civil action and concerns	499
court-ordered treatment or services received by a patient as part	500
of a case plan journalized under section 2151.412 of the Revised	501
Code or the court-ordered treatment or services are necessary or	502
relevant to dependency, neglect, or abuse or temporary or	503
permanent custody proceedings under Chapter 2151. of the Revised	504
Code.	505

(2) Nothing in division (G)(1) of this section shall relieve	506
a school guidance counselor or a person licensed or registered	507
under Chapter 4757. of the Revised Code from the requirement to	508
report information concerning child abuse or neglect under section	509
2151.421 of the Revised Code.	510

(H) A mediator acting under a mediation order issued under	511
division (A) of section 3109.052 of the Revised Code or otherwise	512
issued in any proceeding for divorce, dissolution, legal	513
separation, annulment, or the allocation of parental rights and	514
responsibilities for the care of children, in any action or	515
proceeding, other than a criminal, delinquency, child abuse, child	516
neglect, or dependent child action or proceeding, that is brought	517
by or against either parent who takes part in mediation in	518
accordance with the order and that pertains to the mediation	519
process, to any information discussed or presented in the	520
mediation process, to the allocation of parental rights and	521
responsibilities for the care of the parents' children, or to the	522
awarding of parenting time rights in relation to their children;	523

(I) A communications assistant, acting within the scope of	524
the communication assistant's authority, when providing	525
telecommunications relay service pursuant to section 4931.06 of	526
the Revised Code or Title II of the "Communications Act of 1934,"	527
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication	528
made through a telecommunications relay service. Nothing in this	529
section shall limit the obligation of a communications assistant	530
to divulge information or testify when mandated by federal law or	531
regulation or pursuant to subpoena in a criminal proceeding.	532

Nothing in this section shall limit any immunity or privilege	533
granted under federal law or regulation.	534

(J)(1) A chiropractor in a civil proceeding concerning a	535
communication made to the chiropractor by a patient in that	536
relation or the chiropractor's advice to a patient, except as	537
otherwise provided in this division. The testimonial privilege	538
established under this division does not apply, and a chiropractor	539
may testify or may be compelled to testify, in any civil action,	540
in accordance with the discovery provisions of the Rules of Civil	541
Procedure in connection with a civil action, or in connection with	542
a claim under Chapter 4123. of the Revised Code, under any of the	543
following circumstances:	544

(a) If the patient or the guardian or other legal	545
representative of the patient gives express consent.	546

(b) If the patient is deceased, the spouse of the patient or	547
the executor or administrator of the patient's estate gives	548
express consent.	549

(c) If a medical claim, dental claim, chiropractic claim, or	550
optometric claim, as defined in section 2305.113 of the Revised	551
Code, an action for wrongful death, any other type of civil	552
action, or a claim under Chapter 4123. of the Revised Code is	553
filed by the patient, the personal representative of the estate of	554
the patient if deceased, or the patient's guardian or other legal	555
representative.	556

(2) If the testimonial privilege described in division (J)(1)	557
of this section does not apply as provided in division (J)(1)(c)	558
of this section, a chiropractor may be compelled to testify or to	559
submit to discovery under the Rules of Civil Procedure only as to	560
a communication made to the chiropractor by the patient in	561
question in that relation, or the chiropractor's advice to the	562
patient in question, that related causally or historically to	563
physical or mental injuries that are relevant to issues in the	564
medical claim, dental claim, chiropractic claim, or optometric	565
claim, action for wrongful death, other civil action, or claim	566
under Chapter 4123. of the Revised Code.	567

(3) The testimonial privilege established under this division	568
does not apply, and a chiropractor may testify or be compelled to	569
testify, in any criminal action or administrative proceeding.	570

(4) As used in this division, "communication" means	571
acquiring, recording, or transmitting any information, in any	572
manner, concerning any facts, opinions, or statements necessary to	573
enable a chiropractor to diagnose, treat, or act for a patient. A	574
communication may include, but is not limited to, any	575
chiropractic, office, or hospital communication such as a record,	576
chart, letter, memorandum, laboratory test and results, x-ray,	577
photograph, financial statement, diagnosis, or prognosis.	578

(K)(1) Except as provided under division (K)(2) of this	579
section, a critical incident stress management team member	580
concerning a communication received from an individual who	581
receives crisis response services from the team member, or the	582
team member's advice to the individual, during a debriefing	583
session.	584

(2) The testimonial privilege established under division	585
(K)(1) of this section does not apply if any of the following are	586
true:	587

(a) The communication or advice indicates clear and present	588
danger to the individual who receives crisis response services or	589
to other persons. For purposes of this division, cases in which	590
there are indications of present or past child abuse or neglect of	591
the individual constitute a clear and present danger.	592

(b) The individual who received crisis response services	593
gives express consent to the testimony.	594

(c) If the individual who received crisis response services	595
is deceased, the surviving spouse or the executor or administrator	596
of the estate of the deceased individual gives express consent.	597

(d) The individual who received crisis response services	598
voluntarily testifies, in which case the team member may be	599
compelled to testify on the same subject.	600

(e) The court in camera determines that the information	601
communicated by the individual who received crisis response	602
services is not germane to the relationship between the individual	603
and the team member.	604

(f) The communication or advice pertains or is related to any	605
criminal act.	606

(3) As used in division (K) of this section:

607

(a) "Crisis response services" means consultation, risk	608
assessment, referral, and on-site crisis intervention services	609
provided by a critical incident stress management team to	610
individuals affected by crisis or disaster.	611

(b) "Critical incident stress management team member" or	612
"team member" means an individual specially trained to provide	613
crisis response services as a member of an organized community or	614
local crisis response team that holds membership in the Ohio	615
critical incident stress management network.	616

(c) "Debriefing session" means a session at which crisis	617
response services are rendered by a critical incident stress	618
management team member during or after a crisis or disaster.	619

(L)(1) Subject to division (L)(2) of this section and except	620
as provided in division (L)(3) of this section, an employee	621
assistance professional, concerning a communication made to the	622
employee assistance professional by a client in the employee	623
assistance professional's official capacity as an employee	624
assistance professional.	625

(2) Division (L)(1) of this section applies to an employee	626
assistance professional who meets either or both of the following	627
requirements:	628

(a) Is certified by the employee assistance certification	629
commission to engage in the employee assistance profession;	630

(b) Has education, training, and experience in all of the	631
following:	632

(i) Providing workplace-based services designed to address	633
employer and employee productivity issues;	634

(ii) Providing assistance to employees and employees'	635
dependents in identifying and finding the means to resolve	636
personal problems that affect the employees or the employees'	637
performance;	638

(iii) Identifying and resolving productivity problems	639
associated with an employee's concerns about any of the following	640
matters: health, marriage, family, finances, substance abuse or	641
other addiction, workplace, law, and emotional issues;	642

(iv) Selecting and evaluating available community resources;

643

(v) Making appropriate referrals;

644

(vi) Local and national employee assistance agreements;

645

(vii) Client confidentiality.

646

(3) Division (L)(1) of this section does not apply to any of	647
the following:	648

(a) A criminal action or proceeding involving an offense	649
under sections 2903.01 to 2903.06 of the Revised Code if the	650
employee assistance professional's disclosure or testimony relates	651
directly to the facts or immediate circumstances of the offense;	652

(b) A communication made by a client to an employee	653
assistance professional that reveals the contemplation or	654
commission of a crime or serious, harmful act;	655

(c) A communication that is made by a client who is an	656
unemancipated minor or an adult adjudicated to be incompetent and	657
indicates that the client was the victim of a crime or abuse;	658

(d) A civil proceeding to determine an individual's mental	659
competency or a criminal action in which a plea of not guilty by	660
reason of insanity is entered;	661

(e) A civil or criminal malpractice action brought against	662
the employee assistance professional;	663

(f) When the employee assistance professional has the express	664
consent of the client or, if the client is deceased or disabled,	665
the client's legal representative;	666

(g) When the testimonial privilege otherwise provided by	667
division (L)(1) of this section is abrogated under law.	668

Sec. 4731.22.  (A) The state medical board, by an affirmative	669
vote of not fewer than six of its members, may revoke or may	670
refuse to grant a certificate to a person found by the board to	671
have committed fraud during the administration of the examination	672
for a certificate to practice or to have committed fraud,	673
misrepresentation, or deception in applying for or securing any	674
certificate to practice or certificate of registration issued by	675
the board.	676

(B) The board, by an affirmative vote of not fewer than six	677
members, shall, to the extent permitted by law, limit, revoke, or	678
suspend an individual's certificate to practice, refuse to	679
register an individual, refuse to reinstate a certificate, or	680
reprimand or place on probation the holder of a certificate for	681
one or more of the following reasons:	682

(1) Permitting one's name or one's certificate to practice or	683
certificate of registration to be used by a person, group, or	684
corporation when the individual concerned is not actually	685
directing the treatment given;	686

(2) Failure to maintain minimal standards applicable to the	687
selection or administration of drugs, or failure to employ	688
acceptable scientific methods in the selection of drugs or other	689
modalities for treatment of disease;	690

(3) Selling, giving away, personally furnishing, prescribing,	691
or administering drugs for other than legal and legitimate	692
therapeutic purposes or a plea of guilty to, a judicial finding of	693
guilt of, or a judicial finding of eligibility for intervention in	694
lieu of conviction of, a violation of any federal or state law	695
regulating the possession, distribution, or use of any drug;	696

(4) Willfully betraying a professional confidence.

697

For purposes of this division, "willfully betraying a	698
professional confidence" does not include providingany of the	699
following:	700

(a) Providing any information, documents, or reports to a	701
child fatality review board under sections 307.621 to 307.629 of	702
the Revised Code and does not include the making of;	703

(b) Making a report of an employee's use of a drug of abuse,	704
or a report of a condition of an employee other than one involving	705
the use of a drug of abuse, to the employer of the employee as	706
described in division (B) of section 2305.33 of the Revised Code.	707
Nothing in this division affects the immunity from civil liability	708
conferred by that section upon a physician who makes either type	709
ofa report as described in this division in accordance with	710
division (B) of that section. As used in this division,	711
"employee," "employer," and "physician" have the same meanings as	712
in section 2305.33 of the Revised Code.	713

(c) Making a report of a patient's use of a drug of abuse or	714
a report of a condition of a patient other than one involving the	715
use of a drug of abuse to any of the persons or entities described	716
in division (B) of section 2305.331 of the Revised Code. Nothing	717
in this division affects the immunity from civil liability	718
conferred by that section upon a physician who makes a report as	719
described in this division in accordance with division (B) of that	720
section. As used in this division, "physician" has the same	721
meaning as in section 2305.331 of the Revised Code.	722

(5) Making a false, fraudulent, deceptive, or misleading	723
statement in the solicitation of or advertising for patients; in	724
relation to the practice of medicine and surgery, osteopathic	725
medicine and surgery, podiatric medicine and surgery, or a limited	726
branch of medicine; or in securing or attempting to secure any	727
certificate to practice or certificate of registration issued by	728
the board.	729

As used in this division, "false, fraudulent, deceptive, or	730
misleading statement" means a statement that includes a	731
misrepresentation of fact, is likely to mislead or deceive because	732
of a failure to disclose material facts, is intended or is likely	733
to create false or unjustified expectations of favorable results,	734
or includes representations or implications that in reasonable	735
probability will cause an ordinarily prudent person to	736
misunderstand or be deceived.	737

(6) A departure from, or the failure to conform to, minimal	738
standards of care of similar practitioners under the same or	739
similar circumstances, whether or not actual injury to a patient	740
is established;	741

(7) Representing, with the purpose of obtaining compensation	742
or other advantage as personal gain or for any other person, that	743
an incurable disease or injury, or other incurable condition, can	744
be permanently cured;	745

(8) The obtaining of, or attempting to obtain, money or	746
anything of value by fraudulent misrepresentations in the course	747
of practice;	748

(9) A plea of guilty to, a judicial finding of guilt of, or a	749
judicial finding of eligibility for intervention in lieu of	750
conviction for, a felony;	751

(10) Commission of an act that constitutes a felony in this	752
state, regardless of the jurisdiction in which the act was	753
committed;	754

(11) A plea of guilty to, a judicial finding of guilt of, or	755
a judicial finding of eligibility for intervention in lieu of	756
conviction for, a misdemeanor committed in the course of practice;	757

(12) Commission of an act in the course of practice that	758
constitutes a misdemeanor in this state, regardless of the	759
jurisdiction in which the act was committed;	760

(13) A plea of guilty to, a judicial finding of guilt of, or	761
a judicial finding of eligibility for intervention in lieu of	762
conviction for, a misdemeanor involving moral turpitude;	763

(14) Commission of an act involving moral turpitude that	764
constitutes a misdemeanor in this state, regardless of the	765
jurisdiction in which the act was committed;	766

(15) Violation of the conditions of limitation placed by the	767
board upon a certificate to practice;	768

(16) Failure to pay license renewal fees specified in this	769
chapter;	770

(17) Except as authorized in section 4731.31 of the Revised	771
Code, engaging in the division of fees for referral of patients,	772
or the receiving of a thing of value in return for a specific	773
referral of a patient to utilize a particular service or business;	774

(18) Subject to section 4731.226 of the Revised Code,	775
violation of any provision of a code of ethics of the American	776
medical association, the American osteopathic association, the	777
American podiatric medical association, or any other national	778
professional organizations that the board specifies by rule. The	779
state medical board shall obtain and keep on file current copies	780
of the codes of ethics of the various national professional	781
organizations. The individual whose certificate is being suspended	782
or revoked shall not be found to have violated any provision of a	783
code of ethics of an organization not appropriate to the	784
individual's profession.	785

For purposes of this division, a "provision of a code of	786
ethics of a national professional organization" does not include	787
any provision that would preclude the making of a report by a	788
physician of an employee's use of a drug of abuse, or of a	789
condition of an employee other than one involving the use of a	790
drug of abuse, to the employer of the employee as described in	791
division (B) of section 2305.33 of the Revised Codefrom making a	792
report of the information described in division (B)(4)(b) or (c)	793
of this section. Nothing in this division affects the immunity	794
from civil liability conferred by that section 2305.33 or 2305.331	795
of the Revised Code upon a physician who makes either type ofa	796
report as described in this division in accordance with division	797
(B) of thateither section, whichever is applicable. As used in	798
this division, "employee," "employer," and "physician" havehas	799
the same meaningsmeaning as in section 2305.33 or 2305.331 of	800
the Revised Code, whichever is applicable.	801

(19) Inability to practice according to acceptable and	802
prevailing standards of care by reason of mental illness or	803
physical illness, including, but not limited to, physical	804
deterioration that adversely affects cognitive, motor, or	805
perceptive skills.	806

In enforcing this division, the board, upon a showing of a	807
possible violation, may compel any individual authorized to	808
practice by this chapter or who has submitted an application	809
pursuant to this chapter to submit to a mental examination,	810
physical examination, including an HIV test, or both a mental and	811
a physical examination. The expense of the examination is the	812
responsibility of the individual compelled to be examined. Failure	813
to submit to a mental or physical examination or consent to an HIV	814
test ordered by the board constitutes an admission of the	815
allegations against the individual unless the failure is due to	816
circumstances beyond the individual's control, and a default and	817
final order may be entered without the taking of testimony or	818
presentation of evidence. If the board finds an individual unable	819
to practice because of the reasons set forth in this division, the	820
board shall require the individual to submit to care, counseling,	821
or treatment by physicians approved or designated by the board, as	822
a condition for initial, continued, reinstated, or renewed	823
authority to practice. An individual affected under this division	824
shall be afforded an opportunity to demonstrate to the board the	825
ability to resume practice in compliance with acceptable and	826
prevailing standards under the provisions of the individual's	827
certificate. For the purpose of this division, any individual who	828
applies for or receives a certificate to practice under this	829
chapter accepts the privilege of practicing in this state and, by	830
so doing, shall be deemed to have given consent to submit to a	831
mental or physical examination when directed to do so in writing	832
by the board, and to have waived all objections to the	833
admissibility of testimony or examination reports that constitute	834
a privileged communication.	835

(20)(a) Except when civil penalties are imposed under section	836
4731.225 or 4731.281 of the Revised Code, and subject to section	837
4731.226 of the Revised Code or division (B)(20)(b) of this	838
section, violating or attempting to violate, directly or	839
indirectly, or assisting in or abetting the violation of, or	840
conspiring to violate, any provisions of this chapter or any rule	841
promulgated by the board.	842

This division(b) Division (B)(20)(a) of this section does	843
not apply to a violation or attempted violation of, assisting in	844
or abetting the violation of, or a conspiracy to violate, any	845
provision of this chapter or any rule adopted by the board that	846
would preclude the making of a report by a physician of an	847
employee's use of a drug of abuse, or of a condition of an	848
employee other than one involving the use of a drug of abuse, to	849
the employer of the employee as described in division (B) of	850
section 2305.33 of the Revised Codefrom making a report of the	851
information described in division (B)(4)(b) or (c) of this	852
section. Nothing in this division affects the immunity from civil	853
liability conferred by that section 2305.33 or 2305.331 of the	854
Revised Code upon a physician who makes either type ofa report as	855
described in this division in accordance with division (B) of that	856
either section, whichever is applicable. As used in this division,	857
"employee," "employer," and "physician" havehas the same	858
meaningsmeaning as in section 2305.33 or 2305.331 of the Revised	859
Code, whichever is applicable.	860

(21) The violation of section 3701.79 of the Revised Code or	861
of any abortion rule adopted by the public health council pursuant	862
to section 3701.341 of the Revised Code;	863

(22) Any of the following actions taken by an agency	864
responsible for authorizing, certifying, or regulating an	865
individual to practice a health care occupation or provide health	866
care services in this state or another jurisdiction, for any	867
reason other than the nonpayment of fees: the limitation,	868
revocation, or suspension of an individual's license to practice;	869
acceptance of an individual's license surrender; denial of a	870
license; refusal to renew or reinstate a license; imposition of	871
probation; or issuance of an order of censure or other reprimand;	872

(23) The violation of section 2919.12 of the Revised Code or	873
the performance or inducement of an abortion upon a pregnant woman	874
with actual knowledge that the conditions specified in division	875
(B) of section 2317.56 of the Revised Code have not been satisfied	876
or with a heedless indifference as to whether those conditions	877
have been satisfied, unless an affirmative defense as specified in	878
division (H)(2) of that section would apply in a civil action	879
authorized by division (H)(1) of that section;	880

(24) The revocation, suspension, restriction, reduction, or	881
termination of clinical privileges by the United States department	882
of defense or department of veterans affairs or the termination or	883
suspension of a certificate of registration to prescribe drugs by	884
the drug enforcement administration of the United States	885
department of justice;	886

(25) Termination or suspension from participation in the	887
medicare or medicaid programs by the department of health and	888
human services or other responsible agency for any act or acts	889
that also would constitute a violation of division (B)(2), (3),	890
(6), (8), or (19) of this section;	891

(26) Impairment of ability to practice according to	892
acceptable and prevailing standards of care because of habitual or	893
excessive use or abuse of drugs, alcohol, or other substances that	894
impair ability to practice.	895

For the purposes of this division, any individual authorized	896
to practice by this chapter accepts the privilege of practicing in	897
this state subject to supervision by the board. By filing an	898
application for or holding a certificate to practice under this	899
chapter, an individual shall be deemed to have given consent to	900
submit to a mental or physical examination when ordered to do so	901
by the board in writing, and to have waived all objections to the	902
admissibility of testimony or examination reports that constitute	903
privileged communications.	904

If it has reason to believe that any individual authorized to	905
practice by this chapter or any applicant for certification to	906
practice suffers such impairment, the board may compel the	907
individual to submit to a mental or physical examination, or both.	908
The expense of the examination is the responsibility of the	909
individual compelled to be examined. Any mental or physical	910
examination required under this division shall be undertaken by a	911
treatment provider or physician who is qualified to conduct the	912
examination and who is chosen by the board.	913

Failure to submit to a mental or physical examination ordered	914
by the board constitutes an admission of the allegations against	915
the individual unless the failure is due to circumstances beyond	916
the individual's control, and a default and final order may be	917
entered without the taking of testimony or presentation of	918
evidence. If the board determines that the individual's ability to	919
practice is impaired, the board shall suspend the individual's	920
certificate or deny the individual's application and shall require	921
the individual, as a condition for initial, continued, reinstated,	922
or renewed certification to practice, to submit to treatment.	923

Before being eligible to apply for reinstatement of a	924
certificate suspended under this division, the impaired	925
practitioner shall demonstrate to the board the ability to resume	926
practice in compliance with acceptable and prevailing standards of	927
care under the provisions of the practitioner's certificate. The	928
demonstration shall include, but shall not be limited to, the	929
following:	930

(a) Certification from a treatment provider approved under	931
section 4731.25 of the Revised Code that the individual has	932
successfully completed any required inpatient treatment;	933

(b) Evidence of continuing full compliance with an aftercare	934
contract or consent agreement;	935

(c) Two written reports indicating that the individual's	936
ability to practice has been assessed and that the individual has	937
been found capable of practicing according to acceptable and	938
prevailing standards of care. The reports shall be made by	939
individuals or providers approved by the board for making the	940
assessments and shall describe the basis for their determination.	941

The board may reinstate a certificate suspended under this	942
division after that demonstration and after the individual has	943
entered into a written consent agreement.	944

When the impaired practitioner resumes practice, the board	945
shall require continued monitoring of the individual. The	946
monitoring shall include, but not be limited to, compliance with	947
the written consent agreement entered into before reinstatement or	948
with conditions imposed by board order after a hearing, and, upon	949
termination of the consent agreement, submission to the board for	950
at least two years of annual written progress reports made under	951
penalty of perjury stating whether the individual has maintained	952
sobriety.	953

(27) A second or subsequent violation of section 4731.66 or	954
4731.69 of the Revised Code;	955

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

956

(a) Waiving the payment of all or any part of a deductible or	957
copayment that a patient, pursuant to a health insurance or health	958
care policy, contract, or plan that covers the individual's	959
services, otherwise would be required to pay if the waiver is used	960
as an enticement to a patient or group of patients to receive	961
health care services from that individual;	962

(b) Advertising that the individual will waive the payment of	963
all or any part of a deductible or copayment that a patient,	964
pursuant to a health insurance or health care policy, contract, or	965
plan that covers the individual's services, otherwise would be	966
required to pay.	967

(29) Failure to use universal blood and body fluid	968
precautions established by rules adopted under section 4731.051 of	969
the Revised Code;	970

(30) Failure to provide notice to, and receive acknowledgment	971
of the notice from, a patient when required by section 4731.143 of	972
the Revised Code prior to providing nonemergency professional	973
services, or failure to maintain that notice in the patient's	974
file;	975

(31) Failure of a physician supervising a physician assistant	976
to maintain supervision in accordance with the requirements of	977
Chapter 4730. of the Revised Code and the rules adopted under that	978
chapter;	979

(32) Failure of a physician or podiatrist to enter into a	980
standard care arrangement with a clinical nurse specialist,	981
certified nurse-midwife, or certified nurse practitioner with whom	982
the physician or podiatrist is in collaboration pursuant to	983
section 4731.27 of the Revised Code or failure to fulfill the	984
responsibilities of collaboration after entering into a standard	985
care arrangement;	986

(33) Failure to comply with the terms of a consult agreement	987
entered into with a pharmacist pursuant to section 4729.39 of the	988
Revised Code;	989

(34) Failure to cooperate in an investigation conducted by	990
the board under division (F) of this section, including failure to	991
comply with a subpoena or order issued by the board or failure to	992
answer truthfully a question presented by the board at a	993
deposition or in written interrogatories, except that failure to	994
cooperate with an investigation shall not constitute grounds for	995
discipline under this section if a court of competent jurisdiction	996
has issued an order that either quashes a subpoena or permits the	997
individual to withhold the testimony or evidence in issue;	998

(35) Failure to supervise an acupuncturist in accordance with	999
Chapter 4762. of the Revised Code and the board's rules for	1000
supervision of an acupuncturist;	1001

(36) Failure to supervise an anesthesiologist assistant in	1002
accordance with Chapter 4760. of the Revised Code and the board's	1003
rules for supervision of an anesthesiologist assistant;	1004

(37) Assisting suicide as defined in section 3795.01 of the	1005
Revised Code;	1006

(38) Failure to comply with the requirements of section	1007
2317.561 of the Revised Code;	1008

(39) Failure to supervise a radiologist assistant in	1009
accordance with Chapter 4774. of the Revised Code and the board's	1010
rules for supervision of radiologist assistants;	1011

(40) Performing or inducing an abortion at an office or	1012
facility with knowledge that the office or facility fails to post	1013
the notice required under section 3701.791 of the Revised Code;	1014

(41) Failure to comply with the standards and procedures	1015
established in rules under section 4731.054 of the Revised Code	1016
for the operation of or the provision of care at a pain management	1017
clinic;	1018

(42) Failure to comply with the standards and procedures	1019
established in rules under section 4731.054 of the Revised Code	1020
for providing supervision, direction, and control of individuals	1021
at a pain management clinic;	1022

(43) Failure to comply with the requirements of section	1023
4729.79 of the Revised Code, unless the state board of pharmacy no	1024
longer maintains a drug database pursuant to section 4729.75 of	1025
the Revised Code;	1026

(41)(44) Failure to comply with the requirements of section	1027
2919.171 of the Revised Code or failure to submit to the	1028
department of health in accordance with a court order a complete	1029
report as described in section 2919.171 of the Revised Code.	1030

(C) Disciplinary actions taken by the board under divisions	1031
(A) and (B) of this section shall be taken pursuant to an	1032
adjudication under Chapter 119. of the Revised Code, except that	1033
in lieu of an adjudication, the board may enter into a consent	1034
agreement with an individual to resolve an allegation of a	1035
violation of this chapter or any rule adopted under it. A consent	1036
agreement, when ratified by an affirmative vote of not fewer than	1037
six members of the board, shall constitute the findings and order	1038
of the board with respect to the matter addressed in the	1039
agreement. If the board refuses to ratify a consent agreement, the	1040
admissions and findings contained in the consent agreement shall	1041
be of no force or effect.	1042

A telephone conference call may be utilized for ratification	1043
of a consent agreement that revokes or suspends an individual's	1044
certificate to practice. The telephone conference call shall be	1045
considered a special meeting under division (F) of section 121.22	1046
of the Revised Code.	1047

If the board takes disciplinary action against an individual	1048
under division (B) of this section for a second or subsequent plea	1049
of guilty to, or judicial finding of guilt of, a violation of	1050
section 2919.123 of the Revised Code, the disciplinary action	1051
shall consist of a suspension of the individual's certificate to	1052
practice for a period of at least one year or, if determined	1053
appropriate by the board, a more serious sanction involving the	1054
individual's certificate to practice. Any consent agreement	1055
entered into under this division with an individual that pertains	1056
to a second or subsequent plea of guilty to, or judicial finding	1057
of guilt of, a violation of that section shall provide for a	1058
suspension of the individual's certificate to practice for a	1059
period of at least one year or, if determined appropriate by the	1060
board, a more serious sanction involving the individual's	1061
certificate to practice.	1062

(D) For purposes of divisions (B)(10), (12), and (14) of this	1063
section, the commission of the act may be established by a finding	1064
by the board, pursuant to an adjudication under Chapter 119. of	1065
the Revised Code, that the individual committed the act. The board	1066
does not have jurisdiction under those divisions if the trial	1067
court renders a final judgment in the individual's favor and that	1068
judgment is based upon an adjudication on the merits. The board	1069
has jurisdiction under those divisions if the trial court issues	1070
an order of dismissal upon technical or procedural grounds.	1071

(E) The sealing of conviction records by any court shall have	1072
no effect upon a prior board order entered under this section or	1073
upon the board's jurisdiction to take action under this section	1074
if, based upon a plea of guilty, a judicial finding of guilt, or a	1075
judicial finding of eligibility for intervention in lieu of	1076
conviction, the board issued a notice of opportunity for a hearing	1077
prior to the court's order to seal the records. The board shall	1078
not be required to seal, destroy, redact, or otherwise modify its	1079
records to reflect the court's sealing of conviction records.	1080

(F)(1) The board shall investigate evidence that appears to	1081
show that a person has violated any provision of this chapter or	1082
any rule adopted under it. Any person may report to the board in a	1083
signed writing any information that the person may have that	1084
appears to show a violation of any provision of this chapter or	1085
any rule adopted under it. In the absence of bad faith, any person	1086
who reports information of that nature or who testifies before the	1087
board in any adjudication conducted under Chapter 119. of the	1088
Revised Code shall not be liable in damages in a civil action as a	1089
result of the report or testimony. Each complaint or allegation of	1090
a violation received by the board shall be assigned a case number	1091
and shall be recorded by the board.	1092

(2) Investigations of alleged violations of this chapter or	1093
any rule adopted under it shall be supervised by the supervising	1094
member elected by the board in accordance with section 4731.02 of	1095
the Revised Code and by the secretary as provided in section	1096
4731.39 of the Revised Code. The president may designate another	1097
member of the board to supervise the investigation in place of the	1098
supervising member. No member of the board who supervises the	1099
investigation of a case shall participate in further adjudication	1100
of the case.	1101

(3) In investigating a possible violation of this chapter or	1102
any rule adopted under this chapter, the board may administer	1103
oaths, order the taking of depositions, inspect and copy any	1104
books, accounts, papers, records, or documents, issue subpoenas,	1105
and compel the attendance of witnesses and production of books,	1106
accounts, papers, records, documents, and testimony, except that a	1107
subpoena for patient record information shall not be issued	1108
without consultation with the attorney general's office and	1109
approval of the secretary and supervising member of the board.	1110
Before issuance of a subpoena for patient record information, the	1111
secretary and supervising member shall determine whether there is	1112
probable cause to believe that the complaint filed alleges a	1113
violation of this chapter or any rule adopted under it and that	1114
the records sought are relevant to the alleged violation and	1115
material to the investigation. The subpoena may apply only to	1116
records that cover a reasonable period of time surrounding the	1117
alleged violation.	1118

On failure to comply with any subpoena issued by the board	1119
and after reasonable notice to the person being subpoenaed, the	1120
board may move for an order compelling the production of persons	1121
or records pursuant to the Rules of Civil Procedure.	1122

A subpoena issued by the board may be served by a sheriff,	1123
the sheriff's deputy, or a board employee designated by the board.	1124
Service of a subpoena issued by the board may be made by	1125
delivering a copy of the subpoena to the person named therein,	1126
reading it to the person, or leaving it at the person's usual	1127
place of residence. When the person being served is a person whose	1128
practice is authorized by this chapter, service of the subpoena	1129
may be made by certified mail, restricted delivery, return receipt	1130
requested, and the subpoena shall be deemed served on the date	1131
delivery is made or the date the person refuses to accept	1132
delivery.	1133

A sheriff's deputy who serves a subpoena shall receive the	1134
same fees as a sheriff. Each witness who appears before the board	1135
in obedience to a subpoena shall receive the fees and mileage	1136
provided for under section 119.094 of the Revised Code.	1137

(4) All hearings and investigations of the board shall be	1138
considered civil actions for the purposes of section 2305.252 of	1139
the Revised Code.	1140

(5) Information received by the board pursuant to an	1141
investigation is confidential and not subject to discovery in any	1142
civil action.	1143

The board shall conduct all investigations and proceedings in	1144
a manner that protects the confidentiality of patients and persons	1145
who file complaints with the board. The board shall not make	1146
public the names or any other identifying information about	1147
patients or complainants unless proper consent is given or, in the	1148
case of a patient, a waiver of the patient privilege exists under	1149
division (B) of section 2317.02 of the Revised Code, except that	1150
consent or a waiver of that nature is not required if the board	1151
possesses reliable and substantial evidence that no bona fide	1152
physician-patient relationship exists.	1153

The board may share any information it receives pursuant to	1154
an investigation, including patient records and patient record	1155
information, with law enforcement agencies, other licensing	1156
boards, and other governmental agencies that are prosecuting,	1157
adjudicating, or investigating alleged violations of statutes or	1158
administrative rules. An agency or board that receives the	1159
information shall comply with the same requirements regarding	1160
confidentiality as those with which the state medical board must	1161
comply, notwithstanding any conflicting provision of the Revised	1162
Code or procedure of the agency or board that applies when it is	1163
dealing with other information in its possession. In a judicial	1164
proceeding, the information may be admitted into evidence only in	1165
accordance with the Rules of Evidence, but the court shall require	1166
that appropriate measures are taken to ensure that confidentiality	1167
is maintained with respect to any part of the information that	1168
contains names or other identifying information about patients or	1169
complainants whose confidentiality was protected by the state	1170
medical board when the information was in the board's possession.	1171
Measures to ensure confidentiality that may be taken by the court	1172
include sealing its records or deleting specific information from	1173
its records.	1174

(6) On a quarterly basis, the board shall prepare a report	1175
that documents the disposition of all cases during the preceding	1176
three months. The report shall contain the following information	1177
for each case with which the board has completed its activities:	1178

(a) The case number assigned to the complaint or alleged	1179
violation;	1180

(b) The type of certificate to practice, if any, held by the	1181
individual against whom the complaint is directed;	1182

(c) A description of the allegations contained in the	1183
complaint;	1184

(d) The disposition of the case.

1185

The report shall state how many cases are still pending and	1186
shall be prepared in a manner that protects the identity of each	1187
person involved in each case. The report shall be a public record	1188
under section 149.43 of the Revised Code.	1189

(G) If the secretary and supervising member determine both of	1190
the following, they may recommend that the board suspend an	1191
individual's certificate to practice without a prior hearing:	1192

(1) That there is clear and convincing evidence that an	1193
individual has violated division (B) of this section;	1194

(2) That the individual's continued practice presents a	1195
danger of immediate and serious harm to the public.	1196

Written allegations shall be prepared for consideration by	1197
the board. The board, upon review of those allegations and by an	1198
affirmative vote of not fewer than six of its members, excluding	1199
the secretary and supervising member, may suspend a certificate	1200
without a prior hearing. A telephone conference call may be	1201
utilized for reviewing the allegations and taking the vote on the	1202
summary suspension.	1203

The board shall issue a written order of suspension by	1204
certified mail or in person in accordance with section 119.07 of	1205
the Revised Code. The order shall not be subject to suspension by	1206
the court during pendency of any appeal filed under section 119.12	1207
of the Revised Code. If the individual subject to the summary	1208
suspension requests an adjudicatory hearing by the board, the date	1209
set for the hearing shall be within fifteen days, but not earlier	1210
than seven days, after the individual requests the hearing, unless	1211
otherwise agreed to by both the board and the individual.	1212

Any summary suspension imposed under this division shall	1213
remain in effect, unless reversed on appeal, until a final	1214
adjudicative order issued by the board pursuant to this section	1215
and Chapter 119. of the Revised Code becomes effective. The board	1216
shall issue its final adjudicative order within seventy-five days	1217
after completion of its hearing. A failure to issue the order	1218
within seventy-five days shall result in dissolution of the	1219
summary suspension order but shall not invalidate any subsequent,	1220
final adjudicative order.	1221

(H) If the board takes action under division (B)(9), (11), or	1222
(13) of this section and the judicial finding of guilt, guilty	1223
plea, or judicial finding of eligibility for intervention in lieu	1224
of conviction is overturned on appeal, upon exhaustion of the	1225
criminal appeal, a petition for reconsideration of the order may	1226
be filed with the board along with appropriate court documents.	1227
Upon receipt of a petition of that nature and supporting court	1228
documents, the board shall reinstate the individual's certificate	1229
to practice. The board may then hold an adjudication under Chapter	1230
119. of the Revised Code to determine whether the individual	1231
committed the act in question. Notice of an opportunity for a	1232
hearing shall be given in accordance with Chapter 119. of the	1233
Revised Code. If the board finds, pursuant to an adjudication held	1234
under this division, that the individual committed the act or if	1235
no hearing is requested, the board may order any of the sanctions	1236
identified under division (B) of this section.	1237

(I) The certificate to practice issued to an individual under	1238
this chapter and the individual's practice in this state are	1239
automatically suspended as of the date of the individual's second	1240
or subsequent plea of guilty to, or judicial finding of guilt of,	1241
a violation of section 2919.123 of the Revised Code, or the date	1242
the individual pleads guilty to, is found by a judge or jury to be	1243
guilty of, or is subject to a judicial finding of eligibility for	1244
intervention in lieu of conviction in this state or treatment or	1245
intervention in lieu of conviction in another jurisdiction for any	1246
of the following criminal offenses in this state or a	1247
substantially equivalent criminal offense in another jurisdiction:	1248
aggravated murder, murder, voluntary manslaughter, felonious	1249
assault, kidnapping, rape, sexual battery, gross sexual	1250
imposition, aggravated arson, aggravated robbery, or aggravated	1251
burglary. Continued practice after suspension shall be considered	1252
practicing without a certificate.	1253

The board shall notify the individual subject to the	1254
suspension by certified mail or in person in accordance with	1255
section 119.07 of the Revised Code. If an individual whose	1256
certificate is automatically suspended under this division fails	1257
to make a timely request for an adjudication under Chapter 119. of	1258
the Revised Code, the board shall do whichever of the following is	1259
applicable:	1260

(1) If the automatic suspension under this division is for a	1261
second or subsequent plea of guilty to, or judicial finding of	1262
guilt of, a violation of section 2919.123 of the Revised Code, the	1263
board shall enter an order suspending the individual's certificate	1264
to practice for a period of at least one year or, if determined	1265
appropriate by the board, imposing a more serious sanction	1266
involving the individual's certificate to practice.	1267

(2) In all circumstances in which division (I)(1) of this	1268
section does not apply, enter a final order permanently revoking	1269
the individual's certificate to practice.	1270

(J) If the board is required by Chapter 119. of the Revised	1271
Code to give notice of an opportunity for a hearing and if the	1272
individual subject to the notice does not timely request a hearing	1273
in accordance with section 119.07 of the Revised Code, the board	1274
is not required to hold a hearing, but may adopt, by an	1275
affirmative vote of not fewer than six of its members, a final	1276
order that contains the board's findings. In that final order, the	1277
board may order any of the sanctions identified under division (A)	1278
or (B) of this section.	1279

(K) Any action taken by the board under division (B) of this	1280
section resulting in a suspension from practice shall be	1281
accompanied by a written statement of the conditions under which	1282
the individual's certificate to practice may be reinstated. The	1283
board shall adopt rules governing conditions to be imposed for	1284
reinstatement. Reinstatement of a certificate suspended pursuant	1285
to division (B) of this section requires an affirmative vote of	1286
not fewer than six members of the board.	1287

(L) When the board refuses to grant a certificate to an	1288
applicant, revokes an individual's certificate to practice,	1289
refuses to register an applicant, or refuses to reinstate an	1290
individual's certificate to practice, the board may specify that	1291
its action is permanent. An individual subject to a permanent	1292
action taken by the board is forever thereafter ineligible to hold	1293
a certificate to practice and the board shall not accept an	1294
application for reinstatement of the certificate or for issuance	1295
of a new certificate.	1296

(M) Notwithstanding any other provision of the Revised Code,	1297
all of the following apply:	1298

(1) The surrender of a certificate issued under this chapter	1299
shall not be effective unless or until accepted by the board. A	1300
telephone conference call may be utilized for acceptance of the	1301
surrender of an individual's certificate to practice. The	1302
telephone conference call shall be considered a special meeting	1303
under division (F) of section 121.22 of the Revised Code.	1304
Reinstatement of a certificate surrendered to the board requires	1305
an affirmative vote of not fewer than six members of the board.	1306

(2) An application for a certificate made under the	1307
provisions of this chapter may not be withdrawn without approval	1308
of the board.	1309

(3) Failure by an individual to renew a certificate of	1310
registration in accordance with this chapter shall not remove or	1311
limit the board's jurisdiction to take any disciplinary action	1312
under this section against the individual.	1313

(N) Sanctions shall not be imposed under division (B)(28) of	1314
this section against any person who waives deductibles and	1315
copayments as follows:	1316

(1) In compliance with the health benefit plan that expressly	1317
allows such a practice. Waiver of the deductibles or copayments	1318
shall be made only with the full knowledge and consent of the plan	1319
purchaser, payer, and third-party administrator. Documentation of	1320
the consent shall be made available to the board upon request.	1321

(2) For professional services rendered to any other person	1322
authorized to practice pursuant to this chapter, to the extent	1323
allowed by this chapter and rules adopted by the board.	1324

(O) Under the board's investigative duties described in this	1325
section and subject to division (F) of this section, the board	1326
shall develop and implement a quality intervention program	1327
designed to improve through remedial education the clinical and	1328
communication skills of individuals authorized under this chapter	1329
to practice medicine and surgery, osteopathic medicine and	1330
surgery, and podiatric medicine and surgery. In developing and	1331
implementing the quality intervention program, the board may do	1332
all of the following:	1333

(1) Offer in appropriate cases as determined by the board an	1334
educational and assessment program pursuant to an investigation	1335
the board conducts under this section;	1336

(2) Select providers of educational and assessment services,	1337
including a quality intervention program panel of case reviewers;	1338

(3) Make referrals to educational and assessment service	1339
providers and approve individual educational programs recommended	1340
by those providers. The board shall monitor the progress of each	1341
individual undertaking a recommended individual educational	1342
program.	1343

(4) Determine what constitutes successful completion of an	1344
individual educational program and require further monitoring of	1345
the individual who completed the program or other action that the	1346
board determines to be appropriate;	1347

(5) Adopt rules in accordance with Chapter 119. of the	1348
Revised Code to further implement the quality intervention	1349
program.	1350

An individual who participates in an individual educational	1351
program pursuant to this division shall pay the financial	1352
obligations arising from that educational program.	1353

Section 2.  That existing sections 2305.33, 2317.02, and	1354
4731.22 of the Revised Code are hereby repealed.	1355

Section 3.  Section 4731.22 of the Revised Code is presented	1356
in this act as a composite of the section as amended by both H.B.	1357
78 and Am. Sub. H.B. 93 of the 129th General Assembly. The General	1358
Assembly, applying the principle stated in division (B) of section	1359
1.52 of the Revised Code that amendments are to be harmonized if	1360
reasonably capable of simultaneous operation, finds that the	1361
composite is the resulting version of the section in effect prior	1362
to the effective date of the section as presented in this act.	1363