As Reported by the House Criminal Justice Committee

129th General Assembly Regular Session 2011-2012

Sub. H. B. No. 421

Representatives Slaby, L., O'Brien 

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

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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 and that	73
the employee's use of the drug of abuse represents a potential	74
risk of injury, death, or loss to person or property of passengers	75
on any aircraft, railroad train, school or other bus, taxicab, or	76
other type of common carrier operated by the employer.	77

(3) The physician has determined that the employee has a	78
condition, other than one involving the use of a drug of abuse,	79
that represents a potential risk of harminjury, death, or loss to	80
person or property of passengers on any aircraft, railroad train,	81
school or other bus, taxicab, or other type of common carrier	82
operated by the employee.	83

(C)(1) This section does not create, and shall not be	84
construed as creating, a new cause of action or substantive legal	85
right against a physician and in favor of an employee who was a	86
patient of the physician, who was the subject of a report	87
described in division (B) of this section, and who allegedly	88
sustained harm as a result of the report, or in favor of any other	89
person who allegedly sustained harm as a result of the report.	90

(2) This section does not impose, and shall not be construed	91
as imposing, a duty upon a physician to make a report as described	92
in division (B) of this section to an employer of an employee who	93
the physician determines is using a drug of abuse dispensed	94
pursuant to a prescription or is using a drug of abuse other than	95
pursuant to a prescription, or who the physician determines has a	96
condition, other than one involving the use of a drug of abuse,	97
that represents a potential risk of harminjury, death, or loss to	98
person or property of passengers on the type of common carrier	99
operated by the employee.	100

(3) This section does not affect and shall not be construed	101
as affecting, any immunities from civil liability or defenses	102
established by another section of the Revised Code or available at	103
common law, to which a physician may be entitled.	104

(D) In the event thatIf a physician makes a report described	105
in division (B) of this section, the physician also shall make a	106
report to the employee who was the subject of the report. If the	107
report to the employer is in writing, the report to the employee	108
shall be in writing.	109

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

110

(1) "Civil action" means a tort or contract action for	111
damages for harm.	112

(2) "Harm" means any injury, death, or loss to person or	113
property or any violation of a patient's privacy or	114
confidentiality rights under federal or state law.	115

(3) "Motor vehicle" has the same meaning as in section	116
4511.01 of the Revised Code.	117

(4) "Physician" means a person who is licensed pursuant to	118
Chapter 4731. of the Revised Code to practice medicine and surgery	119
or osteopathic medicine and surgery.	120

(5) "Prescription" has the same meaning as in section 4729.01	121
of the Revised Code.	122

(B) A physician is not liable in damages in a civil action	123
for harm that allegedly is incurred by a patient of the physician	124
as a result of the physician reporting any of the following to the	125
registrar of motor vehicles as provided in section 4507.20 of the	126
Revised Code or to another physician, a police or other law	127
enforcement entity, a family member or other individual involved	128
in the medical treatment of the patient, a court official, an	129
employer of the patient, or any other governmental body that is	130
reasonably able to prevent or lessen the potential risk of injury,	131
death, or loss to person or property arising from the patient's	132
operation of a motor vehicle:	133

(1) The physician has determined that the patient is using a	134
drug of abuse dispensed pursuant to a prescription and that the	135
patient's use of the drug of abuse represents a potential risk of	136
injury, death, or loss to person or property arising from the	137
patient's operation of a motor vehicle.	138

(2) The physician has determined that the patient is using a	139
drug of abuse otherwise than pursuant to a prescription and that	140
the patient's use of the drug of abuse represents a potential risk	141
of injury, death, or loss to person or property arising from the	142
patient's operation of a motor vehicle.	143

(3) The physician has determined that the patient has a	144
condition, other than one involving the use of a drug of abuse,	145
that represents a potential risk of injury, death, or loss to	146
person or property arising from the patient's operation of a motor	147
vehicle.	148

(C)(1) This section does not create, and shall not be	149
construed as creating, a new cause of action or substantive legal	150
right against a physician and in favor of a patient of the	151
physician who was the subject of a report described in division	152
(B) of this section and who allegedly sustained harm as a result	153
of the report or in favor of any other person who allegedly	154
sustained harm as a result of the report.	155

(2) This section does not impose, and shall not be construed	156
as imposing, a duty upon a physician to make a report as described	157
in division (B) of this section to any person or entity regarding	158
a patient who the physician determines is using a drug of abuse	159
dispensed pursuant to a prescription or is using a drug of abuse	160
other than pursuant to a prescription or who the physician	161
determines has a condition, other than one involving the use of a	162
drug of abuse, that represents a potential risk of injury, death,	163
or loss to person or property arising from the patient's operation	164
of a motor vehicle.	165

(3) This section does not affect and shall not be construed	166
as affecting any immunities from civil liability or defenses	167
established by another section of the Revised Code or available at	168
common law to which a physician may be entitled.	169

(D) If a physician makes a report described in division (B)	170
of this section, the physician also shall make a report to the	171
patient who was the subject of the report. If the report to a	172
person or entity described in division (B) of this section is in	173
writing, the report to the patient shall be in writing.	174

(E) Any report submitted by a physician to a governmental	175
body under division (B) of this section is confidential, is not a	176
public record, and is not subject to disclosure under section	177
149.43 of the Revised Code.	178

Sec. 2317.02.  The following persons shall not testify in	179
certain respects:	180

(A)(1) An attorney, concerning a communication made to the	181
attorney by a client in that relation or the attorney's advice to	182
a client, except that the attorney may testify by express consent	183
of the client or, if the client is deceased, by the express	184
consent of the surviving spouse or the executor or administrator	185
of the estate of the deceased client. However, if the client	186
voluntarily testifies or is deemed by section 2151.421 of the	187
Revised Code to have waived any testimonial privilege under this	188
division, the attorney may be compelled to testify on the same	189
subject.	190

The testimonial privilege established under this division	191
does not apply concerning a communication between a client who has	192
since died and the deceased client's attorney if the communication	193
is relevant to a dispute between parties who claim through that	194
deceased client, regardless of whether the claims are by testate	195
or intestate succession or by inter vivos transaction, and the	196
dispute addresses the competency of the deceased client when the	197
deceased client executed a document that is the basis of the	198
dispute or whether the deceased client was a victim of fraud,	199
undue influence, or duress when the deceased client executed a	200
document that is the basis of the dispute.	201

(2) An attorney, concerning a communication made to the	202
attorney by a client in that relationship or the attorney's advice	203
to a client, except that if the client is an insurance company,	204
the attorney may be compelled to testify, subject to an in camera	205
inspection by a court, about communications made by the client to	206
the attorney or by the attorney to the client that are related to	207
the attorney's aiding or furthering an ongoing or future	208
commission of bad faith by the client, if the party seeking	209
disclosure of the communications has made a prima-facie showing of	210
bad faith, fraud, or criminal misconduct by the client.	211

(B)(1) A physician or a dentist concerning a communication	212
made to the physician or dentist by a patient in that relation or	213
the physician's or dentist's advice to a patient, except as	214
otherwise provided in this division, division (B)(2), and division	215
(B)(3) of this section, and except that, if the patient is deemed	216
by section 2151.421 of the Revised Code to have waived any	217
testimonial privilege under this division, the physician may be	218
compelled to testify on the same subject.	219

The testimonial privilege established under this division	220
does not apply, and a physician or dentist may testify or may be	221
compelled to testify, in any of the following circumstances:	222

(a) In any civil action, in accordance with the discovery	223
provisions of the Rules of Civil Procedure in connection with a	224
civil action, or in connection with a claim under Chapter 4123. of	225
the Revised Code, under any of the following circumstances:	226

(i) If the patient or the guardian or other legal	227
representative of the patient gives express consent;	228

(ii) If the patient is deceased, the spouse of the patient or	229
the executor or administrator of the patient's estate gives	230
express consent;	231

(iii) If a medical claim, dental claim, chiropractic claim,	232
or optometric claim, as defined in section 2305.113 of the Revised	233
Code, an action for wrongful death, any other type of civil	234
action, or a claim under Chapter 4123. of the Revised Code is	235
filed by the patient, the personal representative of the estate of	236
the patient if deceased, or the patient's guardian or other legal	237
representative.	238

(b) In any civil action concerning court-ordered treatment or	239
services received by a patient, if the court-ordered treatment or	240
services were ordered as part of a case plan journalized under	241
section 2151.412 of the Revised Code or the court-ordered	242
treatment or services are necessary or relevant to dependency,	243
neglect, or abuse or temporary or permanent custody proceedings	244
under Chapter 2151. of the Revised Code.	245

(c) In any criminal action concerning any test or the results	246
of any test that determines the presence or concentration of	247
alcohol, a drug of abuse, a combination of them, a controlled	248
substance, or a metabolite of a controlled substance in the	249
patient's whole blood, blood serum or plasma, breath, urine, or	250
other bodily substance at any time relevant to the criminal	251
offense in question.	252

(d) In any criminal action against a physician or dentist. In	253
such an action, the testimonial privilege established under this	254
division does not prohibit the admission into evidence, in	255
accordance with the Rules of Evidence, of a patient's medical or	256
dental records or other communications between a patient and the	257
physician or dentist that are related to the action and obtained	258
by subpoena, search warrant, or other lawful means. A court that	259
permits or compels a physician or dentist to testify in such an	260
action or permits the introduction into evidence of patient	261
records or other communications in such an action shall require	262
that appropriate measures be taken to ensure that the	263
confidentiality of any patient named or otherwise identified in	264
the records is maintained. Measures to ensure confidentiality that	265
may be taken by the court include sealing its records or deleting	266
specific information from its records.	267

(e)(i) If the communication was between a patient who has	268
since died and the deceased patient's physician or dentist, the	269
communication is relevant to a dispute between parties who claim	270
through that deceased patient, regardless of whether the claims	271
are by testate or intestate succession or by inter vivos	272
transaction, and the dispute addresses the competency of the	273
deceased patient when the deceased patient executed a document	274
that is the basis of the dispute or whether the deceased patient	275
was a victim of fraud, undue influence, or duress when the	276
deceased patient executed a document that is the basis of the	277
dispute.	278

(ii) If neither the spouse of a patient nor the executor or	279
administrator of that patient's estate gives consent under	280
division (B)(1)(a)(ii) of this section, testimony or the	281
disclosure of the patient's medical records by a physician,	282
dentist, or other health care provider under division (B)(1)(e)(i)	283
of this section is a permitted use or disclosure of protected	284
health information, as defined in 45 C.F.R. 160.103, and an	285
authorization or opportunity to be heard shall not be required.	286

(iii) Division (B)(1)(e)(i) of this section does not require	287
a mental health professional to disclose psychotherapy notes, as	288
defined in 45 C.F.R. 164.501.	289

(iv) An interested person who objects to testimony or	290
disclosure under division (B)(1)(e)(i) of this section may seek a	291
protective order pursuant to Civil Rule 26.	292

(v) A person to whom protected health information is	293
disclosed under division (B)(1)(e)(i) of this section shall not	294
use or disclose the protected health information for any purpose	295
other than the litigation or proceeding for which the information	296
was requested and shall return the protected health information to	297
the covered entity or destroy the protected health information,	298
including all copies made, at the conclusion of the litigation or	299
proceeding.	300

(2)(a) If any law enforcement officer submits a written	301
statement to a health care provider that states that an official	302
criminal investigation has begun regarding a specified person or	303
that a criminal action or proceeding has been commenced against a	304
specified person, that requests the provider to supply to the	305
officer copies of any records the provider possesses that pertain	306
to any test or the results of any test administered to the	307
specified person to determine the presence or concentration of	308
alcohol, a drug of abuse, a combination of them, a controlled	309
substance, or a metabolite of a controlled substance in the	310
person's whole blood, blood serum or plasma, breath, or urine at	311
any time relevant to the criminal offense in question, and that	312
conforms to section 2317.022 of the Revised Code, the provider,	313
except to the extent specifically prohibited by any law of this	314
state or of the United States, shall supply to the officer a copy	315
of any of the requested records the provider possesses. If the	316
health care provider does not possess any of the requested	317
records, the provider shall give the officer a written statement	318
that indicates that the provider does not possess any of the	319
requested records.	320

(b) If a health care provider possesses any records of the	321
type described in division (B)(2)(a) of this section regarding the	322
person in question at any time relevant to the criminal offense in	323
question, in lieu of personally testifying as to the results of	324
the test in question, the custodian of the records may submit a	325
certified copy of the records, and, upon its submission, the	326
certified copy is qualified as authentic evidence and may be	327
admitted as evidence in accordance with the Rules of Evidence.	328
Division (A) of section 2317.422 of the Revised Code does not	329
apply to any certified copy of records submitted in accordance	330
with this division. Nothing in this division shall be construed to	331
limit the right of any party to call as a witness the person who	332
administered the test to which the records pertain, the person	333
under whose supervision the test was administered, the custodian	334
of the records, the person who made the records, or the person	335
under whose supervision the records were made.	336

(3)(a) If the testimonial privilege described in division	337
(B)(1) of this section does not apply as provided in division	338
(B)(1)(a)(iii) of this section, a physician or dentist may be	339
compelled to testify or to submit to discovery under the Rules of	340
Civil Procedure only as to a communication made to the physician	341
or dentist by the patient in question in that relation, or the	342
physician's or dentist's advice to the patient in question, that	343
related causally or historically to physical or mental injuries	344
that are relevant to issues in the medical claim, dental claim,	345
chiropractic claim, or optometric claim, action for wrongful	346
death, other civil action, or claim under Chapter 4123. of the	347
Revised Code.	348

(b) If the testimonial privilege described in division (B)(1)	349
of this section does not apply to a physician or dentist as	350
provided in division (B)(1)(c) of this section, the physician or	351
dentist, in lieu of personally testifying as to the results of the	352
test in question, may submit a certified copy of those results,	353
and, upon its submission, the certified copy is qualified as	354
authentic evidence and may be admitted as evidence in accordance	355
with the Rules of Evidence. Division (A) of section 2317.422 of	356
the Revised Code does not apply to any certified copy of results	357
submitted in accordance with this division. Nothing in this	358
division shall be construed to limit the right of any party to	359
call as a witness the person who administered the test in	360
question, the person under whose supervision the test was	361
administered, the custodian of the results of the test, the person	362
who compiled the results, or the person under whose supervision	363
the results were compiled.	364

(4) The testimonial privilege described in division (B)(1) of	365
this section is not waived when a communication is made by a	366
physician to a pharmacist or when there is communication between a	367
patient and a pharmacist in furtherance of the physician-patient	368
relation.	369

(5)(a) As used in divisions (B)(1) to (4) of this section,	370
"communication" means acquiring, recording, or transmitting any	371
information, in any manner, concerning any facts, opinions, or	372
statements necessary to enable a physician or dentist to diagnose,	373
treat, prescribe, or act for a patient. A "communication" may	374
include, but is not limited to, any medical or dental, office, or	375
hospital communication such as a record, chart, letter,	376
memorandum, laboratory test and results, x-ray, photograph,	377
financial statement, diagnosis, or prognosis.	378

(b) As used in division (B)(2) of this section, "health care	379
provider" means a hospital, ambulatory care facility, long-term	380
care facility, pharmacy, emergency facility, or health care	381
practitioner.	382

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

383

(i) "Ambulatory care facility" means a facility that provides	384
medical, diagnostic, or surgical treatment to patients who do not	385
require hospitalization, including a dialysis center, ambulatory	386
surgical facility, cardiac catheterization facility, diagnostic	387
imaging center, extracorporeal shock wave lithotripsy center, home	388
health agency, inpatient hospice, birthing center, radiation	389
therapy center, emergency facility, and an urgent care center.	390
"Ambulatory health care facility" does not include the private	391
office of a physician or dentist, whether the office is for an	392
individual or group practice.	393

(ii) "Emergency facility" means a hospital emergency	394
department or any other facility that provides emergency medical	395
services.	396

(iii) "Health care practitioner" has the same meaning as in	397
section 4769.01 of the Revised Code.	398

(iv) "Hospital" has the same meaning as in section 3727.01 of	399
the Revised Code.	400

(v) "Long-term care facility" means a nursing home,	401
residential care facility, or home for the aging, as those terms	402
are defined in section 3721.01 of the Revised Code; an adult care	403
facility, as defined in section 5119.70 of the Revised Code; a	404
nursing facility or intermediate care facility for the mentally	405
retarded, as those terms are defined in section 5111.20 of the	406
Revised Code; a facility or portion of a facility certified as a	407
skilled nursing facility under Title XVIII of the "Social Security	408
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.	409

(vi) "Pharmacy" has the same meaning as in section 4729.01 of	410
the Revised Code.	411

(d) As used in divisions (B)(1) and (2) of this section,	412
"drug of abuse" has the same meaning as in section 4506.01 of the	413
Revised Code.	414

(6) Divisions (B)(1), (2), (3), (4), and (5) of this section	415
apply to doctors of medicine, doctors of osteopathic medicine,	416
doctors of podiatry, and dentists.	417

(7) Nothing in divisions (B)(1) to (6) of this section	418
affects, or shall be construed as affecting, the immunity from	419
civil liability conferred by sectionany of the following:	420

(a) Section 307.628 of the Revised Code or the immunity from	421
civil liability conferred by section;	422

(b) Section 2305.33 of the Revised Code upon physicians who	423
report an employee's use of a drug of abuse, or a condition of an	424
employee other than one involving the use of a drug of abuse, to	425
the employer of the employee in accordance with division (B) of	426
that section. As used in division (B)(7)(b) of this section,	427
"employee," "employer," and "physician" have the same meanings as	428
in section 2305.33 of the Revised Code.	429

(c) Section 2305.331 of the Revised Code upon physicians who,	430
in accordance with division (B) of that section, report a	431
patient's use of a drug of abuse or a condition of a patient other	432
than one involving the use of a drug of abuse to any of the	433
persons or entities described in that division. As used in	434
division (B)(7)(c) of this section, "physician" has the same	435
meaning as in section 2305.331 of the Revised Code.	436

(C)(1) A cleric, when the cleric remains accountable to the	437
authority of that cleric's church, denomination, or sect,	438
concerning a confession made, or any information confidentially	439
communicated, to the cleric for a religious counseling purpose in	440
the cleric's professional character. The cleric may testify by	441
express consent of the person making the communication, except	442
when the disclosure of the information is in violation of a sacred	443
trust and except that, if the person voluntarily testifies or is	444
deemed by division (A)(4)(c) of section 2151.421 of the Revised	445
Code to have waived any testimonial privilege under this division,	446
the cleric may be compelled to testify on the same subject except	447
when disclosure of the information is in violation of a sacred	448
trust.	449

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

450

(a) "Cleric" means a member of the clergy, rabbi, priest,	451
Christian Science practitioner, or regularly ordained, accredited,	452
or licensed minister of an established and legally cognizable	453
church, denomination, or sect.	454

(b) "Sacred trust" means a confession or confidential	455
communication made to a cleric in the cleric's ecclesiastical	456
capacity in the course of discipline enjoined by the church to	457
which the cleric belongs, including, but not limited to, the	458
Catholic Church, if both of the following apply:	459

(i) The confession or confidential communication was made	460
directly to the cleric.	461

(ii) The confession or confidential communication was made in	462
the manner and context that places the cleric specifically and	463
strictly under a level of confidentiality that is considered	464
inviolate by canon law or church doctrine.	465

(D) Husband or wife, concerning any communication made by one	466
to the other, or an act done by either in the presence of the	467
other, during coverture, unless the communication was made, or act	468
done, in the known presence or hearing of a third person competent	469
to be a witness; and such rule is the same if the marital relation	470
has ceased to exist;	471

(E) A person who assigns a claim or interest, concerning any	472
matter in respect to which the person would not, if a party, be	473
permitted to testify;	474

(F) A person who, if a party, would be restricted under	475
section 2317.03 of the Revised Code, when the property or thing is	476
sold or transferred by an executor, administrator, guardian,	477
trustee, heir, devisee, or legatee, shall be restricted in the	478
same manner in any action or proceeding concerning the property or	479
thing.	480

(G)(1) A school guidance counselor who holds a valid educator	481
license from the state board of education as provided for in	482
section 3319.22 of the Revised Code, a person licensed under	483
Chapter 4757. of the Revised Code as a professional clinical	484
counselor, professional counselor, social worker, independent	485
social worker, marriage and family therapist or independent	486
marriage and family therapist, or registered under Chapter 4757.	487
of the Revised Code as a social work assistant concerning a	488
confidential communication received from a client in that relation	489
or the person's advice to a client unless any of the following	490
applies:	491

(a) The communication or advice indicates clear and present	492
danger to the client or other persons. For the purposes of this	493
division, cases in which there are indications of present or past	494
child abuse or neglect of the client constitute a clear and	495
present danger.	496

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

497

(c) If the client is deceased, the surviving spouse or the	498
executor or administrator of the estate of the deceased client	499
gives express consent.	500

(d) The client voluntarily testifies, in which case the	501
school guidance counselor or person licensed or registered under	502
Chapter 4757. of the Revised Code may be compelled to testify on	503
the same subject.	504

(e) The court in camera determines that the information	505
communicated by the client is not germane to the counselor-client,	506
marriage and family therapist-client, or social worker-client	507
relationship.	508

(f) A court, in an action brought against a school, its	509
administration, or any of its personnel by the client, rules after	510
an in-camera inspection that the testimony of the school guidance	511
counselor is relevant to that action.	512

(g) The testimony is sought in a civil action and concerns	513
court-ordered treatment or services received by a patient as part	514
of a case plan journalized under section 2151.412 of the Revised	515
Code or the court-ordered treatment or services are necessary or	516
relevant to dependency, neglect, or abuse or temporary or	517
permanent custody proceedings under Chapter 2151. of the Revised	518
Code.	519

(2) Nothing in division (G)(1) of this section shall relieve	520
a school guidance counselor or a person licensed or registered	521
under Chapter 4757. of the Revised Code from the requirement to	522
report information concerning child abuse or neglect under section	523
2151.421 of the Revised Code.	524

(H) A mediator acting under a mediation order issued under	525
division (A) of section 3109.052 of the Revised Code or otherwise	526
issued in any proceeding for divorce, dissolution, legal	527
separation, annulment, or the allocation of parental rights and	528
responsibilities for the care of children, in any action or	529
proceeding, other than a criminal, delinquency, child abuse, child	530
neglect, or dependent child action or proceeding, that is brought	531
by or against either parent who takes part in mediation in	532
accordance with the order and that pertains to the mediation	533
process, to any information discussed or presented in the	534
mediation process, to the allocation of parental rights and	535
responsibilities for the care of the parents' children, or to the	536
awarding of parenting time rights in relation to their children;	537

(I) A communications assistant, acting within the scope of	538
the communication assistant's authority, when providing	539
telecommunications relay service pursuant to section 4931.06 of	540
the Revised Code or Title II of the "Communications Act of 1934,"	541
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication	542
made through a telecommunications relay service. Nothing in this	543
section shall limit the obligation of a communications assistant	544
to divulge information or testify when mandated by federal law or	545
regulation or pursuant to subpoena in a criminal proceeding.	546

Nothing in this section shall limit any immunity or privilege	547
granted under federal law or regulation.	548

(J)(1) A chiropractor in a civil proceeding concerning a	549
communication made to the chiropractor by a patient in that	550
relation or the chiropractor's advice to a patient, except as	551
otherwise provided in this division. The testimonial privilege	552
established under this division does not apply, and a chiropractor	553
may testify or may be compelled to testify, in any civil action,	554
in accordance with the discovery provisions of the Rules of Civil	555
Procedure in connection with a civil action, or in connection with	556
a claim under Chapter 4123. of the Revised Code, under any of the	557
following circumstances:	558

(a) If the patient or the guardian or other legal	559
representative of the patient gives express consent.	560

(b) If the patient is deceased, the spouse of the patient or	561
the executor or administrator of the patient's estate gives	562
express consent.	563

(c) If a medical claim, dental claim, chiropractic claim, or	564
optometric claim, as defined in section 2305.113 of the Revised	565
Code, an action for wrongful death, any other type of civil	566
action, or a claim under Chapter 4123. of the Revised Code is	567
filed by the patient, the personal representative of the estate of	568
the patient if deceased, or the patient's guardian or other legal	569
representative.	570

(2) If the testimonial privilege described in division (J)(1)	571
of this section does not apply as provided in division (J)(1)(c)	572
of this section, a chiropractor may be compelled to testify or to	573
submit to discovery under the Rules of Civil Procedure only as to	574
a communication made to the chiropractor by the patient in	575
question in that relation, or the chiropractor's advice to the	576
patient in question, that related causally or historically to	577
physical or mental injuries that are relevant to issues in the	578
medical claim, dental claim, chiropractic claim, or optometric	579
claim, action for wrongful death, other civil action, or claim	580
under Chapter 4123. of the Revised Code.	581

(3) The testimonial privilege established under this division	582
does not apply, and a chiropractor may testify or be compelled to	583
testify, in any criminal action or administrative proceeding.	584

(4) As used in this division, "communication" means	585
acquiring, recording, or transmitting any information, in any	586
manner, concerning any facts, opinions, or statements necessary to	587
enable a chiropractor to diagnose, treat, or act for a patient. A	588
communication may include, but is not limited to, any	589
chiropractic, office, or hospital communication such as a record,	590
chart, letter, memorandum, laboratory test and results, x-ray,	591
photograph, financial statement, diagnosis, or prognosis.	592

(K)(1) Except as provided under division (K)(2) of this	593
section, a critical incident stress management team member	594
concerning a communication received from an individual who	595
receives crisis response services from the team member, or the	596
team member's advice to the individual, during a debriefing	597
session.	598

(2) The testimonial privilege established under division	599
(K)(1) of this section does not apply if any of the following are	600
true:	601

(a) The communication or advice indicates clear and present	602
danger to the individual who receives crisis response services or	603
to other persons. For purposes of this division, cases in which	604
there are indications of present or past child abuse or neglect of	605
the individual constitute a clear and present danger.	606

(b) The individual who received crisis response services	607
gives express consent to the testimony.	608

(c) If the individual who received crisis response services	609
is deceased, the surviving spouse or the executor or administrator	610
of the estate of the deceased individual gives express consent.	611

(d) The individual who received crisis response services	612
voluntarily testifies, in which case the team member may be	613
compelled to testify on the same subject.	614

(e) The court in camera determines that the information	615
communicated by the individual who received crisis response	616
services is not germane to the relationship between the individual	617
and the team member.	618

(f) The communication or advice pertains or is related to any	619
criminal act.	620

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

621

(a) "Crisis response services" means consultation, risk	622
assessment, referral, and on-site crisis intervention services	623
provided by a critical incident stress management team to	624
individuals affected by crisis or disaster.	625

(b) "Critical incident stress management team member" or	626
"team member" means an individual specially trained to provide	627
crisis response services as a member of an organized community or	628
local crisis response team that holds membership in the Ohio	629
critical incident stress management network.	630

(c) "Debriefing session" means a session at which crisis	631
response services are rendered by a critical incident stress	632
management team member during or after a crisis or disaster.	633

(L)(1) Subject to division (L)(2) of this section and except	634
as provided in division (L)(3) of this section, an employee	635
assistance professional, concerning a communication made to the	636
employee assistance professional by a client in the employee	637
assistance professional's official capacity as an employee	638
assistance professional.	639

(2) Division (L)(1) of this section applies to an employee	640
assistance professional who meets either or both of the following	641
requirements:	642

(a) Is certified by the employee assistance certification	643
commission to engage in the employee assistance profession;	644

(b) Has education, training, and experience in all of the	645
following:	646

(i) Providing workplace-based services designed to address	647
employer and employee productivity issues;	648

(ii) Providing assistance to employees and employees'	649
dependents in identifying and finding the means to resolve	650
personal problems that affect the employees or the employees'	651
performance;	652

(iii) Identifying and resolving productivity problems	653
associated with an employee's concerns about any of the following	654
matters: health, marriage, family, finances, substance abuse or	655
other addiction, workplace, law, and emotional issues;	656

(iv) Selecting and evaluating available community resources;

657

(v) Making appropriate referrals;

658

(vi) Local and national employee assistance agreements;

659

(vii) Client confidentiality.

660

(3) Division (L)(1) of this section does not apply to any of	661
the following:	662

(a) A criminal action or proceeding involving an offense	663
under sections 2903.01 to 2903.06 of the Revised Code if the	664
employee assistance professional's disclosure or testimony relates	665
directly to the facts or immediate circumstances of the offense;	666

(b) A communication made by a client to an employee	667
assistance professional that reveals the contemplation or	668
commission of a crime or serious, harmful act;	669

(c) A communication that is made by a client who is an	670
unemancipated minor or an adult adjudicated to be incompetent and	671
indicates that the client was the victim of a crime or abuse;	672

(d) A civil proceeding to determine an individual's mental	673
competency or a criminal action in which a plea of not guilty by	674
reason of insanity is entered;	675

(e) A civil or criminal malpractice action brought against	676
the employee assistance professional;	677

(f) When the employee assistance professional has the express	678
consent of the client or, if the client is deceased or disabled,	679
the client's legal representative;	680

(g) When the testimonial privilege otherwise provided by	681
division (L)(1) of this section is abrogated under law.	682

Sec. 4731.22.  (A) The state medical board, by an affirmative	683
vote of not fewer than six of its members, may revoke or may	684
refuse to grant a certificate to a person found by the board to	685
have committed fraud during the administration of the examination	686
for a certificate to practice or to have committed fraud,	687
misrepresentation, or deception in applying for or securing any	688
certificate to practice or certificate of registration issued by	689
the board.	690

(B) The board, by an affirmative vote of not fewer than six	691
members, shall, to the extent permitted by law, limit, revoke, or	692
suspend an individual's certificate to practice, refuse to	693
register an individual, refuse to reinstate a certificate, or	694
reprimand or place on probation the holder of a certificate for	695
one or more of the following reasons:	696

(1) Permitting one's name or one's certificate to practice or	697
certificate of registration to be used by a person, group, or	698
corporation when the individual concerned is not actually	699
directing the treatment given;	700

(2) Failure to maintain minimal standards applicable to the	701
selection or administration of drugs, or failure to employ	702
acceptable scientific methods in the selection of drugs or other	703
modalities for treatment of disease;	704

(3) Selling, giving away, personally furnishing, prescribing,	705
or administering drugs for other than legal and legitimate	706
therapeutic purposes or a plea of guilty to, a judicial finding of	707
guilt of, or a judicial finding of eligibility for intervention in	708
lieu of conviction of, a violation of any federal or state law	709
regulating the possession, distribution, or use of any drug;	710

(4) Willfully betraying a professional confidence.

711

For purposes of this division, "willfully betraying a	712
professional confidence" does not include providingany of the	713
following:	714

(a) Providing any information, documents, or reports to a	715
child fatality review board under sections 307.621 to 307.629 of	716
the Revised Code and does not include the making of;	717

(b) Making a report of an employee's use of a drug of abuse,	718
or a report of a condition of an employee other than one involving	719
the use of a drug of abuse, to the employer of the employee as	720
described in division (B) of section 2305.33 of the Revised Code.	721
Nothing in this division affects the immunity from civil liability	722
conferred by that section upon a physician who makes either type	723
ofa report as described in this division in accordance with	724
division (B) of that section. As used in this division,	725
"employee," "employer," and "physician" have the same meanings as	726
in section 2305.33 of the Revised Code.	727

(c) Making a report of a patient's use of a drug of abuse or	728
a report of a condition of a patient other than one involving the	729
use of a drug of abuse to any of the persons or entities described	730
in division (B) of section 2305.331 of the Revised Code. Nothing	731
in this division affects the immunity from civil liability	732
conferred by that section upon a physician who makes a report as	733
described in this division in accordance with division (B) of that	734
section. As used in this division, "physician" has the same	735
meaning as in section 2305.331 of the Revised Code.	736

(5) Making a false, fraudulent, deceptive, or misleading	737
statement in the solicitation of or advertising for patients; in	738
relation to the practice of medicine and surgery, osteopathic	739
medicine and surgery, podiatric medicine and surgery, or a limited	740
branch of medicine; or in securing or attempting to secure any	741
certificate to practice or certificate of registration issued by	742
the board.	743

As used in this division, "false, fraudulent, deceptive, or	744
misleading statement" means a statement that includes a	745
misrepresentation of fact, is likely to mislead or deceive because	746
of a failure to disclose material facts, is intended or is likely	747
to create false or unjustified expectations of favorable results,	748
or includes representations or implications that in reasonable	749
probability will cause an ordinarily prudent person to	750
misunderstand or be deceived.	751

(6) A departure from, or the failure to conform to, minimal	752
standards of care of similar practitioners under the same or	753
similar circumstances, whether or not actual injury to a patient	754
is established;	755

(7) Representing, with the purpose of obtaining compensation	756
or other advantage as personal gain or for any other person, that	757
an incurable disease or injury, or other incurable condition, can	758
be permanently cured;	759

(8) The obtaining of, or attempting to obtain, money or	760
anything of value by fraudulent misrepresentations in the course	761
of practice;	762

(9) A plea of guilty to, a judicial finding of guilt of, or a	763
judicial finding of eligibility for intervention in lieu of	764
conviction for, a felony;	765

(10) Commission of an act that constitutes a felony in this	766
state, regardless of the jurisdiction in which the act was	767
committed;	768

(11) A plea of guilty to, a judicial finding of guilt of, or	769
a judicial finding of eligibility for intervention in lieu of	770
conviction for, a misdemeanor committed in the course of practice;	771

(12) Commission of an act in the course of practice that	772
constitutes a misdemeanor in this state, regardless of the	773
jurisdiction in which the act was committed;	774

(13) A plea of guilty to, a judicial finding of guilt of, or	775
a judicial finding of eligibility for intervention in lieu of	776
conviction for, a misdemeanor involving moral turpitude;	777

(14) Commission of an act involving moral turpitude that	778
constitutes a misdemeanor in this state, regardless of the	779
jurisdiction in which the act was committed;	780

(15) Violation of the conditions of limitation placed by the	781
board upon a certificate to practice;	782

(16) Failure to pay license renewal fees specified in this	783
chapter;	784

(17) Except as authorized in section 4731.31 of the Revised	785
Code, engaging in the division of fees for referral of patients,	786
or the receiving of a thing of value in return for a specific	787
referral of a patient to utilize a particular service or business;	788

(18) Subject to section 4731.226 of the Revised Code,	789
violation of any provision of a code of ethics of the American	790
medical association, the American osteopathic association, the	791
American podiatric medical association, or any other national	792
professional organizations that the board specifies by rule. The	793
state medical board shall obtain and keep on file current copies	794
of the codes of ethics of the various national professional	795
organizations. The individual whose certificate is being suspended	796
or revoked shall not be found to have violated any provision of a	797
code of ethics of an organization not appropriate to the	798
individual's profession.	799

For purposes of this division, a "provision of a code of	800
ethics of a national professional organization" does not include	801
any provision that would preclude the making of a report by a	802
physician of an employee's use of a drug of abuse, or of a	803
condition of an employee other than one involving the use of a	804
drug of abuse, to the employer of the employee as described in	805
division (B) of section 2305.33 of the Revised Codefrom making a	806
report of the information described in division (B)(4)(b) or (c)	807
of this section. Nothing in this division affects the immunity	808
from civil liability conferred by that section 2305.33 or 2305.331	809
of the Revised Code upon a physician who makes either type ofa	810
report as described in this division in accordance with division	811
(B) of thateither section, whichever is applicable. As used in	812
this division, "employee," "employer," and "physician" havehas	813
the same meaningsmeaning as in section 2305.33 or 2305.331 of	814
the Revised Code, whichever is applicable.	815

(19) Inability to practice according to acceptable and	816
prevailing standards of care by reason of mental illness or	817
physical illness, including, but not limited to, physical	818
deterioration that adversely affects cognitive, motor, or	819
perceptive skills.	820

In enforcing this division, the board, upon a showing of a	821
possible violation, may compel any individual authorized to	822
practice by this chapter or who has submitted an application	823
pursuant to this chapter to submit to a mental examination,	824
physical examination, including an HIV test, or both a mental and	825
a physical examination. The expense of the examination is the	826
responsibility of the individual compelled to be examined. Failure	827
to submit to a mental or physical examination or consent to an HIV	828
test ordered by the board constitutes an admission of the	829
allegations against the individual unless the failure is due to	830
circumstances beyond the individual's control, and a default and	831
final order may be entered without the taking of testimony or	832
presentation of evidence. If the board finds an individual unable	833
to practice because of the reasons set forth in this division, the	834
board shall require the individual to submit to care, counseling,	835
or treatment by physicians approved or designated by the board, as	836
a condition for initial, continued, reinstated, or renewed	837
authority to practice. An individual affected under this division	838
shall be afforded an opportunity to demonstrate to the board the	839
ability to resume practice in compliance with acceptable and	840
prevailing standards under the provisions of the individual's	841
certificate. For the purpose of this division, any individual who	842
applies for or receives a certificate to practice under this	843
chapter accepts the privilege of practicing in this state and, by	844
so doing, shall be deemed to have given consent to submit to a	845
mental or physical examination when directed to do so in writing	846
by the board, and to have waived all objections to the	847
admissibility of testimony or examination reports that constitute	848
a privileged communication.	849

(20)(a) Except when civil penalties are imposed under section	850
4731.225 or 4731.281 of the Revised Code, and subject to section	851
4731.226 of the Revised Code or division (B)(20)(b) of this	852
section, violating or attempting to violate, directly or	853
indirectly, or assisting in or abetting the violation of, or	854
conspiring to violate, any provisions of this chapter or any rule	855
promulgated by the board.	856

This division(b) Division (B)(20)(a) of this section does	857
not apply to a violation or attempted violation of, assisting in	858
or abetting the violation of, or a conspiracy to violate, any	859
provision of this chapter or any rule adopted by the board that	860
would preclude the making of a report by a physician of an	861
employee's use of a drug of abuse, or of a condition of an	862
employee other than one involving the use of a drug of abuse, to	863
the employer of the employee as described in division (B) of	864
section 2305.33 of the Revised Codefrom making a report of the	865
information described in division (B)(4)(b) or (c) of this	866
section. Nothing in this division affects the immunity from civil	867
liability conferred by that section 2305.33 or 2305.331 of the	868
Revised Code upon a physician who makes either type ofa report as	869
described in this division in accordance with division (B) of that	870
either section, whichever is applicable. As used in this division,	871
"employee," "employer," and "physician" havehas the same	872
meaningsmeaning as in section 2305.33 or 2305.331 of the Revised	873
Code, whichever is applicable.	874

(21) The violation of section 3701.79 of the Revised Code or	875
of any abortion rule adopted by the public health council pursuant	876
to section 3701.341 of the Revised Code;	877

(22) Any of the following actions taken by an agency	878
responsible for authorizing, certifying, or regulating an	879
individual to practice a health care occupation or provide health	880
care services in this state or another jurisdiction, for any	881
reason other than the nonpayment of fees: the limitation,	882
revocation, or suspension of an individual's license to practice;	883
acceptance of an individual's license surrender; denial of a	884
license; refusal to renew or reinstate a license; imposition of	885
probation; or issuance of an order of censure or other reprimand;	886

(23) The violation of section 2919.12 of the Revised Code or	887
the performance or inducement of an abortion upon a pregnant woman	888
with actual knowledge that the conditions specified in division	889
(B) of section 2317.56 of the Revised Code have not been satisfied	890
or with a heedless indifference as to whether those conditions	891
have been satisfied, unless an affirmative defense as specified in	892
division (H)(2) of that section would apply in a civil action	893
authorized by division (H)(1) of that section;	894

(24) The revocation, suspension, restriction, reduction, or	895
termination of clinical privileges by the United States department	896
of defense or department of veterans affairs or the termination or	897
suspension of a certificate of registration to prescribe drugs by	898
the drug enforcement administration of the United States	899
department of justice;	900

(25) Termination or suspension from participation in the	901
medicare or medicaid programs by the department of health and	902
human services or other responsible agency for any act or acts	903
that also would constitute a violation of division (B)(2), (3),	904
(6), (8), or (19) of this section;	905

(26) Impairment of ability to practice according to	906
acceptable and prevailing standards of care because of habitual or	907
excessive use or abuse of drugs, alcohol, or other substances that	908
impair ability to practice.	909

For the purposes of this division, any individual authorized	910
to practice by this chapter accepts the privilege of practicing in	911
this state subject to supervision by the board. By filing an	912
application for or holding a certificate to practice under this	913
chapter, an individual shall be deemed to have given consent to	914
submit to a mental or physical examination when ordered to do so	915
by the board in writing, and to have waived all objections to the	916
admissibility of testimony or examination reports that constitute	917
privileged communications.	918

If it has reason to believe that any individual authorized to	919
practice by this chapter or any applicant for certification to	920
practice suffers such impairment, the board may compel the	921
individual to submit to a mental or physical examination, or both.	922
The expense of the examination is the responsibility of the	923
individual compelled to be examined. Any mental or physical	924
examination required under this division shall be undertaken by a	925
treatment provider or physician who is qualified to conduct the	926
examination and who is chosen by the board.	927

Failure to submit to a mental or physical examination ordered	928
by the board constitutes an admission of the allegations against	929
the individual unless the failure is due to circumstances beyond	930
the individual's control, and a default and final order may be	931
entered without the taking of testimony or presentation of	932
evidence. If the board determines that the individual's ability to	933
practice is impaired, the board shall suspend the individual's	934
certificate or deny the individual's application and shall require	935
the individual, as a condition for initial, continued, reinstated,	936
or renewed certification to practice, to submit to treatment.	937

Before being eligible to apply for reinstatement of a	938
certificate suspended under this division, the impaired	939
practitioner shall demonstrate to the board the ability to resume	940
practice in compliance with acceptable and prevailing standards of	941
care under the provisions of the practitioner's certificate. The	942
demonstration shall include, but shall not be limited to, the	943
following:	944

(a) Certification from a treatment provider approved under	945
section 4731.25 of the Revised Code that the individual has	946
successfully completed any required inpatient treatment;	947

(b) Evidence of continuing full compliance with an aftercare	948
contract or consent agreement;	949

(c) Two written reports indicating that the individual's	950
ability to practice has been assessed and that the individual has	951
been found capable of practicing according to acceptable and	952
prevailing standards of care. The reports shall be made by	953
individuals or providers approved by the board for making the	954
assessments and shall describe the basis for their determination.	955

The board may reinstate a certificate suspended under this	956
division after that demonstration and after the individual has	957
entered into a written consent agreement.	958

When the impaired practitioner resumes practice, the board	959
shall require continued monitoring of the individual. The	960
monitoring shall include, but not be limited to, compliance with	961
the written consent agreement entered into before reinstatement or	962
with conditions imposed by board order after a hearing, and, upon	963
termination of the consent agreement, submission to the board for	964
at least two years of annual written progress reports made under	965
penalty of perjury stating whether the individual has maintained	966
sobriety.	967

(27) A second or subsequent violation of section 4731.66 or	968
4731.69 of the Revised Code;	969

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

970

(a) Waiving the payment of all or any part of a deductible or	971
copayment that a patient, pursuant to a health insurance or health	972
care policy, contract, or plan that covers the individual's	973
services, otherwise would be required to pay if the waiver is used	974
as an enticement to a patient or group of patients to receive	975
health care services from that individual;	976

(b) Advertising that the individual will waive the payment of	977
all or any part of a deductible or copayment that a patient,	978
pursuant to a health insurance or health care policy, contract, or	979
plan that covers the individual's services, otherwise would be	980
required to pay.	981

(29) Failure to use universal blood and body fluid	982
precautions established by rules adopted under section 4731.051 of	983
the Revised Code;	984

(30) Failure to provide notice to, and receive acknowledgment	985
of the notice from, a patient when required by section 4731.143 of	986
the Revised Code prior to providing nonemergency professional	987
services, or failure to maintain that notice in the patient's	988
file;	989

(31) Failure of a physician supervising a physician assistant	990
to maintain supervision in accordance with the requirements of	991
Chapter 4730. of the Revised Code and the rules adopted under that	992
chapter;	993

(32) Failure of a physician or podiatrist to enter into a	994
standard care arrangement with a clinical nurse specialist,	995
certified nurse-midwife, or certified nurse practitioner with whom	996
the physician or podiatrist is in collaboration pursuant to	997
section 4731.27 of the Revised Code or failure to fulfill the	998
responsibilities of collaboration after entering into a standard	999
care arrangement;	1000

(33) Failure to comply with the terms of a consult agreement	1001
entered into with a pharmacist pursuant to section 4729.39 of the	1002
Revised Code;	1003

(34) Failure to cooperate in an investigation conducted by	1004
the board under division (F) of this section, including failure to	1005
comply with a subpoena or order issued by the board or failure to	1006
answer truthfully a question presented by the board at a	1007
deposition or in written interrogatories, except that failure to	1008
cooperate with an investigation shall not constitute grounds for	1009
discipline under this section if a court of competent jurisdiction	1010
has issued an order that either quashes a subpoena or permits the	1011
individual to withhold the testimony or evidence in issue;	1012

(35) Failure to supervise an acupuncturist in accordance with	1013
Chapter 4762. of the Revised Code and the board's rules for	1014
supervision of an acupuncturist;	1015

(36) Failure to supervise an anesthesiologist assistant in	1016
accordance with Chapter 4760. of the Revised Code and the board's	1017
rules for supervision of an anesthesiologist assistant;	1018

(37) Assisting suicide as defined in section 3795.01 of the	1019
Revised Code;	1020

(38) Failure to comply with the requirements of section	1021
2317.561 of the Revised Code;	1022

(39) Failure to supervise a radiologist assistant in	1023
accordance with Chapter 4774. of the Revised Code and the board's	1024
rules for supervision of radiologist assistants;	1025

(40) Performing or inducing an abortion at an office or	1026
facility with knowledge that the office or facility fails to post	1027
the notice required under section 3701.791 of the Revised Code;	1028

(41) Failure to comply with the standards and procedures	1029
established in rules under section 4731.054 of the Revised Code	1030
for the operation of or the provision of care at a pain management	1031
clinic;	1032

(42) Failure to comply with the standards and procedures	1033
established in rules under section 4731.054 of the Revised Code	1034
for providing supervision, direction, and control of individuals	1035
at a pain management clinic;	1036

(43) Failure to comply with the requirements of section	1037
4729.79 of the Revised Code, unless the state board of pharmacy no	1038
longer maintains a drug database pursuant to section 4729.75 of	1039
the Revised Code;	1040

(41)(44) Failure to comply with the requirements of section	1041
2919.171 of the Revised Code or failure to submit to the	1042
department of health in accordance with a court order a complete	1043
report as described in section 2919.171 of the Revised Code.	1044

(C) Disciplinary actions taken by the board under divisions	1045
(A) and (B) of this section shall be taken pursuant to an	1046
adjudication under Chapter 119. of the Revised Code, except that	1047
in lieu of an adjudication, the board may enter into a consent	1048
agreement with an individual to resolve an allegation of a	1049
violation of this chapter or any rule adopted under it. A consent	1050
agreement, when ratified by an affirmative vote of not fewer than	1051
six members of the board, shall constitute the findings and order	1052
of the board with respect to the matter addressed in the	1053
agreement. If the board refuses to ratify a consent agreement, the	1054
admissions and findings contained in the consent agreement shall	1055
be of no force or effect.	1056

A telephone conference call may be utilized for ratification	1057
of a consent agreement that revokes or suspends an individual's	1058
certificate to practice. The telephone conference call shall be	1059
considered a special meeting under division (F) of section 121.22	1060
of the Revised Code.	1061

If the board takes disciplinary action against an individual	1062
under division (B) of this section for a second or subsequent plea	1063
of guilty to, or judicial finding of guilt of, a violation of	1064
section 2919.123 of the Revised Code, the disciplinary action	1065
shall consist of a suspension of the individual's certificate to	1066
practice for a period of at least one year or, if determined	1067
appropriate by the board, a more serious sanction involving the	1068
individual's certificate to practice. Any consent agreement	1069
entered into under this division with an individual that pertains	1070
to a second or subsequent plea of guilty to, or judicial finding	1071
of guilt of, a violation of that section shall provide for a	1072
suspension of the individual's certificate to practice for a	1073
period of at least one year or, if determined appropriate by the	1074
board, a more serious sanction involving the individual's	1075
certificate to practice.	1076

(D) For purposes of divisions (B)(10), (12), and (14) of this	1077
section, the commission of the act may be established by a finding	1078
by the board, pursuant to an adjudication under Chapter 119. of	1079
the Revised Code, that the individual committed the act. The board	1080
does not have jurisdiction under those divisions if the trial	1081
court renders a final judgment in the individual's favor and that	1082
judgment is based upon an adjudication on the merits. The board	1083
has jurisdiction under those divisions if the trial court issues	1084
an order of dismissal upon technical or procedural grounds.	1085

(E) The sealing of conviction records by any court shall have	1086
no effect upon a prior board order entered under this section or	1087
upon the board's jurisdiction to take action under this section	1088
if, based upon a plea of guilty, a judicial finding of guilt, or a	1089
judicial finding of eligibility for intervention in lieu of	1090
conviction, the board issued a notice of opportunity for a hearing	1091
prior to the court's order to seal the records. The board shall	1092
not be required to seal, destroy, redact, or otherwise modify its	1093
records to reflect the court's sealing of conviction records.	1094

(F)(1) The board shall investigate evidence that appears to	1095
show that a person has violated any provision of this chapter or	1096
any rule adopted under it. Any person may report to the board in a	1097
signed writing any information that the person may have that	1098
appears to show a violation of any provision of this chapter or	1099
any rule adopted under it. In the absence of bad faith, any person	1100
who reports information of that nature or who testifies before the	1101
board in any adjudication conducted under Chapter 119. of the	1102
Revised Code shall not be liable in damages in a civil action as a	1103
result of the report or testimony. Each complaint or allegation of	1104
a violation received by the board shall be assigned a case number	1105
and shall be recorded by the board.	1106

(2) Investigations of alleged violations of this chapter or	1107
any rule adopted under it shall be supervised by the supervising	1108
member elected by the board in accordance with section 4731.02 of	1109
the Revised Code and by the secretary as provided in section	1110
4731.39 of the Revised Code. The president may designate another	1111
member of the board to supervise the investigation in place of the	1112
supervising member. No member of the board who supervises the	1113
investigation of a case shall participate in further adjudication	1114
of the case.	1115

(3) In investigating a possible violation of this chapter or	1116
any rule adopted under this chapter, the board may administer	1117
oaths, order the taking of depositions, inspect and copy any	1118
books, accounts, papers, records, or documents, issue subpoenas,	1119
and compel the attendance of witnesses and production of books,	1120
accounts, papers, records, documents, and testimony, except that a	1121
subpoena for patient record information shall not be issued	1122
without consultation with the attorney general's office and	1123
approval of the secretary and supervising member of the board.	1124
Before issuance of a subpoena for patient record information, the	1125
secretary and supervising member shall determine whether there is	1126
probable cause to believe that the complaint filed alleges a	1127
violation of this chapter or any rule adopted under it and that	1128
the records sought are relevant to the alleged violation and	1129
material to the investigation. The subpoena may apply only to	1130
records that cover a reasonable period of time surrounding the	1131
alleged violation.	1132

On failure to comply with any subpoena issued by the board	1133
and after reasonable notice to the person being subpoenaed, the	1134
board may move for an order compelling the production of persons	1135
or records pursuant to the Rules of Civil Procedure.	1136

A subpoena issued by the board may be served by a sheriff,	1137
the sheriff's deputy, or a board employee designated by the board.	1138
Service of a subpoena issued by the board may be made by	1139
delivering a copy of the subpoena to the person named therein,	1140
reading it to the person, or leaving it at the person's usual	1141
place of residence. When the person being served is a person whose	1142
practice is authorized by this chapter, service of the subpoena	1143
may be made by certified mail, restricted delivery, return receipt	1144
requested, and the subpoena shall be deemed served on the date	1145
delivery is made or the date the person refuses to accept	1146
delivery.	1147

A sheriff's deputy who serves a subpoena shall receive the	1148
same fees as a sheriff. Each witness who appears before the board	1149
in obedience to a subpoena shall receive the fees and mileage	1150
provided for under section 119.094 of the Revised Code.	1151

(4) All hearings and investigations of the board shall be	1152
considered civil actions for the purposes of section 2305.252 of	1153
the Revised Code.	1154

(5) Information received by the board pursuant to an	1155
investigation is confidential and not subject to discovery in any	1156
civil action.	1157

The board shall conduct all investigations and proceedings in	1158
a manner that protects the confidentiality of patients and persons	1159
who file complaints with the board. The board shall not make	1160
public the names or any other identifying information about	1161
patients or complainants unless proper consent is given or, in the	1162
case of a patient, a waiver of the patient privilege exists under	1163
division (B) of section 2317.02 of the Revised Code, except that	1164
consent or a waiver of that nature is not required if the board	1165
possesses reliable and substantial evidence that no bona fide	1166
physician-patient relationship exists.	1167

The board may share any information it receives pursuant to	1168
an investigation, including patient records and patient record	1169
information, with law enforcement agencies, other licensing	1170
boards, and other governmental agencies that are prosecuting,	1171
adjudicating, or investigating alleged violations of statutes or	1172
administrative rules. An agency or board that receives the	1173
information shall comply with the same requirements regarding	1174
confidentiality as those with which the state medical board must	1175
comply, notwithstanding any conflicting provision of the Revised	1176
Code or procedure of the agency or board that applies when it is	1177
dealing with other information in its possession. In a judicial	1178
proceeding, the information may be admitted into evidence only in	1179
accordance with the Rules of Evidence, but the court shall require	1180
that appropriate measures are taken to ensure that confidentiality	1181
is maintained with respect to any part of the information that	1182
contains names or other identifying information about patients or	1183
complainants whose confidentiality was protected by the state	1184
medical board when the information was in the board's possession.	1185
Measures to ensure confidentiality that may be taken by the court	1186
include sealing its records or deleting specific information from	1187
its records.	1188

(6) On a quarterly basis, the board shall prepare a report	1189
that documents the disposition of all cases during the preceding	1190
three months. The report shall contain the following information	1191
for each case with which the board has completed its activities:	1192

(a) The case number assigned to the complaint or alleged	1193
violation;	1194

(b) The type of certificate to practice, if any, held by the	1195
individual against whom the complaint is directed;	1196

(c) A description of the allegations contained in the	1197
complaint;	1198

(d) The disposition of the case.

1199

The report shall state how many cases are still pending and	1200
shall be prepared in a manner that protects the identity of each	1201
person involved in each case. The report shall be a public record	1202
under section 149.43 of the Revised Code.	1203

(G) If the secretary and supervising member determine both of	1204
the following, they may recommend that the board suspend an	1205
individual's certificate to practice without a prior hearing:	1206

(1) That there is clear and convincing evidence that an	1207
individual has violated division (B) of this section;	1208

(2) That the individual's continued practice presents a	1209
danger of immediate and serious harm to the public.	1210

Written allegations shall be prepared for consideration by	1211
the board. The board, upon review of those allegations and by an	1212
affirmative vote of not fewer than six of its members, excluding	1213
the secretary and supervising member, may suspend a certificate	1214
without a prior hearing. A telephone conference call may be	1215
utilized for reviewing the allegations and taking the vote on the	1216
summary suspension.	1217

The board shall issue a written order of suspension by	1218
certified mail or in person in accordance with section 119.07 of	1219
the Revised Code. The order shall not be subject to suspension by	1220
the court during pendency of any appeal filed under section 119.12	1221
of the Revised Code. If the individual subject to the summary	1222
suspension requests an adjudicatory hearing by the board, the date	1223
set for the hearing shall be within fifteen days, but not earlier	1224
than seven days, after the individual requests the hearing, unless	1225
otherwise agreed to by both the board and the individual.	1226

Any summary suspension imposed under this division shall	1227
remain in effect, unless reversed on appeal, until a final	1228
adjudicative order issued by the board pursuant to this section	1229
and Chapter 119. of the Revised Code becomes effective. The board	1230
shall issue its final adjudicative order within seventy-five days	1231
after completion of its hearing. A failure to issue the order	1232
within seventy-five days shall result in dissolution of the	1233
summary suspension order but shall not invalidate any subsequent,	1234
final adjudicative order.	1235

(H) If the board takes action under division (B)(9), (11), or	1236
(13) of this section and the judicial finding of guilt, guilty	1237
plea, or judicial finding of eligibility for intervention in lieu	1238
of conviction is overturned on appeal, upon exhaustion of the	1239
criminal appeal, a petition for reconsideration of the order may	1240
be filed with the board along with appropriate court documents.	1241
Upon receipt of a petition of that nature and supporting court	1242
documents, the board shall reinstate the individual's certificate	1243
to practice. The board may then hold an adjudication under Chapter	1244
119. of the Revised Code to determine whether the individual	1245
committed the act in question. Notice of an opportunity for a	1246
hearing shall be given in accordance with Chapter 119. of the	1247
Revised Code. If the board finds, pursuant to an adjudication held	1248
under this division, that the individual committed the act or if	1249
no hearing is requested, the board may order any of the sanctions	1250
identified under division (B) of this section.	1251

(I) The certificate to practice issued to an individual under	1252
this chapter and the individual's practice in this state are	1253
automatically suspended as of the date of the individual's second	1254
or subsequent plea of guilty to, or judicial finding of guilt of,	1255
a violation of section 2919.123 of the Revised Code, or the date	1256
the individual pleads guilty to, is found by a judge or jury to be	1257
guilty of, or is subject to a judicial finding of eligibility for	1258
intervention in lieu of conviction in this state or treatment or	1259
intervention in lieu of conviction in another jurisdiction for any	1260
of the following criminal offenses in this state or a	1261
substantially equivalent criminal offense in another jurisdiction:	1262
aggravated murder, murder, voluntary manslaughter, felonious	1263
assault, kidnapping, rape, sexual battery, gross sexual	1264
imposition, aggravated arson, aggravated robbery, or aggravated	1265
burglary. Continued practice after suspension shall be considered	1266
practicing without a certificate.	1267

The board shall notify the individual subject to the	1268
suspension by certified mail or in person in accordance with	1269
section 119.07 of the Revised Code. If an individual whose	1270
certificate is automatically suspended under this division fails	1271
to make a timely request for an adjudication under Chapter 119. of	1272
the Revised Code, the board shall do whichever of the following is	1273
applicable:	1274

(1) If the automatic suspension under this division is for a	1275
second or subsequent plea of guilty to, or judicial finding of	1276
guilt of, a violation of section 2919.123 of the Revised Code, the	1277
board shall enter an order suspending the individual's certificate	1278
to practice for a period of at least one year or, if determined	1279
appropriate by the board, imposing a more serious sanction	1280
involving the individual's certificate to practice.	1281

(2) In all circumstances in which division (I)(1) of this	1282
section does not apply, enter a final order permanently revoking	1283
the individual's certificate to practice.	1284

(J) If the board is required by Chapter 119. of the Revised	1285
Code to give notice of an opportunity for a hearing and if the	1286
individual subject to the notice does not timely request a hearing	1287
in accordance with section 119.07 of the Revised Code, the board	1288
is not required to hold a hearing, but may adopt, by an	1289
affirmative vote of not fewer than six of its members, a final	1290
order that contains the board's findings. In that final order, the	1291
board may order any of the sanctions identified under division (A)	1292
or (B) of this section.	1293

(K) Any action taken by the board under division (B) of this	1294
section resulting in a suspension from practice shall be	1295
accompanied by a written statement of the conditions under which	1296
the individual's certificate to practice may be reinstated. The	1297
board shall adopt rules governing conditions to be imposed for	1298
reinstatement. Reinstatement of a certificate suspended pursuant	1299
to division (B) of this section requires an affirmative vote of	1300
not fewer than six members of the board.	1301

(L) When the board refuses to grant a certificate to an	1302
applicant, revokes an individual's certificate to practice,	1303
refuses to register an applicant, or refuses to reinstate an	1304
individual's certificate to practice, the board may specify that	1305
its action is permanent. An individual subject to a permanent	1306
action taken by the board is forever thereafter ineligible to hold	1307
a certificate to practice and the board shall not accept an	1308
application for reinstatement of the certificate or for issuance	1309
of a new certificate.	1310

(M) Notwithstanding any other provision of the Revised Code,	1311
all of the following apply:	1312

(1) The surrender of a certificate issued under this chapter	1313
shall not be effective unless or until accepted by the board. A	1314
telephone conference call may be utilized for acceptance of the	1315
surrender of an individual's certificate to practice. The	1316
telephone conference call shall be considered a special meeting	1317
under division (F) of section 121.22 of the Revised Code.	1318
Reinstatement of a certificate surrendered to the board requires	1319
an affirmative vote of not fewer than six members of the board.	1320

(2) An application for a certificate made under the	1321
provisions of this chapter may not be withdrawn without approval	1322
of the board.	1323

(3) Failure by an individual to renew a certificate of	1324
registration in accordance with this chapter shall not remove or	1325
limit the board's jurisdiction to take any disciplinary action	1326
under this section against the individual.	1327

(N) Sanctions shall not be imposed under division (B)(28) of	1328
this section against any person who waives deductibles and	1329
copayments as follows:	1330

(1) In compliance with the health benefit plan that expressly	1331
allows such a practice. Waiver of the deductibles or copayments	1332
shall be made only with the full knowledge and consent of the plan	1333
purchaser, payer, and third-party administrator. Documentation of	1334
the consent shall be made available to the board upon request.	1335

(2) For professional services rendered to any other person	1336
authorized to practice pursuant to this chapter, to the extent	1337
allowed by this chapter and rules adopted by the board.	1338

(O) Under the board's investigative duties described in this	1339
section and subject to division (F) of this section, the board	1340
shall develop and implement a quality intervention program	1341
designed to improve through remedial education the clinical and	1342
communication skills of individuals authorized under this chapter	1343
to practice medicine and surgery, osteopathic medicine and	1344
surgery, and podiatric medicine and surgery. In developing and	1345
implementing the quality intervention program, the board may do	1346
all of the following:	1347

(1) Offer in appropriate cases as determined by the board an	1348
educational and assessment program pursuant to an investigation	1349
the board conducts under this section;	1350

(2) Select providers of educational and assessment services,	1351
including a quality intervention program panel of case reviewers;	1352

(3) Make referrals to educational and assessment service	1353
providers and approve individual educational programs recommended	1354
by those providers. The board shall monitor the progress of each	1355
individual undertaking a recommended individual educational	1356
program.	1357

(4) Determine what constitutes successful completion of an	1358
individual educational program and require further monitoring of	1359
the individual who completed the program or other action that the	1360
board determines to be appropriate;	1361

(5) Adopt rules in accordance with Chapter 119. of the	1362
Revised Code to further implement the quality intervention	1363
program.	1364

An individual who participates in an individual educational	1365
program pursuant to this division shall pay the financial	1366
obligations arising from that educational program.	1367

Section 2.  That existing sections 2305.33, 2317.02, and	1368
4731.22 of the Revised Code are hereby repealed.	1369

Section 3.  Section 4731.22 of the Revised Code is presented	1370
in this act as a composite of the section as amended by both H.B.	1371
78 and Am. Sub. H.B. 93 of the 129th General Assembly. The General	1372
Assembly, applying the principle stated in division (B) of section	1373
1.52 of the Revised Code that amendments are to be harmonized if	1374
reasonably capable of simultaneous operation, finds that the	1375
composite is the resulting version of the section in effect prior	1376
to the effective date of the section as presented in this act.	1377