As Introduced

129th General Assembly Regular Session 2011-2012

S. B. No. 307

Senator Turner 

Cosponsor: Senator Tavares 

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A BILL

To amend section 4731.22 and to enact section 4731.45

1

of the Revised Code to require physicians to take

2

certain actions before and after issuing

3

prescriptions for drugs intended to treat symptoms

4

of erectile dysfunction.

5

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

Section 1.  That section 4731.22 be amended and section	6
4731.45 of the Revised Code be enacted to read as follows:	7

Sec. 4731.22.  (A) The state medical board, by an affirmative	8
vote of not fewer than six of its members, may revoke or may	9
refuse to grant a certificate to a person found by the board to	10
have committed fraud during the administration of the examination	11
for a certificate to practice or to have committed fraud,	12
misrepresentation, or deception in applying for or securing any	13
certificate to practice or certificate of registration issued by	14
the board.	15

(B) The board, by an affirmative vote of not fewer than six	16
members, shall, to the extent permitted by law, limit, revoke, or	17
suspend an individual's certificate to practice, refuse to	18
register an individual, refuse to reinstate a certificate, or	19
reprimand or place on probation the holder of a certificate for	20
one or more of the following reasons:	21

(1) Permitting one's name or one's certificate to practice or	22
certificate of registration to be used by a person, group, or	23
corporation when the individual concerned is not actually	24
directing the treatment given;	25

(2) Failure to maintain minimal standards applicable to the	26
selection or administration of drugs, or failure to employ	27
acceptable scientific methods in the selection of drugs or other	28
modalities for treatment of disease;	29

(3) Selling, giving away, personally furnishing, prescribing,	30
or administering drugs for other than legal and legitimate	31
therapeutic purposes or a plea of guilty to, a judicial finding of	32
guilt of, or a judicial finding of eligibility for intervention in	33
lieu of conviction of, a violation of any federal or state law	34
regulating the possession, distribution, or use of any drug;	35

(4) Willfully betraying a professional confidence.

36

For purposes of this division, "willfully betraying a	37
professional confidence" does not include providing any	38
information, documents, or reports to a child fatality review	39
board under sections 307.621 to 307.629 of the Revised Code and	40
does not include the making of a report of an employee's use of a	41
drug of abuse, or a report of a condition of an employee other	42
than one involving the use of a drug of abuse, to the employer of	43
the employee as described in division (B) of section 2305.33 of	44
the Revised Code. Nothing in this division affects the immunity	45
from civil liability conferred by that section upon a physician	46
who makes either type of report in accordance with division (B) of	47
that section. As used in this division, "employee," "employer,"	48
and "physician" have the same meanings as in section 2305.33 of	49
the Revised Code.	50

(5) Making a false, fraudulent, deceptive, or misleading	51
statement in the solicitation of or advertising for patients; in	52
relation to the practice of medicine and surgery, osteopathic	53
medicine and surgery, podiatric medicine and surgery, or a limited	54
branch of medicine; or in securing or attempting to secure any	55
certificate to practice or certificate of registration issued by	56
the board.	57

As used in this division, "false, fraudulent, deceptive, or	58
misleading statement" means a statement that includes a	59
misrepresentation of fact, is likely to mislead or deceive because	60
of a failure to disclose material facts, is intended or is likely	61
to create false or unjustified expectations of favorable results,	62
or includes representations or implications that in reasonable	63
probability will cause an ordinarily prudent person to	64
misunderstand or be deceived.	65

(6) A departure from, or the failure to conform to, minimal	66
standards of care of similar practitioners under the same or	67
similar circumstances, whether or not actual injury to a patient	68
is established;	69

(7) Representing, with the purpose of obtaining compensation	70
or other advantage as personal gain or for any other person, that	71
an incurable disease or injury, or other incurable condition, can	72
be permanently cured;	73

(8) The obtaining of, or attempting to obtain, money or	74
anything of value by fraudulent misrepresentations in the course	75
of practice;	76

(9) A plea of guilty to, a judicial finding of guilt of, or a	77
judicial finding of eligibility for intervention in lieu of	78
conviction for, a felony;	79

(10) Commission of an act that constitutes a felony in this	80
state, regardless of the jurisdiction in which the act was	81
committed;	82

(11) A plea of guilty to, a judicial finding of guilt of, or	83
a judicial finding of eligibility for intervention in lieu of	84
conviction for, a misdemeanor committed in the course of practice;	85

(12) Commission of an act in the course of practice that	86
constitutes a misdemeanor in this state, regardless of the	87
jurisdiction in which the act was committed;	88

(13) A plea of guilty to, a judicial finding of guilt of, or	89
a judicial finding of eligibility for intervention in lieu of	90
conviction for, a misdemeanor involving moral turpitude;	91

(14) Commission of an act involving moral turpitude that	92
constitutes a misdemeanor in this state, regardless of the	93
jurisdiction in which the act was committed;	94

(15) Violation of the conditions of limitation placed by the	95
board upon a certificate to practice;	96

(16) Failure to pay license renewal fees specified in this	97
chapter;	98

(17) Except as authorized in section 4731.31 of the Revised	99
Code, engaging in the division of fees for referral of patients,	100
or the receiving of a thing of value in return for a specific	101
referral of a patient to utilize a particular service or business;	102

(18) Subject to section 4731.226 of the Revised Code,	103
violation of any provision of a code of ethics of the American	104
medical association, the American osteopathic association, the	105
American podiatric medical association, or any other national	106
professional organizations that the board specifies by rule. The	107
state medical board shall obtain and keep on file current copies	108
of the codes of ethics of the various national professional	109
organizations. The individual whose certificate is being suspended	110
or revoked shall not be found to have violated any provision of a	111
code of ethics of an organization not appropriate to the	112
individual's profession.	113

For purposes of this division, a "provision of a code of	114
ethics of a national professional organization" does not include	115
any provision that would preclude the making of a report by a	116
physician of an employee's use of a drug of abuse, or of a	117
condition of an employee other than one involving the use of a	118
drug of abuse, to the employer of the employee as described in	119
division (B) of section 2305.33 of the Revised Code. Nothing in	120
this division affects the immunity from civil liability conferred	121
by that section upon a physician who makes either type of report	122
in accordance with division (B) of that section. As used in this	123
division, "employee," "employer," and "physician" have the same	124
meanings as in section 2305.33 of the Revised Code.	125

(19) Inability to practice according to acceptable and	126
prevailing standards of care by reason of mental illness or	127
physical illness, including, but not limited to, physical	128
deterioration that adversely affects cognitive, motor, or	129
perceptive skills.	130

In enforcing this division, the board, upon a showing of a	131
possible violation, may compel any individual authorized to	132
practice by this chapter or who has submitted an application	133
pursuant to this chapter to submit to a mental examination,	134
physical examination, including an HIV test, or both a mental and	135
a physical examination. The expense of the examination is the	136
responsibility of the individual compelled to be examined. Failure	137
to submit to a mental or physical examination or consent to an HIV	138
test ordered by the board constitutes an admission of the	139
allegations against the individual unless the failure is due to	140
circumstances beyond the individual's control, and a default and	141
final order may be entered without the taking of testimony or	142
presentation of evidence. If the board finds an individual unable	143
to practice because of the reasons set forth in this division, the	144
board shall require the individual to submit to care, counseling,	145
or treatment by physicians approved or designated by the board, as	146
a condition for initial, continued, reinstated, or renewed	147
authority to practice. An individual affected under this division	148
shall be afforded an opportunity to demonstrate to the board the	149
ability to resume practice in compliance with acceptable and	150
prevailing standards under the provisions of the individual's	151
certificate. For the purpose of this division, any individual who	152
applies for or receives a certificate to practice under this	153
chapter accepts the privilege of practicing in this state and, by	154
so doing, shall be deemed to have given consent to submit to a	155
mental or physical examination when directed to do so in writing	156
by the board, and to have waived all objections to the	157
admissibility of testimony or examination reports that constitute	158
a privileged communication.	159

(20) Except when civil penalties are imposed under section	160
4731.225 or 4731.281 of the Revised Code, and subject to section	161
4731.226 of the Revised Code, violating or attempting to violate,	162
directly or indirectly, or assisting in or abetting the violation	163
of, or conspiring to violate, any provisions of this chapter or	164
any rule promulgated by the board.	165

This division does not apply to a violation or attempted	166
violation of, assisting in or abetting the violation of, or a	167
conspiracy to violate, any provision of this chapter or any rule	168
adopted by the board that would preclude the making of a report by	169
a physician of an employee's use of a drug of abuse, or of a	170
condition of an employee other than one involving the use of a	171
drug of abuse, to the employer of the employee as described in	172
division (B) of section 2305.33 of the Revised Code. Nothing in	173
this division affects the immunity from civil liability conferred	174
by that section upon a physician who makes either type of report	175
in accordance with division (B) of that section. As used in this	176
division, "employee," "employer," and "physician" have the same	177
meanings as in section 2305.33 of the Revised Code.	178

(21) The violation of section 3701.79 of the Revised Code or	179
of any abortion rule adopted by the public health council pursuant	180
to section 3701.341 of the Revised Code;	181

(22) Any of the following actions taken by an agency	182
responsible for authorizing, certifying, or regulating an	183
individual to practice a health care occupation or provide health	184
care services in this state or another jurisdiction, for any	185
reason other than the nonpayment of fees: the limitation,	186
revocation, or suspension of an individual's license to practice;	187
acceptance of an individual's license surrender; denial of a	188
license; refusal to renew or reinstate a license; imposition of	189
probation; or issuance of an order of censure or other reprimand;	190

(23) The violation of section 2919.12 of the Revised Code or	191
the performance or inducement of an abortion upon a pregnant woman	192
with actual knowledge that the conditions specified in division	193
(B) of section 2317.56 of the Revised Code have not been satisfied	194
or with a heedless indifference as to whether those conditions	195
have been satisfied, unless an affirmative defense as specified in	196
division (H)(2) of that section would apply in a civil action	197
authorized by division (H)(1) of that section;	198

(24) The revocation, suspension, restriction, reduction, or	199
termination of clinical privileges by the United States department	200
of defense or department of veterans affairs or the termination or	201
suspension of a certificate of registration to prescribe drugs by	202
the drug enforcement administration of the United States	203
department of justice;	204

(25) Termination or suspension from participation in the	205
medicare or medicaid programs by the department of health and	206
human services or other responsible agency for any act or acts	207
that also would constitute a violation of division (B)(2), (3),	208
(6), (8), or (19) of this section;	209

(26) Impairment of ability to practice according to	210
acceptable and prevailing standards of care because of habitual or	211
excessive use or abuse of drugs, alcohol, or other substances that	212
impair ability to practice.	213

For the purposes of this division, any individual authorized	214
to practice by this chapter accepts the privilege of practicing in	215
this state subject to supervision by the board. By filing an	216
application for or holding a certificate to practice under this	217
chapter, an individual shall be deemed to have given consent to	218
submit to a mental or physical examination when ordered to do so	219
by the board in writing, and to have waived all objections to the	220
admissibility of testimony or examination reports that constitute	221
privileged communications.	222

If it has reason to believe that any individual authorized to	223
practice by this chapter or any applicant for certification to	224
practice suffers such impairment, the board may compel the	225
individual to submit to a mental or physical examination, or both.	226
The expense of the examination is the responsibility of the	227
individual compelled to be examined. Any mental or physical	228
examination required under this division shall be undertaken by a	229
treatment provider or physician who is qualified to conduct the	230
examination and who is chosen by the board.	231

Failure to submit to a mental or physical examination ordered	232
by the board constitutes an admission of the allegations against	233
the individual unless the failure is due to circumstances beyond	234
the individual's control, and a default and final order may be	235
entered without the taking of testimony or presentation of	236
evidence. If the board determines that the individual's ability to	237
practice is impaired, the board shall suspend the individual's	238
certificate or deny the individual's application and shall require	239
the individual, as a condition for initial, continued, reinstated,	240
or renewed certification to practice, to submit to treatment.	241

Before being eligible to apply for reinstatement of a	242
certificate suspended under this division, the impaired	243
practitioner shall demonstrate to the board the ability to resume	244
practice in compliance with acceptable and prevailing standards of	245
care under the provisions of the practitioner's certificate. The	246
demonstration shall include, but shall not be limited to, the	247
following:	248

(a) Certification from a treatment provider approved under	249
section 4731.25 of the Revised Code that the individual has	250
successfully completed any required inpatient treatment;	251

(b) Evidence of continuing full compliance with an aftercare	252
contract or consent agreement;	253

(c) Two written reports indicating that the individual's	254
ability to practice has been assessed and that the individual has	255
been found capable of practicing according to acceptable and	256
prevailing standards of care. The reports shall be made by	257
individuals or providers approved by the board for making the	258
assessments and shall describe the basis for their determination.	259

The board may reinstate a certificate suspended under this	260
division after that demonstration and after the individual has	261
entered into a written consent agreement.	262

When the impaired practitioner resumes practice, the board	263
shall require continued monitoring of the individual. The	264
monitoring shall include, but not be limited to, compliance with	265
the written consent agreement entered into before reinstatement or	266
with conditions imposed by board order after a hearing, and, upon	267
termination of the consent agreement, submission to the board for	268
at least two years of annual written progress reports made under	269
penalty of perjury stating whether the individual has maintained	270
sobriety.	271

(27) A second or subsequent violation of section 4731.66 or	272
4731.69 of the Revised Code;	273

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

274

(a) Waiving the payment of all or any part of a deductible or	275
copayment that a patient, pursuant to a health insurance or health	276
care policy, contract, or plan that covers the individual's	277
services, otherwise would be required to pay if the waiver is used	278
as an enticement to a patient or group of patients to receive	279
health care services from that individual;	280

(b) Advertising that the individual will waive the payment of	281
all or any part of a deductible or copayment that a patient,	282
pursuant to a health insurance or health care policy, contract, or	283
plan that covers the individual's services, otherwise would be	284
required to pay.	285

(29) Failure to use universal blood and body fluid	286
precautions established by rules adopted under section 4731.051 of	287
the Revised Code;	288

(30) Failure to provide notice to, and receive acknowledgment	289
of the notice from, a patient when required by section 4731.143 of	290
the Revised Code prior to providing nonemergency professional	291
services, or failure to maintain that notice in the patient's	292
file;	293

(31) Failure of a physician supervising a physician assistant	294
to maintain supervision in accordance with the requirements of	295
Chapter 4730. of the Revised Code and the rules adopted under that	296
chapter;	297

(32) Failure of a physician or podiatrist to enter into a	298
standard care arrangement with a clinical nurse specialist,	299
certified nurse-midwife, or certified nurse practitioner with whom	300
the physician or podiatrist is in collaboration pursuant to	301
section 4731.27 of the Revised Code or failure to fulfill the	302
responsibilities of collaboration after entering into a standard	303
care arrangement;	304

(33) Failure to comply with the terms of a consult agreement	305
entered into with a pharmacist pursuant to section 4729.39 of the	306
Revised Code;	307

(34) Failure to cooperate in an investigation conducted by	308
the board under division (F) of this section, including failure to	309
comply with a subpoena or order issued by the board or failure to	310
answer truthfully a question presented by the board at a	311
deposition or in written interrogatories, except that failure to	312
cooperate with an investigation shall not constitute grounds for	313
discipline under this section if a court of competent jurisdiction	314
has issued an order that either quashes a subpoena or permits the	315
individual to withhold the testimony or evidence in issue;	316

(35) Failure to supervise an acupuncturist in accordance with	317
Chapter 4762. of the Revised Code and the board's rules for	318
supervision of an acupuncturist;	319

(36) Failure to supervise an anesthesiologist assistant in	320
accordance with Chapter 4760. of the Revised Code and the board's	321
rules for supervision of an anesthesiologist assistant;	322

(37) Assisting suicide as defined in section 3795.01 of the	323
Revised Code;	324

(38) Failure to comply with the requirements of section	325
2317.561 of the Revised Code;	326

(39) Failure to supervise a radiologist assistant in	327
accordance with Chapter 4774. of the Revised Code and the board's	328
rules for supervision of radiologist assistants;	329

(40) Performing or inducing an abortion at an office or	330
facility with knowledge that the office or facility fails to post	331
the notice required under section 3701.791 of the Revised Code;	332

(41) Failure to comply with the standards and procedures	333
established in rules under section 4731.054 of the Revised Code	334
for the operation of or the provision of care at a pain management	335
clinic;	336

(42) Failure to comply with the standards and procedures	337
established in rules under section 4731.054 of the Revised Code	338
for providing supervision, direction, and control of individuals	339
at a pain management clinic;	340

(43) Failure to comply with the requirements of section	341
4729.79 of the Revised Code, unless the state board of pharmacy no	342
longer maintains a drug database pursuant to section 4729.75 of	343
the Revised Code;	344

(41)(44) Failure to comply with the requirements of section	345
2919.171 of the Revised Code or failure to submit to the	346
department of health in accordance with a court order a complete	347
report as described in section 2919.171 of the Revised Code;	348

(45) Failure to comply with the requirements of section	349
4731.45 of the Revised Code regarding prescriptions for drugs	350
intended to treat symptoms of erectile dysfunction and courses of	351
treatment for patients receiving prescriptions for those drugs.	352

(C) Disciplinary actions taken by the board under divisions	353
(A) and (B) of this section shall be taken pursuant to an	354
adjudication under Chapter 119. of the Revised Code, except that	355
in lieu of an adjudication, the board may enter into a consent	356
agreement with an individual to resolve an allegation of a	357
violation of this chapter or any rule adopted under it. A consent	358
agreement, when ratified by an affirmative vote of not fewer than	359
six members of the board, shall constitute the findings and order	360
of the board with respect to the matter addressed in the	361
agreement. If the board refuses to ratify a consent agreement, the	362
admissions and findings contained in the consent agreement shall	363
be of no force or effect.	364

A telephone conference call may be utilized for ratification	365
of a consent agreement that revokes or suspends an individual's	366
certificate to practice. The telephone conference call shall be	367
considered a special meeting under division (F) of section 121.22	368
of the Revised Code.	369

If the board takes disciplinary action against an individual	370
under division (B) of this section for a second or subsequent plea	371
of guilty to, or judicial finding of guilt of, a violation of	372
section 2919.123 of the Revised Code, the disciplinary action	373
shall consist of a suspension of the individual's certificate to	374
practice for a period of at least one year or, if determined	375
appropriate by the board, a more serious sanction involving the	376
individual's certificate to practice. Any consent agreement	377
entered into under this division with an individual that pertains	378
to a second or subsequent plea of guilty to, or judicial finding	379
of guilt of, a violation of that section shall provide for a	380
suspension of the individual's certificate to practice for a	381
period of at least one year or, if determined appropriate by the	382
board, a more serious sanction involving the individual's	383
certificate to practice.	384

(D) For purposes of divisions (B)(10), (12), and (14) of this	385
section, the commission of the act may be established by a finding	386
by the board, pursuant to an adjudication under Chapter 119. of	387
the Revised Code, that the individual committed the act. The board	388
does not have jurisdiction under those divisions if the trial	389
court renders a final judgment in the individual's favor and that	390
judgment is based upon an adjudication on the merits. The board	391
has jurisdiction under those divisions if the trial court issues	392
an order of dismissal upon technical or procedural grounds.	393

(E) The sealing of conviction records by any court shall have	394
no effect upon a prior board order entered under this section or	395
upon the board's jurisdiction to take action under this section	396
if, based upon a plea of guilty, a judicial finding of guilt, or a	397
judicial finding of eligibility for intervention in lieu of	398
conviction, the board issued a notice of opportunity for a hearing	399
prior to the court's order to seal the records. The board shall	400
not be required to seal, destroy, redact, or otherwise modify its	401
records to reflect the court's sealing of conviction records.	402

(F)(1) The board shall investigate evidence that appears to	403
show that a person has violated any provision of this chapter or	404
any rule adopted under it. Any person may report to the board in a	405
signed writing any information that the person may have that	406
appears to show a violation of any provision of this chapter or	407
any rule adopted under it. In the absence of bad faith, any person	408
who reports information of that nature or who testifies before the	409
board in any adjudication conducted under Chapter 119. of the	410
Revised Code shall not be liable in damages in a civil action as a	411
result of the report or testimony. Each complaint or allegation of	412
a violation received by the board shall be assigned a case number	413
and shall be recorded by the board.	414

(2) Investigations of alleged violations of this chapter or	415
any rule adopted under it shall be supervised by the supervising	416
member elected by the board in accordance with section 4731.02 of	417
the Revised Code and by the secretary as provided in section	418
4731.39 of the Revised Code. The president may designate another	419
member of the board to supervise the investigation in place of the	420
supervising member. No member of the board who supervises the	421
investigation of a case shall participate in further adjudication	422
of the case.	423

(3) In investigating a possible violation of this chapter or	424
any rule adopted under this chapter, the board may administer	425
oaths, order the taking of depositions, inspect and copy any	426
books, accounts, papers, records, or documents, issue subpoenas,	427
and compel the attendance of witnesses and production of books,	428
accounts, papers, records, documents, and testimony, except that a	429
subpoena for patient record information shall not be issued	430
without consultation with the attorney general's office and	431
approval of the secretary and supervising member of the board.	432
Before issuance of a subpoena for patient record information, the	433
secretary and supervising member shall determine whether there is	434
probable cause to believe that the complaint filed alleges a	435
violation of this chapter or any rule adopted under it and that	436
the records sought are relevant to the alleged violation and	437
material to the investigation. The subpoena may apply only to	438
records that cover a reasonable period of time surrounding the	439
alleged violation.	440

On failure to comply with any subpoena issued by the board	441
and after reasonable notice to the person being subpoenaed, the	442
board may move for an order compelling the production of persons	443
or records pursuant to the Rules of Civil Procedure.	444

A subpoena issued by the board may be served by a sheriff,	445
the sheriff's deputy, or a board employee designated by the board.	446
Service of a subpoena issued by the board may be made by	447
delivering a copy of the subpoena to the person named therein,	448
reading it to the person, or leaving it at the person's usual	449
place of residence. When the person being served is a person whose	450
practice is authorized by this chapter, service of the subpoena	451
may be made by certified mail, restricted delivery, return receipt	452
requested, and the subpoena shall be deemed served on the date	453
delivery is made or the date the person refuses to accept	454
delivery.	455

A sheriff's deputy who serves a subpoena shall receive the	456
same fees as a sheriff. Each witness who appears before the board	457
in obedience to a subpoena shall receive the fees and mileage	458
provided for under section 119.094 of the Revised Code.	459

(4) All hearings and investigations of the board shall be	460
considered civil actions for the purposes of section 2305.252 of	461
the Revised Code.	462

(5) Information received by the board pursuant to an	463
investigation is confidential and not subject to discovery in any	464
civil action.	465

The board shall conduct all investigations and proceedings in	466
a manner that protects the confidentiality of patients and persons	467
who file complaints with the board. The board shall not make	468
public the names or any other identifying information about	469
patients or complainants unless proper consent is given or, in the	470
case of a patient, a waiver of the patient privilege exists under	471
division (B) of section 2317.02 of the Revised Code, except that	472
consent or a waiver of that nature is not required if the board	473
possesses reliable and substantial evidence that no bona fide	474
physician-patient relationship exists.	475

The board may share any information it receives pursuant to	476
an investigation, including patient records and patient record	477
information, with law enforcement agencies, other licensing	478
boards, and other governmental agencies that are prosecuting,	479
adjudicating, or investigating alleged violations of statutes or	480
administrative rules. An agency or board that receives the	481
information shall comply with the same requirements regarding	482
confidentiality as those with which the state medical board must	483
comply, notwithstanding any conflicting provision of the Revised	484
Code or procedure of the agency or board that applies when it is	485
dealing with other information in its possession. In a judicial	486
proceeding, the information may be admitted into evidence only in	487
accordance with the Rules of Evidence, but the court shall require	488
that appropriate measures are taken to ensure that confidentiality	489
is maintained with respect to any part of the information that	490
contains names or other identifying information about patients or	491
complainants whose confidentiality was protected by the state	492
medical board when the information was in the board's possession.	493
Measures to ensure confidentiality that may be taken by the court	494
include sealing its records or deleting specific information from	495
its records.	496

(6) On a quarterly basis, the board shall prepare a report	497
that documents the disposition of all cases during the preceding	498
three months. The report shall contain the following information	499
for each case with which the board has completed its activities:	500

(a) The case number assigned to the complaint or alleged	501
violation;	502

(b) The type of certificate to practice, if any, held by the	503
individual against whom the complaint is directed;	504

(c) A description of the allegations contained in the	505
complaint;	506

(d) The disposition of the case.

507

The report shall state how many cases are still pending and	508
shall be prepared in a manner that protects the identity of each	509
person involved in each case. The report shall be a public record	510
under section 149.43 of the Revised Code.	511

(G) If the secretary and supervising member determine both of	512
the following, they may recommend that the board suspend an	513
individual's certificate to practice without a prior hearing:	514

(1) That there is clear and convincing evidence that an	515
individual has violated division (B) of this section;	516

(2) That the individual's continued practice presents a	517
danger of immediate and serious harm to the public.	518

Written allegations shall be prepared for consideration by	519
the board. The board, upon review of those allegations and by an	520
affirmative vote of not fewer than six of its members, excluding	521
the secretary and supervising member, may suspend a certificate	522
without a prior hearing. A telephone conference call may be	523
utilized for reviewing the allegations and taking the vote on the	524
summary suspension.	525

The board shall issue a written order of suspension by	526
certified mail or in person in accordance with section 119.07 of	527
the Revised Code. The order shall not be subject to suspension by	528
the court during pendency of any appeal filed under section 119.12	529
of the Revised Code. If the individual subject to the summary	530
suspension requests an adjudicatory hearing by the board, the date	531
set for the hearing shall be within fifteen days, but not earlier	532
than seven days, after the individual requests the hearing, unless	533
otherwise agreed to by both the board and the individual.	534

Any summary suspension imposed under this division shall	535
remain in effect, unless reversed on appeal, until a final	536
adjudicative order issued by the board pursuant to this section	537
and Chapter 119. of the Revised Code becomes effective. The board	538
shall issue its final adjudicative order within seventy-five days	539
after completion of its hearing. A failure to issue the order	540
within seventy-five days shall result in dissolution of the	541
summary suspension order but shall not invalidate any subsequent,	542
final adjudicative order.	543

(H) If the board takes action under division (B)(9), (11), or	544
(13) of this section and the judicial finding of guilt, guilty	545
plea, or judicial finding of eligibility for intervention in lieu	546
of conviction is overturned on appeal, upon exhaustion of the	547
criminal appeal, a petition for reconsideration of the order may	548
be filed with the board along with appropriate court documents.	549
Upon receipt of a petition of that nature and supporting court	550
documents, the board shall reinstate the individual's certificate	551
to practice. The board may then hold an adjudication under Chapter	552
119. of the Revised Code to determine whether the individual	553
committed the act in question. Notice of an opportunity for a	554
hearing shall be given in accordance with Chapter 119. of the	555
Revised Code. If the board finds, pursuant to an adjudication held	556
under this division, that the individual committed the act or if	557
no hearing is requested, the board may order any of the sanctions	558
identified under division (B) of this section.	559

(I) The certificate to practice issued to an individual under	560
this chapter and the individual's practice in this state are	561
automatically suspended as of the date of the individual's second	562
or subsequent plea of guilty to, or judicial finding of guilt of,	563
a violation of section 2919.123 of the Revised Code, or the date	564
the individual pleads guilty to, is found by a judge or jury to be	565
guilty of, or is subject to a judicial finding of eligibility for	566
intervention in lieu of conviction in this state or treatment or	567
intervention in lieu of conviction in another jurisdiction for any	568
of the following criminal offenses in this state or a	569
substantially equivalent criminal offense in another jurisdiction:	570
aggravated murder, murder, voluntary manslaughter, felonious	571
assault, kidnapping, rape, sexual battery, gross sexual	572
imposition, aggravated arson, aggravated robbery, or aggravated	573
burglary. Continued practice after suspension shall be considered	574
practicing without a certificate.	575

The board shall notify the individual subject to the	576
suspension by certified mail or in person in accordance with	577
section 119.07 of the Revised Code. If an individual whose	578
certificate is automatically suspended under this division fails	579
to make a timely request for an adjudication under Chapter 119. of	580
the Revised Code, the board shall do whichever of the following is	581
applicable:	582

(1) If the automatic suspension under this division is for a	583
second or subsequent plea of guilty to, or judicial finding of	584
guilt of, a violation of section 2919.123 of the Revised Code, the	585
board shall enter an order suspending the individual's certificate	586
to practice for a period of at least one year or, if determined	587
appropriate by the board, imposing a more serious sanction	588
involving the individual's certificate to practice.	589

(2) In all circumstances in which division (I)(1) of this	590
section does not apply, enter a final order permanently revoking	591
the individual's certificate to practice.	592

(J) If the board is required by Chapter 119. of the Revised	593
Code to give notice of an opportunity for a hearing and if the	594
individual subject to the notice does not timely request a hearing	595
in accordance with section 119.07 of the Revised Code, the board	596
is not required to hold a hearing, but may adopt, by an	597
affirmative vote of not fewer than six of its members, a final	598
order that contains the board's findings. In that final order, the	599
board may order any of the sanctions identified under division (A)	600
or (B) of this section.	601

(K) Any action taken by the board under division (B) of this	602
section resulting in a suspension from practice shall be	603
accompanied by a written statement of the conditions under which	604
the individual's certificate to practice may be reinstated. The	605
board shall adopt rules governing conditions to be imposed for	606
reinstatement. Reinstatement of a certificate suspended pursuant	607
to division (B) of this section requires an affirmative vote of	608
not fewer than six members of the board.	609

(L) When the board refuses to grant a certificate to an	610
applicant, revokes an individual's certificate to practice,	611
refuses to register an applicant, or refuses to reinstate an	612
individual's certificate to practice, the board may specify that	613
its action is permanent. An individual subject to a permanent	614
action taken by the board is forever thereafter ineligible to hold	615
a certificate to practice and the board shall not accept an	616
application for reinstatement of the certificate or for issuance	617
of a new certificate.	618

(M) Notwithstanding any other provision of the Revised Code,	619
all of the following apply:	620

(1) The surrender of a certificate issued under this chapter	621
shall not be effective unless or until accepted by the board. A	622
telephone conference call may be utilized for acceptance of the	623
surrender of an individual's certificate to practice. The	624
telephone conference call shall be considered a special meeting	625
under division (F) of section 121.22 of the Revised Code.	626
Reinstatement of a certificate surrendered to the board requires	627
an affirmative vote of not fewer than six members of the board.	628

(2) An application for a certificate made under the	629
provisions of this chapter may not be withdrawn without approval	630
of the board.	631

(3) Failure by an individual to renew a certificate of	632
registration in accordance with this chapter shall not remove or	633
limit the board's jurisdiction to take any disciplinary action	634
under this section against the individual.	635

(N) Sanctions shall not be imposed under division (B)(28) of	636
this section against any person who waives deductibles and	637
copayments as follows:	638

(1) In compliance with the health benefit plan that expressly	639
allows such a practice. Waiver of the deductibles or copayments	640
shall be made only with the full knowledge and consent of the plan	641
purchaser, payer, and third-party administrator. Documentation of	642
the consent shall be made available to the board upon request.	643

(2) For professional services rendered to any other person	644
authorized to practice pursuant to this chapter, to the extent	645
allowed by this chapter and rules adopted by the board.	646

(O) Under the board's investigative duties described in this	647
section and subject to division (F) of this section, the board	648
shall develop and implement a quality intervention program	649
designed to improve through remedial education the clinical and	650
communication skills of individuals authorized under this chapter	651
to practice medicine and surgery, osteopathic medicine and	652
surgery, and podiatric medicine and surgery. In developing and	653
implementing the quality intervention program, the board may do	654
all of the following:	655

(1) Offer in appropriate cases as determined by the board an	656
educational and assessment program pursuant to an investigation	657
the board conducts under this section;	658

(2) Select providers of educational and assessment services,	659
including a quality intervention program panel of case reviewers;	660

(3) Make referrals to educational and assessment service	661
providers and approve individual educational programs recommended	662
by those providers. The board shall monitor the progress of each	663
individual undertaking a recommended individual educational	664
program.	665

(4) Determine what constitutes successful completion of an	666
individual educational program and require further monitoring of	667
the individual who completed the program or other action that the	668
board determines to be appropriate;	669

(5) Adopt rules in accordance with Chapter 119. of the	670
Revised Code to further implement the quality intervention	671
program.	672

An individual who participates in an individual educational	673
program pursuant to this division shall pay the financial	674
obligations arising from that educational program.	675

Sec. 4731.45.  As used in this section, "physician" means an	676
individual authorized under this chapter to practice medicine and	677
surgery or osteopathic medicine and surgery.	678

(A) No person other than a physician shall issue to a patient	679
a prescription for a drug intended to treat symptoms of erectile	680
dysfunction.	681

(B) Prior to issuing a prescription for a drug intended to	682
treat symptoms of erectile dysfunction, a physician shall do all	683
of the following:	684

(1) Obtain from the patient a notarized affidavit in which at	685
least one of the patient's sexual partners certifies that the	686
patient has experienced symptoms of erectile dysfunction in the	687
ninety days preceding the date on the affidavit;	688

(2) Refer the patient to a sexual therapist approved by the	689
state medical board for an assessment of the possible causes of	690
the patient's symptoms of erectile dysfunction and obtain a	691
written report in which the therapist concludes that the patient's	692
symptoms are not solely attributable to one or more psychological	693
conditions;	694

(3) Conduct a cardiac stress test and obtain a result,	695
described in writing, indicating that the patient's cardiac health	696
is compatible with sexual activity;	697

(4) Notify the patient in writing of the potential risks and	698
complications associated with taking drugs intended to treat	699
erectile dysfunction and obtain the patient's signature on a form	700
acknowledging the patient's receipt of the notification;	701

(5) Declare in writing, under penalty of perjury, that the	702
drug the physician is prescribing is necessary to treat the	703
patient's symptoms of erectile dysfunction and attach to the	704
declaration a statement that clearly describes the physician's	705
medical rationale for issuing the prescription;	706

(6) Place all documents described in divisions (B)(1) to (5)	707
of this section in the patient's medical record and retain the	708
documents as part of that record for not less than seven years.	709

(C) To ensure the continued health of a patient to whom a	710
prescription for a drug intended to treat symptoms of erectile	711
dysfunction has been issued, a physician shall do both of the	712
following as part of the physician's course of treatment for the	713
patient, including treatment rendered by issuing to that patient a	714
prescription authorizing one or more refills for the drug	715
originally prescribed or a prescription for another drug intended	716
to treat symptoms of erectile dysfunction:	717

(1) Require the patient to undergo a cardiac stress test	718
every ninety days while the patient is taking the drug to ensure	719
that the patient's cardiac health continues to be compatible with	720
sexual activity;	721

(2) Require the patient to attend three sessions of	722
outpatient counseling within a period of not less than six months	723
after the drug is initially prescribed for purposes of ensuring	724
the patient's understanding of the dangerous side effects of drugs	725
intended to treat the symptoms of erectile dysfunction.	726

The physician shall ensure that the sessions include	727
information on nonpharmaceutical treatments for erectile	728
dysfunction, including sexual counseling and resources for	729
patients to pursue celibacy as a viable lifestyle choice.	730

Section 2.  That existing section 4731.22 of the Revised Code	731
is hereby repealed.	732

Section 3.  Section 4731.22 of the Revised Code is presented	733
in this act as a composite of the section as amended by both H.B.	734
78 and Am. Sub. H.B. 93 of the 129th General Assembly. The General	735
Assembly, applying the principle stated in division (B) of section	736
1.52 of the Revised Code that amendments are to be harmonized if	737
reasonably capable of simultaneous operation, finds that the	738
composite is the resulting version of the section in effect prior	739
to the effective date of the section as presented in this act.	740