As Introduced

130th General Assembly Regular Session 2013-2014

H. B. No. 271

Representative Becker 

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A BILL

To amend sections 2305.234 and 2305.2341 of the

1

Revised Code to expand the immunity from liability

2

for health care professionals, health care

3

workers, and nonprofit health care referral

4

organizations when providing specific care to an

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indigent and uninsured person.

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

Section 1.  That sections 2305.234 and 2305.2341 of the	7
Revised Code be amended to read as follows:	8

Sec. 2305.234.  (A) As used in this section:

9

(1) "Chiropractic claim," "medical claim," and "optometric	10
claim" have the same meanings as in section 2305.113 of the	11
Revised Code.	12

(2) "Dental claim" has the same meaning as in section	13
2305.113 of the Revised Code, except that it does not include any	14
claim arising out of a dental operation or any derivative claim	15
for relief that arises out of a dental operation.	16

(3) "Governmental health care program" has the same meaning	17
as in section 4731.65 of the Revised Code.	18

(4) "Health care facility or location" means a hospital,	19
clinic, ambulatory surgical facility, office of a health care	20
professional or associated group of health care professionals,	21
training institution for health care professionals, or any other	22
place where medical, dental, or other health-related diagnosis,	23
care, or treatment is provided to a person.	24

(5) "Health care professional" means any of the following who	25
provide medical, dental, or other health-related diagnosis, care,	26
or treatment:	27

(a) Physicians authorized under Chapter 4731. of the Revised	28
Code to practice medicine and surgery or osteopathic medicine and	29
surgery;	30

(b) Registered nurses and licensed practical nurses licensed	31
under Chapter 4723. of the Revised Code and individuals who hold a	32
certificate of authority issued under that chapter that authorizes	33
the practice of nursing as a certified registered nurse	34
anesthetist, clinical nurse specialist, certified nurse-midwife,	35
or certified nurse practitioner;	36

(c) Physician assistants authorized to practice under Chapter	37
4730. of the Revised Code;	38

(d) Dentists and dental hygienists licensed under Chapter	39
4715. of the Revised Code;	40

(e) Physical therapists, physical therapist assistants,	41
occupational therapists, and occupational therapy assistants	42
licensed under Chapter 4755. of the Revised Code;	43

(f) Chiropractors licensed under Chapter 4734. of the Revised	44
Code;	45

(g) Optometrists licensed under Chapter 4725. of the Revised	46
Code;	47

(h) Podiatrists authorized under Chapter 4731. of the Revised	48
Code to practice podiatry;	49

(i) Dietitians licensed under Chapter 4759. of the Revised	50
Code;	51

(j) Pharmacists licensed under Chapter 4729. of the Revised	52
Code;	53

(k) Emergency medical technicians-basic, emergency medical	54
technicians-intermediate, and emergency medical	55
technicians-paramedic, certified under Chapter 4765. of the	56
Revised Code;	57

(l) Respiratory care professionals licensed under Chapter	58
4761. of the Revised Code;	59

(m) Speech-language pathologists and audiologists licensed	60
under Chapter 4753. of the Revised Code;	61

(n) Professional clinical counselors, professional	62
counselors, independent social workers, social workers,	63
independent marriage and family therapists, and marriage and	64
family therapists, licensed under Chapter 4757. of the Revised	65
Code;	66

(o) Psychologists licensed under Chapter 4732. of the Revised	67
Code;	68

(p) Independent chemical dependency counselors, chemical	69
dependency counselors III, chemical dependency counselors II, and	70
chemical dependency counselors I, licensed under Chapter 4758. of	71
the Revised Code.	72

(6) "Health care worker" means a person other than a health	73
care professional who provides medical, dental, or other	74
health-related care or treatment under the direction of a health	75
care professional with the authority to direct that individual's	76
activities, including medical technicians, medical assistants,	77
dental assistants, orderlies, aides, and individuals acting in	78
similar capacities.	79

(7) "Indigent and uninsured person" means a person who meets	80
all of the following requirements:	81

(a) The person's income is not greater than two hundred per	82
cent of the current poverty line as defined by the United States	83
office of management and budget and revised in accordance with	84
section 673(2) of the "Omnibus Budget Reconciliation Act of 1981,"	85
95 Stat. 511, 42 U.S.C. 9902, as amended.	86

(b) The person is not eligible to receive medical assistance	87
under Chapter 5111. of the Revised Code or assistance under any	88
other governmental health care program.	89

(c) Either of the following applies:

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(i) The person is not a policyholder, certificate holder,	91
insured, contract holder, subscriber, enrollee, member,	92
beneficiary, or other covered individual under a health insurance	93
or health care policy, contract, or plan.	94

(ii) The person is a policyholder, certificate holder,	95
insured, contract holder, subscriber, enrollee, member,	96
beneficiary, or other covered individual under a health insurance	97
or health care policy, contract, or plan, but the insurer, policy,	98
contract, or plan denies coverage or is the subject of insolvency	99
or bankruptcy proceedings in any jurisdiction.	100

(8) "Nonprofit health care referral organization" means an	101
entity that is not operated for profit and refers patients to, or	102
arranges for the provision of, health-related diagnosis, care, or	103
treatment by a health care professional or health care worker.	104

(9) "Operation" means any procedure that involves cutting or	105
otherwise infiltrating human tissue by mechanical means, including	106
surgery, laser surgery, ionizing radiation, therapeutic	107
ultrasound, or the removal of intraocular foreign bodies.	108
"Operation" does not include the administration of medication by	109
injection, unless the injection is administered in conjunction	110
with a procedure infiltrating human tissue by mechanical means	111
other than the administration of medicine by injection.	112
"Operation" does not include routine dental restorative	113
procedures, the scaling of teeth, or extractions of teeth that are	114
not impacted.	115

(10) "Tort action" means a civil action for damages for	116
injury, death, or loss to person or property other than a civil	117
action for damages for a breach of contract or another agreement	118
between persons or government entities.	119

(11) "Volunteer" means an individual who provides any	120
medical, dental, or other health-care related diagnosis, care, or	121
treatment without the expectation of receiving and without receipt	122
of any compensation or other form of remuneration from an indigent	123
and uninsured person, another person on behalf of an indigent and	124
uninsured person, any health care facility or location, any	125
nonprofit health care referral organization, or any other person	126
or government entity.	127

(12) "Community control sanction" has the same meaning as in	128
section 2929.01 of the Revised Code.	129

(13) "Deep sedation" means a drug-induced depression of	130
consciousness during which a patient cannot be easily aroused but	131
responds purposefully following repeated or painful stimulation, a	132
patient's ability to independently maintain ventilatory function	133
may be impaired, a patient may require assistance in maintaining a	134
patent airway and spontaneous ventilation may be inadequate, and	135
cardiovascular function is usually maintained.	136

(14) "General anesthesia" means a drug-induced loss of	137
consciousness during which a patient is not arousable, even by	138
painful stimulation, the ability to independently maintain	139
ventilatory function is often impaired, a patient often requires	140
assistance in maintaining a patent airway, positive pressure	141
ventilation may be required because of depressed spontaneous	142
ventilation or drug-induced depression of neuromuscular function,	143
and cardiovascular function may be impaired.	144

(B)(1) Subject to divisionsdivision (F) and (G)(3) of this	145
section, a health care professional who is a volunteer and	146
complies with division (B)(2) of this section is not liable in	147
damages to any person or government entity in a tort or other	148
civil action, including an action on a medical, dental,	149
chiropractic, optometric, or other health-related claim, for	150
injury, death, or loss to person or property that allegedly arises	151
from an action or omission of the volunteer in the provision to an	152
indigent and uninsured person of medical, dental, or other	153
health-related diagnosis, care, or treatment, including the	154
provision of samples of medicine and other medical products,	155
unless the action or omission constitutes willful or wanton	156
misconduct.	157

(2) To qualify for the immunity described in division (B)(1)	158
of this section, a health care professional shall do all of the	159
following prior to providing diagnosis, care, or treatment:	160

(a) Determine, in good faith, that the indigent and uninsured	161
person is mentally capable of giving informed consent to the	162
provision of the diagnosis, care, or treatment and is not subject	163
to duress or under undue influence;	164

(b) Inform the person of the provisions of this section,	165
including notifying the person that, by giving informed consent to	166
the provision of the diagnosis, care, or treatment, the person	167
cannot hold the health care professional liable for damages in a	168
tort or other civil action, including an action on a medical,	169
dental, chiropractic, optometric, or other health-related claim,	170
unless the action or omission of the health care professional	171
constitutes willful or wanton misconduct;	172

(c) Obtain the informed consent of the person and a written	173
waiver, signed by the person or by another individual on behalf of	174
and in the presence of the person, that states that the person is	175
mentally competent to give informed consent and, without being	176
subject to duress or under undue influence, gives informed consent	177
to the provision of the diagnosis, care, or treatment subject to	178
the provisions of this section. A written waiver under division	179
(B)(2)(c) of this section shall state clearly and in conspicuous	180
type that the person or other individual who signs the waiver is	181
signing it with full knowledge that, by giving informed consent to	182
the provision of the diagnosis, care, or treatment, the person	183
cannot bring a tort or other civil action, including an action on	184
a medical, dental, chiropractic, optometric, or other	185
health-related claim, against the health care professional unless	186
the action or omission of the health care professional constitutes	187
willful or wanton misconduct.	188

(3) A physician or podiatrist who is not covered by medical	189
malpractice insurance, but complies with division (B)(2) of this	190
section, is not required to comply with division (A) of section	191
4731.143 of the Revised Code.	192

(C) Subject to divisionsdivision (F) and (G)(3) of this	193
section, health care workers who are volunteers are not liable in	194
damages to any person or government entity in a tort or other	195
civil action, including an action upon a medical, dental,	196
chiropractic, optometric, or other health-related claim, for	197
injury, death, or loss to person or property that allegedly arises	198
from an action or omission of the health care worker in the	199
provision to an indigent and uninsured person of medical, dental,	200
or other health-related diagnosis, care, or treatment, unless the	201
action or omission constitutes willful or wanton misconduct.	202

(D) Subject to divisionsdivision (F) and (G)(3) of this	203
section, a nonprofit health care referral organization is not	204
liable in damages to any person or government entity in a tort or	205
other civil action, including an action on a medical, dental,	206
chiropractic, optometric, or other health-related claim, for	207
injury, death, or loss to person or property that allegedly arises	208
from an action or omission of the nonprofit health care referral	209
organization in referring indigent and uninsured persons to, or	210
arranging for the provision of, medical, dental, or other	211
health-related diagnosis, care, or treatment by a health care	212
professional described in division (B)(1) of this section or a	213
health care worker described in division (C) of this section,	214
unless the action or omission constitutes willful or wanton	215
misconduct.	216

(E) Subject to divisionsdivision (F) and (G)(3) of this	217
section and to the extent that the registration requirements of	218
section 3701.071 of the Revised Code apply, a health care facility	219
or location associated with a health care professional described	220
in division (B)(1) of this section, a health care worker described	221
in division (C) of this section, or a nonprofit health care	222
referral organization described in division (D) of this section is	223
not liable in damages to any person or government entity in a tort	224
or other civil action, including an action on a medical, dental,	225
chiropractic, optometric, or other health-related claim, for	226
injury, death, or loss to person or property that allegedly arises	227
from an action or omission of the health care professional or	228
worker or nonprofit health care referral organization relative to	229
the medical, dental, or other health-related diagnosis, care, or	230
treatment provided to an indigent and uninsured person on behalf	231
of or at the health care facility or location, unless the action	232
or omission constitutes willful or wanton misconduct.	233

(F)(1) Except as provided in division (F)(2) of this section,	234
theThe immunities provided by divisions (B), (C), (D), and (E) of	235
this section are not available to a health care professional,	236
health care worker, nonprofit health care referral organization,	237
or health care facility or location if, at the time of an alleged	238
injury, death, or loss to person or property, the health care	239
professionals or health care workers involved are providing one of	240
the following:	241

(a) Any medical, dental, or other health-related diagnosis,	242
care, or treatment pursuant to a community service work order	243
entered by a court under division (B) of section 2951.02 of the	244
Revised Code or imposed by a court as a community control	245
sanction;	246

(b) Performance of an operation to which any one of the	247
following applies:	248

(i) The operation requires the administration of deep	249
sedation or general anesthesia.	250

(ii) The operation is a procedure that is not typically	251
performed in an office.	252

(iii) The individual involved is a health care professional,	253
and the operation is beyond the scope of practice or the	254
education, training, and competence, as applicable, of the health	255
care professional.	256

(c) Delivery of a baby or any otherthe purposeful	257
termination of a human pregnancy.	258

(2) Division (F)(1) of this section does not apply when a	259
health care professional or health care worker provides medical,	260
dental, or other health-related diagnosis, care, or treatment that	261
is necessary to preserve the life of a person in a medical	262
emergency.	263

(G)(1) This section does not create a new cause of action or	264
substantive legal right against a health care professional, health	265
care worker, nonprofit health care referral organization, or	266
health care facility or location.	267

(2) This section does not affect any immunities from civil	268
liability or defenses established by another section of the	269
Revised Code or available at common law to which a health care	270
professional, health care worker, nonprofit health care referral	271
organization, or health care facility or location may be entitled	272
in connection with the provision of emergency or other medical,	273
dental, or other health-related diagnosis, care, or treatment.	274

(3) This section does not grant an immunity from tort or	275
other civil liability to a health care professional, health care	276
worker, nonprofit health care referral organization, or health	277
care facility or location for actions that are outside the scope	278
of authority of health care professionals or health care workers.	279

(4) This section does not affect any legal responsibility of	280
a health care professional, health care worker, or nonprofit	281
health care referral organization to comply with any applicable	282
law of this state or rule of an agency of this state.	283

(5)(4) This section does not affect any legal responsibility	284
of a health care facility or location to comply with any	285
applicable law of this state, rule of an agency of this state, or	286
local code, ordinance, or regulation that pertains to or regulates	287
building, housing, air pollution, water pollution, sanitation,	288
health, fire, zoning, or safety.	289

Sec. 2305.2341. (A) The medical liability insurance	290
reimbursement program is hereby established. Free clinics and	291
federally qualified health center look-alikes, including the	292
clinics' and centers' staff and volunteer health care	293
professionals and volunteer health care workers, may participate	294
in the medical liability insurance reimbursement program	295
established by this section. The coverage provided under the	296
program shall be limited to claims that arise out of the	297
diagnosis, treatment, and care of patients of free clinics and	298
centers, as defined in division (D) of this section.	299

(B) A free clinic or federally qualified health center	300
look-alike is eligible to receive reimbursement under the medical	301
liability insurance reimbursement program for the premiums that	302
the clinic or center pays for medical liability insurance coverage	303
for the clinic or center, its staff, and volunteer health care	304
professionals and health care workers. Free clinics and federally	305
qualified health center look-alikes shall register with the	306
department of health by the thirty-first day of January of each	307
year in order to participate in and to obtain reimbursement under	308
the program. Clinics that register with the department in	309
accordance with this division shall receive priority over centers	310
that register for reimbursement.	311

Free clinics and federally qualified health center	312
look-alikes shall provide all of the following to the department	313
of health at the time of registration:	314

(1) A statement of the number of volunteer and paid health	315
care professionals and health care workers providing health care	316
services at the free clinic or federally qualified health center	317
look-alike at that time;	318

(2) A statement of the number of health care services	319
rendered by the free clinic or federally qualified health center	320
look-alike during the previous fiscal year;	321

(3) A signed form acknowledging that the free clinic or	322
federally qualified health center look-alike agrees to follow its	323
medical liability insurer's risk management and loss prevention	324
policies;	325

(4) A copy of the medical liability insurance policy	326
purchased by the free clinic or federally qualified health center	327
look-alike, or the policy's declaration page, and documentation of	328
the premiums paid by the clinic or center.	329

(C) The department of health shall reimburse free clinics and	330
federally qualified health center look-alikes participating in the	331
professional liability insurance reimbursement program for up to	332
eighty per cent of the premiums that the clinic or center pays for	333
medical liability insurance coverage up to twenty thousand	334
dollars. Appropriations to the department of health may be made	335
from the general fund of the state for this purpose.	336

(D) As used in this section:

337

(1) "Federally qualified health center look-alike" means a	338
public or not-for-profit health center that meets the eligibility	339
requirements to receive a federal public health services grant	340
under the "Public Health Services Act," 117 Stat. 2020, 42 U.S.C.	341
254b, as amended, but does not receive grant funding.	342

(2) "Free clinic" means a nonprofit organization exempt from	343
federal income taxation under section 501(c)(3) of the "Internal	344
Revenue Code of 1986," as amended, or a program component of a	345
nonprofit organization, whose primary mission is to provide health	346
care services for free or for a minimal administrative fee to	347
individuals with limited resources. A free clinic facilitates the	348
delivery of health care services through the use of volunteer	349
health care professionals and voluntary care networks. For this	350
purpose, a free clinic shall comply with all of the following:	351

(a) If a free clinic does request a minimal administrative	352
fee, a free clinic shall not deny an individual access to its	353
health care services based on an individual's ability to pay the	354
fee.	355

(b) A free clinic shall not bill a patient for health care	356
services rendered.	357

(c) Free clinics shall not perform operations, as defined by	358
divisionsdivision (A)(9) and (F)(1)(b) of section 2305.234 of the	359
Revised Code.	360

A clinic is not a free clinic if the clinic bills medicaid,	361
medicare, or other third-party payers for health care services	362
rendered at the clinic, and receives twenty-five per cent or more	363
of the clinic's annual revenue from the third-party payments.	364

(3) "Health care professional" and "health care worker" have	365
the same meanings as in section 2305.234 of the Revised Code.	366

Section 2.  That existing sections 2305.234 and 2305.2341 of	367
the Revised Code are hereby repealed.	368