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(123rd General Assembly)(Amended Substitute House Bill Number 341)
AN ACT
To amend sections 4730.26, 4731.051, 4731.07, 4731.22, 4731.221, 4731.223,
4731.224,
4731.24, 4731.25, 4731.281, and 4731.36
and to enact sections
4762.01, 4762.02, 4762.03, 4762.04, 4762.05, 4762.06, 4762.08, 4762.09,
4762.10, 4762.11, 4762.12, 4762.13, 4762.131, 4762.132, 4762.14, 4762.15,
4762.16, 4762.17, 4762.18,
4762.19, 4762.20, 4762.21, and 4762.99 of the Revised Code
regarding the State Medical Board's authority
to regulate acupuncturists, physicians, and physician assistants.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1 . That sections 4730.26, 4731.051, 4731.07, 4731.22, 4731.221,
4731.223,
4731.224, 4731.24, 4731.25, 4731.281, and
4731.36 be amended and
sections 4762.01, 4762.02, 4762.03, 4762.04, 4762.05, 4762.06, 4762.08,
4762.09, 4762.10, 4762.11, 4762.12, 4762.13, 4762.131, 4762.132, 4762.14,
4762.15, 4762.16, 4762.17,
4762.18, 4762.19, 4762.20, 4762.21, and 4762.99 of the Revised Code
be enacted to read as follows:
Sec. 4730.26. (A) The state medical board
shall investigate evidence that appears to show that any person
has violated this chapter or a rule adopted under it. Any person
may report to the board in a signed writing any information the
person has that appears to show a violation of any provision of
this chapter or rule adopted under it. In the absence of bad faith, a person
who reports such information or testifies before the board in an
adjudication conducted under Chapter 119. of the Revised Code
shall not be liable for civil damages as a
result of reporting the information or providing testimony. Each
complaint or allegation of a violation received by
the board shall be assigned a case number and be recorded by the
board. (B) Investigations of alleged violations of this chapter or
rules adopted under it shall be supervised by the supervising
member elected by the board in accordance with section 4731.02 of
the Revised Code and by the secretary as provided
in section 4730.33 of the Revised Code. The
president may designate another member of the board to supervise
the investigation in place of the supervising member. A member
of the board who supervises the investigation of a case shall
not participate in further adjudication of the case. (C) In investigating a possible violation of this chapter or
a rule adopted under it, the board may administer oaths, order
the taking of depositions, issue subpoenas, and compel the
attendance of witnesses and production of books, accounts,
papers, records, documents, and testimony, except that a subpoena
for patient record information shall not be issued without
consultation with the attorney general's office and approval of
the secretary and supervising member of the board. Before issuance of a
subpoena for patient record
information, the secretary and supervising
member shall determine whether there is probable cause to
believe that the complaint filed alleges a violation of this
chapter or a rule adopted under it and that the records sought
are relevant to the alleged violation and material to the
investigation. The subpoena may apply only to records
that cover a reasonable period of
time surrounding the alleged violation. On failure to comply
with any subpoena issued by the board and after reasonable notice
to the person being subpoenaed, the board may move for an order
compelling the production of persons or records pursuant to the
Rules of Civil Procedure. A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board. Service of a
subpoena issued by the board may be made by delivering a copy of the subpoena
to the person named therein, reading it to the person, or leaving it at
the person's usual place of residence. When the person being
served is a physician assistant, service of the subpoena may be
made by certified mail, restricted delivery, return receipt
requested, and the subpoena shall be deemed served on the date
delivery is made or the date the person refuses to accept
delivery. A sheriff's deputy who serves a subpoena shall
receive the same fees as a sheriff. Each
witness who appears before the board in obedience to a subpoena shall receive
the fees and mileage provided for witnesses in civil cases in the courts of
common pleas. (D) All hearings and investigations of the board shall be
considered civil actions for the purposes of section 2305.251 of
the Revised Code. (E) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any civil
action. The board shall conduct all investigations and
proceedings in a manner that
protects the confidentiality of patients and persons who file
complaints
with the board. The board shall not make public the names
or any other identifying information about patients or
complainants unless proper consent is given or, in the case of a
patient, a waiver of the patient privilege exists under division
(B) of section 2317.02 of the Revised
Code, except that consent or a waiver is not required
if the board possesses reliable and
substantial evidence that no
bona fide physician-patient relationship exists. The board may
share any information it receives pursuant to an investigation, including
patient records and patient record information, with other licensing boards
and governmental agencies
that are investigating alleged professional misconduct and with law
enforcement agencies, other licensing boards, and other
governmental
agencies that are prosecuting, adjudicating, or investigating or
prosecuting alleged criminal offenses. A
board or violations of statutes or administrative rules. An agency
or board that receives the information shall comply with the
same requirements regarding confidentiality as those with which the state
medical board must comply, notwithstanding any conflicting provision of the
Revised Code or
procedure of the board or agency or board that applies when
the board or agency it is
dealing with other information in its possession. The In a judicial
proceeding, the information may
be admitted into evidence in a criminal trial only in accordance
with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that confidentiality is
maintained with respect to any part of the information that contains names or
other identifying information about patients or complainants whose
confidentiality was protected by the state medical board when the information
was in the board's possession. Measures to ensure confidentiality that may be
taken by the court
include sealing its records or deleting specific information from its
records. (F) The state medical board shall develop
requirements for and provide appropriate initial and continuing
training for investigators employed by the board to carry out its
duties under this chapter. The training and continuing education
may include enrollment in courses operated or approved by the
Ohio peace officer training council that the board
considers appropriate under conditions set forth in section
109.79 of the Revised Code. (G) On a quarterly basis, the board shall
prepare a report that documents the disposition of all cases
during the preceding three months. The report shall contain the
following information for each case with which the board has
completed its activities: (1) The case number assigned to the complaint or
alleged violation; (2) The type of certificate to practice, if any, held
by the individual against whom the complaint is directed; (3) A description of the allegations contained in the
complaint; (4) The disposition of the case. The report shall state how many cases are still pending,
and shall be prepared in a manner that
protects the identity
of each person involved in each case. The report shall be
submitted to the physician assistant policy committee of the board
and is a public record for purposes of section 149.43 of the Revised
Code. Sec. 4731.051. The state medical board shall adopt rules in
accordance with
Chapter 119. of the Revised Code establishing universal blood and
body fluid
precautions that shall be used by each person who performs exposure prone
invasive
procedures and is authorized to practice by this chapter or
Chapter 4730. or 4762. of the Revised Code. The rules
shall define and establish requirements for universal blood and
body fluid
precautions that include the following: (A) Appropriate use of hand washing; (B) Disinfection and sterilization of equipment; (C) Handling and disposal of needles and other sharp instruments; (D) Wearing and disposal of gloves and other protective garments and devices. Sec. 4731.07. The state medical board shall keep a record of its
proceedings. It shall also keep a register of applicants for
certificates, showing of registration issued under this chapter,
Chapter 4730. of the Revised Code, and Chapter 4762. of the Revised Code. The register
shall show the name
of the applicant, the name and location of the institution
granting him the
degree of doctor of medicine or surgery or the degree of doctor
of osteopathy
or surgery, and whether he the applicant was granted or
refused
a certificate.
With respect to applicants to practice medicine and surgery or osteopathic
medicine and surgery, the register shall show the name of the institution that
granted the applicant the degree of doctor of medicine or osteopathic
medicine. The booksand books and records of the
board shall be prima-facie
evidence
of matters therein
contained. Sec. 4731.22. (A) The state medical board,
by an affirmative vote of not fewer than six of its members,
may revoke or may
refuse to grant a certificate to a person found by the board to
have committed fraud during the administration of the
examination for a certificate to practice or to have
committed fraud, misrepresentation, or deception in applying for
or securing any certificate to practice or certificate of
registration issued by the board. (B) The board, by an affirmative
vote of not fewer than
six members, shall, to the extent permitted by law, limit,
revoke, or suspend an individual's certificate to
practice, refuse to register an individual, refuse
to reinstate a certificate, or reprimand or place on
probation the
holder of a certificate for one or more of the following reasons: (1) Permitting one's name or one's certificate to practice or
certificate of
registration to be used by a person, group, or corporation when
the individual concerned is not actually directing the treatment
given; (2) Failure to maintain
minimal standards applicable to the
selection or administration of drugs, or failure to employ acceptable
scientific methods in the selection of drugs or other modalities
for treatment of disease; (3) Selling, giving away, personally furnishing, prescribing, or
administering drugs for other than legal and legitimate therapeutic purposes
or a plea of guilty to, a judicial finding of guilt of, or a
judicial finding of eligibility for treatment intervention in
lieu of conviction
of, a violation of any federal or state law regulating the possession,
distribution, or use of any drug; (4) Willfully betraying a professional confidence. For purposes of this division, "willfully betraying a professional
confidence" does not include the making of a report of an
employee's use of a drug of abuse, or a report of a condition of
an employee other than one involving the use of a drug of abuse,
to the employer of the employee as described in division (B) of
section 2305.33 of the Revised Code.
Nothing in this division
affects the immunity from
civil liability conferred by that section upon a physician who
makes either type of report in accordance with division (B) of
that section. As used in this division, "employee," "employer,"
and "physician" have the same meanings as in section 2305.33 of
the Revised Code. (5) Making a false, fraudulent,
deceptive, or misleading statement
in the solicitation of or advertising
for patients; in relation
to the practice of medicine and surgery, osteopathic medicine
and surgery, podiatry, or a limited branch of medicine;
or in securing or attempting to secure any certificate
to practice or certificate of registration issued by the board. As used in this division, "false, fraudulent, deceptive, or
misleading statement" means a statement that includes a
misrepresentation of fact, is likely to mislead or deceive
because of a failure to disclose material facts, is intended or
is likely to create false or unjustified expectations of
favorable results, or includes representations or implications
that in reasonable probability will cause an ordinarily prudent
person to misunderstand or be deceived. (6) A departure from, or the failure to conform to,
minimal standards of care of similar practitioners under the same
or similar circumstances, whether or not actual injury to a
patient is established; (7) Representing, with the purpose of obtaining
compensation or other advantage as personal gain or for
any other
person, that an incurable disease or injury, or other incurable
condition, can be permanently cured; (8) The obtaining of, or attempting to obtain, money or
anything of value by fraudulent misrepresentations in the course
of practice; (9) A plea of guilty to, a judicial finding of guilt
of, or a judicial finding of eligibility for treatment
intervention in lieu of
conviction for, a felony; (10) Commission of an act that constitutes a felony in
this state, regardless of the jurisdiction in which the act was
committed; (11) A plea of guilty to, a judicial finding of guilt
of, or a judicial finding of eligibility for treatment
intervention in lieu of
conviction for, a misdemeanor committed in the course of practice; (12) Commission of an act in the course of practice that constitutes a
misdemeanor
in this state, regardless of the jurisdiction in which the act was
committed; (13) A plea of guilty to, a judicial finding of guilt
of, or a judicial finding of eligibility for treatment
intervention in lieu of
conviction for, a misdemeanor involving moral turpitude; (14) Commission of an act involving moral turpitude that constitutes a
misdemeanor
in this state, regardless of the jurisdiction in which the act was
committed; (15) Violation of the conditions of limitation placed by
the board upon a certificate to practice; (16) Failure to pay license renewal fees specified in this
chapter; (17) Except as authorized in section 4731.31 of the Revised Code,
engaging in the division of fees
for referral of patients, or the
receiving of a thing of value in return for a specific referral of a patient
to utilize a particular service or business; (18) Subject to section 4731.226 of the Revised Code, violation of
any provision of a code of ethics
of the American medical association, the American osteopathic
association, the American podiatric medical association, or any
other national professional organizations that
the board specifies by
rule. The state medical board shall
obtain and keep on file current copies of the codes of ethics of
the various national professional organizations. The
individual whose certificate is being suspended or
revoked
shall not be found to have violated any provision of a code of
ethics of an organization not appropriate to the
individual's profession. For purposes of this division, a "provision of a code
of ethics of a national professional organization" does not
include any provision that would preclude the making of a
report by a physician of an employee's use of a drug of abuse, or
of a condition of an employee other than one involving the use of
a drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing
in this division affects the
immunity from civil liability conferred by that section upon a
physician who makes either type of report in accordance with
division (B) of that section. As used in this division,
"employee," "employer," and "physician" have the same meanings as
in section 2305.33 of the Revised Code. (19) Inability to practice according to acceptable and
prevailing standards of care by reason of mental illness or
physical illness, including, but not limited to, physical
deterioration that adversely affects cognitive, motor, or
perceptive skills. In enforcing this division, the board, upon a
showing of a possible violation, may compel any individual
authorized to practice by this chapter or
who has
submitted an application
pursuant to this chapter
to submit to a mental examination, physical
examination, including an HIV test, or both a mental
and a physical
examination. The expense of the
examination is the responsibility of the individual compelled to be
examined. Failure to submit to a mental or physical examination
or consent to an HIV test ordered by the board
constitutes an admission of the allegations against the
individual
unless the failure is due to circumstances beyond the individual's control,
and a default and final order may be entered without the taking
of testimony or presentation of evidence. If the board finds an
individual unable to practice because of the reasons
set forth in
this division, the board shall require the individual
to submit to
care, counseling, or treatment by physicians approved or
designated by the board, as a condition for initial, continued,
reinstated, or renewed authority to practice. An
individual
affected under this division shall be
afforded an opportunity to demonstrate to the board the ability to
resume practice in compliance with acceptable and prevailing
standards under the provisions of the individual's certificate.
For the
purpose of this division, any individual who
applies for or receives a certificate to
practice under this chapter accepts the privilege of
practicing in
this state and, by so doing, shall be
deemed to have given consent to submit to a mental or
physical examination when directed to do so in writing by the
board, and to have waived all objections to the admissibility of
testimony or examination reports that constitute a privileged
communication. (20) Except when civil penalties are imposed under section 4731.225
or 4731.281 of the Revised Code, and subject to section
4731.226 of the Revised Code, violating or
attempting to violate, directly or indirectly, or assisting in or
abetting the violation of, or conspiring to violate, any
provisions of this chapter or any rule promulgated by the board. This division does not apply to a violation or attempted
violation of, assisting in or abetting the violation of, or a
conspiracy to violate, any provision of this chapter or any rule
adopted by the board that would preclude the making
of a
report by a physician of an employee's use of a drug of abuse, or
of a condition of an employee other than one involving the use of
a drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing
in this division affects the
immunity from civil liability conferred by that section upon a
physician who makes either type of report in accordance with
division (B) of that section. As used in this division,
"employee," "employer," and "physician" have the same meanings as
in section 2305.33 of the Revised Code. (21) The violation of any abortion rule adopted by the
public health council pursuant to section 3701.341 of the Revised
Code; (22) Any of the following actions taken by the state agency
responsible for regulating the practice of medicine and surgery, osteopathic
medicine and surgery, podiatry, or the limited branches of medicine in
another state jurisdiction, for any reason other than the
nonpayment of fees: the
limitation, revocation, or suspension of an individual's license
to practice; acceptance of an
individual's license surrender; denial of a license; refusal to
renew or reinstate
a license; imposition of probation; or
issuance of an order of censure or other reprimand; (23) The violation of section 2919.12 of the Revised Code
or the performance or inducement of an abortion upon a pregnant
woman with actual knowledge that the conditions specified in
division (B) of section 2317.56 of the Revised Code have not been
satisfied or with a heedless indifference as to whether those
conditions have been satisfied, unless an affirmative defense as
specified in division (H)(2) of that section would apply in a
civil action authorized by division (H)(1) of that section; (24) The revocation, suspension, restriction, reduction,
or termination of clinical privileges by the United
States department of
defense or department of veterans
affairs or the termination or suspension of a certificate of
registration to prescribe drugs by the drug enforcement
administration of the United States department of
justice; (25) Termination or suspension from participation in the medicare or
medicaid
programs by the department of health and human services or other
responsible agency for any act or acts that also would
constitute a violation of division (B)(2), (3), (6), (8), or (19)
of this section; (26) Impairment of ability to practice according to
acceptable and prevailing standards of care because of habitual
or excessive use or abuse of drugs, alcohol, or other substances
that impair ability to practice. For the purposes of this division, any individual authorized to practice
by this chapter accepts
the privilege of
practicing in this state subject to supervision by the board. By
filing an application for or
holding a
certificate to practice under this chapter, an
individual shall
be deemed to have given consent to submit to a mental or
physical examination when ordered to do so by the board in
writing, and to have waived all objections to the admissibility
of testimony or examination reports that constitute privileged
communications. If it has reason to believe that any individual authorized to practice by
this chapter or any applicant for
certification to practice suffers such impairment, the board may compel
the
individual to submit to a mental or physical examination, or
both. The expense of the examination is the
responsibility of the individual
compelled to be examined. Any
mental or physical examination required under this division shall
be undertaken by a treatment provider or physician who is qualified to
conduct the examination and who is chosen by the
board. Failure to submit to a mental or physical
examination ordered by the board constitutes an admission of the
allegations against the individual unless the failure is due to
circumstances beyond the individual's control, and a default and
final order may be entered without the taking of testimony or
presentation of evidence. If the board determines that the
individual's ability to practice is impaired, the board shall
suspend the individual's certificate or deny the
individual's application and shall require
the individual, as a condition for initial, continued,
reinstated, or renewed certification to practice, to
submit to treatment. Before being eligible to apply for reinstatement of a
certificate suspended under this division, the
impaired practitioner shall
demonstrate to the board the ability
to resume practice in
compliance with acceptable and prevailing standards of care under
the provisions of the practitioner's certificate. The
demonstration shall
include, but shall not be limited to, the following: (a) Certification from a treatment provider approved under
section 4731.25 of the Revised Code that the
individual has
successfully completed any required inpatient treatment; (b) Evidence of continuing full compliance with an
aftercare contract or consent agreement; (c) Two written reports indicating that the individual's
ability to practice has been assessed and that the individual has
been found capable of practicing according to acceptable and prevailing
standards of care. The reports shall be made by individuals or
providers approved by the board for making the assessments and
shall describe the basis for their determination. The board may reinstate a certificate suspended under
this
division after that demonstration and after the individual has
entered into a written consent agreement. When the impaired practitioner resumes practice, the board shall
require continued
monitoring of the individual. The
monitoring shall include, but not be
limited to, compliance with the written consent agreement entered
into before reinstatement or with conditions imposed by board
order after a hearing, and, upon termination of the consent
agreement, submission to the board for at least two years of
annual written progress reports made under penalty of perjury
stating whether the individual has maintained
sobriety. (27) A second or subsequent violation of section 4731.66
or 4731.69 of the Revised Code; (28) Except as provided in division (N) of this section: (a) Waiving the payment of all or any part of a
deductible or copayment that a patient, pursuant to a health
insurance or health care policy, contract, or plan that covers
the individual's services, otherwise would be
required
to pay if the waiver is used as an enticement to a patient or group of
patients to receive health care services from that
individual; (b) Advertising that the individual will waive the
payment of all or
any part of a deductible or copayment that a patient, pursuant to
a health insurance or health care policy, contract, or plan that
covers the individual's services, otherwise would
be
required to pay. (29) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4731.051
of the Revised Code; (30) Failure of a collaborating physician to fulfill
the responsibilities agreed to by the
physician
and an advanced practice nurse
participating in a pilot program under section 4723.52 of the Revised Code; (31) Failure to provide notice to, and receive
acknowledgment of the
notice from, a patient when required by section 4731.143 of the Revised Code
prior to providing nonemergency professional services, or failure to maintain
that notice in the patient's file; (32) Failure of a physician supervising a physician assistant to
maintain supervision in accordance with the requirements of Chapter
4730. of the Revised Code and the rules adopted under that chapter; (33) Failure of a physician or podiatrist to enter into a standard care
arrangement with a clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner with whom the physician or podiatrist is in
collaboration pursuant to section 4731.27 of the Revised Code
or failure to fulfill the responsibilities of collaboration after entering
into a standard care arrangement; (34) Failure to comply with the terms of a consult agreement
entered into with a pharmacist pursuant to section 4729.39 of the
Revised Code; (35) Failure to cooperate in an investigation conducted by
the board under division (F) of this section, including
failure to comply with a subpoena or order issued by the board
or failure to answer truthfully a question presented by the
board at a deposition or in written interrogatories, except that
failure to cooperate with an investigation shall not constitute
grounds for discipline under this section if a court of
competent jurisdiction has issued an order that either quashes a
subpoena or permits the individual to withhold the testimony or
evidence in issue; (36) Failure to supervise an acupuncturist in accordance with
Chapter 4762. of the Revised Code and the board's rules for supervision of an
acupuncturist. (C) Disciplinary actions taken by the board under divisions
(A) and (B) of this section shall be taken pursuant to an
adjudication under Chapter 119. of the Revised Code, except that in lieu of an
adjudication, the board may enter into a consent agreement with an
individual to resolve an allegation of a violation of this chapter or any rule
adopted under it. A consent agreement, when ratified by an
affirmative vote of not fewer than six members of the board,
shall constitute the findings and order of the board with
respect to the matter addressed in the agreement. If the board
refuses to ratify a consent agreement, the admissions and
findings contained in the consent agreement shall be of no force
or effect. (D) For purposes of divisions (B)(10), (12), and (14) of this
section, the commission of the act may be established by a
finding by the board, pursuant to an adjudication under
Chapter 119. of the Revised Code, that the individual committed the act.
The board
does not have jurisdiction under those divisions if
the trial court renders a final judgment in the individual's favor and
that judgment is based upon an
adjudication on
the merits. The board has jurisdiction under those
divisions if the trial court issues an order of
dismissal upon technical or procedural grounds. (E) The sealing of conviction records by any court shall have
no effect upon a prior board order entered under this section
or upon the board's jurisdiction to take action under this section if,
based upon a plea of guilty,
a judicial finding of guilt, or a
judicial finding of eligibility for treatment intervention in
lieu of conviction, the board issued a notice of opportunity for
a hearing prior to the court's order to seal the records. The
board shall not be required to seal, destroy, redact, or
otherwise modify its records to reflect the court's sealing of
conviction records. (F)(1) The board shall investigate evidence that appears
to show that a person has violated any provision of this
chapter or any rule adopted under it. Any person may report to the board
in a signed writing
any information that the person may have that appears to show a
violation of any provision of this chapter or any rule
adopted under it. In the absence of bad
faith, any person who reports information of that nature or who testifies
before the board in any adjudication conducted under
Chapter 119. of the Revised Code shall not be liable
in damages in a civil action as a result of the report or
testimony. Each
complaint or allegation of a violation received by the
board shall be assigned a case number and shall be recorded by
the board. (2) Investigations of alleged violations of this chapter or any rule
adopted under it shall
be supervised by the supervising member elected by the board in
accordance with section 4731.02 of the Revised Code and by the
secretary as provided in section 4731.39 of the Revised Code. The president
may designate another member of the board to
supervise the investigation in place of the supervising member. No member of
the board who supervises the investigation of a case
shall participate in further adjudication of the case. (3) In investigating a possible violation of
this chapter or any rule adopted
under this chapter, the board
may administer oaths, order the taking of depositions, issue
subpoenas, and compel the attendance of witnesses and production
of books, accounts, papers, records, documents, and testimony, except
that a
subpoena for patient record information shall not be issued without
consultation with the attorney general's office and approval of
the secretary and supervising member
of the board. Before issuance of a
subpoena for patient record information, the
secretary and supervising member shall
determine
whether there is probable cause to believe that the complaint filed alleges a
violation of this chapter or any rule adopted under it and that the records
sought are relevant
to the alleged violation and material to the investigation.
The subpoena may apply only to records that cover a
reasonable period of time surrounding the
alleged violation. On failure to comply with any subpoena
issued by the board and after reasonable notice to the person
being subpoenaed, the board may move for an order compelling the
production of persons or records pursuant to the Rules of Civil
Procedure. A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board. Service of a subpoena issued by the board may be
made by delivering a copy of the subpoena to the
person named therein, reading it to the person, or leaving it at
the person's usual place of residence. When the person being
served is a person whose practice is authorized by this chapter,
service of the subpoena may be made by certified mail,
restricted delivery, return receipt requested, and the subpoena
shall be deemed served on the date delivery is made or the date
the person refuses to accept delivery. A sheriff's deputy who serves a subpoena shall receive the same fees as a
sheriff. Each witness who
appears before the board in
obedience to a subpoena shall receive the fees
and mileage provided for witnesses in civil cases in the courts
of common pleas. (4) All hearings and investigations of the board shall be
considered civil actions for the purposes of section 2305.251 of
the Revised Code. (5) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any civil
action. The board shall conduct all investigations and proceedings
in a manner that protects the
confidentiality of patients and persons who file complaints with the
board. The
board shall not make public the names or any other identifying
information about patients or complainants unless proper consent is
given or, in the case of a patient, a
waiver of the patient privilege exists under division (B) of
section 2317.02 of the Revised Code, except that consent
or a waiver of that nature is not required if the board
possesses reliable and
substantial evidence that no bona fide physician-patient
relationship exists. The board may
share any information it receives pursuant to an investigation, including
patient records and patient record
information, with other licensing boards and governmental agencies
that are investigating alleged professional misconduct and with law
enforcement agencies, other licensing boards, and other
governmental
agencies that are prosecuting, adjudicating, or investigating or
prosecuting alleged criminal offenses. A
board or violations of statutes or administrative rules. An agency
or board that receives the information shall comply with the same
requirements regarding confidentiality as those with which the state medical
board must comply, notwithstanding any conflicting provision
of the Revised Code or procedure
of the board or agency or board that applies when the board
or agency IT is dealing with
other information in its possession. The In a judicial proceeding,
the information
may
be admitted into evidence in a criminal trial ONLY in accordance with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that
confidentiality is maintained with respect to any part of the information that
contains names or other identifying information about patients or complainants
whose confidentiality was protected by the state medical board when the
information was in the board's possession. Measures to ensure confidentiality
that may be taken by the court include sealing its records or deleting
specific information
from its records. (6) On a quarterly basis, the board shall prepare a report
that documents the disposition of all cases during the preceding
three months. The report shall contain the following information
for each case with which the board has completed its activities: (a) The case number assigned to the complaint or alleged
violation; (b) The type of certificate to practice, if
any, held by the individual against whom the complaint is
directed; (c) A description of the allegations contained in the
complaint; (d) The disposition of the case. The report shall state how many cases are still pending
and shall be prepared in a manner that
protects the identity
of each person involved in each case. The report shall be a
public record under section 149.43 of the Revised Code. (G) If the secretary and supervising member determine that
there is clear and convincing evidence that
an individual has violated division (B) of this section and that the
individual's continued practice presents a
danger of
immediate and serious harm to the public, they may recommend that
the board suspend the individual's
certificate to practice without a
prior hearing. Written allegations shall be prepared for consideration by the
board. The board, upon review of those allegations and by an
affirmative vote
of not fewer than six of its members, excluding the secretary and
supervising member, may suspend a certificate without a prior
hearing. A telephone conference call may be utilized for
reviewing the allegations and taking the vote on the
summary suspension. The board shall issue a written order of suspension by
certified mail or in person in accordance with section 119.07 of
the Revised Code. The order shall not be subject to
suspension
by the court during pendency of any appeal filed under section
119.12 of the Revised Code. If the individual
subject to the summary suspension requests
an adjudicatory hearing by the board, the date set for the
hearing shall be within fifteen days, but not earlier than seven
days, after the individual
requests the hearing,
unless otherwise agreed to by both the board and the individual. Any summary suspension imposed under this division shall
remain in effect, unless reversed on appeal, until a final
adjudicative order issued by the board pursuant to this section
and Chapter 119. of the Revised Code becomes effective. The
board shall issue its final adjudicative order within sixty days
after completion of its hearing. A failure to issue the order
within sixty days shall result in dissolution of the summary
suspension order but shall not invalidate any subsequent, final
adjudicative order. (H) If the board takes action under division
(B)(9), (11), or (13) of this section and the judicial
finding of guilt, guilty plea, or judicial finding of
eligibility for treatment intervention in lieu of conviction is
overturned on appeal,
upon
exhaustion of the criminal appeal, a petition for reconsideration
of the order may be filed with the board along with appropriate
court documents. Upon receipt of a petition of that
nature and supporting court documents, the board shall reinstate the
individual's certificate to practice. The
board may then hold an adjudication under Chapter 119. of the Revised Code to
determine whether the individual
committed
the act in question. Notice of an opportunity for a hearing
shall be given in accordance with Chapter 119. of the Revised Code. If the
board finds, pursuant to an adjudication held under this division,
that the individual committed
the act or if
no hearing is requested, the board may order any of the sanctions
identified under division (B) of this section. (I) The certificate to practice issued to an individual under
this chapter and the individual's practice in this
state are automatically suspended as of the date the individual pleads
guilty to, is found by a judge
or jury to be guilty of, or is subject to a judicial
finding of eligibility for intervention in lieu of conviction in this state
or treatment or intervention in lieu of conviction in another
state jurisdiction for
any of the following
criminal offenses in this state or a
substantially equivalent criminal offense in another jurisdiction: aggravated
murder, murder, voluntary
manslaughter, felonious assault, kidnapping, rape, sexual
battery, gross sexual imposition, aggravated arson, aggravated
robbery, or aggravated burglary. Continued
practice after suspension shall be considered practicing
without a certificate. The board shall notify the
individual subject to the suspension by certified mail or in person in
accordance with section 119.07 of the Revised Code. If an
individual whose certificate is suspended under this
division fails to make a timely request for an adjudication under
Chapter 119. of the Revised Code,
the board shall enter a final order permanently revoking the
individual's certificate to practice. (J) If the board is required by
Chapter 119. of the Revised Code to give notice of an
opportunity for a hearing and if the individual subject to the notice
does not timely request a
hearing in accordance with section
119.07 of the Revised Code, the board is not required
to hold a hearing, but may adopt, by an affirmative vote of
not fewer than
six of its members, a final order that contains the board's
findings. In that final order, the board may order any of the
sanctions identified under division
(A) or (B) of this section. (K) Any action taken by the board under division (B) of
this section resulting in a suspension from practice shall be
accompanied by a written statement of the conditions under which
the individual's certificate to practice may be
reinstated. The board
shall adopt rules governing conditions to be imposed for
reinstatement. Reinstatement of a certificate suspended pursuant
to division (B) of this section requires an affirmative vote of
not fewer than six members of the board. (L) When the board
refuses to grant a certificate to an applicant,
revokes an individual's
certificate to practice, refuses to register an applicant, or
refuses to reinstate an individual's certificate to practice,
the board may specify that its action is permanent. An
individual subject to a permanent action taken by the board is
forever thereafter ineligible to hold a certificate to practice
and the board shall not accept an application for reinstatement of the
certificate or for issuance of a new certificate. (M) Notwithstanding any other provision of the Revised
Code, all of the following apply: (1) The surrender of a certificate issued under this
chapter shall not be effective
unless or until accepted by the board. Reinstatement of a
certificate surrendered to the board requires an affirmative vote
of not fewer than six members of the board. (2) An application for a certificate made
under the
provisions of this chapter
may not be withdrawn without approval of the board. (3) Failure by an individual to renew a certificate
of registration in accordance with this chapter shall not remove or limit the
board's
jurisdiction to take any disciplinary action under this section
against the individual. (N) Sanctions shall not be imposed under division
(B)(28) of this section against any person who
waives deductibles and copayments as follows: (1) In compliance with the health benefit plan that
expressly allows such a practice. Waiver of the deductibles or
copayments shall be made only with the full knowledge and consent of
the plan purchaser, payer, and third-party administrator. Documentation of
the consent shall be made available to the board upon request. (2) For professional services rendered to any other person
authorized to practice pursuant to this chapter,
to the extent allowed by this
chapter and rules adopted by the board. (O) Under the board's investigative duties described in
this
section and subject to division (F) of this section, the
board shall
develop and implement a quality intervention program designed to improve
through remedial
education the clinical and communication skills of individuals authorized
under this chapter to practice medicine and surgery, osteopathic medicine and
surgery, and podiatry. In
developing and implementing the quality intervention program, the board may do
all of the following: (1) Offer in appropriate cases as determined by the board an educational
and assessment program pursuant to an investigation the
board conducts under this section; (2) Select providers of educational and assessment services, including a
quality intervention program panel of case reviewers; (3) Make referrals to educational and
assessment service providers and
approve individual educational programs recommended by those providers. The
board shall monitor the progress of each individual
undertaking a recommended individual educational
program. (4) Determine what constitutes successful completion of an
individual educational program and require further monitoring of the
individual who completed the program or other
action that the board determines to be appropriate; (5) Adopt rules in accordance with Chapter 119. of the Revised Code to
further
implement the quality intervention program. An individual who participates in an individual
educational program pursuant
to this division shall pay the financial obligations arising from that
educational program. Sec. 4731.221. If the state medical board has reason to
believe that any person who has been granted a certificate under
Chapter 4731. of the Revised Code this chapter is mentally ill
or mentally
incompetent, it may file in the probate court of the county in
which such person has a legal residence an affidavit in the form
prescribed in section 5122.11 of the Revised Code and signed by
the board secretary or a member of the board secretary's
staff, whereupon the same
proceedings shall be had as provided in Chapter 5122. of the
Revised Code. The attorney general may represent the board in
any proceeding commenced under this section. If any person who has been granted a certificate is
adjudged by a probate court to be mentally ill or mentally
incompetent, the person's certificate shall be automatically
suspended
until such person has filed with the state medical board a
certified copy of an adjudication by a probate court of the
person's
subsequent restoration to competency or has submitted to such
board proof, satisfactory to the board, that the person has
been
discharged as having a restoration to competency in the manner
and form provided in section 5122.38 of the Revised Code. The
judge of such court shall forthwith notify the state medical
board of an adjudication of mental illness or mental incompetence, and
shall note any
suspension of a certificate in the margin of the court's record
of such certificate. Sec. 4731.223. (A) As used in this section, "prosecutor"
has the same meaning as in section 2935.01 of the Revised Code. (B) Whenever any person holding a valid certificate issued
pursuant to this chapter
pleads guilty to, is subject to a judicial finding of guilt of, or
is subject to a judicial finding of eligibility for treatment
intervention in lieu of
conviction for a violation of Chapter 2907., 2925., or 3719. of the
Revised Code
or of any substantively comparable ordinance of a municipal
corporation in connection with the person's practice, the
prosecutor in
the case, on forms prescribed and provided by the state
medical board, shall promptly notify the board of the conviction or
guilty plea. Within thirty days of receipt of that
information, the board
shall initiate action in accordance with Chapter 119. of the
Revised Code to determine whether to suspend or revoke the
certificate under section 4731.22 of the Revised Code. (C) The prosecutor in any case against any person holding
a valid certificate issued pursuant to this chapter, on
forms prescribed and provided by the state medical board, shall notify
the board of any of the following: (1) A plea of guilty to, a finding of guilt by a jury
or court of,
or judicial finding of eligibility for treatment intervention in
lieu of conviction
for
a felony, or a case in which the trial
court issues an order of dismissal upon technical or procedural grounds of a
felony charge; (2) A plea of guilty to,
a finding of guilt by a jury
or court of,
or judicial finding of eligibility for treatment intervention in
lieu of conviction
for
a misdemeanor committed in the course of practice, or a case
in which the trial court issues an order of dismissal upon
technical
or procedural grounds of a charge of a misdemeanor, if the
alleged act was committed in the course of practice; (3) A plea of guilty to, a finding of guilt by a jury
or court of,
or judicial finding of eligibility for treatment intervention in
lieu of conviction
for
a misdemeanor involving moral turpitude, or a case
in which the trial court issues an order of dismissal upon
technical or
procedural grounds of a charge of a misdemeanor involving moral
turpitude. The report shall include the name and address of the
certificate holder, the nature of the offense for which the
action was taken, and the certified court documents recording the
action. Sec. 4731.224. (A) Within sixty days after the
imposition of any formal disciplinary action
taken by any health care facility, including a hospital,
health care facility operated by a health insuring
corporation, ambulatory surgical center, or similar
facility, against any individual holding a
valid
certificate to practice issued pursuant to this chapter, the chief
administrator or executive officer of the facility shall report
to the state medical board the name of the
individual, the action taken by the facility, and a summary of the
underlying facts leading to the action taken. Upon request, the board shall
be provided certified copies of the patient records that
were the basis for the facility's action. Prior to release to
the board, the summary shall be approved by the peer review
committee that reviewed the case or by the governing board
of
the facility. As used in this division, "formal disciplinary
action" means any action
resulting in the revocation,
restriction, reduction, or termination of clinical privileges for
violations of professional ethics, or for reasons of medical
incompetence, medical malpractice, or drug or alcohol abuse.
"Formal disciplinary action" includes a summary action,
an action that takes effect notwithstanding any appeal rights
that may exist, and an action that results in an individual
surrendering clinical privileges while under investigation and
during proceedings regarding the action being taken or in return
for not being investigated or having proceedings held. "Formal
disciplinary action" does not include any
action taken
for the sole reason of failure to maintain records on a timely
basis or failure to attend staff or section meetings. The filing or nonfiling of a report with the board,
investigation by the board, or any disciplinary action taken by
the board, shall not preclude any action by a health care
facility to suspend, restrict, or revoke
the individual's clinical privileges. In the absence of fraud or bad faith, no individual or entity that provides
patient records to the board shall be liable in damages to any
person as a result of providing the records. (B) If any individual authorized to practice under
this chapter or any professional
association or society of such individuals
believes that a violation of any provision of this chapter,
Chapter 4730. or 4762. of the Revised Code, or any rule of the
board has
occurred, the individual, association, or
society shall report to the board the information upon
which the belief is based. This division does not require any treatment
provider approved by the board under section 4731.25 of
the Revised Code or any employee, agent, or representative of
such a provider to make reports with respect to an impaired
practitioner participating in treatment or aftercare for
substance abuse as long as the
practitioner maintains participation in accordance with the
requirements of section 4731.25 of the Revised Code, and as
long as the treatment provider
or employee, agent, or representative of the provider has no reason to
believe that the practitioner has violated any provision of this
chapter or any rule adopted under it, other than the provisions of
division (B)(26) of section
4731.22 of the Revised Code. This division does not require
reporting by any member of an impaired practitioner committee
established by a health care facility or by any
representative or agent of a committee or program sponsored by a professional
association or society of
individuals authorized to practice under this chapter
to provide peer
assistance to practitioners with substance abuse problems with
respect to a practitioner who has been referred for examination
to a treatment program approved by the board under section
4731.25 of the Revised Code if the practitioner cooperates with
the referral for examination and with any determination that the
practitioner
should enter treatment and as long as the committee member,
representative, or agent has no reason to believe that the
practitioner has ceased to participate in the treatment program
in accordance with section 4731.25 of the Revised Code or has
violated any provision of this chapter or any rule
adopted under it,
other than the provisions
of division (B)(26) of section 4731.22 of the Revised Code. (C) Any professional association or society composed primarily of
doctors
of medicine and surgery, doctors of osteopathic medicine and
surgery, doctors of podiatry, or practitioners of limited
branches of medicine that suspends or
revokes an individual's membership for violations
of professional ethics, or for reasons of professional
incompetence or professional malpractice, within sixty days after
a final decision shall report to the board, on forms prescribed
and provided by the board, the name of the individual,
the action taken by the professional organization, and a
summary of the underlying facts
leading to the action taken. The filing of a report with the board or decision not to file a report,
investigation by the board, or any disciplinary action taken by
the board, does not preclude a professional organization from
taking disciplinary action against an individual. (D) Any insurer providing professional liability insurance
to an
individual authorized to practice under this chapter, or any other entity
that seeks to indemnify the professional liability of such an
individual, shall notify the board within thirty days after the
final disposition of any written claim for damages where such disposition
results in a payment exceeding twenty-five
thousand dollars. The notice shall contain the
following information: (1) The name and address of the person submitting the
notification; (2) The name and address of the insured who is the subject
of the claim; (3) The name of the person filing the written claim; (4) The date of final disposition; (5) If applicable, the identity of the court in which the
final disposition of the claim took place. (E) The board may investigate possible violations of this
chapter or the rules adopted under it that are brought to its
attention as a result of the
reporting
requirements of this section, except that the board shall
conduct an investigation if a possible violation involves repeated
malpractice. As
used in this division, "repeated malpractice" means three or
more claims for medical malpractice within the previous five-year
period, each resulting in a judgment or settlement in excess of
twenty-five thousand dollars in favor of the claimant, and each
involving negligent conduct by the practicing
individual. (F) All summaries, reports, and records received and
maintained by the board pursuant to this section shall be held in
confidence and shall not be subject to discovery or introduction
in evidence in any federal or state civil action involving a
health care professional or facility arising out of matters
that are the subject of the reporting required by this
section. The board may use the
information obtained only as the basis for an investigation, as
evidence in a disciplinary hearing against an
individual whose practice is regulated under this chapter, or in any
subsequent trial or appeal of a
board action or order. The board may disclose the summaries and reports
it receives under this section only to health care
facility committees within or outside this state
that are involved in credentialing or
recredentialing the individual or in reviewing the
individual's clinical privileges. The board shall indicate whether or not
the information has been verified. Information transmitted by
the board shall be subject to the same confidentiality provisions
as when maintained by the board. (G) Except for reports filed by an individual
pursuant to division (B) of this section, the board shall send a copy
of any reports or summaries it receives
pursuant to this section to the individual who is the subject of the reports
or
summaries. The individual shall have the
right to file a statement with the board concerning the correctness or
relevance of the information. The statement shall at all
times accompany that part of the record in
contention. (H) An individual or entity that,
pursuant to this section, reports to the board or refers an
impaired practitioner to a treatment provider approved by the
board under section 4731.25 of the Revised Code
shall not be subject to suit for
civil damages as a
result of the report, referral, or provision of the information. (I) In the absence of fraud or bad faith, no professional
association or society of individuals authorized to practice under
this chapter that
sponsors a committee or program to provide peer assistance to
practitioners with substance abuse problems, no representative or
agent of such a committee or program, and no member of the state
medical board shall be held liable in damages to any person by
reason of actions taken to refer a practitioner to a treatment
provider approved under section 4731.25 of the Revised Code for
examination or treatment. Sec. 4731.24. Except as provided in sections
4731.281 and 4731.40 of the
Revised Code, all receipts of the state medical board, from any source, shall
be deposited in the state treasury. Until July 1, 1998,
the funds shall be deposited to the credit of the occupational
licensing and regulatory fund. On and after
July 1, 1998, the funds shall be deposited to the credit of the state
medical board operating fund, which is hereby created on July 1,
1998. All funds deposited into the state treasury under this section
shall be used solely for the administration and
enforcement of this chapter and Chapter Chapters 4730.
and 4762. of the Revised Code by the board. Sec. 4731.25. The state medical board, in accordance with
Chapter 119. of the Revised Code, shall adopt and may amend and
rescind rules establishing standards for approval of physicians
and facilities as treatment providers for impaired practitioners
who are regulated under this chapter or Chapter 4730. or 4762.
of the Revised Code.
The rules shall include standards for both inpatient and
outpatient treatment. The rules shall provide that in order to
be approved, a treatment provider must have the capability of
making an initial examination to determine what type of treatment
an impaired practitioner requires. Subject to the rules, the
board shall review and approve treatment providers on a regular
basis. The board, at its discretion, may withdraw or deny
approval subject to the rules. An approved impaired practitioner treatment provider shall: (A) Report to the board the name of any practitioner
suffering or showing evidence of suffering impairment as
described in division (B)(5) of section 4730.25 of the
Revised Code or, division (B)(26) of section 4731.22 of the
Revised
Code, or division (B)(6) of section 4762.13 of the Revised Code who
fails to comply within one week with a referral for
examination; (B) Report to the board the name of any impaired
practitioner who fails to enter treatment within forty-eight
hours following the provider's determination that the
practitioner needs treatment; (C) Require every practitioner who enters treatment to
agree to a treatment contract establishing the terms of treatment
and aftercare, including any required supervision or restrictions
of practice during treatment or aftercare; (D) Require a practitioner to suspend practice upon entry
into any required inpatient treatment; (E) Report to the board any failure by an impaired
practitioner to comply with the terms of the treatment contract
during inpatient or outpatient treatment or aftercare; (F) Report to the board the resumption of practice of any
impaired practitioner before the treatment provider has made a
clear determination that the practitioner is capable of
practicing according to acceptable and prevailing standards of
care; (G) Require a practitioner who resumes practice after
completion of treatment to comply with an aftercare contract that
meets the requirements of rules adopted by the board for approval
of treatment providers; (H) Report the identity of any practitioner practicing
under the terms of an aftercare contract to hospital
administrators, medical chiefs of staff, and chairpersons of
impaired practitioner committees of all health care
institutions at
which the practitioner holds clinical privileges or otherwise
practices. If the
practitioner does not hold clinical privileges at any health care
institution, the treatment provider shall report the
practitioner's identity to the impaired practitioner
committee of the county medical society, osteopathic academy, or podiatric
medical association in every county in which the practitioner
practices. If there are no impaired practitioner
committees in the
county, the treatment provider shall report the practitioner's
identity to the president or other designated member of the
county medical society, osteopathic academy, or podiatric medical
association. (I) Report to the board the identity of any practitioner
who suffers a relapse at any time during or following aftercare. Any individual authorized to practice under this
chapter who enters into
treatment by an approved treatment provider shall be deemed to
have waived any confidentiality requirements that would otherwise
prevent the treatment provider from making reports required under
this section. In the absence of fraud or bad faith, no person or
organization that conducts an approved impaired practitioner
treatment program, no member of such an organization,
and no employee, representative, or agent of the treatment
provider shall be held liable in damages to any person by reason
of actions taken or recommendations made by the treatment
provider or its employees, representatives, or agents. Sec. 4731.281. (A) On or before the deadline established under division
(B) of this section for applying for renewal
of a certificate of registration, each person
holding a certificate under this chapter to practice medicine and
surgery, osteopathic medicine and surgery, or podiatry shall
certify to the state medical board that in the preceding two years the person
has completed one
hundred hours of continuing medical education. The
certification shall be made upon the application for biennial
registration submitted pursuant to division
(B) of this section. The board shall adopt rules providing for pro rata
reductions by
month of the number of hours of continuing education required
for persons who are in their first registration period, who have a
registration period of less than two years due to initial implementation of
the staggered renewal schedule established under division (B) of this
section, who have
been disabled due to illness or accident, or who have been
absent from the country. In determining whether a course, program, or activity
qualifies for credit as continuing medical education, the board
shall approve all continuing medical education taken
by persons holding a certificate to practice medicine and surgery
that is certified by the Ohio state medical association,
all continuing medical education taken by
persons holding a certificate to practice osteopathic medicine
and surgery that is certified by the Ohio osteopathic
association, and all continuing medical
education taken by persons holding a certificate to practice
podiatry that is certified by the Ohio podiatric medical
association. Each person holding a certificate
to practice under this chapter
shall be given sufficient choice of continuing education programs
to ensure that the person has had a reasonable opportunity to
participate
in continuing education programs that are relevant to the person's
medical
practice in terms of subject matter and level. The board may
require a random sample of persons holding a certificate to
practice under this chapter to submit materials documenting
completion of the continuing medical education requirement during
the preceding registration period, but this provision shall not
limit the board's authority to investigate pursuant to section
4731.22 of the Revised Code. (B)(1) Every person holding a certificate under this chapter to
practice medicine and surgery, osteopathic medicine and surgery,
or podiatry wishing to renew that certificate shall
apply to the board for a certificate of
registration upon an application furnished by the board, and pay to the
board at the time of application a fee of three
hundred five dollars, according to the following
schedule: (a) Persons whose last name begins with the letters "A" through
"B," on or before April 1, 2001, and the first day of April of
every odd-numbered year thereafter; (b) Persons whose last name begins with the letters "C" through
"D," on or before January 1, 2001, and the first day of January
of every odd-numbered year thereafter; (c) Persons whose last name begins with the
letters "E" through "G," on or before October 1,
2000, and the first
day of October of every
even-numbered year thereafter; (d) Persons whose last name begins
with the letters "H" through
"K," on or before July 1, 2000, and the first day
of July of every even-numbered year thereafter; (e) Persons whose last name begins with the
letters "L" through
"M," on or before April 1, 2000, and the first
day of April of every even-numbered year thereafter; (f) Persons whose last name begins with the
letters "N" through
"R," on or before
January 1, 2000, and the first
day of January of every
even-numbered year thereafter; (g) Persons whose last name begins
with the letter "S," on or before October 1, 1999, and the
first day of October of every odd-numbered year thereafter; (h) Persons whose last name begins
with the letters "T" through "Z," on or before
July 1, 1999, and the first day of July of every
odd-numbered year thereafter. The board shall deposit the
fee in accordance with section 4731.24 of
the Revised Code, except that,
until July 30, 2001, the
board shall deposit twenty dollars of the fee into the state treasury
to the credit of the physician loan repayment fund created by
section 3702.78 of the Revised Code. (2) The board shall mail or cause to be mailed to every person
registered to practice medicine and surgery, osteopathic medicine
and surgery, or podiatry, an application for registration
addressed to the person's last known post-office address or
may cause the application to be sent to
the person through the
secretary of any recognized medical, osteopathic, or podiatric
society, according to the following schedule: (a) To persons whose last name begins with the letters "A"
through "B," on or before January 1, 2001, and the first
day of January of every odd-numbered year thereafter; (b) To persons whose last name begins with the
letters "C" through "D," on or before
October 1, 2000, and the first day of October of every
even-numbered year thereafter; (c) To persons whose last name begins with the
letters "E" through
"G," on or before
July 1, 2000, and the first day
of July of every even-numbered
year thereafter; (d) To persons whose last name begins
with the letters "H" through
"K," on or before
April 1, 2000, and the first
day of April of every
even-numbered year thereafter; (e) To persons whose last name begins with the
letters "L" through
"M," on or before
January 1, 2000, and the first
day of January of every
even-numbered year thereafter; (f) To persons whose last name begins with the
letters "N" through
"R," on or before
October 1, 1999, and the first
day of October of every
odd-numbered year thereafter; (g) To persons whose last name begins
with the letter "S," on or
before July 1, 1999, and the
first day of July of every
odd-numbered year thereafter; (h) To persons whose last name begins
with the letters "T" through
"Z," on or before
April 1, 1999, and the first
day of April of every
odd-numbered year thereafter. Failure of any person to receive an application from
the board shall not excuse the person from the requirements
contained in
this section. The application shall contain proper spaces for the
applicant's signature and the insertion of the required
information, including a statement that the person has
fulfilled the
continuing education requirements imposed by this section. The applicant shall write or cause to be written upon the
application so furnished the applicant's full name,
principal
practice
address and residence address, the number of the applicant's
certificate to
practice, and any other facts for the identification of the
applicant as a person holding a certificate to practice under
this chapter as the board considers necessary. The
applicant shall include with the application a list of the names and addresses
of any clinical nurse specialists, certified nurse-midwives, or certified
nurse practitioners with whom the applicant is currently collaborating,
as defined in section 4723.02 of the Revised Code.
The applicant shall
execute
and deliver the application to the board by mail or in
person. Every person
registered under this section shall give written notice to the
board of any change of principal practice address or residence
address or in the list within thirty days of the change. The applicant shall report any criminal offense that
constitutes grounds for refusal of registration under section
4731.22 of the Revised Code to which the applicant has pleaded
guilty, of which the applicant has been
found guilty, or
for which the applicant has been found eligible for treatment
intervention
in lieu of conviction, since last
signing an application for
a certificate of registration. (C) The board shall issue to any person holding a certificate
under this chapter to practice medicine and surgery, osteopathic
medicine and surgery, or podiatry, upon application and
qualification therefor in accordance with this section, a
certificate of registration under the seal of the board. A
certificate of registration shall be valid for a two-year period,
commencing on
the first day of the third month after the registration fee
is due and expiring on the last day of
the month two years
thereafter. The board shall publish
and
cause to be mailed to each person registered under this section,
upon request, a printed list of the persons so registered. (D) Failure of any certificate holder to register and comply
with this section shall operate automatically to suspend the
holder's
certificate to practice. Continued
practice after the
suspension of the certificate to practice shall be considered as
practicing in violation of section 4731.41,
4731.43, or 4731.60 of the Revised Code.
Subject to section 4731.222 of the Revised Code, the
board shall reinstate a certificate to practice
for failure to register upon an applicant's submission of the
biennial registration fee, the
applicable monetary penalty, and certification by signature of the
applicant that the applicant has completed the requisite
continuing medical education. The penalty for reinstatement shall be
fifty dollars if
the certificate has been suspended for two years or less and
one hundred dollars if the certificate has been suspended for more
than two years. The board shall deposit the penalties in
accordance with section 4731.24 of the Revised
Code. (E) If an individual certifies completion of the number of hours
and
type of continuing medical education required to receive a
certificate of registration or reinstatement of a certificate to
practice, and the board finds through the random samples it
conducts under this section or through any other means that the
individual did not complete the requisite continuing medical
education, the board may impose a civil penalty of not more than
five thousand dollars. The board's finding shall be made
pursuant to an adjudication under Chapter 119. of the
Revised Code and by an affirmative vote of not
fewer than six members. A civil penalty imposed under this division may be in
addition to or in lieu of any other action the board may take
under section 4731.22 of the Revised Code. The
board shall deposit civil penalties in accordance with section
4731.24 of the Revised Code. (F) The state medical board may obtain information not
protected by statutory or common law privilege from courts and
other sources concerning malpractice claims against any person
holding a certificate to practice under this chapter or
practicing as provided in section 4731.36 of the Revised Code. Sec. 4731.36. (A) Sections 4731.01 to 4731.47 of the
Revised Code shall not prohibit service in case of emergency, or
domestic administration of family remedies. Such sections shall
not apply to a commissioned medical officer of the United States
army, navy, or marine hospital service in the discharge of his
the officer's professional duties, or to a regularly qualified dentist
when
engaged exclusively in the practice of dentistry, or when
administering anaesthetics, or to a physician or surgeon residing
in another state or territory who is a legal practitioner of
medicine or surgery therein, when in consultation with a regular
practitioner of this state; nor shall such sections apply to a
physician or surgeon residing on the border of a neighboring
state and authorized under the laws thereof to practice medicine
and surgery therein, whose practice extends within the limits of
this state; provided equal rights and privileges are accorded by
such neighboring state to the physicians and surgeons residing on
the border of this state contiguous to such neighboring state.
Such practitioner shall not open an office or appoint a place to
see patients or receive calls within the limits of this state. (B) Sections 4731.51 to 4731.61 of the Revised Code do not
apply to any graduate of a podiatric school or college while
performing those acts that may be prescribed by or incidental to
participation in an accredited podiatric internship, residency,
or fellowship program situated in this state approved by the
state medical board. (C) This chapter does not apply to an acupuncturist who complies
with Chapter 4762. of the Revised Code. Sec. 4762.01. As used in this chapter: (A) "Acupuncture" means a form of health care performed by the
insertion and removal of specialized needles, with or without
the application of moxibustion or electrical stimulation, to specific areas of
the body. (B) "Moxibustion" means the use of an herbal heat source on one
or more acupuncture points. (C) "Physician" means an individual authorized under
Chapter 4731. of the Revised Code to practice medicine and surgery, osteopathic
medicine and surgery, or podiatry. Sec. 4762.02. (A) Except as provided in division (B) of
this section, no person shall engage in the practice of acupuncture
unless the person holds a valid certificate of registration as an
acupuncturist issued by the
state
medical board under this chapter. (B) Division (A) of this
section does
not apply to a physician or to a person who performs acupuncture as part of a
training program
IN
ACUPUNCTURE OPERATED BY AN EDUCATIONAL INSTITUTION THAT HOLDS AN
EFFECTIVE CERTIFICATE OF AUTHORIZATION ISSUED BY THE OHIO BOARD OF
REGENTS UNDER SECTION 1713.02 OF THE REVISED CODE OR A
SCHOOL THAT
HOLDS AN EFFECTIVE CERTIFICATE OF REGISTRATION ISSUED BY THE STATE BOARD OF
PROPRIETARY SCHOOL REGISTRATION UNDER SECTION 3332.05 OF THE
REVISED CODE. Sec. 4762.03. (A) An individual seeking a certificate of
registration as an acupuncturist shall file with the state medical board
a written application on a form prescribed and supplied by the board.
The application shall include all of the following: (1) Evidence satisfactory to the board that the applicant is at least
eighteen years of age and of good moral character; (2) Evidence satisfactory to the board that the applicant has been
designated as a diplomate in
acupuncture by the national certification commission for acupuncture and
oriental medicine and that the designation is current and active; (3) Any other information the board requires. (B) The board shall review all applications received under this
section. The board shall determine whether an applicant meets the
requirements
to receive a certificate of registration not later than sixty days after
receiving a complete application. The affirmative vote of not fewer
than
six members of the board is required to determine that an applicant meets the
requirements for a certificate. (C) At the time of making application for a certificate of
registration, the applicant shall pay
the board a fee of one hundred dollars, no part of which shall be
returned. Sec. 4762.04. If the state medical board determines under section 4762.03
of the Revised Code that an applicant meets the requirements for a certificate of
registration as an acupuncturist, the secretary of the board shall register
the applicant as an acupuncturist and issue to the applicant a certificate of
registration as an acupuncturist. The certificate shall expire biennially and
may be renewed in accordance with section 4762.06 of the Revised Code. Sec. 4762.05. Upon application by the holder of a certificate of
registration as an acupuncturist, the state medical board
shall issue a duplicate certificate to replace one that is missing or damaged,
to reflect a name change, or for any other reasonable cause. The fee for a
duplicate certificate is thirty-five dollars. Sec. 4762.06. (A) A person seeking to renew a certificate of
registration as an acupuncturist shall, on or before the thirty-first day of
January
of each even-numbered year, apply for renewal of the certificate.
The state medical board shall send
renewal notices at least one month prior to the
expiration date. Applications shall be submitted to the board on forms the board shall
prescribe and supply. Each application shall be accompanied by a biennial
renewal fee of one hundred dollars. The applicant shall report any criminal offense that constitutes grounds
for refusing to issue a certificate of registration under
section 4762.13 of the Revised Code to which the applicant has pleaded
guilty, of
which the applicant has been found guilty, or for which the applicant
has been found eligible for
intervention in lieu of conviction, since last
signing an application for a
certificate of registration as an acupuncturist. (B) To be eligible for renewal, an acupuncturist must certify to
the board that the acupuncturist has maintained the acupuncturist's
designation as a diplomate
in acupuncture by the national
certification commission for acupuncture and oriental medicine. (C) If an applicant submits a complete renewal application and
qualifies for
renewal pursuant to division (B) of this section, the board
shall issue to the applicant a renewed certificate of
registration as an acupuncturist. (D) A certificate of registration that is not renewed on or
before its expiration date is automatically
suspended on
its expiration date. The
board shall reinstate a
certificate suspended for failure to renew upon an applicant's
submission of the biennial renewal fee and the applicable monetary penalty.
The penalty for reinstatement is twenty-five dollars if the certificate
has been suspended for two years or less and
fifty dollars if the certificate has been suspended for more than
two years. Sec. 4762.08. A person who holds a certificate of registration as an
acupuncturist issued under this chapter
may use the
following titles, initials, or abbreviations, or the equivalent
of such titles, initials, or abbreviations, to identify the person as an
acupuncturist: "Acupuncturist,"
"Registered Acupuncturist," "R. Ac.,"
"Reg. Ac.,"
"Certified Acupuncturist,"
"C.A.," "C. Ac.,"
"Diplomate of Acupuncture (NCCAOM),"
"Dipl. Ac. (NCCAOM)," or "National
Board Certified
in Acupuncture (NCCAOM)."
The person
shall not use other titles, initials, or abbreviations in conjunction with the
person's practice of acupuncture, including the title "doctor." Sec. 4762.09. An acupuncturist shall conspicuously display at the
acupuncturist's primary place of business both of the following: (A) A certificate of registration issued by the state medical
board under this chapter as evidence that the acupuncturist is authorized to
practice
acupuncture in this state; (B) A notice specifying that the practice of acupuncture is
regulated by the state medical board and the address and telephone
number of the board's office. Sec. 4762.10. All of the following apply to the practice of a
person who holds a certificate of registration as an acupuncturist issued
under this chapter: (A) The acupuncturist shall perform acupuncture for a patient
only if the patient has received a physician's written referral or
prescription for acupuncture. As specified in the referral or
prescription, the acupuncturist shall provide reports to the
physician on the patient's condition or progress in treatment and
comply with the conditions or restrictions on the acupuncturist's
course of treatment. (B) The acupuncturist shall perform acupuncture
under the
general supervision of the patient's referring or prescribing physician.
General
supervision does not
require that the acupuncturist and physician practice in the same
office. (C) Prior to treating a patient, the acupuncturist shall
advise the patient that acupuncture is not a substitute for conventional
medical diagnosis and treatment. (D) On initially meeting a patient in person, the
acupuncturist shall provide in writing the acupuncturist's name, business
address, and business telephone number,
and information on acupuncture, including the
techniques that are used. (E) While treating a patient,
the acupuncturist shall not make a diagnosis. If a patient's condition
is not improving or a patient requires emergency medical treatment, the
acupuncturist shall consult promptly with the supervising
physician. (F) An acupuncturist shall maintain records for each
patient treated.
In each patient's records,
the acupuncturist shall include the written
referral or prescription pursuant to which the acupuncturist is
treating the patient.
The records shall be confidential and shall be retained for
not less than three years following termination of treatment. Sec. 4762.11. All of the following apply to an acupuncturist's supervising
physician for a
patient: (A) Before making the referral or prescription for acupuncture,
the physician
shall perform a medical diagnostic examination of the patient or review the
results of a medical diagnostic examination recently performed by another
physician. (B) The physician shall make the referral or prescription in
writing and specify in the referral or prescription all of the
following: (1) The physician's diagnosis of the ailment or condition that
is to be treated by acupuncture; (2) A time by which or the intervals at which the acupuncturist
must provide reports to the physician regarding the patient's condition or
progress in treatment; (3) The conditions or restrictions placed in accordance with division
(C) of this section
on the acupuncturist's course of treatment. (C) The physician shall place
conditions or restrictions on the
acupuncturist's course of treatment in compliance with accepted or
prevailing standards of medical care. (D) The physician shall
be personally available for consultation with the acupuncturist. If the
physician is not on the premises at which
acupuncture is performed, the physician shall be readily available to the
acupuncturist through
some means of telecommunication and be in a location that under normal
circumstances is not more than sixty minutes travel time away from the
location where the acupuncturist is practicing. Sec. 4762.12. In the case of a patient with a claim under Chapter
4121. or 4123. of the Revised Code, an acupuncturist's supervising physician is eligible to
be reimbursed for referring the patient to an acupuncturist or prescribing
acupuncture for the patient only if the physician has attained knowledge in
the treatment of patients with acupuncture, demonstrated by successful
completion of a course of study in acupuncture administered by a college of
medicine, osteopathic medicine, or podiatric medicine acceptable to the bureau
of workers' compensation or administered by another entity acceptable to the
bureau. Sec. 4762.13. (A) The state medical board, by
an affirmative vote of not fewer than six members, may revoke
or may refuse to
grant a certificate of registration as an acupuncturist to a
person found by the board to have committed fraud,
misrepresentation, or deception in applying for or securing the
certificate. (B) The board, by an affirmative
vote of not fewer than six members, shall, to the extent
permitted by law, limit, revoke, or suspend an individual's
certificate of registration as an acupuncturist, refuse to
issue a certificate to an applicant, refuse to reinstate a
certificate, or reprimand or place on probation the holder
of a certificate
for any of the following reasons: (1) Permitting the holder's name or certificate to be used by another
person; (2) Failure to comply with the requirements of this
chapter, Chapter 4731. of the Revised Code, or any
rules adopted by the board; (3) Violating or attempting to violate, directly or
indirectly, or assisting in or abetting the violation of, or
conspiring to violate, any provision of this chapter,
Chapter 4731. of the Revised Code, or the
rules adopted by the board; (4) A departure from, or failure to conform to, minimal standards of care
of similar practitioners under the same or similar circumstances whether or
not actual injury to the patient is established; (5) Inability to practice according to
acceptable and prevailing standards of care by reason of mental
illness or physical illness, including physical deterioration
that adversely affects cognitive, motor, or perceptive skills; (6) Impairment of ability to practice according to
acceptable and prevailing standards of care because of habitual
or excessive use or abuse of drugs, alcohol, or other substances
that impair ability to practice; (7) Willfully betraying a professional confidence; (8) Making a false, fraudulent,
deceptive, or misleading statement in soliciting or advertising
for patients or in securing or attempting to secure a certificate of
registration to practice as an acupuncturist. As used in this division,
"false, fraudulent, deceptive, or misleading statement" means a
statement that includes a misrepresentation of fact, is likely to
mislead or deceive because of a failure to disclose material
facts, is intended or is likely to create false or unjustified
expectations of favorable results, or includes representations or
implications that in reasonable probability will cause an
ordinarily prudent person to misunderstand or be deceived. (9) Representing, with the purpose of obtaining
compensation or other advantage personally or for any other
person, that an incurable disease or injury, or other incurable
condition, can be permanently cured; (10) The obtaining of, or attempting to obtain, money or a
thing of value by fraudulent misrepresentations in the course
of practice; (11) A plea of guilty to, a judicial
finding of guilt of, or a judicial finding of eligibility for intervention in
lieu of conviction for, a felony; (12) Commission of an act that constitutes a felony in
this state, regardless of the jurisdiction in which the act was
committed; (13) A plea of guilty to, a judicial
finding of guilt of, or a judicial finding of eligibility for intervention in
lieu of conviction for, a misdemeanor committed in the course of
practice; (14) A plea of guilty to, a judicial
finding of guilt of, or a judicial finding of eligibility for intervention in
lieu of conviction for, a misdemeanor
involving moral turpitude; (15) Commission of an act in the course of practice that constitutes a
misdemeanor in this state,
regardless of the jurisdiction in which the act was
committed; (16) Commission of an act involving moral turpitude that constitutes a
misdemeanor in this state, regardless of the jurisdiction in
which the act was committed; (17) A plea of guilty to, a
judicial finding of guilt of, or a judicial finding of eligibility
for intervention in lieu of conviction for violating any state or federal law
regulating the possession, distribution, or use of any drug,
including trafficking in drugs; (18) Any of the following actions taken by the
state agency responsible for regulating the practice of acupuncture in another
jurisdiction, for any reason other than the
nonpayment of fees: the limitation, revocation, or suspension of
an individual's
license to practice; acceptance of an
individual's license surrender; denial of a license; refusal to
renew or reinstate a license; imposition of probation; or issuance of an order
of censure or other reprimand; (19) Violation of the conditions placed
by the board on a certificate of registration; (20) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4731.051
of the Revised Code; (21) Failure to cooperate in an investigation conducted by
the board under section 4762.14 of the Revised
Code, including failure to comply with a subpoena or
order issued by the board or failure to answer truthfully a
question presented by the board at a deposition or in written
interrogatories, except that failure to cooperate with an
investigation shall not constitute grounds for discipline under
this section if a court of competent jurisdiction has issued an
order that either quashes a subpoena or permits the individual
to withhold the testimony or evidence in issue; (22) Failure to comply with the standards of the national certification
commission for acupuncture and oriental medicine regarding professional
ethics, commitment to patients, commitment to the profession, and commitment
to the public. (C) Disciplinary actions taken by the board under divisions
(A) and (B) of this section shall be taken pursuant to an
adjudication under
Chapter 119. of the Revised Code, except that in
lieu of an adjudication,
the board may enter into a consent agreement
with an acupuncturist or applicant to resolve an
allegation of a violation of this chapter or any rule adopted
under it. A consent agreement, when ratified by an
affirmative vote of not fewer than six members of the board,
shall constitute the findings and order of the board with
respect to the matter addressed in the agreement. If the board
refuses to ratify a consent agreement, the admissions and
findings contained in the consent agreement shall be of no force
or effect. (D) For purposes of divisions (B)(12), (15), and (16) of
this section, the commission of the act may be established by a
finding by the board, pursuant to an
adjudication under Chapter 119. of the Revised Code, that the applicant
or certificate holder committed the act in question. The board shall have no
jurisdiction under these divisions in cases where the trial court
renders a final judgment in the certificate holder's favor and
that judgment is based upon an adjudication on the merits. The
board shall have jurisdiction under these divisions in cases
where the trial court issues an order of dismissal upon technical
or procedural grounds. (E) The sealing of conviction records by any court shall have
no effect upon a prior board order entered under the provisions of this
section or upon the board's jurisdiction to take action under the
provisions of this section if, based upon a plea of
guilty,
a judicial finding of guilt, or a judicial finding of eligibility
for intervention in lieu of conviction, the board issued a notice of
opportunity for
a hearing prior to the court's order to seal the records. The board
shall not be required to seal, destroy, redact, or
otherwise modify its records to reflect the court's sealing of
conviction records. (F) For purposes of this division, any
individual who holds a certificate of registration issued under
this chapter, or applies for a certificate of registration, shall
be deemed to have given consent to submit to a mental or
physical examination when directed to do so in writing by the
board and to have waived all objections to the admissibility of
testimony or examination reports that constitute a privileged
communication. (1) In enforcing division (B)(5) of this
section, the board, upon a showing of a possible violation, may
compel any individual who holds a certificate of registration
issued under this chapter or who has applied for a certificate of
registration pursuant to this chapter to submit to a mental
examination, physical examination, including an
HIV test, or both a mental and physical
examination. The expense of
the examination is the responsibility of
the individual compelled to be examined. Failure to submit to a mental or
physical examination or consent to an HIV
test ordered by the board constitutes an admission of
the allegations against the individual unless the failure is due to
circumstances beyond the individual's control, and a default and final order
may be entered without the taking of testimony or presentation of
evidence. If the board finds an acupuncturist unable to
practice because of the reasons set forth in division
(B)(5) of this section, the
board shall require the acupuncturist to submit to care,
counseling, or treatment by physicians approved or designated by
the board, as a condition for an initial, continued, reinstated,
or renewed certificate of registration. An individual affected
by this division shall be afforded an opportunity to
demonstrate to the board the ability to resume practicing in compliance with
acceptable and prevailing standards of care. (2) For purposes of division (B)(6) of this
section, if the board has reason to believe that any individual
who holds a certificate of registration issued under this chapter
or any applicant for a certificate of registration suffers such
impairment, the board may compel the individual to submit to a
mental or physical examination, or both. The expense of the
examination is the
responsibility of the
individual compelled to be examined. Any mental or
physical
examination required under this division shall be undertaken by a
treatment provider or physician qualified to conduct such
examination and chosen by the board. Failure to submit to a mental or
physical examination ordered by
the board constitutes an
admission of the allegations against the individual unless the failure is
due to circumstances beyond the individual's control, and a
default and final order may be entered without the taking of
testimony or presentation of evidence. If the board determines
that the individual's ability to practice is impaired, the board
shall suspend the individual's certificate or deny the individual's
application and shall
require the individual, as a condition for an initial, continued,
reinstated, or renewed certificate of registration, to submit to
treatment. Before being eligible to apply for reinstatement of a
certificate suspended under this division, the acupuncturist shall demonstrate
to the board the ability to resume
practice in compliance with acceptable and prevailing standards
of care. The demonstration shall include the
following: (a) Certification from a treatment provider
approved under section 4731.25 of the Revised
Code that the individual has successfully completed any required
inpatient treatment; (b) Evidence of continuing full compliance with
an aftercare contract or consent agreement; (c) Two written reports indicating that the
individual's ability to practice has been assessed and that the individual
has been found capable of practicing according to acceptable and
prevailing standards of care. The reports shall be made by
individuals or providers approved by the board for making such
assessments and shall describe the basis for their
determination. The board may reinstate a certificate suspended under
this division after such demonstration and after the individual
has entered into a written consent agreement. When the impaired acupuncturist resumes practice,
the board shall require continued monitoring of the acupuncturist. The
monitoring shall include monitoring of
compliance with the written
consent agreement entered into before reinstatement or with
conditions imposed by board order after a hearing, and, upon
termination of the consent agreement, submission to the board for
at least two years of annual written progress reports made under
penalty of falsification stating whether the acupuncturist has maintained
sobriety. (G) If the secretary and supervising member
determine that there is clear and convincing evidence that an
acupuncturist has violated division (B) of this
section and that the individual's continued practice
presents a danger of immediate and serious harm to the public,
they may recommend that the board suspend the individual's certificate of
registration without
a prior hearing. Written allegations shall be prepared for
consideration by the board. The board, upon review of the allegations and by an
affirmative
vote of not fewer than six of its members, excluding the
secretary and supervising member, may suspend a certificate
without a prior hearing. A telephone conference call may be
utilized for reviewing the allegations and taking the vote on the summary
suspension. The board shall issue a written order of suspension by
certified mail or in person in accordance with section 119.07 of
the Revised Code. The order shall not be
subject to suspension by the court during pendency of any appeal
filed under section 119.12 of the Revised
Code. If the acupuncturist requests an adjudicatory
hearing by the board, the date set for the hearing shall be
within fifteen days, but not earlier than seven days, after the
acupuncturist requests the hearing, unless otherwise
agreed to by both the board and the certificate holder. A summary suspension imposed under this division shall
remain in effect, unless reversed on appeal, until a final
adjudicative order issued by the board pursuant to this section
and Chapter 119. of the Revised Code
becomes effective. The board shall issue its final adjudicative
order within sixty days after completion of its hearing. Failure to issue the
order within sixty days shall result in
dissolution of the summary suspension order, but shall not
invalidate any subsequent, final adjudicative order. (H) If the board takes
action under
division (B)(11), (13), or (14) of this section, and the
judicial finding of guilt, guilty plea,
or judicial finding of eligibility for intervention in lieu of conviction is
overturned on appeal, upon exhaustion of the criminal appeal, a
petition for reconsideration of the order may be filed with the
board along with appropriate court documents. Upon receipt of
a petition and supporting court documents, the board shall
reinstate the certificate of registration. The
board may then hold an adjudication under Chapter 119. of the
Revised Code to determine whether the
individual committed the act in question. Notice of
opportunity for hearing shall be given in accordance with
Chapter 119. of the Revised Code. If the
board finds, pursuant to an adjudication held under
this division, that the individual committed the act, or if no
hearing is requested, it may order any of the sanctions
specified in division (B) of this section. (I) The certificate of registration of an
acupuncturist and
the acupuncturist's practice in this state are automatically suspended
as of the date the acupuncturist pleads guilty to, is found by a judge
or jury to be guilty of, or is subject to a judicial finding of eligibility
for intervention in lieu of conviction in this state or treatment or
intervention
in lieu of conviction in another jurisdiction for any of the
following criminal offenses in this state or a
substantially equivalent criminal offense in another
jurisdiction: aggravated murder, murder, voluntary
manslaughter, felonious assault, kidnapping, rape, sexual
battery, gross sexual imposition, aggravated arson, aggravated
robbery, or aggravated burglary. Continued
practice after the suspension
shall be considered practicing without a
certificate. The board shall notify the individual subject to
the suspension by certified mail or in person in accordance with section
119.07 of the Revised Code. If an individual whose
certificate is suspended under this division fails to make a
timely request for an
adjudication under Chapter 119. of the Revised Code, the board shall enter
a final order permanently revoking the individual's certificate
of registration. (J) In any instance in which the board is required
by Chapter 119. of the Revised Code to give notice of
opportunity for hearing and the
individual subject to the notice does not timely request a hearing in
accordance with section
119.07 of the Revised Code, the board is not required
to hold a hearing, but may adopt, by an affirmative vote of
not fewer than
six of its members, a final order that contains the board's
findings. In the final order, the board may order any of the
sanctions identified under division (A) or (B) of this
section. (K) Any action taken by the board under
division (B) of this section resulting in a suspension
shall be accompanied by a written statement of the
conditions under which the acupuncturist's
certificate may be reinstated. The board
shall adopt rules in accordance with
Chapter 119. of the Revised Code governing conditions to be imposed for
reinstatement. Reinstatement of a certificate suspended pursuant
to division (B) of this section requires an affirmative
vote of not fewer than six members of the board. (L) When the board
refuses to grant a certificate of registration as an
acupuncturist to an applicant,
revokes an individual's certificate
of registration, refuses to renew a certificate of registration,
or refuses to reinstate an individual's certificate of
registration, the board may specify that its action is
permanent. An individual subject to a permanent action taken by
the board is forever thereafter ineligible to hold a certificate
of registration as an acupuncturist and the board shall not accept an
application for reinstatement of the certificate or for issuance
of a new certificate. (M) Notwithstanding any other provision of the
Revised Code, all of the following apply: (1) The surrender of a certificate of
registration as an acupuncturist issued under this chapter
is not effective unless or until accepted by the board. Reinstatement
of a certificate surrendered to the board requires an affirmative
vote of not fewer than six members of the board. (2) An application made under this
chapter for a certificate of registration
may not be withdrawn without approval of the board. (3) Failure by an individual to renew a certificate
of registration in accordance with section 4762.06 of the
Revised Code shall not remove or limit the board's
jurisdiction to take disciplinary action under this section against
the individual. Sec. 4762.131. On receipt of a notice pursuant to
section 2301.373 of the Revised Code, the state medical board shall comply
with that section with respect to a certificate of registration issued
pursuant to this chapter. Sec. 4762.132. If the state medical board has reason to
believe that any person who has been granted a certificate under
this chapter is mentally ill or mentally
incompetent, it may file in the probate court of the county in
which the person has a legal residence an affidavit in the form
prescribed in section 5122.11 of the Revised Code and signed by
the board secretary or a member of the board secretary's
staff, whereupon the same
proceedings shall be had as provided in Chapter 5122. of the
Revised Code. The attorney general may represent the board
in
any proceeding commenced under this section. If any person who has been granted a certificate is
adjudged by a probate court to be mentally ill or mentally
incompetent, the person's certificate shall be automatically
suspended
until the person has filed with the state medical board a
certified copy of an adjudication by a probate court of the
person's
subsequent restoration to competency or has submitted to the
board proof, satisfactory to the board, that the person has
been
discharged as having a restoration to competency in the manner
and form provided in section 5122.38 of the Revised Code. The
judge of the probate court shall forthwith notify the state medical
board of an adjudication of mental illness or mental incompetence, and shall
note any
suspension of a certificate in the margin of the court's record
of such certificate. Sec. 4762.14. (A) The state medical board
shall investigate evidence that appears to show that any person
has violated this chapter or the rules adopted under it. Any person
may report to the board in a signed writing any information the
person has that appears to show a violation of any provision of
this chapter or the rules adopted under it. In the absence of bad faith, a
person
who reports such information or testifies before the board in an
adjudication conducted under Chapter 119. of the Revised Code
shall not be liable for civil damages as a
result of reporting the information or providing testimony. Each
complaint or allegation of a violation received by
the board shall be assigned a case number and be recorded by the
board. (B) Investigations of alleged violations of this chapter or
rules adopted under it shall be supervised by the supervising
member elected by the board in accordance with section 4731.02
of the Revised Code and by the secretary as provided
in section 4762.15 of the Revised Code. The board's
president may designate another member of the board to supervise
the investigation in place of the supervising member. A member
of the board who supervises the investigation of a case shall
not participate in further adjudication of the case. (C) In investigating a possible violation of this chapter or
the rules adopted under it, the board may administer oaths, order
the taking of depositions, issue subpoenas, and compel the
attendance of witnesses and production of books, accounts,
papers, records, documents, and testimony, except that a subpoena
for patient record information shall not be issued without
consultation with the attorney general's office and approval of
the secretary and supervising member of the board. Before issuance of a
subpoena for patient record
information, the secretary and supervising
member shall determine whether there is probable cause to
believe that the complaint filed alleges a violation of this
chapter or the rules adopted under it and that the records sought
are relevant to the alleged violation and material to the
investigation. The subpoena may apply only to records
that cover a reasonable period of
time surrounding the alleged violation. On failure to comply
with any subpoena issued by the board and after reasonable notice
to the person being subpoenaed, the board may move for an order
compelling the production of persons or records pursuant to the
Rules of Civil Procedure. A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board. Service of a
subpoena issued by the board may be made by delivering a copy of the subpoena
to the person named therein, reading it to the person, or leaving it at
the person's usual place of residence. When the person being
served is an acupuncturist, service of the subpoena may be
made by certified mail, restricted delivery, return receipt
requested, and the subpoena shall be deemed served on the date
delivery is made or the date the person refuses to accept
delivery. A sheriff's deputy who serves a subpoena shall
receive the same fees as a sheriff. Each
witness who appears before the board in obedience to a subpoena shall receive
the fees and mileage provided for witnesses in civil cases in the courts of
common pleas. (D) All hearings and investigations of the board shall be
considered civil actions for the purposes of section 2305.251 of the Revised Code. (E) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any civil
action. The board shall conduct all investigations and
proceedings in a manner that
protects the confidentiality of patients and persons who file
complaints
with the board. The board shall not make public the names
or any other identifying information about patients or
complainants unless proper consent is given. The board may
share any information it receives pursuant to an investigation, including
patient records and patient record information, with
law
enforcement agencies, other licensing boards, and other governmental
agencies that are prosecuting, adjudicating, or investigating alleged
violations of statutes or administrative rules. An agency or board that
receives the information shall comply with the
same requirements regarding confidentiality as those with which the state
medical board must comply, notwithstanding any conflicting provision of the Revised Code
or procedure of the agency or board that applies when it is
dealing with other information in its possession. In a judicial proceeding,
the information may
be admitted into evidence only in accordance with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that confidentiality is
maintained with respect to any part of the information that contains names or
other identifying information about patients or complainants whose
confidentiality was protected by the state medical board when the information
was in the board's possession. Measures to ensure confidentiality that may be
taken by the court
include sealing its records or deleting specific information from its
records. (F) The state medical board shall develop
requirements for and provide appropriate initial training and continuing
education for investigators employed by the board to carry out its
duties under this chapter. The training and continuing education
may include enrollment in courses operated or approved by the
Ohio peace officer training council that the board
considers appropriate under conditions set forth in section
109.79 of the Revised Code. (G) On a quarterly basis, the board shall
prepare a report that documents the disposition of all cases
during the preceding three months. The report shall contain the
following information for each case with which the board has
completed its activities: (1) The case number assigned to the complaint or
alleged violation; (2) The type of certificate to practice, if any, held
by the individual against whom the complaint is directed; (3) A description of the allegations contained in the
complaint; (4) The disposition of the case. The report shall state how many cases are still pending,
and shall be prepared in a manner that
protects the identity
of each person involved in each case. The report
is a public record for purposes of section 149.43 of the Revised Code. Sec. 4762.15. (A) As used in this section, "prosecutor"
has the same meaning as in section 2935.01 of the Revised Code. (B) Whenever any person holding a valid certificate issued
pursuant to this chapter
pleads guilty to, is subject to a judicial finding of guilt of, or
is subject to a judicial finding of eligibility for intervention in lieu of
conviction for a violation of Chapter 2907., 2925., or 3719. of the Revised Code
or of any substantively comparable ordinance of a municipal
corporation in connection with the person's practice, the
prosecutor in
the case, on forms prescribed and provided by the state
medical board, shall promptly notify the board of the conviction. Within
thirty days of receipt of that
information, the board
shall initiate action in accordance with Chapter 119.
of the Revised Code to determine whether to suspend or revoke the
certificate under section 4762.13 of the Revised Code. (C) The prosecutor in any case against any person holding
a valid certificate issued pursuant to this chapter, on
forms prescribed and provided by the state medical board, shall notify
the board of any of the following: (1) A plea of guilty to, a finding of guilt by a jury
or court of,
or judicial finding of eligibility for intervention in lieu of conviction
for
a felony, or a case in which the trial
court issues an order of dismissal upon technical or procedural grounds of a
felony charge; (2) A plea of guilty to,
a finding of guilt by a jury
or court of,
or judicial finding of eligibility for intervention in lieu of conviction
for
a misdemeanor committed in the course of practice, or a case
in which the trial court issues an order of dismissal upon
technical
or procedural grounds of a charge of a misdemeanor, if the
alleged act was committed in the course of practice; (3) A plea of guilty to, a finding of guilt by a jury
or court of,
or judicial finding of eligibility for intervention in lieu of conviction
for
a misdemeanor involving moral turpitude, or a case
in which the trial court issues an order of dismissal upon
technical or
procedural grounds of a charge of a misdemeanor involving moral
turpitude. The report shall include the name and address of the
certificate holder, the nature of the offense for which the
action was taken, and the certified court documents recording the
action. Sec. 4762.16. (A) Within sixty days after
the imposition of any formal disciplinary
action taken by any health care facility, including
a hospital, health care facility operated by an insuring
corporation, ambulatory surgical center, or similar
facility, against any
individual holding a valid certificate of registration as an
acupuncturist, the chief administrator or executive officer of the facility
shall
report to the state medical board the name of the
individual, the action taken by the facility, and a summary of the
underlying facts leading to the action taken. Upon request, the board shall
be provided certified copies of the patient records that were the
basis for the facility's
action. Prior to release to the board, the summary shall be
approved by the peer review committee that reviewed the
case or
by the governing board of the facility. The filing of a report with the board or decision not
to file a report, investigation by the board, or any disciplinary action
taken by the board, does not preclude a health care
facility from taking
disciplinary action against an acupuncturist. In the absence of fraud or bad faith, no individual or entity that provides
patient records to the board shall be liable in damages to any
person as a result of providing the records. (B) An acupuncturist, professional association
or society of acupuncturists,
physician, or professional association or society of
physicians that believes a violation of
any provision of this chapter, Chapter 4731.
of the Revised Code, or rule of the
board has
occurred shall report to the board the information
upon which the belief is based. This division does not require
any treatment provider approved
by the board under section 4731.25 of the Revised
Code or any employee, agent, or representative of such a
provider to make reports with respect to an acupuncturist
participating in treatment or aftercare for substance abuse
as long as the acupuncturist
maintains participation in accordance with the
requirements of section 4731.25 of the Revised
Code and the treatment provider or
employee, agent, or representative of the provider has no reason to
believe that the acupuncturist has violated any
provision of this chapter or rule adopted under it, other than
being impaired by alcohol, drugs, or other substances. This
division does not require reporting by any member of an impaired
practitioner committee established by a health care
facility or by any representative or agent of a committee or program
sponsored by a
professional association or society of acupuncturists to provide
peer
assistance to acupuncturists with substance abuse problems
with respect to an acupuncturist who has been referred for
examination to a treatment program approved by the board under
section 4731.25 of the Revised Code if the
acupuncturist cooperates with the referral for examination
and with any determination that the acupuncturist should enter treatment
and as
long as the committee member, representative, or agent has no
reason to believe that the acupuncturist has ceased to
participate in the treatment program in accordance with section
4731.25 of the Revised Code or has violated any
provision of this chapter or rule adopted under it, other than
being impaired by alcohol, drugs, or other substances. (C) Any professional association or society composed primarily
of acupuncturists that suspends or revokes an individual's
membership for violations of professional ethics,
or for reasons of professional incompetence or professional
malpractice, within sixty days after a final decision, shall
report to the board, on forms prescribed and provided by the
board, the name of the individual, the action taken by
the professional organization,
and a summary of the underlying facts leading to the action
taken. The filing of a report with the board or decision not to file a report,
investigation by the board, or any disciplinary action taken by
the board, does not preclude a professional
organization from taking
disciplinary action against an acupuncturist. (D) Any insurer providing professional
liability insurance to any person holding a valid certificate of
registration as an acupuncturist or any other entity that
seeks to indemnify the professional liability of an
acupuncturist shall notify the board within thirty days after the
final disposition of any written claim for damages where such
disposition results in a payment exceeding twenty-five thousand
dollars. The notice shall contain the following information: (1) The name and address of the person submitting the
notification; (2) The name and address of the insured who is the
subject of the claim; (3) The name of the person filing the written claim; (4) The date of final disposition; (5) If applicable, the identity of the court in which
the final disposition of the claim took place. (E) The board may investigate possible violations of
this chapter or the rules adopted under it that are brought to its attention
as a result of the
reporting
requirements of this section, except that the board shall
conduct an investigation if a possible violation involves repeated
malpractice. As used in this division,
"repeated malpractice" means three or more claims for
malpractice within the previous five-year period, each
resulting
in a judgment or settlement in excess of twenty-five thousand
dollars in favor of the claimant, and each involving negligent
conduct by the acupuncturist. (F) All summaries, reports, and records
received and maintained by the board pursuant to this section
shall be held in confidence and shall not be subject to discovery
or introduction in evidence in any federal or state civil action
involving an acupuncturist, supervising physician, or health care
facility arising out of
matters that are the subject of the reporting required by this
section. The board may use the information
obtained only as the basis for
an investigation, as evidence in a disciplinary hearing against
an acupuncturist or supervising physician, or in any subsequent trial or
appeal of a
board action or order. The board may disclose the summaries and reports it
receives under this section only to health care facility committees
within or
outside this state that are involved in credentialing or recredentialing
an acupuncturist or supervising physician or
reviewing their privilege to
practice within a particular facility. The board shall indicate
whether or not the information has been verified. Information
transmitted by the board shall be subject to the same
confidentiality provisions as when maintained by the board. (G) Except for reports filed by an individual
pursuant to division (B) of this section, the board shall send a copy
of any reports or summaries it receives
pursuant to this section to the acupuncturist. The acupuncturist
shall have the right to file a
statement with the board concerning the correctness or relevance
of the information. The statement shall at all times
accompany
that part of the record in contention. (H) An individual or entity
that reports to the board or
refers an impaired acupuncturist to a treatment provider
approved by the board under section 4731.25 of the
Revised Code shall not be subject to suit for
civil damages as a result of the report, referral, or provision
of the information. (I) In the absence of fraud or bad faith, a
professional association or society of acupuncturists that
sponsors a
committee or program to provide peer assistance to
an acupuncturist with substance abuse problems, a representative or
agent of such a committee or program, and a member of the state
medical board shall not be held liable in damages to any person by
reason of actions taken to refer an acupuncturist to a
treatment provider approved under section 4731.25 of the
Revised Code for examination or treatment. Sec. 4762.17. The secretary of the state medical
board shall enforce the laws relating to the
practice of acupuncture. If the secretary has knowledge or notice
of a violation of this chapter or the rules adopted under it, the secretary
shall investigate the matter, and, upon probable cause appearing,
file a complaint and prosecute the offender. When requested by
the secretary, the prosecuting attorney of the proper county
shall take charge of and conduct the prosecution. Sec. 4762.18. The
attorney general, the prosecuting attorney of any county in which
the offense was committed or the offender resides, the state
medical board, or any other person having knowledge of a person
engaged either directly or by complicity in the practice of acupuncture
without having first obtained
a certificate of registration to do so pursuant to this chapter, may, in
accord with provisions of the Revised Code
governing injunctions, maintain an action in the name of the
state to enjoin any person from engaging either directly or by
complicity in the unlawful practice
of acupuncture by
applying for an injunction in any court of competent
jurisdiction. Prior to application for an injunction, the secretary of
the state medical board shall notify the person allegedly engaged either
directly or by complicity in the unlawful practice of acupuncture
by
registered mail that the secretary has received information
indicating that this person is so engaged. The person shall
answer the secretary within thirty days showing that the person is
either
properly licensed for the stated activity or that the person is not
in
violation of this chapter. If
the answer is not forthcoming within thirty
days after notice by the
secretary, the secretary shall request that the attorney general,
the prosecuting attorney of the county in which the offense was
committed or the offender resides, or the state medical board
proceed as authorized in this section. Upon the filing of a verified petition in court, the court
shall conduct a hearing on the petition and shall give the same
preference to this proceeding as is given all proceedings under
Chapter
119. of the Revised Code, irrespective of the
position of the proceeding on the calendar of the court. Injunction proceedings shall be in addition to, and
not in lieu of, all penalties and other remedies provided in
this chapter. Sec. 4762.19. The
state medical board may adopt any rules necessary to govern
the practice of acupuncture, the supervisory relationship between
acupuncturists and supervising physicians, and
the administration and enforcement of this chapter. Rules adopted
under this section shall be adopted in accordance with Chapter 119.
of the Revised Code. Sec. 4762.20. The state medical board, subject to the approval
of the
controlling board, may establish fees in excess of the amounts
specified in this chapter,
except that
the fees may not exceed the specified amounts by
more than fifty
per cent. All fees, penalties, and other funds received by the board under this
chapter shall be deposited in accordance with section 4731.24 of the Revised Code. Sec. 4762.21. In the absence of fraud or bad faith,
the state medical board, a current or former board member, an agent of the
board,
a person formally requested by the board to be the board's representative,
or an employee of the board
shall not be held
liable in
damages to any person as the result of any act, omission,
proceeding, conduct, or decision related to official duties
undertaken or performed pursuant to this chapter. If
any such person asks to be defended by the
state against any claim or action arising out of
any act, omission, proceeding, conduct, or decision related to
the person's official duties, and if the request is made in
writing at a reasonable time before trial and the person
requesting defense cooperates in good faith in the defense of the
claim or action, the state shall provide and pay for the person's defense
and shall pay any resulting judgment, compromise, or
settlement. At no time shall the state pay any part of a claim
or judgment that is for punitive or exemplary damages. Sec. 4762.99. (A) Whoever violates section 4762.02 of the
Revised Code
is guilty of a misdemeanor of the first degree on a first
offense; on each subsequent offense, the person is
guilty of a felony of the fourth degree. (B) Whoever violates division (A),
(B), (C), or (D) of section 4762.16 of
the Revised Code is guilty of a minor misdemeanor
on a first offense; on each subsequent offense the person is
guilty of a misdemeanor of the fourth degree, except that an
individual guilty of a subsequent offense shall not be subject to
imprisonment, but to a fine alone of up to one thousand dollars
for each offense. SECTION 2 . That existing sections 4730.26, 4731.051, 4731.07, 4731.22,
4731.221,
4731.223, 4731.224, 4731.24,
4731.25, 4731.281, and 4731.36 of the Revised Code are hereby repealed.
SECTION 3 . The authority of the State Medical Board to take disciplinary
action against a person who was found eligible for treatment in lieu of
conviction in this state on or before the effective date of Am. Sub. S.B. 107
of the 123rd General Assembly is not altered by the amendments and enactments
made by this act to conform provisions in Chapters 4731. and 4762. of the
Revised Code with S.B. 107's creation of intervention in lieu of conviction.
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