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As Reported by the Senate Health, Human Services
and Aging Committee
123rd General Assembly
Regular Session
1999-2000 | Sub. S. B. No. 172 |
SENATORS DRAKE-McLIN-HAGAN-PRENTISS
A BILL
To amend sections 121.22, 2317.02, 3719.121, 4729.07, 4729.11,
4729.12, 4729.16, 4729.39, and 4729.55 and to enact section 4729.19 of the
Revised Code to extend the physician-patient testimonial privilege to include
certain communications from physicians to pharmacists and between patients and
pharmacists,
to revise the law governing
consult agreements between physicians and pharmacists, to prohibit withdrawing
an application for licensure without the Board's approval, to make other
changes to the law governing the practice of pharmacy, and to amend
the version of section 121.22 of the Revised Code that is
scheduled to take effect December 24, 2000, to continue the
provisions of this act on and after that effective date.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 121.22, 2317.02, 3719.121, 4729.07, 4729.11,
4729.12, 4729.16, 4729.39, and 4729.55 be amended and section 4729.19 of the
Revised Code be enacted to read
as follows:
Sec. 121.22. (A) This section shall be liberally
construed to require public officials to take official action and
to conduct all deliberations upon official business only in open
meetings unless the subject matter is specifically excepted by
law.
(B) As used in this section:
(1) "Public body" means any of the following:
(a) Any board, commission, committee, council, or similar
decision-making body of a state agency, institution, or
authority, and any legislative authority or board, commission,
committee, council, agency, authority, or similar
decision-making body of
any county, township, municipal corporation, school district, or
other political subdivision or local public institution;
(b) Any committee or subcommittee of a body described in
division (B)(1)(a) of this section;
(c) A court of jurisdiction of a sanitary district organized
wholly for the purpose of providing a water supply for domestic, municipal,
and public use when meeting
for the purpose of the appointment, removal, or reappointment of a member of
the board of directors of such a district pursuant to section 6115.10 of the Revised Code, if
applicable, or for any other matter related to
such a district other than litigation involving the district. As used in
division (B)(1)(c) of this section, "court of
jurisdiction" has the same meaning as "court" in section 6115.01 of the Revised Code.
(2) "Meeting" means any prearranged discussion of the
public business of the public body by a majority of its members.
(3) "Regulated individual" means either of the following:
(a) A student in a state or local public educational
institution;
(b) A person who is, voluntarily or involuntarily, an
inmate, patient, or resident of a state or local institution
because of criminal behavior, mental illness or retardation,
disease, disability, age, or other condition requiring custodial
care.
(C) All meetings of any public body are declared to be
public meetings open to the public at all times. A member of a
public body shall be present in person at a meeting open to
the
public to be considered present or to vote at the meeting and for
purposes of determining whether a quorum is present at the
meeting.
The minutes of a regular or special meeting of any
public body shall be promptly prepared, filed, and maintained and
shall be open to public inspection. The minutes need only
reflect the general subject matter of discussions in executive
sessions authorized under division (G) or (J) of this section.
(D) This section does not apply to a grand jury, to an
audit conference conducted by the auditor of state or independent
certified public accountants with officials of the public office
that is the subject of the audit, to the adult parole authority
when its hearings are conducted at a correctional institution for
the sole purpose of interviewing inmates to determine parole or
pardon, to the organized crime investigations commission
established under section 177.01 of the Revised Code, to the
state medical board when determining whether to suspend a
certificate without a prior hearing pursuant to division
(G) of
either section 4730.25 or 4731.22 of the Revised Code,
to the board of nursing when
determining whether to suspend a license without a prior hearing
pursuant to division (B) of section 4723.181 of the Revised Code,
TO THE STATE BOARD OF PHARMACY WHEN DETERMINING WHETHER TO SUSPEND A
LICENSE WITHOUT A PRIOR HEARING PURSUANT TO DIVISION (D) OF SECTION
4729.16 of the Revised Code, or to the executive committee of the emergency
response
commission when determining whether to issue an enforcement order
or request that a civil action, civil penalty action, or criminal
action be brought to enforce Chapter 3750. of the Revised Code.
(E) The controlling board, the development financing
advisory council, the industrial technology and enterprise
advisory council,
the tax credit authority, or the minority development
financing advisory board, when meeting to consider granting
assistance pursuant to Chapter 122. or 166. of the Revised Code,
in order to protect the interest of the applicant or the possible
investment of public funds, by unanimous vote of all board,
council,
or authority members present, may close the meeting
during
consideration of the following information confidentially
received by the authority, council, or board from
the
applicant:
(1) Marketing plans;
(2) Specific business strategy;
(3) Production techniques and trade secrets;
(4) Financial projections;
(5) Personal financial statements of the applicant or
members of the applicant's immediate family, including, but not
limited to,
tax records or other similar information not open to public
inspection.
The vote by the authority, council, or board to
accept
or reject the application, as well as all proceedings of the
authority, council, or board not subject to this
division,
shall be open to the public and governed by this section.
(F) Every public body, by rule, shall establish a
reasonable method whereby any person may determine the time and
place of all regularly scheduled meetings and the time, place,
and purpose of all special meetings. A public body shall not
hold a special meeting unless it gives at least twenty-four
hours' advance notice to the news media that have requested
notification, except in the event of an emergency requiring
immediate official action. In the event of an emergency, the
member or members calling the meeting shall notify the news media
that have requested notification immediately of the time, place,
and purpose of the meeting.
The rule shall provide that any person, upon request
and payment of a reasonable fee, may obtain reasonable advance
notification of all meetings at which any specific type of public
business is to be discussed. Provisions for advance notification
may include, but are not limited to, mailing the agenda of
meetings to all subscribers on a mailing list or mailing notices
in self-addressed, stamped envelopes provided by the person.
(G) Except as provided in division (J) of this
section, the members of a public body may hold an executive
session only after a majority of a quorum of the public body
determines, by a roll call vote, to hold an executive
session and only
at a regular or special meeting for the sole purpose of the
consideration of any of the following matters:
(1) To consider the appointment, employment, dismissal,
discipline, promotion, demotion, or compensation of a public
employee or official, or the investigation of charges or
complaints against a public employee, official, licensee, or
regulated individual, unless the public employee, official,
licensee, or regulated individual requests a public hearing.
Except as otherwise provided by law, no public body shall hold an
executive session for the discipline of an elected official for
conduct related to the performance of the elected official's
official duties or for
the elected official's removal from office. If a public body holds
an executive
session pursuant to division (G)(1) of this section, the motion
and vote to hold that executive session shall state which one or
more of the approved purposes listed in division (G)(1) of this
section are the purposes for which the executive session is to be
held, but need not include the name of any person to be
considered at the meeting.
(2) To consider the purchase of property for public
purposes, or for the sale of property at competitive bidding, if
premature disclosure of information would give an unfair
competitive or bargaining advantage to a person whose personal,
private interest is adverse to the general public interest. No
member of a public body shall use division (G)(2) of
this section as a
subterfuge
for providing covert information to prospective buyers or
sellers. A purchase or sale of public property is void if the
seller or buyer of the public property has received covert
information from a member of a public body that has not been
disclosed to the general public in sufficient time for other
prospective buyers and sellers to prepare and submit offers.
If the minutes of the public body show that all meetings
and deliberations of the public body have been conducted in
compliance with this section, any instrument executed by the
public body purporting to convey, lease, or otherwise dispose of
any right, title, or interest in any public property shall be
conclusively presumed to have been executed in compliance with
this section insofar as title or other interest of any bona fide
purchasers, lessees, or transferees of the property is concerned.
(3) Conferences with an attorney for the public body
concerning disputes involving the public body that are the
subject of pending or imminent court action;
(4) Preparing for, conducting, or reviewing negotiations
or bargaining sessions with public employees concerning their
compensation or other terms and conditions of their employment;
(5) Matters required to be kept confidential by federal
law or regulations or state statutes;
(6) Specialized details of security arrangements if
disclosure of the matters discussed might reveal information that
could be used for the purpose of committing, or avoiding
prosecution for, a violation of the law;
(7) In the case of a county hospital operated pursuant to
Chapter 339. of the Revised Code, to consider trade
secrets, as defined in section 1333.61 of the Revised Code.
If a public body holds an executive session to consider any
of the matters listed in divisions (G)(2) to (7) of this
section,
the motion and vote to hold that executive session shall state
which one or more of the approved matters listed in those
divisions are to be considered at the executive session.
A public body specified in division (B)(1)(c) of
this section shall not hold an executive session when meeting for the purposes
specified in that division.
(H) A resolution, rule, or formal action of any kind is
invalid unless adopted in an open meeting of the public body. A
resolution, rule, or formal action adopted in an open meeting
that results from deliberations in a meeting not open to the
public is invalid unless the deliberations were for a purpose
specifically authorized in division (G) or (J) of this section and
conducted at an executive session held in compliance with this
section. A resolution, rule, or formal action adopted in an open
meeting is invalid if the public body that adopted the
resolution, rule, or formal action violated division (F) of this
section.
(I)(1) Any person may bring an action to enforce this section. An action
under
division (I)(1) of this section shall
be brought within two years after the date of the alleged
violation or threatened violation. Upon proof of a violation or
threatened violation of this section in an action brought by any
person, the court of common pleas shall issue an injunction to
compel the members of the public body to comply with its
provisions.
(2)(a) If the court of common pleas issues an injunction
pursuant to division (I)(1) of this section, the court shall
order the public body that it enjoins to pay a civil forfeiture
of five hundred dollars to the party that sought the injunction
and shall award to that party all court costs and, subject to
reduction as described in
division (I)(2) of this section, reasonable attorney's
fees. The court, in its discretion, may reduce an award of
attorney's fees to the party that sought the injunction or not
award attorney's fees to that party if the court determines both
of the following:
(i) That, based on the ordinary application of statutory
law and case law as it existed at the time of violation or
threatened violation that was the basis of the injunction, a
well-informed public body reasonably would believe that the
public body was not violating or threatening to violate this
section;
(ii) That a well-informed public body reasonably would
believe that the conduct or threatened conduct that was the basis
of the injunction would serve the public policy that underlies
the authority that is asserted as permitting that conduct or
threatened conduct.
(b) If the court of common pleas does not issue an
injunction pursuant to division (I)(1) of this section and the
court determines at that time that the bringing of the action was
frivolous conduct, as defined in division (A) of section 2323.51
of the Revised Code, the court shall award to the public body all
court costs and reasonable attorney's fees, as determined by the
court.
(3) Irreparable harm and prejudice to the party that
sought the injunction shall be conclusively and irrebuttably
presumed upon proof of a violation or threatened violation of
this section.
(4) A member of a public body who knowingly violates an
injunction issued pursuant to division (I)(1) of this section may
be removed from office by an action brought in the court of
common pleas for that purpose by the prosecuting attorney or the
attorney general.
(J)(1) Pursuant to division (C) of section 5901.09 of the Revised Code,
a veterans service commission shall hold an executive session for one or more
of the following purposes unless an applicant requests a public
hearing:
(a) Interviewing an applicant for financial assistance under
sections 5901.01 to 5901.15 of the Revised Code;
(b) Discussing applications, statements, and other documents
described in division (B) of section 5901.09 of the Revised
Code;
(c) Reviewing matters relating to an applicant's request for
financial assistance under sections 5901.01 to 5901.15 of the Revised Code.
(2) A veterans service commission shall not exclude an applicant for,
recipient of, or former recipient of financial assistance under sections
5901.01 to 5901.15 of the Revised Code, and
shall not exclude representatives selected by the
applicant, recipient, or former recipient, from a meeting that the commission
conducts as an executive session that pertains to the applicant's,
recipient's, or former recipient's application for financial assistance.
(3) A veterans service commission shall vote on the grant or denial of
financial assistance under sections 5901.01 to 5901.15
of the Revised Code only in an open
meeting of the commission. The minutes of the meeting shall indicate the
name, address, and occupation
of the applicant, whether the assistance was granted or denied, the amount of
the assistance if assistance is granted, and the votes for and against the
granting of assistance.
Sec. 2317.02. The following persons shall not testify in
certain respects:
(A) An attorney, concerning a communication made to the
attorney by a client in that relation or the
attorney's advice to a client, except
that the attorney may testify by express consent of the client
or, if the client is deceased, by the express consent of the
surviving spouse or the executor or administrator of the estate
of the deceased client and except that, if the client voluntarily
testifies or is deemed by section 2151.421 of the Revised Code to
have waived any testimonial privilege under this division, the
attorney may be compelled to testify on the same subject;
(B)(1) A physician or a dentist concerning a communication
made to the physician or dentist by a patient in that relation or the
physician's or dentist's advice to a
patient, except as otherwise provided in this division, division (B)(2), and
division (B)(3) of this section, and except that, if the patient
is deemed by section 2151.421 of the Revised Code to have waived
any testimonial privilege under this division, the physician may
be compelled to testify on the same subject.
The testimonial privilege established under this division does not
apply, and a physician or dentist may testify or may be compelled
to testify, in any of the following circumstances:
(a) In any civil action, in accordance with the discovery
provisions of the Rules of Civil Procedure in connection with a
civil action, or in connection with a claim under Chapter 4123.
of the Revised Code, under any of the following circumstances:
(i) If the patient or the guardian or other legal
representative of the patient gives express consent;
(ii) If the patient is deceased, the spouse of the patient
or the executor or administrator of the patient's estate
gives express consent;
(iii) If a medical claim, dental claim, chiropractic
claim, or optometric claim, as defined in section 2305.11 of the
Revised Code, an action for wrongful death, any other type of
civil action, or a claim under Chapter 4123. of the Revised Code
is filed by the patient, the personal representative of the
estate of the patient if deceased, or the patient's guardian
or other legal representative.
(b) In any criminal action concerning any test or the
results of any test that determines the presence or concentration of alcohol,
a drug of abuse, or alcohol and a drug of abuse in the patient's
blood, breath, urine, or other bodily substance at any time
relevant to the criminal offense in question.
(c) In any criminal action against a physician
or dentist. In such an action, the testimonial privilege
established under this division does not prohibit the admission
into evidence, in accordance with the
Rules of
Evidence, of a patient's
medical or dental records or other communications between a
patient and the physician or dentist that are related to the
action and obtained by subpoena, search warrant, or other lawful
means. A court that permits or compels a physician or dentist
to testify in such an action or permits the introduction into
evidence of patient records or other communications in such an
action shall require that appropriate measures be taken to
ensure that the confidentiality of any patient named or
otherwise identified in the records is maintained. Measures to
ensure confidentiality that may be taken by the court include
sealing its records or deleting specific information from its
records.
(2)(a) If any law enforcement officer submits a written statement to a health
care provider that states that an official criminal investigation has begun
regarding a specified person or that a criminal action or proceeding has been
commenced against a specified person, that requests the provider to supply to
the officer copies of any records the provider possesses that pertain to any
test or the results of any test administered to the specified person to
determine the presence or concentration of alcohol, a drug of abuse, or alcohol
and a drug of abuse in the person's blood, breath, or urine at any time
relevant to the criminal offense in question, and that conforms to section
2317.022 of the Revised Code, the provider, except to the extent specifically
prohibited by any law of this state or of the United States, shall supply to
the officer a copy of any of the requested records the provider possesses. If
the health care provider does not possess any of the requested records, the
provider shall give the officer a written statement that indicates that the
provider does not possess any of the requested records.
(b) If a health care provider possesses any records of the type described in
division (B)(2)(a) of this section regarding the person in question at any
time relevant to the criminal offense in question, in lieu of personally
testifying as to the results of the test in question, the custodian of the
records may submit a certified copy of the records, and, upon its submission,
the certified copy is qualified as authentic evidence and may be admitted as
evidence in accordance with the Rules of Evidence. Division (A) of section
2317.422 of the Revised Code does not apply to any certified copy of records
submitted in accordance with this division. Nothing in this division shall be
construed to limit the right of any party to call as a witness the person who
administered the test to which the records pertain, the person under whose
supervision the test was administered, the custodian of the records, the
person who made the records, or the person under whose supervision the records
were made.
(3)(a) If the testimonial privilege described in division
(B)(1) of this section does not apply as provided in division
(B)(1)(a)(iii) of this section, a physician or dentist may be
compelled to testify or to submit to discovery under the Rules of
Civil Procedure only as to a communication made to the physician
or dentist by the patient in question in that relation, or the physician's or
dentist's advice to the
patient in question, that related causally or historically to
physical or mental injuries that are relevant to issues in the
medical claim, dental claim, chiropractic claim, or optometric
claim, action for wrongful death, other civil action, or claim
under Chapter 4123. of the Revised Code.
(b) If the testimonial privilege described in division (B)(1) of this section
does not apply to a physician or dentist as provided in division (B)(1)(b) of
this section, the physician or dentist, in lieu of personally testifying as to
the results of the test in question, may submit a certified copy of those
results, and, upon its submission, the certified copy is qualified as authentic
evidence and may be admitted as evidence in accordance with the Rules of
Evidence. Division (A) of section 2317.422 of the Revised Code does not apply
to any certified copy of results submitted in accordance with this division.
Nothing in this division shall be construed to limit the right of any party to
call as a witness the person who administered the test in question, the person
under whose supervision the test was administered, the custodian of the results
of the test, the person who compiled the results, or the person under whose
supervision the results were compiled.
(4) THE TESTIMONIAL PRIVILEGE
DESCRIBED IN DIVISION (B)(1) OF THIS SECTION IS NOT WAIVED WHEN A
COMMUNICATION IS MADE BY A PHYSICIAN TO A PHARMACIST OR WHEN THERE
IS COMMUNICATION BETWEEN A PATIENT AND A PHARMACIST IN FURTHERANCE
OF THE PHYSICIAN-PATIENT RELATION.
(5)(a) As used in divisions (B)(1) to (3)(4) of this
section,
"communication" means acquiring, recording, or transmitting any
information, in any manner, concerning any facts, opinions, or
statements necessary to enable a physician or dentist to
diagnose, treat, prescribe, or act for a patient. A
"communication" may include, but is not limited to, any medical
or dental, office, or hospital communication such as a record,
chart, letter, memorandum, laboratory test and results, x-ray,
photograph, financial statement, diagnosis, or prognosis.
(b) As used in division (B)(2) of this section, "health care provider" has
the same meaning as in section 3729.01 of the Revised Code.
(5)(6) Divisions (B)(1), (2), (3), and (4),
AND (5) of this
section apply
to doctors of medicine, doctors of osteopathic medicine, doctors
of podiatry, and dentists.
(6)(7) Nothing in divisions (B)(1) to (5)(6)
of this section
affects, or shall be construed as affecting, the immunity from
civil liability conferred by section 2305.33 of the Revised Code
upon physicians who report an employee's use of a drug of abuse,
or a condition of an employee other than one involving the use of
a drug of abuse, to the employer of the employee in accordance
with division (B) of that section. As used in division
(B)(6)(7) of this section,
"employee," "employer," and "physician" have the same meanings as
in section 2305.33 of the Revised Code.
(C) A member of the clergy, rabbi, priest, or regularly
ordained,
accredited, or licensed minister of an established and legally
cognizable church, denomination, or sect, when the member of
the clergy,
rabbi, priest, or minister remains accountable to the authority
of that church, denomination, or sect, concerning a confession
made, or any information confidentially communicated, to the
member of the clergy, rabbi, priest, or minister for
a religious counseling purpose in the
member of the clergy's, rabbi's,
priest's, or minister's professional character;
however, the member of the clergy, rabbi, priest, or
minister
may testify by
express consent of the person making the communication, except
when the disclosure of the information is in violation of a sacred
trust.;
(D) Husband or wife, concerning any communication made by
one to the other, or an act done by either in the presence of the
other, during coverture, unless the communication was made, or
act done, in the known presence or hearing of a third person
competent to be a witness; and such rule is the same if the
marital relation has ceased to exist.;
(E) A person who assigns a claim or interest, concerning
any matter in respect to which the person would not, if a
party, be permitted to testify;
(F) A person who, if a party, would be restricted
under section 2317.03 of the Revised Code, when the
property or thing is sold or transferred by an executor,
administrator, guardian, trustee, heir, devisee, or legatee,
shall be restricted in the same manner in any action or
proceeding concerning the property or thing.
(G)(1) A school guidance counselor who holds a valid
educator license from the state board of education as
provided for in section 3319.22 of the Revised Code, a person
licensed under Chapter 4757. of the Revised Code
as a professional clinical counselor, professional counselor,
social worker, or independent
social worker, or registered under Chapter 4757. of the Revised Code as a
social work assistant concerning a confidential communication received from a
client in that relation or
the person's advice to a client unless any of
the following applies:
(a) The communication or advice indicates clear and
present danger to the client or other persons. For the purposes
of this division, cases in which there are indications of present
or past child abuse or neglect of the client constitute a clear
and present danger.
(b) The client gives express consent to the testimony.
(c) If the client is deceased, the surviving spouse or the
executor or administrator of the estate of the deceased client
gives express consent.
(d) The client voluntarily testifies, in which case the
school guidance counselor or person licensed or registered under
Chapter 4757. of the Revised Code may
be compelled to testify on the same subject.
(e) The court in camera determines that the information
communicated by the client is not germane to the counselor-client
or social worker-client relationship.
(f) A court, in an action brought against a school, its
administration, or any of its personnel by the client, rules
after an in-camera inspection that the testimony of the school
guidance counselor is relevant to that action.
(2) Nothing in division (G)(1) of this section shall
relieve a
school guidance counselor or a person licensed or registered under Chapter
4757. of the Revised Code
from the requirement to report information concerning
child abuse or neglect under section 2151.421 of the Revised Code.
(H) A mediator acting under a mediation order issued under
division (A) of section 3109.052 of the Revised Code or otherwise
issued in any proceeding for divorce, dissolution, legal
separation, annulment, or the allocation of parental rights and
responsibilities for the care of children, in any action or
proceeding, other than a criminal, delinquency, child abuse,
child neglect, or dependent child action or proceeding, that is
brought by or against either parent who takes part in mediation
in accordance with the order and that pertains to the mediation
process, to any information discussed or presented in the
mediation process, to the allocation of parental rights and
responsibilities for the care of the parents' children, or to the
awarding of visitation rights in relation to their children.;
(I) A communications assistant, acting within the scope of
the communication assistant's authority, when providing
telecommunications relay service
pursuant to section 4931.35 of the Revised Code or Title II of
the "Communications Act of 1934," 104 Stat. 366 (1990), 47 U.S.C.
225, concerning a communication made through a telecommunications
relay service. NOTHING IN THIS SECTION SHALL LIMIT THE OBLIGATION OF A
COMMUNICATIONS ASSISTANT TO DIVULGE INFORMATION OR TESTIFY WHEN MANDATED BY
FEDERAL LAW OR REGULATION OR PURSUANT TO SUBPOENA IN A CRIMINAL PROCEEDING.
Nothing in this section shall limit any immunity or
privilege granted under federal law or regulation. Nothing in
this section shall limit the obligation of a communications
assistant to divulge information or testify when mandated by
federal law or regulation or pursuant to subpoena in a criminal
proceeding.
Sec. 3719.121. (A) Except as otherwise provided in
section 4723.28, 4723.35, 4730.25, or 4731.22 of the Revised
Code, the license, certificate, or
registration of any dentist, doctor of medicine or
osteopathic medicine, podiatrist, registered nurse, licensed practical
nurse, physician assistant, pharmacist, pharmacy intern, optometrist, or
veterinarian who is or
becomes
addicted to the use of controlled substances shall be
suspended by the board that authorized the person's license,
certificate,
or registration until the person offers satisfactory proof
to the board that the person no longer is addicted to the use of
controlled substances.
(B) If the board under which a
person has been issued a license, certificate, or
evidence of registration
determines that there is clear and
convincing evidence that continuation of the person's professional
practice or method of prescribing or personally
furnishing controlled
substances
presents a danger of immediate and serious harm to others, the board
may suspend the person's license, certificate, or
registration without a hearing.
Except as otherwise provided in sections 4715.30, 4723.281, 4729.16,
4730.25, and 4731.22 of the Revised Code, the board shall follow the procedure
for suspension without a prior hearing in
section 119.07 of the Revised Code. The suspension shall remain in
effect, unless removed by the board, until the board's final
adjudication order becomes effective, except that if the board
does not issue its final adjudication order within ninety days
after the hearing, the suspension shall be void on the
ninety-first day after the hearing.
(C) On receiving notification pursuant to section 2929.24
or 3719.12 of the Revised Code, the board under which a person has been
issued a license, certificate, or evidence of registration
immediately
shall suspend the license, certificate,
or registration of that person on a plea of guilty
to,
a finding by a jury or court of the person's guilt of, or conviction of a
felony drug abuse offense; a
finding by a court of the person's eligibility for
intervention in lieu of conviction; a
plea of guilty to, or a finding by a jury or court of
the person's guilt of, or the person's conviction of
an offense in another jurisdiction that is essentially the same as a
felony drug abuse offense; or a finding by a court of
the person's eligibility for treatment or intervention in lieu of
conviction in another
jurisdiction. The board shall notify the holder of the license,
certificate, or registration of the suspension, which shall
remain in effect
until the board holds an adjudicatory hearing
under Chapter 119. of the Revised Code.
Sec. 4729.07. An individual desiring to be licensed
as a
pharmacist shall file with the executive director of the state
board of pharmacy a verified application giving such information
as the board requires, and appear before the board to. AN
APPLICATION FILED UNDER THIS SECTION MAY NOT BE WITHDRAWN
WITHOUT THE APPROVAL OF THE BOARD.
EACH APPLICANT SHALL
take an
examination to determine fitness to practice pharmacy.
Examinations of those applying for licensure as
pharmacists
shall be held at such times, during each year, and at such places
as the board determines. The board may make use of all or any
part of the licensure examination of the national association of
boards of pharmacy or any other national standardized pharmacy
examination that it considers appropriate to perform its duties
under this section. The board may require applicants for
licensure by examination to purchase the examination and any
related materials from the organization providing it.
Sec. 4729.11. The state board of pharmacy shall establish a pharmacy
internship program for the purpose of providing the practical experience
necessary to practice as a pharmacist. Any
individual who desires to
become a pharmacy intern shall apply for
licensure to the board, and. AN APPLICATION FILED UNDER THIS
SECTION MAY NOT BE WITHDRAWN
WITHOUT THE APPROVAL OF THE BOARD.
EACH APPLICANT shall
be issued an identification card and
license as a pharmacy
intern if in the opinion of the board the applicant is actively pursuing an
educational program in preparation for licensure as
a pharmacist and meets
the other requirements as determined by the board. An
identification card
and license shall be valid until the
next annual renewal
date and shall be renewed only if the intern is meeting the requirements and
rules of the board.
The state board of pharmacy may appoint a director of pharmacy internship who
is a licensed pharmacist and who is not directly or
indirectly
connected with a school or college of pharmacy or department of pharmacy of a
university. The director of pharmacy internship shall be responsible to the
board
for the
operation and direction of the pharmacy internship program established by the
board under this section, and for such other duties as the board
may assign.
Sec. 4729.12. An identification card issued by the state
board of pharmacy under section 4729.08 of the Revised Code entitles the
individual to whom it is issued
to practice as a pharmacist or as a pharmacy intern
in this state
until the next annual renewal date.
Identification cards shall be renewed annually on the
fifteenth day of September, according to the standard renewal
procedure of Chapter
4745. of the Revised Code.
Each pharmacist and pharmacy intern shall carry the
identification card or renewal identification card
while engaged in the practice of pharmacy. The license shall be
conspicuously exposed at
the principal
place where the pharmacist or pharmacy intern practices
pharmacy.
A pharmacist or pharmacy intern
who desires to continue in the
practice of pharmacy shall file with the
board an
application in such form and containing such data as the board
may require for renewal of an identification card.
AN APPLICATION FILED UNDER THIS SECTION MAY NOT BE WITHDRAWN
WITHOUT THE APPROVAL OF THE BOARD.
If the board
finds that the applicant's card has not been revoked or placed under
suspension and
that the applicant has paid the renewal fee, has continued
pharmacy
education in accordance with the rules of the board, and is
entitled to continue in the practice of pharmacy, the board shall
issue a renewal identification card to the applicant.
When an identification card has lapsed for more than sixty
days but application is made within three years after the
expiration of the card, the applicant shall be issued a renewal
identification card without further examination if the
applicant meets the
requirements of this section and pays the fee designated under
division (E) of section 4729.15 of the Revised Code.
Sec. 4729.16. (A) The state board of pharmacy, after
notice and hearing in accordance with Chapter 119. of the
Revised Code, may revoke, suspend, LIMIT, place on probation, or
refuse to grant or renew an identification card, or may impose a monetary
penalty or forfeiture not to
exceed in severity any fine designated under the Revised Code
for
a similar offense, or in the case of a violation of a section of
the Revised Code that does not bear a penalty, a monetary
penalty
or forfeiture of not more than five hundred dollars, if the board
finds a pharmacist or pharmacy intern:
(1) Guilty of a felony or gross immorality;
(2) Guilty of dishonesty or unprofessional conduct in the
practice of pharmacy;
(3) Addicted to or abusing liquor or drugs or impaired
physically or mentally to such a degree as to render the
pharmacist or pharmacy intern unfit to
practice pharmacy;
(4) Has been convicted of a misdemeanor related to, or
committed in, the practice of pharmacy;
(5) Guilty of willfully violating, conspiring to violate,
attempting to violate, or aiding and abetting the violation of
any of the provisions of this chapter, sections 3715.52 to
3715.72 of the Revised Code, or Chapter
2925. or 3719. of the Revised Code, OR ANY RULE ADOPTED BY
THE BOARD UNDER THOSE PROVISIONS;
(6) Guilty of permitting anyone other than a pharmacist or
pharmacy intern to practice pharmacy;
(7) Guilty of knowingly lending the pharmacist's or pharmacy
intern's name to an illegal
practitioner of pharmacy or having professional connection with
an illegal practitioner of pharmacy;
(8) Guilty of dividing or agreeing to divide remuneration
made in the practice of pharmacy with any other individual,
including, but not limited to, any licensed health
professional authorized to prescribe drugs or
any owner, manager, or employee of a health care facility, residential care
facility, or nursing home;
(9) Has violated the terms of a consult agreement entered into pursuant to
section 4729.39 of the Revised Code;
(10) HAS COMMITTED FRAUD, MISREPRESENTATION, OR DECEPTION IN
APPLYING FOR OR SECURING A LICENSE OR IDENTIFICATION CARD ISSUED BY THE
BOARD UNDER THIS CHAPTER OR UNDER CHAPTER 3715. OR 3719. OF THE
REVISED CODE.
(B) Any individual whose identification card is revoked,
suspended, or refused, shall return the identification card
and
license to the offices of the state
board of
pharmacy within ten days after receipt of notice of such action.
(C) As used in this section:
"Unprofessional conduct in the practice of pharmacy"
includes any of the following:
(1) Advertising or displaying signs that promote dangerous
drugs to the public in a manner that is false or misleading;
(2) Except as provided in section 4729.281 of the Revised Code, the sale
of any drug for which a prescription is required, without having received a
prescription
for the drug;
(3) Willfully and knowingly filling prescriptions or
selling drugs for KNOWINGLY DISPENSING MEDICATION PURSUANT TO false
or forged prescriptions;
(4) Willfully and knowingly KNOWINGLY failing to maintain
complete
and accurate records of all controlled substances DANGEROUS
DRUGS received or
dispensed in compliance with federal laws and regulations and
state laws and rules;
(5) Obtaining any remuneration by fraud, misrepresentation, or
deception;
(6) Obtaining or attempting to obtain a license issued
under this chapter or Chapter 3715. of the Revised Code
from the state
board of pharmacy by fraud, misrepresentation, or deception.
(D) THE BOARD MAY SUSPEND A LICENSE OR IDENTIFICATION CARD UNDER
DIVISION (B) OF SECTION 3719.121 OF THE REVISED
CODE BY UTILIZING
A TELEPHONE CONFERENCE CALL TO REVIEW THE ALLEGATIONS AND TAKE A
VOTE.
(E) IF, PURSUANT TO AN ADJUDICATION UNDER CHAPTER 119.
OF THE REVISED CODE, THE BOARD HAS
REASONABLE CAUSE TO BELIEVE THAT A PHARMACIST OR PHARMACY INTERN IS PHYSICALLY
OR MENTALLY
IMPAIRED, THE BOARD MAY REQUIRE THE PHARMACIST OR PHARMACY INTERN TO SUBMIT TO
A PHYSICAL OR MENTAL
EXAMINATION, OR BOTH.
Sec. 4729.19. NOTWITHSTANDING DIVISION (J) OF SECTION 2317.02 OF
THE REVISED CODE, A PHARMACIST SHALL COOPERATE WITH FEDERAL,
STATE, AND LOCAL GOVERNMENT INVESTIGATIONS AND SHALL DIVULGE ALL RELEVANT
INFORMATION WHEN REQUESTED BY A GOVERNMENT AGENCY.
Sec. 4729.39. (A) A pharmacist may
enter into a consult agreement with a
physician authorized under Chapter 4731. of
the Revised
Code to practice medicine and surgery or
osteopathic medicine and surgery. Under a consult agreement, a pharmacist is
authorized to manage an individual's drug therapy, but only to the extent
specified in the agreement by the individual's physician and to the extent
specified in, this section, and the rules adopted under this
section.
(B) ALL OF THE
FOLLOWING APPLY TO A CONSULT AGREEMENT THAT AUTHORIZES A
PHARMACIST TO MANAGE THE DRUG THERAPY OF AN INDIVIDUAL WHO IS
NOT A PATIENT OF A HOSPITAL, AS DEFINED IN SECTION 3727.01 OF
THE REVISED
CODE, OR A RESIDENT IN A LONG-TERM CARE FACILITY, AS DEFINED IN
SECTION 3729.01 OF THE REVISED CODE:
(1) A separate consult agreement must be entered into for each
individual
whose drug therapy is to be managed by a pharmacist. A consult agreement
applies only to the particular diagnosis for which a physician prescribed an
individual's drug therapy. If a different diagnosis is made for the
individual, the pharmacist and physician must enter into a new or additional
consult agreement.
(2) Management of an individual's drug therapy by a
pharmacist under a consult agreement may include monitoring and
modifying a prescription that has been issued for the
individual. Except as provided in section 4729.38 of the
Revised
Code for the selection of
generically equivalent drugs, management of an individual's drug
therapy by a pharmacist under a consult agreement shall not
include dispensing a drug that has not been prescribed by the
physician.
(3) Each consult agreement shall be in writing, except that
a consult agreement may be entered into verbally if it is
immediately reduced to writing. A
(4) A PHYSICIAN
ENTERING INTO A CONSULT AGREEMENT SHALL SPECIFY IN THE AGREEMENT
THE EXTENT TO WHICH THE PHARMACIST IS AUTHORIZED TO MANAGE THE
DRUG THERAPY OF THE INDIVIDUAL SPECIFIED IN THE
AGREEMENT.
(5) A PHYSICIAN ENTERING INTO A CONSULT AGREEMENT
MAY SPECIFY ONE OTHER PHYSICIAN WHO HAS AGREED TO
SERVE AS AN ALTERNATE PHYSICIAN IN THE EVENT THAT THE PRIMARY
PHYSICIAN IS UNAVAILABLE TO CONSULT DIRECTLY WITH THE
PHARMACIST. THE PHARMACIST MAY SPECIFY ONE OTHER
PHARMACIST WHO HAS AGREED TO SERVE AS AN ALTERNATE PHARMACIST IN
THE EVENT THAT THE PRIMARY PHARMACIST IS UNAVAILABLE TO CONSULT
DIRECTLY WITH THE PHYSICIAN.
(6) A consult agreement may not be
implemented until it has been signed by the PRIMARY pharmacist, the
PRIMARY physician, and the individual whose drug therapy will be
managed
or another person who has the authority to provide consent to
treatment on behalf of the individual. The physician shall
specify in the agreement the extent to which the pharmacist is
authorized to manage the drug therapy of the individual
specified in the agreement. The ONCE THE AGREEMENT IS SIGNED BY ALL
REQUIRED PARTIES, THE physician shall include in the
individual's medical record the fact that a consult agreement
has been entered into with a
pharmacist.
(7) Prior to commencing any action to manage an
individual's drug therapy under a consult agreement, the
pharmacist shall make reasonable attempts to contact and confer
with the physician who entered into the consult agreement with
the pharmacist. A pharmacist may commence an action to manage
an individual's drug therapy prior to conferring with the
physician OR THE PHYSICIAN'S ALTERNATE, but shall immediately cease the
action that was
commenced if the pharmacist has not conferred with the EITHER
physician
within forty-eight hours.
A pharmacist acting under a consult agreement shall maintain a record of
each action taken to manage an individual's drug therapy. The pharmacist
shall
send to the individual's physician a written report of all actions taken to
manage the individual's drug therapy at intervals the physician shall specify
when entering into the agreement. The physician shall include the
pharmacist's
report in the medical records the physician maintains for the
individual.
(8) A consult agreement may be terminated by either the
pharmacist or physician who entered into the agreement.
By withdrawing
consent, the individual whose drug therapy is being managed or the individual
who consented to the treatment on behalf of the individual may terminate a
consult agreement. The pharmacist or physician who receives the individual's
withdrawal of consent shall provide written notice to the opposite party. A
pharmacist or physician who terminates a consult agreement shall provide
written notice to the opposite party and to the individual who consented to
treatment under the agreement. The termination of a consult agreement shall
be
recorded by the pharmacist and physician in the records they maintain on the
individual being treated.
The (9) EXCEPT AS DESCRIBED IN DIVISION (B)(5) OF
THIS SECTION, THE authority of a pharmacist to manage an individual's
drug therapy under a consult agreement does not permit the
pharmacist to manage drug therapy prescribed by any other
physician or to manage an individual's drug therapy.
(C) ALL OF THE
FOLLOWING APPLY TO A CONSULT AGREEMENT THAT AUTHORIZES A
PHARMACIST TO MANAGE THE DRUG THERAPY OF AN INDIVIDUAL WHO IS A
PATIENT OF A HOSPITAL, AS DEFINED IN SECTION 3727.01 OF THE
REVISED
CODE, OR A RESIDENT IN A LONG-TERM CARE FACILITY, AS DEFINED IN
SECTION 3729.01 OF THE REVISED CODE:
(1) BEFORE A CONSULT AGREEMENT MAY BE ENTERED INTO AND
IMPLEMENTED, A HOSPITAL OR LONG-TERM CARE FACILITY
SHALL ADOPT A POLICY FOR CONSULT AGREEMENTS. FOR ANY PERIOD
OF TIME DURING WHICH A
PHARMACIST OR PHYSICIAN ACTING UNDER A CONSULT AGREEMENT IS NOT PHYSICALLY
PRESENT AND AVAILABLE AT THE HOSPITAL OR FACILITY, THE POLICY SHALL REQUIRE
THAT ANOTHER PHARMACIST AND PHYSICIAN BE AVAILABLE AT
THE HOSPITAL OR FACILITY.
(2) THE CONSULT AGREEMENT SHALL BE MADE IN WRITING AND
SHALL COMPLY WITH THE HOSPITAL'S OR FACILITY'S POLICY ON CONSULT
AGREEMENTS.
(3) THE CONTENT OF THE CONSULT AGREEMENT SHALL BE COMMUNICATED TO THE
INDIVIDUAL WHOSE DRUG THERAPY WILL BE MANAGED IN A MANNER CONSISTENT WITH THE
HOSPITAL'S OR FACILITY'S
POLICY ON CONSULT AGREEMENTS.
(4) A PHARMACIST ACTING UNDER A CONSULT AGREEMENT
SHALL MAINTAIN IN THE INDIVIDUAL'S MEDICAL RECORD A RECORD OF EACH
ACTION TAKEN UNDER THE AGREEMENT.
(5) COMMUNICATION BETWEEN A PHARMACIST AND PHYSICIAN
ACTING UNDER THE CONSULT AGREEMENT SHALL TAKE PLACE AT REGULAR
INTERVALS SPECIFIED BY THE PRIMARY PHYSICIAN ACTING UNDER THE
AGREEMENT.
(6) A CONSULT AGREEMENT MAY BE TERMINATED BY THE
INDIVIDUAL, A PERSON AUTHORIZED TO ACT ON BEHALF OF THE INDIVIDUAL, THE
PRIMARY PHYSICIAN ACTING UNDER THE AGREEMENT, OR THE PRIMARY PHARMACIST ACTING
UNDER THE AGREEMENT. WHEN A CONSULT AGREEMENT IS TERMINATED,
ALL PARTIES TO THE AGREEMENT SHALL BE NOTIFIED AND THE
TERMINATION SHALL BE RECORDED IN THE INDIVIDUAL'S MEDICAL
RECORD.
(7) THE AUTHORITY OF A PHARMACIST ACTING UNDER A
CONSULT AGREEMENT DOES NOT PERMIT THE PHARMACIST TO ACT UNDER THE
AGREEMENT
in a
hospital or health LONG-TERM care facility at which the
pharmacist is not
authorized to practice.
(B)(D) The state board
of pharmacy, in consultation with the state medical board, shall adopt rules
to be followed by pharmacists, and the state medical board, in consultation
with the state board of pharmacy, shall adopt rules to be followed by
physicians, that establish standards and procedures for
entering into a consult agreement and managing
an individual's drug therapy under a consult agreement. The
boards shall specify in the rules any categories of drugs or
types of diseases for which a consult agreement may not be
established. Either board may adopt any other rules it
considers necessary for the implementation and administration of
this section. All rules adopted under this division shall be
adopted in accordance with
Chapter 119. of the
Revised
Code.
Sec. 4729.55. No license shall be issued to an applicant for
licensure as a terminal distributor of dangerous drugs unless the
applicant has furnished satisfactory proof to the STATE board of
pharmacy that:
(A) The applicant is equipped as to land, buildings, and
equipment to properly carry on the business of a terminal
distributor of dangerous drugs within the category of licensure
approved by the board.
(B) A pharmacist, licensed health professional
authorized to prescribe drugs, animal shelter licensed
with the state board of
pharmacy under section 4729.531 of the Revised Code, or a
laboratory as defined in section 3719.01 of the
Revised Code will maintain supervision and control over
the
possession and custody of dangerous drugs that may be
acquired by or on behalf of the applicant.
(C) Adequate safeguards are assured to prevent the sale or
other distribution of dangerous drugs by any person other than a
pharmacist
or licensed health professional authorized
to prescribe drugs.
(D) ADEQUATE SAFEGUARDS ARE ASSURED THAT THE APPLICANT WILL CARRY ON
THE BUSINESS OF A TERMINAL DISTRIBUTOR OF DANGEROUS DRUGS IN A
MANNER THAT ALLOWS PHARMACISTS AND PHARMACY INTERNS EMPLOYED BY
THE TERMINAL DISTRIBUTOR TO PRACTICE PHARMACY IN A SAFE AND
EFFECTIVE MANNER.
(E) If the applicant, or any agent or employee of the
applicant, has been found guilty of violating section 4729.51 of
the Revised Code, the "Federal Food, Drug, and Cosmetic Act," 52
Stat. 1040 (1938), 21 U.S.C.A. 301, the federal drug abuse control laws,
Chapter 2925.,
3715., 3719., or 4729. of
the Revised Code, or any rule of the board, adequate safeguards
are assured to prevent the recurrence of the violation.
(E)(F) In the case of an applicant who is a food processor or
retail seller of food, the applicant will maintain
supervision
and control over the possession and custody of nitrous oxide.
(F)(G) In the case of an applicant who is a retail seller of
oxygen in original packages labeled as required by the "Federal
Food, Drug, and Cosmetic Act," the applicant will maintain
supervision and control over the possession, custody, and retail
sale of the oxygen.
(G)(H) If the application is made on behalf of an animal
shelter, at least one of the agents or employees of the
animal shelter is certified in compliance with section 4729.532
of the Revised Code.
(H)(I) In the case of an applicant who is a retail seller of
peritoneal dialysis solutions in original packages labeled as required by the
"Federal Food, Drug, and Cosmetic
Act," 52 Stat. 1040 (1938), 21
U.S.C.A. 301, the applicant will maintain supervision and
control over the
possession, custody, and retail sale of the peritoneal dialysis solutions.
Section 2. That existing sections 121.22, 2317.02, 3719.121, 4729.07,
4729.11, 4729.12, 4729.16, 4729.39, and 4729.55 of the Revised Code are hereby
repealed.
Section 3. That the version of section 121.22 of the Revised
Code that is scheduled to take effect December 24, 2000, be amended
to read as follows:
Sec. 121.22. (A) This section shall be liberally
construed to require public officials to take official action and
to conduct all deliberations upon official business only in open
meetings unless the subject matter is specifically excepted by
law.
(B) As used in this section:
(1) "Public body" means any of the following:
(a) Any board, commission, committee, council, or similar
decision-making body of a state agency, institution, or
authority, and any legislative authority or board, commission,
committee, council, agency, authority, or similar
decision-making body of
any county, township, municipal corporation, school district, or
other political subdivision or local public institution;
(b) Any committee or subcommittee of a body described in
division (B)(1)(a) of this section;
(c) A court of jurisdiction of a sanitary district organized
wholly for the purpose of providing a water supply for domestic, municipal,
and public use when meeting
for the purpose of the appointment, removal, or reappointment of a member of
the board of directors of such a district pursuant to section 6115.10 of the Revised Code, if
applicable, or for any other matter related to
such a district other than litigation involving the district. As used in
division (B)(1)(c) of this section, "court of
jurisdiction" has the same meaning as "court" in section 6115.01 of the Revised Code.
(2) "Meeting" means any prearranged discussion of the
public business of the public body by a majority of its members.
(3) "Regulated individual" means either of the following:
(a) A student in a state or local public educational
institution;
(b) A person who is, voluntarily or involuntarily, an
inmate, patient, or resident of a state or local institution
because of criminal behavior, mental illness or retardation,
disease, disability, age, or other condition requiring custodial
care.
(C) All meetings of any public body are declared to be
public meetings open to the public at all times. A member of a
public body shall be present in person at a meeting open to
the
public to be considered present or to vote at the meeting and for
purposes of determining whether a quorum is present at the
meeting.
The minutes of a regular or special meeting of any
public body shall be promptly prepared, filed, and maintained and
shall be open to public inspection. The minutes need only
reflect the general subject matter of discussions in executive
sessions authorized under division (G) or (J) of this section.
(D) This section does not apply to a grand jury, to an
audit conference conducted by the auditor of state or independent
certified public accountants with officials of the public office
that is the subject of the audit, to the adult parole authority
when its hearings are conducted at a correctional institution for
the sole purpose of interviewing inmates to determine parole or
pardon, to the organized crime investigations commission
established under section 177.01 of the Revised Code, to the
state medical board when determining whether to suspend a
certificate without a prior hearing pursuant to division
(G) of
either section 4730.25 or 4731.22 of the Revised Code,
to the board of nursing when
determining whether to suspend a license or certificate without a prior
hearing
pursuant to division (B) of section 4723.281 of the
Revised Code, TO THE STATE BOARD OF PHARMACY WHEN DETERMINING WHETHER TO
SUSPEND A LICENSE WITHOUT A PRIOR HEARING PURSUANT TO DIVISION (D) OF
SECTION 4729.16 of the Revised Code, or to the executive committee of the
emergency response
commission when determining whether to issue an enforcement order
or request that a civil action, civil penalty action, or criminal
action be brought to enforce Chapter 3750. of the Revised Code.
(E) The controlling board, the development financing
advisory council, the industrial technology and enterprise
advisory council,
the tax credit authority, or the minority development
financing advisory board, when meeting to consider granting
assistance pursuant to Chapter 122. or 166. of the Revised Code,
in order to protect the interest of the applicant or the possible
investment of public funds, by unanimous vote of all board,
council,
or authority members present, may close the meeting
during
consideration of the following information confidentially
received by the authority, council, or board from
the
applicant:
(1) Marketing plans;
(2) Specific business strategy;
(3) Production techniques and trade secrets;
(4) Financial projections;
(5) Personal financial statements of the applicant or
members of the applicant's immediate family, including, but not
limited to,
tax records or other similar information not open to public
inspection.
The vote by the authority, council, or board to
accept
or reject the application, as well as all proceedings of the
authority, council, or board not subject to this
division,
shall be open to the public and governed by this section.
(F) Every public body, by rule, shall establish a
reasonable method whereby any person may determine the time and
place of all regularly scheduled meetings and the time, place,
and purpose of all special meetings. A public body shall not
hold a special meeting unless it gives at least twenty-four
hours' advance notice to the news media that have requested
notification, except in the event of an emergency requiring
immediate official action. In the event of an emergency, the
member or members calling the meeting shall notify the news media
that have requested notification immediately of the time, place,
and purpose of the meeting.
The rule shall provide that any person, upon request
and payment of a reasonable fee, may obtain reasonable advance
notification of all meetings at which any specific type of public
business is to be discussed. Provisions for advance notification
may include, but are not limited to, mailing the agenda of
meetings to all subscribers on a mailing list or mailing notices
in self-addressed, stamped envelopes provided by the person.
(G) Except as provided in division (J) of this
section, the members of a public body may hold an executive
session only after a majority of a quorum of the public body
determines, by a roll call vote, to hold an executive
session and only
at a regular or special meeting for the sole purpose of the
consideration of any of the following matters:
(1) To consider the appointment, employment, dismissal,
discipline, promotion, demotion, or compensation of a public
employee or official, or the investigation of charges or
complaints against a public employee, official, licensee, or
regulated individual, unless the public employee, official,
licensee, or regulated individual requests a public hearing.
Except as otherwise provided by law, no public body shall hold an
executive session for the discipline of an elected official for
conduct related to the performance of the elected official's
official duties or for
the elected official's removal from office. If a public body holds
an executive
session pursuant to division (G)(1) of this section, the motion
and vote to hold that executive session shall state which one or
more of the approved purposes listed in division (G)(1) of this
section are the purposes for which the executive session is to be
held, but need not include the name of any person to be
considered at the meeting.
(2) To consider the purchase of property for public
purposes, or for the sale of property at competitive bidding, if
premature disclosure of information would give an unfair
competitive or bargaining advantage to a person whose personal,
private interest is adverse to the general public interest. No
member of a public body shall use division (G)(2) of
this section as a
subterfuge
for providing covert information to prospective buyers or
sellers. A purchase or sale of public property is void if the
seller or buyer of the public property has received covert
information from a member of a public body that has not been
disclosed to the general public in sufficient time for other
prospective buyers and sellers to prepare and submit offers.
If the minutes of the public body show that all meetings
and deliberations of the public body have been conducted in
compliance with this section, any instrument executed by the
public body purporting to convey, lease, or otherwise dispose of
any right, title, or interest in any public property shall be
conclusively presumed to have been executed in compliance with
this section insofar as title or other interest of any bona fide
purchasers, lessees, or transferees of the property is concerned.
(3) Conferences with an attorney for the public body
concerning disputes involving the public body that are the
subject of pending or imminent court action;
(4) Preparing for, conducting, or reviewing negotiations
or bargaining sessions with public employees concerning their
compensation or other terms and conditions of their employment;
(5) Matters required to be kept confidential by federal
law or regulations or state statutes;
(6) Specialized details of security arrangements if
disclosure of the matters discussed might reveal information that
could be used for the purpose of committing, or avoiding
prosecution for, a violation of the law;
(7) In the case of a county hospital operated pursuant to
Chapter 339. of the Revised Code, to consider trade
secrets, as defined in section 1333.61 of the Revised Code.
If a public body holds an executive session to consider any
of the matters listed in divisions (G)(2) to (7) of this
section,
the motion and vote to hold that executive session shall state
which one or more of the approved matters listed in those
divisions are to be considered at the executive session.
A public body specified in division (B)(1)(c) of
this section shall not hold an executive session when meeting for the purposes
specified in that division.
(H) A resolution, rule, or formal action of any kind is
invalid unless adopted in an open meeting of the public body. A
resolution, rule, or formal action adopted in an open meeting
that results from deliberations in a meeting not open to the
public is invalid unless the deliberations were for a purpose
specifically authorized in division (G) or (J) of this section and
conducted at an executive session held in compliance with this
section. A resolution, rule, or formal action adopted in an open
meeting is invalid if the public body that adopted the
resolution, rule, or formal action violated division (F) of this
section.
(I)(1) Any person may bring an action to enforce this section. An action
under
division (I)(1) of this section shall
be brought within two years after the date of the alleged
violation or threatened violation. Upon proof of a violation or
threatened violation of this section in an action brought by any
person, the court of common pleas shall issue an injunction to
compel the members of the public body to comply with its
provisions.
(2)(a) If the court of common pleas issues an injunction
pursuant to division (I)(1) of this section, the court shall
order the public body that it enjoins to pay a civil forfeiture
of five hundred dollars to the party that sought the injunction
and shall award to that party all court costs and, subject to
reduction as described in
division (I)(2) of this section, reasonable attorney's
fees. The court, in its discretion, may reduce an award of
attorney's fees to the party that sought the injunction or not
award attorney's fees to that party if the court determines both
of the following:
(i) That, based on the ordinary application of statutory
law and case law as it existed at the time of violation or
threatened violation that was the basis of the injunction, a
well-informed public body reasonably would believe that the
public body was not violating or threatening to violate this
section;
(ii) That a well-informed public body reasonably would
believe that the conduct or threatened conduct that was the basis
of the injunction would serve the public policy that underlies
the authority that is asserted as permitting that conduct or
threatened conduct.
(b) If the court of common pleas does not issue an
injunction pursuant to division (I)(1) of this section and the
court determines at that time that the bringing of the action was
frivolous conduct, as defined in division (A) of section 2323.51
of the Revised Code, the court shall award to the public body all
court costs and reasonable attorney's fees, as determined by the
court.
(3) Irreparable harm and prejudice to the party that
sought the injunction shall be conclusively and irrebuttably
presumed upon proof of a violation or threatened violation of
this section.
(4) A member of a public body who knowingly violates an
injunction issued pursuant to division (I)(1) of this section may
be removed from office by an action brought in the court of
common pleas for that purpose by the prosecuting attorney or the
attorney general.
(J)(1) Pursuant to division (C) of section 5901.09 of the Revised Code,
a veterans service commission shall hold an executive session for one or more
of the following purposes unless an applicant requests a public
hearing:
(a) Interviewing an applicant for financial assistance under
sections 5901.01 to 5901.15 of the Revised Code;
(b) Discussing applications, statements, and other documents
described in division (B) of section 5901.09 of the Revised
Code;
(c) Reviewing matters relating to an applicant's request for
financial assistance under sections 5901.01 to 5901.15 of the Revised Code.
(2) A veterans service commission shall not exclude an applicant for,
recipient of, or former recipient of financial assistance under sections
5901.01 to 5901.15 of the Revised Code, and
shall not exclude representatives selected by the
applicant, recipient, or former recipient, from a meeting that the commission
conducts as an executive session that pertains to the applicant's,
recipient's, or former recipient's application for financial assistance.
(3) A veterans service commission shall vote on the grant or denial of
financial assistance under sections 5901.01 to 5901.15
of the Revised Code only in an open
meeting of the commission. The minutes of the meeting shall indicate the
name, address, and occupation
of the applicant, whether the assistance was granted or denied, the amount of
the assistance if assistance is granted, and the votes for and against the
granting of assistance.
Section 4. That the existing version of section 121.22 of the
Revised Code that is scheduled to take effect December 24, 2000, is
hereby repealed.
Section 5. Sections 3 and 4 of this act shall take effect
December 24, 2000.
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