To amend section 4731.22 and to enact section 4731.31 of the Revised Code to permit rural hospitals to employ physicians.

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

Sec. 4731.22. (A) The state medical board, pursuant to an adjudication under Chapter 119. of the Revised Code and by a 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 in passing the examination or to have committed fraud, misrepresentation, or deception in applying for or securing any license or certificate issued by the board.

(B) The board, pursuant to an adjudication under Chapter 119. of the Revised Code and by a vote of not fewer than six members, shall, to the extent permitted by law, limit, revoke, or suspend a certificate, refuse to register or refuse to reinstate an applicant, 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 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 use reasonable care discrimination in the 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, or a judicial finding of guilt 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, and 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) Soliciting patients or publishing a false, fraudulent, deceptive, or misleading statement.

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 for self 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, or a judicial finding of guilt of, 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, or a judicial finding of guilt of, a misdemeanor committed in the course of practice;

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

(13) A plea of guilty to, or a judicial finding of guilt of, a misdemeanor involving moral turpitude;

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

(15) Violation of the conditions of limitation placed by the board upon a certificate to practice or violation of the conditions of limitation upon which a limited or temporary registration or certificate to practice is issued;

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

(17) Engaging 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)(a) 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 as are determined, by rule, by the state medical board. The state medical board shall obtain and keep on file current copies of the codes of ethics of the various national professional organizations. The practitioner 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 practitioner's profession.

(b) For purposes of this division, a "provision of a code of ethics of a national professional organization" does not include any provision of a code of ethics of a specified national professional organization 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, and 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 licensed or certified to practice by this chapter or who has applied for licensure or certification pursuant to this chapter to submit to a mental or physical examination, or both, as required by and at the expense of the board. Failure of any individual to submit to a mental or physical examination when directed 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 a physician unable to practice because of the reasons set forth in this division, the board shall require the physician to submit to care, counseling, or treatment by physicians approved or designated by the board, as a condition for initial, continued, reinstated, or renewed licensure to practice. An individual licensed by this chapter affected under this division shall be afforded an opportunity to demonstrate to the board that the individual can 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 licensed or certified to practice by this chapter accepts the privilege of practicing in this state and, by so doing or by the making and filing of a registration or application to practice in this state, 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 as provided in division (B)(27) of this section and section 4731.225 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 promulgated 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, and 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) The limitation, revocation, or suspension by another state of a license or certificate to practice issued by the proper licensing authority of that state, the refusal to license, register, or reinstate an applicant by that authority, the imposition of probation by that authority, or the issuance of an order of censure or other reprimand by that authority for any reason, other than nonpayment of fees;

(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 department of defense, or the veterans administration of the United States, for any act or acts that also would constitute a violation of this chapter;

(25) Termination or suspension from 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 licensed or certified under this chapter accepts the privilege of practicing in this state subject to supervision by the board. By filing a registration or application for licensure or by holding a license or certificate 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 licensed or certified under this chapter or any applicant for a license or certification suffers such impairment, the board may compel the individual to submit to a mental or physical examination, or both. The examination shall be at the expense of the board. 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 of the individual 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 licensure to practice, to submit to treatment.

Before being eligible to apply for reinstatement of a license suspended under this division, the practitioner shall demonstrate to the board that the practitioner can 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 practitioner 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 this determination.

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

When the impaired practitioner resumes practice after reinstatement of the practitioner's license, the board shall require continued monitoring of the practitioner, which 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 practitioner 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 (J) 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 practitioner'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 provider;

(b) Advertising that the practitioner 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 practitioner'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 perform the responsibilities agreed to by the physician in the protocol established between the physician and an advanced practice nurse in accordance with section 4723.56 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 maintain 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 and practice in accordance with the 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.

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 applicant or certificate holder committed the act. The board does not have jurisdiction under those divisions if 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 has jurisdiction under those divisions if the trial court issues an order of dismissal upon technical or procedural grounds.

The sealing of conviction records 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 a notice of an opportunity for a hearing has been issued based upon a conviction, plea of guilty, or judicial finding of guilt prior to the court order.

(C)(1) The board shall investigate evidence that appears to show that any 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 hearing 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. Information received by the board pursuant to an investigation shall be confidential and not subject to discovery in any civil action.

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.

For the purpose of investigation of a possible violation of division (B)(3), (8), (9), (11), or (15) of this section, 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.

In investigating possible violations of all remaining divisions of this section and sections of this chapter or any rule adopted under this chapter, the board also 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. However, in those instances, other than for patient records provided to the board pursuant to the reporting provisions of division (A) of section 4731.224 of the Revised Code, a subpoena for patient record information shall not be issued without consultation with the attorney general's office and approval of the secretary of the board, the supervising member, and a member of the board who holds a certificate issued under this chapter authorizing the practice of medicine and surgery, osteopathic medicine and surgery, or podiatry. Before issuance of a subpoena of that nature, the three board members 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. Those records must cover a reasonable period of time surrounding the alleged violation. Upon 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. Each officer who serves a subpoena of that nature shall receive the same fees as a sheriff, and each witness who appears, in obedience to a subpoena, before the board, shall receive the fees and mileage provided for witnesses in civil cases in the courts of common pleas.

All hearings and investigations of the board shall be considered civil actions for the purposes of section 2305.251 of the Revised Code.

The board shall conduct all investigations and proceedings in a manner that protects patient confidentiality. The board shall not make public names or other identifying information about patients unless proper consent is given or a waiver of the patient privilege exists under division (B) of section 2317.02 of the Revised Code, except that no consent or waiver of that nature is required if the board possesses reliable and substantial evidence that no bona fide physician-patient relationship exists.

(2) In the absence of fraud or bad faith, neither the board, nor any current or former member, agent, representative, or employee of the board, nor any provider of educational and assessment services selected by the board for the quality intervention program shall 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 a current or former member, agent, representative, or employee of the board or a provider of educational and assessment services selected by the board for the quality intervention program requests the state to defend against any claim or action arising out of any act, omission, proceeding, conduct, or decision related to the person's official duties, if the request is made in writing at a reasonable time before trial, and if the person requesting defense cooperates in good faith in the defense of the claim or action, the state shall provide and pay for the defense and shall pay any resulting judgment, compromise, or settlement. At no time shall the state pay that part of a claim or judgment that is for punitive or exemplary damages.

(3) 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 pursuant to division (C)(1) of this section;

(b) The type of license or 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.

(D) If the secretary and supervising member determine that there is clear and convincing evidence that a certificate holder has violated division (B) of this section and that the certificate holder's continued practice presents a danger of immediate and serious harm to the public, they may recommend that the board suspend the certificate holder's certificate without a prior hearing. Written allegations shall be prepared for consideration by the board members.

The board, upon review of those allegations and by a 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.

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 certificate holder requests an adjudicatory hearing by the board, the date set for that hearing shall be within fifteen days, but not earlier than seven days, after the certificate holder has requested a hearing, unless otherwise agreed to by both the board and the certificate holder.

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.

(E) If the board takes action under division (B)(9), (11), or (13) of this section and the conviction, judicial finding of guilt, or guilty plea 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 petitioner's certificate. The board may then hold an adjudication to determine whether the applicant or certificate holder 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 applicant or certificate holder committed the act or if no hearing is requested, the board may order any of the sanctions identified under division (B) of this section. The board does not have jurisdiction under division (B)(10), (12), or (14) of this section if 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 has jurisdiction under those divisions if the trial court issues an order of dismissal upon technical or procedural grounds.

(F) The certificate or license 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 treatment in lieu of conviction for either of the following:

(1) In this state, aggravated murder, murder, voluntary manslaughter, felonious assault, kidnapping, rape, sexual battery, gross sexual imposition, aggravated arson, aggravated robbery, or aggravated burglary;

(2) In another jurisdiction, any criminal offense substantially equivalent to those specified in division (F)(1) of this section.

Continued practice after suspension of the individual's certificate or license shall be considered practicing without a certificate or license. 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 or license is suspended under this division fails to make a timely request for an adjudicatory hearing, the board shall enter a final order revoking the certificate or license.

(G) If the board is required by Chapter 119. of the Revised Code to give notice of an opportunity for a hearing and if the applicant or certificate holder 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 a 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 (B) of this section.

(H) 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 certificate holder may be reinstated to practice. 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.

(I) Notwithstanding any other provision of the Revised Code, no surrender of a license or certificate issued under this chapter shall 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.

Notwithstanding any other provision of the Revised Code, no application for a license or certificate made under the provisions of this chapter may be withdrawn without approval of the board.

(J) 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.

(K) Under the board's investigative duties described in this section and subject to division (C) of this section, the board shall develop and implement a quality intervention program designed to improve physicians' clinical and communication skills through remedial education. 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 to physicians pursuant to an investigation the board conducts under this section;

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

(3) Refer physicians to educational and assessment service providers and approve individual educational programs recommended by those providers. The board shall monitor the progress of each physician undertaking an educational program of that nature.

(4) Determine successful completion of an educational program undertaken by a referred physician and require further monitoring of a physician 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.

A physician who participates in an individual educational program pursuant to this division shall pay the financial obligations arising from that educational program.

Sec. 4731.31. (A) AS USED IN THIS SECTION:

(1) "RURAL HOSPITAL" MEANS A HOSPITAL AGENCY, AS DEFINED IN SECTION 140.01 OF THE REVISED CODE, THAT MEETS ALL OF THE FOLLOWING CRITERIA:

(a) IS IN COMPLIANCE WITH SECTION 3727.02 OF THE REVISED CODE AND THE REGISTRATION REQUIREMENT OF DIVISION (A) OF SECTION 3701.07 OF THE REVISED CODE;

(b) IS LOCATED IN A COUNTY THAT HAS A POPULATION OF LESS THAN ONE HUNDRED TWENTY-FIVE THOUSAND.

(2) "PHYSICIAN" MEANS AN INDIVIDUAL AUTHORIZED UNDER CHAPTER 4731. OF THE REVISED CODE TO PRACTICE MEDICINE AND SURGERY, OSTEOPATHIC MEDICINE AND SURGERY, OR PODIATRY.

(B) SUBJECT TO DIVISION (C) OF THIS SECTION, A RURAL HOSPITAL OR A HEALTH CARE FACILITY THAT IS OWNED OR OPERATED BY A RURAL HOSPITAL MAY EMPLOY A PHYSICIAN. A HOSPITAL OR FACILITY THAT EMPLOYS A PHYSICIAN IN ACCORDANCE WITH THIS SECTION IS NOT ENGAGED IN THE PRACTICE OF MEDICINE AND SURGERY, OSTEOPATHIC MEDICINE AND SURGERY, OR PODIATRY IN VIOLATION OF SECTION 4731.41, 4731.43, OR 4731.60 OF THE REVISED CODE.

(C) NO RURAL HOSPITAL OR HEALTH CARE FACILITY OWNED OR OPERATED BY A RURAL HOSPITAL SHALL CONTROL THE PROFESSIONAL CLINICAL JUDGMENT EXERCISED WITHIN ACCEPTED AND PREVAILING STANDARDS OF PRACTICE OF A PHYSICIAN EMPLOYED PURSUANT TO THIS SECTION IN RENDERING CARE, TREATMENT, OR PROFESSIONAL ADVICE TO AN INDIVIDUAL PATIENT.