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Sub. S. B. No. 179As Reported by the Senate Health, Human Services and Aging CommitteeAs Reported by the Senate Health, Human Services and Aging Committee
124th General Assembly | Regular Session | 2001-2002 |
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SENATOR Wachtmann
A BILL
To amend sections 109.36, 1751.21, 2305.25, 2305.251,
2305.38, 3701.74, 4715.03, 4723.28, 4730.26,
4731.22, 4731.36, 4734.45, 4760.14, and 4762.14;
to
amend, for the purpose of adopting new section
numbers as indicated in parentheses, sections
2305.25 (2305.251) and 2305.251 (2305.252); and to
enact new section 2305.25 and section 2305.253 of
the Revised Code to modify the law regarding peer
review committees of health care entities.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.36, 1751.21, 2305.25, 2305.251,
2305.38, 3701.74, 4715.03, 4723.28, 4730.26, 4731.22, 4731.36,
4734.45, 4760.14, and 4762.14 be amended; sections 2305.25
(2305.251) and 2305.251 (2305.252) be amended for the purpose of
adopting new section numbers as indicated in parentheses; and new
section 2305.25 and section 2305.253 of the Revised Code be
enacted to read as follows:
Sec. 109.36. As used in this section and sections 109.361
to
109.366 of the Revised Code: (A)(1) "Officer or employee" means any
of the following: (a) A person who, at the
time
a cause of action against
the
person arises, is serving in an
elected or appointed office or
position with the state or is
employed by the state
or any. (b) A person that, at the time a cause of
action against the
person, partnership, or corporation arises,
is
rendering medical,
nursing, dental, podiatric, optometric,
physical therapeutic,
psychiatric, or psychological services
pursuant to a personal
services contract or purchased service
contract with a department,
agency, or institution of the state;
or. (c) A person that, at the time a cause of action against the
person, partnership, or corporation arises, is rendering peer
review, utilization review, or drug utilization review services in
relation to medical, nursing, dental, podiatric, optometric,
physical therapeutic, psychiatric, or psychological services
pursuant to a personal services contract or purchased service
contract with a department, agency, or institution of the state. (d) A person who, at the time a cause of action against the
person arises, is
rendering medical services to patients in a
state
institution operated by the department of mental health, is
a
member of the institution's staff, and is performing the
services
pursuant to an agreement between the state institution
and a
board
of alcohol, drug addiction, and mental health services
described
in section 340.021 of the Revised Code.
"Officer (2) "Officer
or
employee"
does not include any person
elected, appointed, or
employed by any
political subdivision of
the state. (B) "State" means the state of Ohio, including but not
limited to, the general assembly, the supreme court, the offices
of all elected state officers, and all departments, boards,
offices, commissions, agencies, institutions, and other
instrumentalities of the state of Ohio. "State" does not include
political subdivisions. (C) "Political subdivisions" of the state means municipal
corporations, townships, counties, school districts, and all
other
bodies corporate and politic responsible for governmental
activities only in geographical areas smaller than that of the
state. (D) "Employer" means the general assembly, the supreme
court, any office of an elected state officer, or any department,
board, office, commission, agency, institution, or other
instrumentality of the state of Ohio that employs or contracts
with an officer or employee or to which an officer or employee is
elected or appointed.
Sec. 1751.21. (A) A
peer review committee of a hospital or
other health care
facility or provider, or of an intermediary
organization or health delivery
network, with which a health
insuring corporation
has a contract for health care services may
provide to a peer
review committee of the health insuring
corporation any
information, documents, testimony, or other
records relating to
any matter that is the subject of evaluation
or review by the
peer review committees, if consent is provided by
the health
care facility and any physician or other provider whose
professional qualifications or activities are the subject of
evaluation or review. (B) Any immunity from
liability for damages that is provided
under section
2305.25
2305.251 of
the Revised
Code and that would
otherwise
apply with respect to the conduct of any peer review
committee
described in division (A) of
this section shall continue
to apply, notwithstanding the
provision of information as
permitted under division
(A) of this section.
(C) The information,
documents, testimony, or other records
described in division
(A) of this section, if
otherwise protected
under section
2305.251
2305.252 of the
Revised
Code, shall not be
construed as
being available for discovery or for use in any civil
action
solely on the basis that they were provided by the peer
review
committee as permitted under division (A) of this
section.
Sec. 2305.25. As used in this section and sections 2305.251
to 2305.253 of the
Revised Code: (A) "Health care entity" means a government entity, a
for-profit or nonprofit corporation, a limited liability company,
a partnership, a professional corporation, a state or local
society composed of physicians, or other health care organization,
whether acting on its own behalf or
on behalf of or in
affiliation
with other health care entities,
that conducts as part
of its
purpose professional credentialing or
quality review
activities
involving the competence, professional
conduct, or
quality of care
provided by health care providers, including both
individuals and
entities. (B) "Health insuring corporation" means an entity that holds
a certificate of authority under Chapter 1751. of the Revised
Code. "Health insuring
corporation" includes wholly owned
subsidiaries of a health
insuring corporation. (C) "Hospital" means either of the following:
(1) An institution that has been registered or licensed by
the department of health as a hospital; (2) An entity, other than an insurance company authorized to
do business in this state, that owns, controls, or is affiliated
with an institution that has been registered or licensed by the
department of health as a hospital. (D) "Incident report or risk management report" means a
report of an incident involving injury or potential injury to a
patient as a result of patient care by a health care entity that
is prepared by or for the use of a peer review committee and is
within the scope of
the functions of that committee. (E)(1) "Peer review committee" means a utilization review
committee, quality assessment committee, performance improvement
committee, tissue committee, credentialing committee, or other
committee that does either of the following: (a) Conducts professional credentialing or quality
review
activities involving the competence, professional conduct, or
quality of care provided by health care providers, including both
individuals
and entities; (b) Conducts any other attendant hearing process initiated
as a result of a peer review committee's recommendations or
actions. (2) "Peer review committee" includes, but is not limited to,
the following: (a) A peer review committee of a hospital or long-term care
facility or a peer review committee of a nonprofit health
care
corporation that is a member of the hospital or long-term care
facility or of which the
hospital
or facility is a member; (b) A peer review committee of a community mental health
center; (c) A board or committee of a hospital, a long-term care
facility, or other
health care entity when reviewing professional
qualifications or activities of health care providers, including
both individuals and entities; (d) A peer review committee, professional standards review
committee, or arbitration committee of a state or local society
composed of members who are in active practice as physicians,
dentists, optometrists, psychologists, or
pharmacists; (e) A peer review committee of a health insuring corporation
that has at least a two-thirds majority of member physicians in
active practice and that conducts professional credentialing and
quality review activities involving the competence or professional
conduct of health care providers that adversely affects or could
adversely affect the health or welfare of any patient; (f) A peer review committee of a
health insuring corporation
that has at least a two-thirds
majority of physicians in active
practice and that conducts
professional credentialing and quality
review activities involving
the competence or professional conduct
of a health care facility
that has contracted with the health
insuring corporation to
provide health care
services to enrollees,
which conduct adversely
affects, or could
adversely affect, the
health or welfare of any
patient; (g) A peer review committee of a sickness and accident
insurer that has at least a two-thirds
majority of physicians in
active practice and that conducts
professional credentialing and
quality review activities involving
the competence or professional
conduct of health care providers
that adversely affects or could
adversely affect the health or
welfare
of any patient; (h) A peer review committee of a sickness and accident
insurer that has at least a two-thirds
majority of physicians in
active practice and that conducts
professional credentialing and
quality review activities involving
the competence or professional
conduct of a health care facility
that has contracted with the
insurer to provide health care
services to insureds, which conduct
adversely affects, or could
adversely affect, the health or
welfare of any patient; (i) A peer review committee of any insurer authorized under
Title XXXIX of the Revised Code to do the business of medical
professional liability insurance in this state that conducts
professional quality review activities involving the competence or
professional conduct of health care providers that adversely
affects or could affect the health or welfare of any patient; (j) A peer review committee of a health care entity. (F) "Physician" means an individual authorized to practice
medicine and surgery, osteopathic medicine and surgery, or
podiatric medicine and surgery. (G) "Sickness and accident insurer" means an entity
authorized under Title XXXIX of the Revised Code to do the
business of sickness and accident insurance in this state. (H) "Tort action" means a civil action for damages for
injury, death, or loss to a patient of a health care entity. "Tort
action" includes a product liability claim but does not include a
civil action for a breach of contract or another agreement between
persons.
Sec. 2305.25
2305.251. (A)
No
hospital, no state
or local
society,
health care entity and no individual who
works for or on
behalf of a health care entity shall be liable in damages to any
person for any acts, omissions, decisions, or other conduct within
the scope of the functions of a peer review committee of the
health care entity. No individual who is a member
of
or
employee
works for or on behalf of
any of the
following committees
a
peer
review committee
of a health care entity
shall
be liable in
damages to any person
for any
acts,
omissions,
decisions, or other
conduct within the
scope of
the
functions of
the
peer review
committee:. (A) A
utilization review committee, quality
assurance, or
tissue committee of a hospital or long-term care
facility,
a
nonprofit
health care corporation
which is a
member of
the
hospital or long-term care
facility or of
which the
hospital
or
facility is a member, or a community mental
health
center;
(B) A board or committee of a hospital or long-term care
facility or
of a nonprofit health care corporation
which is a
member of the
hospital or long-term care facility or of which the
hospital or
long-term care facility is a
member reviewing
professional
qualifications or activities of the medical staff of
the
hospital or long-term care facility or
applicants for
admission to the medical staff;
(C) A utilization committee of a state or local society
composed of doctors of medicine, doctors of osteopathic
medicine,
or doctors of podiatric medicine;
(D)
A peer review committee, professional standards review
committee, or arbitration committee of a state or local society
composed of doctors of medicine, doctors of osteopathic medicine,
doctors of
dentistry, doctors of optometry, doctors
of podiatric
medicine, psychologists, or pharmacists;
(E) A peer review committee of a health insuring
corporation
that has at least a two-thirds
majority of member
physicians in
active practice and that conducts professional
credentialing and
quality review activities involving the
competence or professional
conduct of health care providers,
which
conduct adversely affects,
or could adversely affect, the
health
or welfare of any patient.
For purposes of this division,
"health
insuring corporation"
includes
wholly owned
subsidiaries
of a
health insuring
corporation.
(F) A peer review committee of any insurer authorized
under
Title XXXIX of the Revised Code to do the business of
sickness and
accident insurance in this state that has at least a
two-thirds
majority of physicians in active practice and that
conducts
professional credentialing and quality review activities
involving
the competence or professional conduct of health care
providers,
which conduct adversely affects, or could
adversely
affect, the
health or welfare of any patient;
(G) A peer review committee of any insurer authorized
under
Title XXXIX of the Revised Code to do the business of
sickness and
accident insurance in this state that has at least a
two-thirds
majority of physicians in active practice and that
conducts
professional credentialing and quality review activities
involving
the competence or professional conduct of a health care
facility
that has contracted with the insurer to provide health
care
services to insureds, which conduct adversely affects,
or
could
adversely affect, the health or welfare of any patient;
(B)(1) A hospital shall be presumed to not be negligent in
the credentialing of an individual who has, or has applied for,
staff membership or professional privileges at the hospital
pursuant to section 3701.351 of the Revised Code, if the hospital
proves by
a preponderance of the evidence that, at the time of the
alleged
negligent credentialing of the individual, the hospital
was accredited
by one of the following: (a) The joint commission on accreditation of healthcare
organizations; (b) The American osteopathic association; (c) The
national committee for quality assurance; (d) The utilization review accreditation commission. (2) The presumption that a hospital is not negligent as
provided in division (B)(1) of this section may be rebutted only
by proof, by a preponderance of the evidence, of any of the
following: (a) The credentialing and review requirements of the
accrediting organization did not apply to the hospital,
the
individual, or the type of professional care that is the
basis
of
the claim against the hospital. (b) The hospital failed to comply with all material
credentialing and review requirements of the accrediting
organization that applied to the individual. (c) The hospital, through its medical staff executive
committee or its governing body and sufficiently in advance to
take appropriate action, knew that a previously
competent
individual who has, or has applied for, staff membership
or
professional privileges at the hospital had
developed a
pattern
of
incompetence or otherwise inappropriate behavior, either of
which
indicated that the
individual's staff membership or
professional
privileges should have been limited prior to the
individual's
provision of professional care to the
plaintiff at
the hospital. (d) The hospital, through its medical staff executive
committee or its governing body and sufficiently in advance to
take appropriate action, knew that a previously competent
individual who has, or has applied for, staff membership or
professional privileges at the hospital would
provide
fraudulent
medical treatment but failed to limit the
individual's
staff
membership or professional privileges prior to the
individual's
provision of professional care to the plaintiff at
the
hospital. (3) If the plaintiff fails to rebut the presumption provided
in division (B)(1) of this section, upon the motion of the
hospital, the court shall enter judgment in favor of the hospital
on the claim of negligent credentialing. (C) Nothing in this section
otherwise shall relieve any
individual or
hospital
health care entity from liability arising
from
treatment of
a
patient or
resident
an individual. Nothing in
this section
shall be construed as creating an exception to
section 2305.252 of
the Revised Code. This section shall also apply to any member or employee of a
nonprofit corporation engaged in performing the functions of a
peer review committee of nursing home providers or administrators
or of a peer review or professional standards review committee.
(D) No person who provides information under this section
without
malice and in the reasonable
belief that the information
is
warranted by the facts known
to the person shall be subject to
suit for civil
damages as a result of providing the information.
Sec. 2305.251
2305.252. Proceedings and records
of all
review
committees described in section
2305.25
of the Revised Code
within the scope of a peer review committee of a health care
entity shall
be held in confidence and shall not be
subject to
discovery or
introduction in evidence in any civil
action against
a
health care entity or health
care
professional, a hospital, a
long-term
care facility, a
not-for-profit health care
corporation
that is a
member of a
hospital or long-term care facility
or of
which
a
hospital or
long-term care facility is a member, or
another health
care
institution
arising
out of matters that are
the
subject of
evaluation and review by
the
peer review
committee.
No
person in
attendance
at
individual who attends a
meeting of a
peer review
committee
or serving, serves as a member
of a
peer
review
committee, works for or on behalf of a peer
review
committee, or provides information to a peer review
committee
shall be
permitted or required to testify in any
civil
action as
to any
evidence or other matters produced or
presented
during the
proceedings of the
peer review
committee or as
to any
finding,
recommendation, evaluation, opinion, or other
action of
the,
committee or a member
thereof. Information, documents, or
records
otherwise
available from original sources are not to be
construed
as being
unavailable for discovery or for use in any
civil
action
merely
because they were
produced or presented during
proceedings
of a
peer review
committee
nor should any person
testifying, as long as the information, documents, or records are
obtained from the original sources and not from the peer review
committee's proceedings or records. An individual who testifies
before
a
peer review
committee
or
who is, serves as a
representative of a peer review committee, serves as a
member
of
the
a peer review
committee, works for or on behalf of a peer
review committee, or provides information to a peer review
committee shall not
be
prevented from
testifying as
to matters
within the
person's
individual's
knowledge, but the
witness
individual cannot be
asked about the
witness's
individual's
testimony before the
peer review committee, information the
individual provided to the peer review
committee, or
any
opinion
the individual formed
by the witness as a result of
the
committee
hearing
peer review committee's activities. An order by a court
to produce for discovery or for use at trial the proceedings or
records described in this section is a final order.
Sec. 2305.253. (A) Notwithstanding any contrary provision of
section 149.43, 1751.21, 2305.24, 2305.25, 2305.251, 2305.252, or
2305.28 of the Revised Code, an incident report or risk management
report and the contents of an incident report or risk management
report are not subject to discovery in, and are not admissible in
evidence in the trial of, a tort action. An individual who
prepares or has knowledge of the contents of an incident report or
risk management report shall not testify and shall not be required
to testify in a tort action as to the contents of the report.
This
division does not prohibit or limit the discovery or
admissibility
of testimony or evidence relating to patient care
that is within
an individual's personal knowledge. (B)(1) Except as specified in division (A) of this section,
this
section does not affect any provision of section 1751.21,
2305.24,
2305.25, 2305.251, 2305.252, or 2305.28 of the Revised
Code that
describes, imposes, or confers any of the following: (a) An immunity from tort or other
civil liability; (b) A forfeiture of an immunity from tort or other
civil
liability; (c) A requirement of confidentiality; (d) A limitation
on the use of information, data, reports,
or records; (e) Tort or
other civil liability; (f) A limitation on discovery of matter,
introduction into
evidence of matter, or testimony pertaining to
matter in a tort or
other civil action. (2) This section does not
affect a privileged communication
between an attorney and the
attorney's client as described in
section 2317.02 of the Revised
Code.
Sec. 2305.38. (A) As used in this section: (1)
"Charitable organization" means either of the
following: (a) Any charitable nonprofit corporation that is organized
and operated pursuant to Chapter 1702. of the Revised Code,
including, but not limited to, any
such corporation
whose
articles
of incorporation specify that it is organized and
to be
operated
for an education-related purpose; (b) Any charitable association, group, institution, or
society that is not organized and not operated for profit,
including, but not limited to, any
such association, group,
institution, or society
that is organized and
operated
for any
education-related purpose. (2)
"Compensation" does not include actual
and necessary
expenses that are incurred by a
volunteer in connection with the
services that
the volunteer
performs for a charitable
organization,
and that
are reimbursed to
the volunteer or
otherwise paid. (3)
"Corporate services" means services that are performed
by
a volunteer who is associated with a charitable organization
as
defined in division (A)(1)(a) of this section and that reflect
duties or responsibilities arising under Chapter 1702. of the
Revised Code. (4)
"Supervisory services" means services that are
performed
by a volunteer who is associated with a charitable
organization as
defined in division (A)(1)(a) or (b) of this
section and that
involve duties and responsibilities in
connection with the
supervision of one or more officers,
employees, trustees, or other
volunteers of that charitable
organization. (5)
"Volunteer" means an officer, trustee, or other person
who performs services for a charitable organization but does not
receive compensation, either directly or indirectly, for those
services. (B) A volunteer is not liable in damages in a civil action
for injury, death, or loss to
person or property that
arises
from
the actions or omissions of any of the officers,
employees,
trustees, or other volunteers of the charitable
organization for
which
the volunteer performs services, unless
either of the
following
applies: (1) With prior knowledge of an action or omission of a
particular officer, employee, trustee, or other volunteer, the
volunteer authorizes, approves, or otherwise actively
participates
in that action or omission. (2) After an action or omission of a particular officer,
employee, trustee, or other volunteer, the volunteer, with full
knowledge of that action or omission, ratifies it. (C) A volunteer is not liable in damages in a civil action
for injury, death, or loss to
person or property that
arises
from
the volunteer's actions or omissions in connection
with
any
supervisory
or corporate services that
the volunteer
performs for
the
charitable
organization, unless either of the
following
applies: (1) An action or omission of the volunteer involves
conduct
as described in division (B)(1) or (2) of this section; (2) An action or omission of the volunteer constitutes
willful or wanton misconduct or intentionally tortious conduct. (D) A volunteer is not liable in damages in a civil action
for injury, death, or loss to
person or property that
arises
from
the volunteer's actions or omissions in connection
with
any
nonsupervisory or noncorporate services that
the
volunteer
performs for the
charitable organization, unless either
of the
following applies: (1) An action or omission of the volunteer involves
conduct
as described in division (B)(1) or (2) of this section; (2) An action or omission of the volunteer constitutes
negligence, willful or wanton misconduct, or intentionally
tortious conduct. (E)(1) This section does not create a new cause of action or
substantive legal
right against a volunteer. (2) This section does not affect any immunities from civil
liability or
defenses
established by another section of the
Revised Code or
available at
common law, to which a volunteer may
be entitled
under
circumstances not covered by this section. This
section
does not
diminish in any respect the immunities provided
in
section
2305.25
2305.251 of the Revised Code. The immunities
conferred
upon volunteers in
this section are not intended to
affect the
liability of a
charitable organization in a civil
action for
injury, death, or
loss to
person or property.
Sec. 3701.74. (A)
As used in this section and section
3701.741 of the Revised Code: (1)
"Ambulatory care facility" means a facility that
provides
medical, diagnostic, or surgical treatment to patients
who do not
require hospitalization, including a dialysis center,
ambulatory
surgical facility, cardiac catheterization facility,
diagnostic
imaging center, extracorporeal shock wave lithotripsy
center, home
health agency, inpatient hospice, birthing center,
radiation
therapy center, emergency facility, and an urgent care
center.
"Ambulatory care facility" does not include the
private
office of
a physician or dentist, whether the office is
for an
individual or
group practice. (2) "Chiropractor" means an individual licensed
under
Charter
Chapter
4734. of the Revised Code to practice chiropractic. (2)(3) "Emergency facility" means a hospital emergency
department or any other facility that provides emergency medical
services.
(4)
"Health care practitioner" means all of the following:
(a) A dentist or dental hygienist licensed under Chapter
4715. of the Revised Code; (b) A registered or licensed practical nurse licensed
under
Chapter 4723. of the Revised Code; (c) An optometrist licensed under Chapter 4725. of the
Revised Code; (d) A dispensing optician, spectacle dispensing optician,
contact lens dispensing optician, or spectacle-contact lens
dispensing optician licensed under Chapter 4725. of the Revised
Code; (e) A pharmacist licensed under Chapter 4729. of the
Revised
Code; (g) A physician assistant authorized under
Chapter 4730. of
the Revised Code to practice as a physician assistant; (h) A practitioner of a limited branch of medicine issued
a
certificate under Chapter 4731. of the Revised Code; (i) A psychologist licensed under Chapter 4732. of the
Revised Code; (k) A hearing aid dealer or fitter licensed under Chapter
4747. of the Revised Code; (l) A speech-language pathologist or audiologist licensed
under
Chapter 4753. of the Revised Code; (m) An occupational therapist or occupational therapy
assistant licensed under Chapter 4755. of the Revised Code; (n) A physical therapist or physical therapy assistant
licensed under Chapter 4755. of the Revised Code; (o) A professional clinical counselor, professional
counselor,
social worker, or
independent social worker licensed,
or a social
work assistant registered, under Chapter 4757. of the
Revised Code; (p) A dietitian licensed under Chapter 4759. of the
Revised
Code; (q) A respiratory care professional licensed under
Chapter
4761. of the Revised Code; (r) An emergency medical technician-basic, emergency
medical
technician-intermediate, or emergency medical
technician-paramedic
certified under Chapter 4765. of the Revised
Code. (5) "Health care provider"
has the same meaning as in
section
3729.01 of the Revised Code
means a hospital, ambulatory
care facility, long-term
care facility, pharmacy, emergency
facility, or health care
practitioner. (3)(6) "Hospital" has the same meaning as in section 3727.01
of
the Revised Code.
(7)
"Long-term care facility" means a nursing home,
residential care facility, or home
for the aging,
as those terms
are defined in section 3721.01 of the Revised Code; an adult care
facility, as defined in section 3722.01
of the Revised Code; a
nursing facility or intermediate care facility for the mentally
retarded, as those terms are defined in section 5111.20 of the
Revised Code; a facility or portion of a facility certified as a
skilled nursing facility under Title XVIII of the
"Social
Security
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended. (8) "Medical record" means data in any form that pertains
to a patient's medical history,
diagnosis, prognosis, or medical
condition and that is generated
and maintained by a health care
provider
in the process of the patient's health care
treatment.
(4)(9) "Medical records company" means a person who stores,
locates,
or copies medical records for a health care provider,
or
is compensated for doing so by a health care provider, and
charges
a fee for providing medical records to a
patient or patient's
representative.
(5)(10) "Patient" means either of the following:
(a) An individual who received health
care treatment from a
health care provider
or from a practitioner; (b) A guardian, as defined in
section 1337.11 of the Revised
Code, of an individual
described in division (A)(5)(10)(a) of this
section. (6)(11) "Patient's representative" means a person to whom a
patient
has given written authorization to act on the patient's
behalf regarding the patient's medical records, except that if the
patient is
deceased, "patient's representative" means the executor
or administrator of
the patient's estate or the person responsible
for the patient's estate if it
is not to be probated. "Patient's
representative" does not include an insurer
authorized under Title
XXXIX of the Revised Code to do the business of
sickness and
accident insurance in this state or a health insuring corporation
holding a certificate of authority under Chapter 1751. of the
Revised Code.
(7)(12)
"Pharmacy" has the same meaning as in section 4729.01
of
the Revised Code.
(13) "Physician" means a person authorized under Chapter
4731. of the Revised Code to practice medicine and surgery,
osteopathic medicine and surgery,
or
podiatry
podiatric medicine
and surgery.
(5)
"Practitioner" means an individual authorized under
Chapter
4731. of the Revised Code to practice medicine and
surgery, osteopathic medicine and surgery,
or podiatry or an
individual licensed under Chapter 4734.
of the Revised Code to
practice chiropractic.
(B) A patient or patient's representative who wishes to
examine
or obtain a copy of
part or all of a medical record
shall
submit to the
health care provider
or practitioner a
written request
signed by
the patient dated not more
than sixty
days
before the
date on
which it is submitted.
The patient or
patient's
representative
who wishes
to obtain a copy of the record
shall
indicate in the
request
whether the copy is to be sent to
the
patient's residence,
physician or chiropractor, or
representative,
or held
for the
patient at the office of the
health care
provider
or by the practitioner. Within a
reasonable
time after
receiving a request that
meets the
requirements of this
division
and includes sufficient
information
to identify the
record
requested, a health care
provider
that has
the patient's
medical records
or practitioner shall permit the
patient to
examine
the
record during regular business hours
without charge
or, on
request, shall provide a
copy of
the record
in accordance
with
section 3701.741 of the
Revised Code, except
that if a
physician or chiropractor
practitioner who has treated the
patient
determines for
clearly
stated treatment reasons that
disclosure of
the requested record
is likely to have an adverse
effect on the
patient, the
health
care provider
or practitioner
shall provide the record to a
physician or
chiropractor
practitioner designated by
the
patient. The health
care provider
or practitioner
shall take
reasonable steps to establish
the
identity of the
person making the request to
examine or obtain a
copy of
the
patient's record. (C) If a health care provider
or practitioner fails
to
furnish a medical
record as required by division (B) of this
section, the
patient or
patient's representative
who requested the
record may bring a
civil action to enforce the
patient's right of
access to the
record. (D)(1) This section does not apply to medical
records whose
release is covered by section 173.20 or 3721.13 of the Revised
Code, by Chapter 1347.
or 5122. of the Revised Code, by 42 C.F.R.
part 2, "Confidentiality of Alcohol and Drug
Abuse Patient
Records," or by 42
C.F.R.
483.10. (2) Nothing in this section is intended to
supersede the
confidentiality provisions of sections 2305.24
to, 2305.25,
2305.251, and 2305.252 of the
Revised Code.
Sec. 4715.03. (A) The state dental board shall organize
by
the election from its members of a president and a secretary.
It
shall hold meetings monthly at least eight months a year at
such
times and places as the board designates. A majority of the
members of the board shall constitute a quorum. The board shall
make such reasonable rules as it determines necessary pursuant to
Chapter 119. of the Revised Code. (B) A concurrence of a majority of the members of the
board
shall be required to grant, refuse, suspend, place on
probationary
status, revoke, refuse to renew, or refuse to
reinstate a license
or censure a license holder. (C) The board shall adopt rules establishing standards for
the safe practice of dentistry and dental hygiene by qualified
practitioners and shall, through its policies and activities,
promote such practice. The board shall adopt rules in accordance with Chapter 119.
of the Revised Code establishing universal blood and body fluid
precautions that shall be used by each person licensed under this
chapter who performs exposure prone invasive procedures. The
rules shall define and establish requirements for universal blood
and body fluid precautions that include the following: (1) Appropriate use of hand washing; (2) Disinfection and sterilization of equipment; (3) Handling and disposal of needles and other sharp
instruments; (4) Wearing and disposal of gloves and other protective
garments and devices. (D) The board shall administer and enforce the provisions
of
this chapter. The board shall investigate evidence which
appears
to show that any person has violated any provision of
this
chapter. Any person may report to the board under oath any
information such person may have appearing to show a violation of
any provision of this chapter. In the absence of bad faith, any
person who reports such information or who testifies before the
board in any disciplinary proceeding conducted pursuant to
Chapter
119. of the Revised Code is not liable for civil damages
as a
result of
making the report or
providing
testimony. If after
investigation
the board determines that there are reasonable
grounds to believe
that a violation of this chapter has occurred,
the board shall
conduct disciplinary proceedings pursuant to
Chapter 119. of the
Revised Code
or provide for a license holder
to participate in the quality intervention program established
under section 4715.031 of the Revised Code. The board shall not
dismiss any complaint or
terminate any investigation except by a
majority vote of its
members. For the purpose of any disciplinary
proceeding or any
investigation conducted
under this division,
the
board may administer oaths,
order the taking of depositions,
issue subpoenas, compel the
attendance and testimony of persons
at
depositions and compel the
production of books, accounts,
papers,
documents, or other
tangible things. The hearings and
investigations of the board
shall be considered civil actions for
the purposes of section
2305.251
2305.252 of the Revised Code.
Notwithstanding section 121.22 of
the Revised Code, proceedings
of
the board relative to the
investigation of a complaint or the
determination whether there
are reasonable grounds to believe
that
a violation of this chapter
has occurred are confidential
and are
not subject to discovery in
any civil action. (E) The board shall examine or cause to be examined
eligible
applicants to practice dentistry and dental hygiene.
The board may
distinguish by rule different classes of qualified
personnel
according to skill levels and require all or only
certain of these
classes of qualified personnel to be examined
and certified by the
board. (F) In accordance with Chapter 119. of the Revised Code,
the
board shall adopt, and may amend or rescind, rules
establishing
the eligibility criteria, the application and permit
renewal
procedures, and safety standards applicable to a dentist
licensed
under this chapter who applies for a permit to employ or
use
conscious intravenous sedation. These rules shall include
all of
the following: (1) The eligibility requirements and application
procedures
for an eligible dentist to obtain a conscious
intravenous sedation
permit; (2) The minimum educational and clinical training
standards
required of applicants, which shall include
satisfactory
completion of an advanced cardiac life support
course; (3) The facility equipment and inspection requirements; (5) Requirements for reporting adverse occurrences.
Sec. 4723.28. (A) The board of nursing, by a vote of
a
quorum, may revoke
or may refuse to grant a nursing license,
certificate of
authority, or dialysis technician
certificate
to a
person
found by
the board to have committed fraud in passing an
examination
required to obtain the license, certificate of
authority, or
dialysis technician certificate or to have committed
fraud,
misrepresentation, or
deception in applying for or securing
any
nursing license,
certificate of authority, or dialysis
technician
certificate
issued by the
board. (B) The board of nursing,
and by a vote of a
quorum, may
impose one or more of the following sanctions: deny,
revoke,
suspend, or place restrictions on any nursing
license,
certificate
of authority, or dialysis technician
certificate issued by
the
board; reprimand or otherwise discipline a holder of a
nursing
license, certificate of authority, or dialysis technician
certificate; or impose a fine of not more than five hundred
dollars
per violation. The sanctions may be imposed for any of
the
following: (1) Denial, revocation, suspension, or restriction of
authority to
practice a
health
care
occupation, including nursing
or practice
as a dialysis technician, for any reason other than a
failure to renew, in Ohio or another state or jurisdiction; (2) Engaging in the practice of nursing or engaging in
practice as a
dialysis technician, having failed to
renew a
nursing license or dialysis technician certificate
issued under
this chapter, or while a nursing license or dialysis
technician
certificate is under
suspension; (3) Conviction of, a plea of guilty to, a judicial
finding
of guilt of, a judicial finding of guilt resulting from a
plea of
no contest to, or a judicial finding of eligibility for
intervention
in lieu of conviction for, a misdemeanor committed in
the course of
practice; (4) Conviction of, a plea of guilty to, a judicial
finding
of guilt of, a judicial finding of guilt resulting from a
plea of
no contest to, or a judicial finding of eligibility for
intervention
in
lieu of conviction for, any felony or of any crime
involving gross
immorality or moral turpitude; (5) Selling, giving away, or administering drugs or
therapeutic devices for
other than legal and legitimate
therapeutic purposes; or conviction of,
a plea of guilty to, a
judicial finding of guilt of, a
judicial finding of guilt
resulting from a plea of no contest to, or a
judicial finding of
eligibility for intervention in lieu of conviction
for, violating
any municipal, state, county, or federal drug law; (6) Conviction of, a plea of guilty to, a judicial
finding
of guilt of, a judicial finding of guilt resulting from a
plea of
no contest to, or a judicial finding of eligibility for
intervention
in lieu of conviction for, an act in another
jurisdiction that
would
constitute a felony or a crime of moral
turpitude in Ohio; (7) Conviction of, a plea of guilty to, a judicial
finding
of guilt of, a judicial finding of guilt resulting from a
plea of
no contest to, or a judicial finding of eligibility for
intervention
in lieu of conviction for, an act in the course of
practice in
another
jurisdiction that would constitute a
misdemeanor in Ohio; (8) Self-administering or otherwise taking into the body
any
dangerous drug, as defined in section 4729.01 of the Revised Code,
in any way not in accordance with a legal,
valid
presription
prescription
issued for that individual; (9) Habitual indulgence in the use of controlled
substances,
other habit-forming drugs, or alcohol or other
chemical substances
to an extent that impairs ability to
practice; (10) Impairment of the ability to practice according to
acceptable and prevailing standards of safe nursing care because
of habitual or excessive use
of
drugs, alcohol, or other chemical
substances that impair the ability to practice; (11) Impairment of the ability to practice according to
acceptable and
prevailing standards of safe nursing care because
of a physical or mental
disability; (12) Assaulting or causing harm to a patient or depriving
a
patient of the means to summon assistance; (13) Obtaining or attempting to obtain money or anything
of
value by intentional misrepresentation or material deception
in
the course of practice; (14) Adjudication by a probate court of being mentally ill
or mentally
incompetent. The board may restore the person's
nursing license or
dialysis technician certificate upon
adjudication
by a probate court of the person's restoration to
competency or
upon submission to the board of other proof of
competency. (15) The suspension or termination of employment by the
department of defense or the veterans administration of the
United
States for any act that violates or would violate this
chapter; (16) Violation of this chapter or any rules adopted under
it; (17) Violation of any restrictions placed on a nursing
license or
dialysis technician certificate by
the board; (18) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4723.07 of
the Revised Code; (19) Failure to practice in accordance with acceptable
and
prevailing standards of safe nursing care or safe dialysis care; (20) In the case of a registered nurse, engaging in
activities that exceed the practice of nursing as a registered
nurse; (21) In the case of a licensed practical nurse, engaging
in
activities that exceed the practice of nursing as a licensed
practical nurse; (22) In the case of a dialysis technician, engaging in
activities that
exceed those permitted under section 4723.72 of
the Revised Code; (23) Aiding and abetting a person in
that person's practice
of
nursing without a license or practice as a dialysis technician
without a
certificate issued under this chapter; (24) In the case of a certified registered nurse
anesthetist,
clinical nurse specialist,
certified nurse-midwife,
certified nurse practitioner,
or
advanced practice nurse, except
as provided in division (M) of this
section, either of the
following: (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 such nursing
services, would otherwise 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 nurse 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 such nursing services, would otherwise be required to
pay. (25) Failure to comply with the terms and conditions of
participation in
the chemical dependency monitoring program
established under section
4723.35 of the Revised Code; (26) Failure to comply with the terms and conditions
required under the
practice intervention and improvement program
established under section
4723.282 of the Revised Code; (27) In the case of a certified registered nurse
anesthetist,
clinical
nurse specialist, certified nurse-midwife,
or certified nurse
practitioner: (a) Engaging in activities that exceed those
permitted for
the nurse's nursing specialty under section 4723.43 of the
Revised
Code; (b) Failure to meet the quality assurance standards
established under section 4723.07 of the
Revised Code. (28) In the case of a clinical nurse specialist,
certified
nurse-midwife, or certified nurse practitioner, failure to
maintain a standard
care arrangement in accordance with section
4723.431 of the
Revised Code or to practice in accordance with the
standard
care arrangement; (29) In the case of a
clinical nurse specialist, certified
nurse-midwife,
or certified nurse practitioner who holds a
certificate to
prescribe issued under section 4723.48 of the
Revised Code, failure to prescribe drugs and
therapeutic devices
in accordance with section 4723.481 of the
Revised Code; (30) Prescribing any drug or device
to perform or induce an
abortion, or otherwise performing or inducing an
abortion; (31) Failure to establish and maintain professional
boundaries with a patient, as specified in rules adopted under
section 4723.07
of the Revised Code; (32) Regardless of whether the contact or verbal behavior
is
consensual, engaging with a patient other than the spouse of the
registered
nurse, licensed practical nurse, or dialysis technician
in any of the following: (a) Sexual contact, as defined in section 2907.01 of the
Revised Code; (b) Verbal behavior that is sexually demeaning to the
patient or
may be reasonably interpreted by the patient as
sexually demeaning. (C) Disciplinary actions taken by the board under divisions
(A)
and (B) of this section shall be taken pursuant to an
adjudication
conducted under Chapter 119. of the Revised Code,
except that in lieu of a hearing,
the board may enter into a
consent agreement with an individual to resolve an
allegation of a
violation of this chapter or any rule adopted under it. A
consent
agreement, when ratified by a vote of a quorum, shall constitute
the
findings and order of the board with respect to the matter
addressed in the
agreement. If the board refuses to ratify a
consent agreement, the admissions
and findings contained in the
agreement shall be of no effect. (D) The hearings of the board shall be conducted in
accordance
with Chapter 119. of the Revised Code, the board may
appoint a hearing examiner, as
provided in section 119.09 of the
Revised Code, to conduct any hearing the board is
authorized
to
hold under Chapter 119. of the Revised Code. In any instance in which the board is required under Chapter
119.
of the Revised Code to give notice of an opportunity for a
hearing and the applicant or
license holder does not make a timely
request for 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 a quorum, a final order that contains the
board's
findings. In the final order, the board may order any of
the sanctions listed
in division (A) or (B) of this section. (E) If a criminal action is brought against a registered
nurse,
licensed
practical nurse, or dialysis
technician for an
act
or crime described in divisions (B)(3) to (7)
of this section and
the action is dismissed by the trial court
other than on the
merits, the board shall conduct an
adjudication to determine
whether the
registered nurse, licensed practical nurse, or
dialysis technician
committed the act
on which the action was
based. If the board determines on the
basis of the adjudication
that the registered nurse,
licensed practical nurse, or dialysis
technician committed the act,
or if the registered nurse, licensed
practical nurse,
or dialysis technician fails to participate in
the
adjudication, the
board may take action as though the
registered nurse,
licensed practical nurse, or dialysis technician
had been
convicted of the act. If the board takes action on the basis of a conviction,
plea,
or a judicial
finding as described
in divisions (B)(3) to (7)
of
this section that is overturned on
appeal, the registered
nurse,
licensed practical
nurse, or dialysis technician may, on
exhaustion of the appeal
process, petition the board for
reconsideration of its action.
On receipt of the petition and
supporting court documents, the
board shall temporarily rescind
its action. If the board
determines that the decision on appeal
was a decision on the
merits, it shall permanently rescind its
action. If the board
determines that the decision on appeal was
not a decision on the
merits, it shall conduct an
adjudication
to determine
whether the registered nurse, licensed practical
nurse, or dialysis technician committed the act on which the
original conviction, plea, or judicial finding was
based.
If the
board determines on the basis of the adjudication
that the
registered nurse, licensed practical nurse, or
dialysis technician
committed such act, or if the
registered nurse, licensed practical
nurse, or dialysis technician does
not request an adjudication,
the board shall reinstate
its action;
otherwise, the board shall
permanently rescind its action. Notwithstanding the provision of division (C)(2) of section
2953.32 of the Revised Code specifying that if records pertaining
to a criminal case are sealed under that section the proceedings
in the case shall be deemed not to have occurred, sealing of the
records of a conviction on which the board has based an action
under this section shall have no effect on the board's action or
any sanction imposed by the board under this section. The board shall not be required to
seal, destroy, redact, or
otherwise modify its records to reflect the court's
sealing of
conviction records. (F) The board may investigate an individual's criminal
background
in performing its duties under this section. (G) During the course of an investigation conducted under
this section, the board
may compel any registered nurse,
licensed
practical nurse, or dialysis technician or applicant under this
chapter to submit to a
mental or physical
examination, or both, as
required by the board and at the expense
of the individual, if the
board finds reason to believe that the
individual under
investigation may have a physical or mental impairment that
may
affect the individual's ability to provide safe nursing care.
Failure
of any individual to submit to a
mental or physical
examination when directed constitutes an
admission of the
allegations, 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 that an individual
is impaired, the board
shall require the individual to submit to
care, counseling, or
treatment approved or designated by the
board, as a condition for
initial, continued, reinstated, or
renewed authority to practice.
The individual shall
be afforded
an opportunity to demonstrate to
the board that the individual can
begin or resume
the individual's
occupation in compliance with acceptable and
prevailing
standards
of care under the provisions of the individual's authority
to
practice.
For purposes
of this division, any
registered nurse,
licensed practical nurse, or dialysis technician or
applicant
under this chapter
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. (H) The board shall investigate evidence that appears to
show that any person has violated any provision of this chapter
or
any rule of the board. Any person may report to the board any
information the person may have that appears to show a violation
of any provision of this chapter or rule of the board. In the
absence of bad faith, any person who reports such information or
who testifies before the board in any adjudication
conducted under
Chapter 119. of the Revised Code shall not be
liable for civil
damages as a result of the report or testimony. (I) All of the following apply under this chapter with
respect to
the confidentiality of information: (1) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil action, except that the board may disclose information to
law
enforcement officers and government entities investigating a
registered
nurse, licensed practical nurse, or dialysis
technician
or a person who may have engaged in the unauthorized practice of
nursing. No law enforcement officer or government entity with
knowledge of any information disclosed by the board pursuant to
this division
shall divulge the information to any other person or
government entity except
for the purpose of an adjudication by a
court or licensing or registration
board or officer to which the
person to whom the information relates is a
party. (2) If an investigation requires a review of
patient
records,
the investigation and proceeding shall be conducted in
such a
manner as to protect patient confidentiality. (3) All adjudications and investigations of
the board shall
be
considered civil actions for the purposes of section
2305.251
2305.252
of
the Revised Code. (4) Any board activity that involves continued
monitoring of
an individual as part of or following any disciplinary action
taken under this section shall be conducted in a manner that
maintains the
individual's confidentiality. Information received
or maintained by the board
with respect to the board's monitoring
activities is confidential and not
subject to discovery in any
civil action. (J) Any action taken by the board under this section
resulting in a suspension from practice shall be accompanied by a
written statement of the conditions under which the person may be
reinstated to practice. (K) When the board refuses to grant a license or
certificate
to an applicant, revokes a license or
certificate, or refuses to
reinstate a license or certificate, the board may
specify that its
action is permanent. An individual subject to permanent
action
taken by the board is forever ineligible to hold a license or
certificate of the type that was refused or revoked and the board
shall not
accept from the individual an application for
reinstatement of the license or
certificate or for a new license
or certificate. (L) No unilateral surrender of a nursing license,
certificate of authority, or dialysis technician certificate
issued
under this
chapter shall be effective unless accepted by
majority vote of
the board. No application for a nursing license,
certificate
of authority, or dialysis technician certificate
issued under this
chapter may be withdrawn without a majority vote
of the board. The board's
jurisdiction to take disciplinary
action under this section is not removed or
limited when an
individual has a license or certificate
classified as inactive or
fails to renew a license or certificate. (M) Sanctions shall not be imposed under
division (B)(24) of
this section against any licensee 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
licensed pursuant to this chapter to the extent allowed by this
chapter and the rules of the board.
Sec. 4730.26. (A) The state medical board
shall investigate
evidence that appears to show that any person
has violated this
chapter or a rule adopted under it. Any person
may report to the
board in a signed writing any information the
person has that
appears to show a violation of any provision of
this chapter or
rule adopted under it. In the absence of bad faith, a person
who
reports such information or testifies before the board in an
adjudication conducted under Chapter 119. of the Revised Code
shall not be liable for civil damages as a
result of reporting the
information or providing testimony. Each
complaint or allegation
of a violation received by
the board shall be assigned a case
number and be recorded by the
board. (B) Investigations of alleged violations of this chapter or
rules adopted under it shall be supervised by the supervising
member elected by the board in accordance with section 4731.02 of
the Revised Code and by the secretary as provided
in section
4730.33 of the Revised Code. The
president may designate another
member of the board to supervise
the investigation in place of the
supervising member. A member
of the board who supervises the
investigation of a case shall
not participate in further
adjudication of the case. (C) In investigating a possible violation of this chapter or
a rule adopted under it, the board may administer oaths, order
the
taking of depositions, issue subpoenas, and compel the
attendance
of witnesses and production of books, accounts,
papers, records,
documents, and testimony, except that a subpoena
for patient
record information shall not be issued without
consultation with
the attorney general's office and approval of
the secretary and
supervising member of the board. Before issuance of a
subpoena
for patient record
information, the secretary and supervising
member shall determine whether there is probable cause to
believe
that the complaint filed alleges a violation of this
chapter or a
rule adopted under it and that the records sought
are relevant to
the alleged violation and material to the
investigation. The
subpoena may apply only to records
that cover a reasonable period
of
time surrounding the alleged violation. On failure to comply
with any subpoena issued by the board
and after reasonable notice
to the person being subpoenaed, the
board may move for an order
compelling the production of persons
or records pursuant to the
Rules of Civil Procedure. A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board.
Service of a
subpoena issued by the board may be made by
delivering a copy of the subpoena
to the person named therein,
reading it to the person, or leaving it at
the person's usual
place of residence. When the person being
served is a physician
assistant, service of the subpoena may be
made by certified mail,
restricted delivery, return receipt
requested, and the subpoena
shall be deemed served on the date
delivery is made or the date
the person refuses to accept
delivery. A sheriff's deputy who serves a subpoena shall
receive the
same fees as a sheriff. Each
witness who appears before the board
in obedience to a subpoena shall receive
the fees and mileage
provided for witnesses in civil cases in the courts of
common
pleas. (D) All hearings and investigations of the board shall be
considered civil actions for the purposes of section
2305.251
2305.252 of
the Revised Code. (E) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil
action. The board shall conduct all investigations and
proceedings in
a manner that
protects the confidentiality of patients and persons
who file
complaints
with the board. The board shall not make
public the names
or any other identifying information about
patients or
complainants unless proper consent is given or, in the
case of a
patient, a waiver of the patient privilege exists under
division
(B) of section 2317.02 of the Revised
Code, except that
consent or a waiver is not required
if the board possesses
reliable and
substantial evidence that no
bona fide
physician-patient relationship exists. The board may
share any information it receives pursuant to
an investigation, including
patient records and patient record
information, with law
enforcement agencies, other licensing
boards, and other
governmental
agencies that are prosecuting,
adjudicating, or investigating alleged
violations of statutes or
administrative rules. An agency
or board that receives the
information shall comply with the
same requirements regarding
confidentiality as those with which the state
medical board must
comply, notwithstanding any conflicting provision of the
Revised
Code or
procedure of the agency or board that applies when
it is
dealing with other information in its possession. In a judicial
proceeding, the information may
be admitted into evidence only in
accordance
with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that confidentiality
is
maintained with respect to any part of the information that
contains names or
other identifying information about patients or
complainants whose
confidentiality was protected by the state
medical board when the information
was in the board's possession.
Measures to ensure confidentiality that may be
taken by the court
include sealing its records or deleting specific information from
its
records. (F) The state medical board shall develop
requirements for
and provide appropriate initial and continuing
training for
investigators employed by the board to carry out its
duties under
this chapter. The training and continuing education
may include
enrollment in courses operated or approved by the
Ohio peace
officer training council that the board
considers appropriate
under conditions set forth in section
109.79 of the Revised Code. (G) On a quarterly basis, the board shall
prepare a report
that documents the disposition of all cases
during the preceding
three months. The report shall contain the
following information
for each case with which the board has
completed its activities: (1) The case number assigned to the complaint or
alleged
violation; (2) The type of certificate to practice, if any, held
by the
individual against whom the complaint is directed; (3) A description of the allegations contained in the
complaint; (4) The disposition of the case. The report shall state how many cases are still pending,
and
shall be prepared in a manner that
protects the identity
of each
person involved in each case. The report shall be
submitted to
the physician assistant policy committee of the board
and is a
public record for purposes of section 149.43 of the Revised
Code.
Sec. 4731.22. (A) The state medical board,
by an
affirmative vote of not fewer than six of its members,
may revoke
or may
refuse to grant a certificate to a person found by the
board to
have committed fraud during the administration of the
examination for a certificate to practice or to have
committed
fraud, misrepresentation, or deception in applying for
or securing
any certificate to practice or certificate of
registration issued
by the board. (B) The board, by an affirmative
vote of not fewer than
six
members, shall, to the extent permitted by law, limit,
revoke, or
suspend an individual's certificate to
practice, refuse to
register an individual, refuse
to reinstate a certificate, or
reprimand or place on
probation the
holder of a certificate for
one or more of the following reasons: (1) Permitting one's name or one's certificate to practice
or
certificate of
registration to be used by a person, group, or
corporation when
the individual concerned is not actually
directing the treatment
given; (2) Failure to maintain
minimal standards applicable to the
selection or administration of drugs, or failure to employ
acceptable
scientific methods in the selection of drugs or other
modalities
for treatment of disease; (3) Selling, giving away, personally furnishing,
prescribing, or
administering drugs for other than legal and
legitimate therapeutic purposes
or a plea of guilty to, a judicial
finding of guilt of, or a
judicial finding of eligibility for
intervention in
lieu of conviction
of, a violation of any federal
or state law regulating the possession,
distribution, or use of
any drug; (4) Willfully betraying a professional confidence. For purposes of this division, "willfully betraying a
professional
confidence" does not include providing any
information, documents, or reports
to a child fatality review
board under sections 307.621 to 307.629 of the
Revised Code and
does not include the making of a report of an
employee's use of a
drug of abuse, or a report of a condition of
an employee other
than one involving the use of a drug of abuse,
to the employer of
the employee as described in division (B) of
section 2305.33 of
the Revised Code.
Nothing in this division
affects the immunity
from
civil liability conferred by that section upon a physician
who
makes either type of report in accordance with division (B) of
that section. As used in this division, "employee," "employer,"
and "physician" have the same meanings as in section 2305.33 of
the Revised Code. (5) Making a false, fraudulent,
deceptive, or misleading
statement
in the solicitation of or advertising
for patients; in
relation
to the practice of medicine and surgery, osteopathic
medicine
and surgery, podiatric medicine and surgery, or a
limited branch of medicine;
or in securing or attempting to secure
any certificate
to practice or certificate of registration issued
by the board. As used in this division, "false, fraudulent, deceptive, or
misleading statement" means a statement that includes a
misrepresentation of fact, is likely to mislead or deceive
because
of a failure to disclose material facts, is intended or
is likely
to create false or unjustified expectations of
favorable results,
or includes representations or implications
that in reasonable
probability will cause an ordinarily prudent
person to
misunderstand or be deceived. (6) A departure from, or the failure to conform to,
minimal
standards of care of similar practitioners under the same
or
similar circumstances, whether or not actual injury to a
patient
is established; (7) Representing, with the purpose of obtaining
compensation
or other advantage as personal gain or for
any other
person, that
an incurable disease or injury, or other incurable
condition, can
be permanently cured; (8) The obtaining of, or attempting to obtain, money or
anything of value by fraudulent misrepresentations in the course
of practice; (9) A plea of guilty to, a judicial finding of guilt
of, or
a judicial finding of eligibility for
intervention in lieu of
conviction for, a felony; (10) Commission of an act that constitutes a felony in
this
state, regardless of the jurisdiction in which the act was
committed; (11) A plea of guilty to, a judicial finding of guilt
of, or
a judicial finding of eligibility for
intervention in lieu of
conviction for, a misdemeanor committed in the course of practice; (12) Commission of an act in the course of practice that
constitutes a
misdemeanor
in this state, regardless of the
jurisdiction in which the act was
committed; (13) A plea of guilty to, a judicial finding of guilt
of, or
a judicial finding of eligibility for
intervention in lieu of
conviction for, a misdemeanor involving moral turpitude; (14) Commission of an act involving moral turpitude that
constitutes a
misdemeanor
in this state, regardless of the
jurisdiction in which the act was
committed; (15) Violation of the conditions of limitation placed by
the
board upon a certificate to practice; (16) Failure to pay license renewal fees specified in this
chapter; (17) Except as authorized in section 4731.31 of the Revised
Code,
engaging in the division of fees
for referral of patients,
or the
receiving of a thing of value in return for a specific
referral of a patient
to utilize a particular service or business; (18) Subject to section 4731.226 of the Revised Code,
violation of
any provision of a code of ethics
of the American
medical association, the American osteopathic
association, the
American podiatric medical association, or any
other national
professional organizations that
the board specifies by
rule. The
state medical board shall
obtain and keep on file current copies
of the codes of ethics of
the various national professional
organizations. The
individual whose certificate is being
suspended or
revoked
shall not be found to have violated any
provision of a code of
ethics of an organization not appropriate
to the
individual's profession. For purposes of this division, a "provision of a code
of
ethics of a national professional organization" does not
include
any provision that would preclude the making of a
report by a
physician of an employee's use of a drug of abuse, or
of a
condition of an employee other than one involving the use of
a
drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing
in
this division affects the
immunity from civil liability conferred
by that section upon a
physician who makes either type of report
in accordance with
division (B) of that section. As used in this
division,
"employee," "employer," and "physician" have the same
meanings as
in section 2305.33 of the Revised Code. (19) Inability to practice according to acceptable and
prevailing standards of care by reason of mental illness or
physical illness, including, but not limited to, physical
deterioration that adversely affects cognitive, motor, or
perceptive skills. In enforcing this division, the board, upon a
showing of a
possible violation, may compel any individual
authorized to
practice by this chapter or
who has
submitted an application
pursuant to this chapter
to submit to a mental examination,
physical
examination, including an HIV test, or both a mental
and
a physical
examination. The expense of the
examination is the
responsibility of the individual compelled to be
examined.
Failure
to submit to a mental or physical examination
or consent
to an HIV
test ordered by the board
constitutes an admission of
the
allegations against the
individual
unless the failure is due
to
circumstances beyond the individual's control,
and a default
and
final order may be entered without the taking
of testimony or
presentation of evidence. If the board finds an
individual unable
to practice because of the reasons
set forth in
this division, the
board shall require the individual
to submit to
care, counseling,
or treatment by physicians approved or
designated by the board, as
a condition for initial, continued,
reinstated, or renewed
authority to practice. An
individual
affected under this division
shall be
afforded an opportunity to demonstrate to the board the
ability to
resume practice in compliance with acceptable and
prevailing
standards under the provisions of the individual's
certificate.
For the
purpose of this division, any individual who
applies for or receives a certificate to
practice under this
chapter accepts the privilege of
practicing in
this state and, by
so doing, shall be
deemed to have given consent to submit to a
mental or
physical examination when directed to do so in writing
by the
board, and to have waived all objections to the
admissibility of
testimony or examination reports that constitute
a privileged
communication. (20) Except when civil penalties are imposed under section
4731.225
or 4731.281 of the Revised Code, and subject to section
4731.226 of the Revised Code, violating or
attempting to violate,
directly or indirectly, or assisting in or
abetting the violation
of, or conspiring to violate, any
provisions of this chapter or
any rule promulgated by the board.
This division does not apply to a violation or attempted
violation of, assisting in or abetting the violation of, or a
conspiracy to violate, any provision of this chapter or any rule
adopted by the board that would preclude the making
of a
report by
a physician of an employee's use of a drug of abuse, or
of a
condition of an employee other than one involving the use of
a
drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing
in
this division affects the
immunity from civil liability conferred
by that section upon a
physician who makes either type of report
in accordance with
division (B) of that section. As used in this
division,
"employee," "employer," and "physician" have the same
meanings as
in section 2305.33 of the Revised Code. (21) The violation of any abortion rule adopted by the
public health council pursuant to section 3701.341 of the Revised
Code; (22) Any of the following actions taken by the agency
responsible for regulating the practice of medicine and surgery,
osteopathic
medicine and surgery, podiatric medicine and surgery,
or the limited branches of medicine in
another jurisdiction, for
any reason other than the
nonpayment of fees: the
limitation,
revocation, or suspension of an individual's license
to practice;
acceptance of an
individual's license surrender; denial of a
license; refusal to
renew or reinstate
a license; imposition of
probation; or
issuance of an order of censure or other reprimand; (23) The violation of section 2919.12 of the Revised Code
or
the performance or inducement of an abortion upon a pregnant
woman
with actual knowledge that the conditions specified in
division
(B) of section 2317.56 of the Revised Code have not been
satisfied
or with a heedless indifference as to whether those
conditions
have been satisfied, unless an affirmative defense as
specified in
division (H)(2) of that section would apply in a
civil action
authorized by division (H)(1) of that section; (24) The revocation, suspension, restriction, reduction,
or
termination of clinical privileges by the United
States department
of
defense or department of veterans
affairs or the termination or
suspension of a certificate of
registration to prescribe drugs by
the drug enforcement
administration of the United States
department of
justice; (25) Termination or suspension from participation in the
medicare or
medicaid
programs by the department of health and
human services or other
responsible agency for any act or acts
that also would
constitute a violation of division (B)(2), (3),
(6), (8), or (19)
of this section; (26) Impairment of ability to practice according to
acceptable and prevailing standards of care because of habitual
or
excessive use or abuse of drugs, alcohol, or other substances
that
impair ability to practice. For the purposes of this division, any individual authorized
to practice
by this chapter accepts
the privilege of
practicing in
this state subject to supervision by the board. By
filing an
application for or
holding a
certificate to practice under this
chapter, an
individual shall
be deemed to have given consent to
submit to a mental or
physical examination when ordered to do so
by the board in
writing, and to have waived all objections to the
admissibility
of testimony or examination reports that constitute
privileged
communications. If it has reason to believe that any individual authorized to
practice by
this chapter or any applicant for
certification to
practice suffers such impairment, the board may compel
the
individual to submit to a mental or physical examination, or
both.
The expense of the examination is the
responsibility of the
individual
compelled to be examined. Any
mental or physical
examination required under this division shall
be undertaken by a
treatment provider or physician who is qualified to
conduct the
examination and who is chosen by the
board. Failure to submit to a mental or physical
examination ordered
by the board constitutes an admission of the
allegations against
the individual unless the failure is due to
circumstances beyond
the individual's control, and a default and
final order may be
entered without the taking of testimony or
presentation of
evidence. If the board determines that the
individual's ability
to practice is impaired, the board shall
suspend the individual's
certificate or deny the
individual's application and shall require
the individual, as a condition for initial, continued,
reinstated,
or renewed certification to practice, to
submit to treatment. Before being eligible to apply for reinstatement of a
certificate suspended under this division, the
impaired
practitioner shall
demonstrate to the board the ability
to resume
practice in
compliance with acceptable and prevailing standards of
care under
the provisions of the practitioner's certificate. The
demonstration shall
include, but shall not be limited to, the
following: (a) Certification from a treatment provider approved under
section 4731.25 of the Revised Code that the
individual has
successfully completed any required inpatient treatment; (b) Evidence of continuing full compliance with an
aftercare
contract or consent agreement; (c) Two written reports indicating that the individual's
ability to practice has been assessed and that the individual has
been found capable of practicing according to acceptable and
prevailing
standards of care. The reports shall be made by
individuals or
providers approved by the board for making the
assessments and
shall describe the basis for their determination. The board may reinstate a certificate suspended under
this
division after that demonstration and after the individual has
entered into a written consent agreement. When the impaired practitioner resumes practice, the board
shall
require continued
monitoring of the individual. The
monitoring shall include, but not be
limited to, compliance with
the written consent agreement entered
into before reinstatement or
with conditions imposed by board
order after a hearing, and, upon
termination of the consent
agreement, submission to the board for
at least two years of
annual written progress reports made under
penalty of perjury
stating whether the individual has maintained
sobriety. (27) A second or subsequent violation of section 4731.66
or
4731.69 of the Revised Code; (28) Except as provided in division (N) of this section: (a) Waiving the payment of all or any part of a
deductible
or copayment that a patient, pursuant to a health
insurance or
health care policy, contract, or plan that covers
the individual's
services, otherwise would be
required
to pay if the waiver is used
as an enticement to a patient or group of
patients to receive
health care services from that
individual; (b) Advertising that the individual will waive the
payment
of all or
any part of a deductible or copayment that a patient,
pursuant to
a health insurance or health care policy, contract, or
plan that
covers the individual's services, otherwise would
be
required to pay. (29) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4731.051
of
the Revised Code; (30) Failure of a collaborating physician to fulfill
the
responsibilities agreed to by the
physician
and an advanced
practice nurse
participating in a pilot program under section
4723.52 of the Revised Code; (31) Failure to provide notice to, and receive
acknowledgment of the
notice from, a patient when required by
section 4731.143 of the Revised Code
prior to providing
nonemergency professional services, or failure to maintain
that
notice in the patient's file; (32) Failure of a physician supervising a physician
assistant to
maintain supervision in accordance with the
requirements of Chapter
4730. of the Revised Code and the rules
adopted under that chapter; (33) Failure of a physician or podiatrist to enter into a
standard care
arrangement with a clinical nurse specialist,
certified nurse-midwife, or
certified nurse practitioner with whom
the physician or podiatrist is in
collaboration pursuant to
section 4731.27 of the Revised Code
or failure to fulfill the
responsibilities of collaboration after entering
into a standard
care arrangement; (34) Failure to comply with the terms of a consult agreement
entered into with a pharmacist pursuant to section 4729.39 of the
Revised Code; (35) Failure to cooperate in an investigation conducted by
the board under division (F) of this section, including
failure to
comply with a subpoena or order issued by the board
or failure to
answer truthfully a question presented by the
board at a
deposition or in written interrogatories, except that
failure to
cooperate with an investigation shall not constitute
grounds for
discipline under this section if a court of
competent jurisdiction
has issued an order that either quashes a
subpoena or permits the
individual to withhold the testimony or
evidence in issue; (36) Failure to supervise an acupuncturist in accordance
with
Chapter 4762. of the Revised Code and the board's rules for
supervision of an
acupuncturist; (37) Failure to supervise an anesthesiologist assistant in
accordance with
Chapter 4760. of the Revised Code and the board's
rules for supervision of an
anesthesiologist assistant. (C) Disciplinary actions taken by the board under divisions
(A) and (B) of this section shall be taken pursuant to an
adjudication under Chapter 119. of the Revised Code, except that
in lieu of an
adjudication, the board may enter into a consent
agreement with an
individual to resolve an allegation of a
violation of this chapter or any rule
adopted under it. A consent
agreement, when ratified by an
affirmative vote of not fewer than
six members of the board,
shall constitute the findings and order
of the board with
respect to the matter addressed in the
agreement. If the board
refuses to ratify a consent agreement,
the admissions and
findings contained in the consent agreement
shall be of no force
or effect. (D) For purposes of divisions (B)(10), (12), and (14) of
this
section, the commission of the act may be established by a
finding by the board, pursuant to an adjudication under
Chapter
119. of the Revised Code, that the individual committed the act.
The board
does not have jurisdiction under those divisions if
the
trial court renders a final judgment in the individual's favor and
that judgment is based upon an
adjudication on
the merits. The
board has jurisdiction under those
divisions if the trial court
issues an order of
dismissal upon technical or procedural grounds. (E) The sealing of conviction records by any court shall
have
no effect upon a prior board order entered under this section
or upon the board's jurisdiction to take action under this section
if,
based upon a plea of guilty,
a judicial finding of guilt, or a
judicial finding of eligibility for intervention in
lieu of
conviction, the board issued a notice of opportunity for
a hearing
prior to the court's order to seal the records. The
board shall
not be required to seal, destroy, redact, or
otherwise modify its
records to reflect the court's sealing of
conviction records. (F)(1) The board shall investigate evidence that appears
to
show that a person has violated any provision of this
chapter or
any rule adopted under it. Any person may report to the board
in
a signed writing
any information that the person may have that
appears to show a
violation of any provision of this chapter or
any rule
adopted under it. In the absence of bad
faith, any
person who reports information of that nature or who testifies
before the board in any adjudication conducted under
Chapter 119.
of the Revised Code shall not be liable
in damages in a civil
action as a result of the report or
testimony. Each
complaint or
allegation of a violation received by the
board shall be assigned
a case number and shall be recorded by
the board. (2) Investigations of alleged violations of this chapter or
any rule
adopted under it shall
be supervised by the supervising
member elected by the board in
accordance with section 4731.02 of
the Revised Code and by the
secretary as provided in section
4731.39 of the Revised Code. The president
may designate another
member of the board to
supervise the investigation in place of the
supervising member. No member of
the board who supervises the
investigation of a case
shall participate in further adjudication
of the case. (3) In investigating a possible violation of
this chapter or
any rule adopted
under this chapter, the board
may administer
oaths, order the taking of depositions, issue
subpoenas, and
compel the attendance of witnesses and production
of books,
accounts, papers, records, documents, and testimony, except
that a
subpoena for patient record information shall not be issued
without
consultation with the attorney general's office and
approval of
the secretary and supervising member
of the board.
Before issuance of a
subpoena for patient record information, the
secretary and supervising member shall
determine
whether there is
probable cause to believe that the complaint filed alleges a
violation of this chapter or any rule adopted under it and that
the records
sought are relevant
to the alleged violation and
material to the investigation.
The subpoena may apply only to
records that cover a
reasonable period of time surrounding the
alleged violation. On failure to comply with any subpoena
issued by the board
and after reasonable notice to the person
being subpoenaed, the
board may move for an order compelling the
production of persons
or records pursuant to the Rules of Civil
Procedure. A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board.
Service of a subpoena issued by the board may be
made by
delivering a copy of the subpoena to the
person named therein,
reading it to the person, or leaving it at
the person's usual
place of residence. When the person being
served is a person
whose practice is authorized by this chapter,
service of the
subpoena may be made by certified mail,
restricted delivery,
return receipt requested, and the subpoena
shall be deemed served
on the date delivery is made or the date
the person refuses to
accept delivery. A sheriff's deputy who serves a subpoena shall receive the
same fees as a
sheriff. Each witness who
appears before the board
in
obedience to a subpoena shall receive the fees
and mileage
provided for witnesses in civil cases in the courts
of common
pleas. (4) All hearings and investigations of the board shall be
considered civil actions for the purposes of section
2305.251
2305.252 of
the Revised Code. (5) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil
action. The board shall conduct all investigations and proceedings
in
a manner that protects the
confidentiality of patients and persons
who file complaints with the
board. The
board shall not make
public the names or any other identifying
information about
patients or complainants unless proper consent is
given or, in the
case of a patient, a
waiver of the patient privilege exists under
division (B) of
section 2317.02 of the Revised Code, except that
consent
or a waiver of that nature is not required if the board
possesses reliable and
substantial evidence that no bona fide
physician-patient
relationship exists. The board may
share any information it receives pursuant to
an investigation, including
patient records and patient record
information, with law
enforcement agencies, other licensing
boards, and other
governmental
agencies that are prosecuting,
adjudicating, or investigating alleged
violations of statutes or
administrative rules. An agency
or board that receives the
information shall comply with the same
requirements regarding
confidentiality as those with which the state medical
board must
comply, notwithstanding any conflicting provision
of the Revised
Code or procedure
of the agency or board that applies when it is
dealing with
other information in its possession. In a judicial
proceeding,
the information
may
be admitted into evidence only in
accordance with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that
confidentiality
is maintained with respect to any part of the information that
contains names or other identifying information about patients or
complainants
whose confidentiality was protected by the state
medical board when the
information was in the board's possession.
Measures to ensure confidentiality
that may be taken by the court
include sealing its records or deleting
specific information
from
its records. (6) On a quarterly basis, the board shall prepare a report
that documents the disposition of all cases during the preceding
three months. The report shall contain the following information
for each case with which the board has completed its activities: (a) The case number assigned to the complaint or alleged
violation; (b) The type of certificate to practice, if
any, held by the
individual against whom the complaint is
directed; (c) A description of the allegations contained in the
complaint; (d) The disposition of the case. The report shall state how many cases are still pending
and
shall be prepared in a manner that
protects the identity
of each
person involved in each case. The report shall be a
public record
under section 149.43 of the Revised Code. (G) If the secretary and supervising member determine that
there is clear and convincing evidence that
an individual has
violated division (B) of this section and that the
individual's
continued practice presents a
danger of
immediate and serious harm
to the public, they may recommend that
the board suspend the
individual's
certificate to practice without a
prior hearing.
Written allegations shall be prepared for consideration by the
board. The board, upon review of those allegations and by an
affirmative vote
of not fewer than six of its members, excluding
the secretary and
supervising member, may suspend a certificate
without a prior
hearing. A telephone conference call may be
utilized for
reviewing the allegations and taking the vote on the
summary suspension. The board shall issue a written order of suspension by
certified mail or in person in accordance with section 119.07 of
the Revised Code. The order shall not be subject to
suspension
by
the court during pendency of any appeal filed under section
119.12
of the Revised Code. If the individual
subject to the summary
suspension requests
an adjudicatory hearing by the board, the date
set for the
hearing shall be within fifteen days, but not earlier
than seven
days, after the individual
requests the hearing,
unless
otherwise agreed to by both the board and the individual. Any summary suspension imposed under this division shall
remain in effect, unless reversed on appeal, until a final
adjudicative order issued by the board pursuant to this section
and Chapter 119. of the Revised Code becomes effective. The
board
shall issue its final adjudicative order within sixty days
after
completion of its hearing. A failure to issue the order
within
sixty days shall result in dissolution of the summary
suspension
order but shall not invalidate any subsequent, final
adjudicative
order. (H) If the board takes action under division
(B)(9), (11),
or (13) of this section and the judicial
finding of guilt, guilty
plea, or judicial finding of
eligibility for intervention in lieu
of conviction is
overturned on appeal,
upon
exhaustion of the
criminal appeal, a petition for reconsideration
of the order may
be filed with the board along with appropriate
court documents.
Upon receipt of a petition of that
nature and supporting court
documents, the board shall reinstate the
individual's certificate
to practice. The
board may then hold an adjudication under
Chapter 119. of the Revised Code to
determine whether the
individual
committed
the act in question. Notice of an
opportunity for a hearing
shall be given in accordance with
Chapter 119. of the Revised Code. If the
board finds, pursuant to
an adjudication held under this division,
that the individual
committed
the act or if
no hearing is requested, the board may
order any of the sanctions
identified under division (B) of this
section. (I) The certificate to practice issued to an individual
under
this chapter and the individual's practice in this
state are
automatically suspended as of the date the individual pleads
guilty to, is found by a judge
or jury to be guilty of, or is
subject to a judicial
finding of eligibility for intervention in
lieu of conviction in this state
or treatment or intervention in
lieu of conviction in another
jurisdiction for
any of the
following
criminal offenses in this state or a
substantially
equivalent criminal offense in another jurisdiction: aggravated
murder, murder, voluntary
manslaughter, felonious assault,
kidnapping, rape, sexual
battery, gross sexual imposition,
aggravated arson, aggravated
robbery, or aggravated burglary.
Continued
practice after suspension shall be considered practicing
without a certificate. The board shall notify the
individual subject to the
suspension by certified mail or in person in
accordance with
section 119.07 of the Revised Code. If an
individual whose
certificate is suspended under this
division fails to make a
timely request for an adjudication under
Chapter 119. of the
Revised Code,
the board shall enter a final order permanently
revoking the
individual's certificate to practice.
(J) If the board is required by
Chapter 119. of the Revised
Code to give notice of an
opportunity for a hearing and if the
individual subject to the notice
does not timely request a
hearing
in accordance with section
119.07 of the Revised Code, the board
is not required
to hold a hearing, but may adopt, by an
affirmative vote of
not fewer than
six of its members, a final
order that contains the board's
findings. In that final order,
the board may order any of the
sanctions identified under division
(A) or (B) of this section. (K) Any action taken by the board under division (B) of
this
section resulting in a suspension from practice shall be
accompanied by a written statement of the conditions under which
the individual's certificate to practice may be
reinstated. The
board
shall adopt rules governing conditions to be imposed for
reinstatement. Reinstatement of a certificate suspended pursuant
to division (B) of this section requires an affirmative vote of
not fewer than six members of the board. (L) When the board
refuses to grant a certificate to an
applicant,
revokes an individual's
certificate to practice,
refuses to register an applicant, or
refuses to reinstate an
individual's certificate to practice,
the board may specify that
its action is permanent. An
individual subject to a permanent
action taken by the board is
forever thereafter ineligible to hold
a certificate to practice
and the board shall not accept an
application for reinstatement of the
certificate or for issuance
of a new certificate. (M) Notwithstanding any other provision of the Revised
Code,
all of the following apply: (1) The surrender of a certificate issued under this
chapter
shall not be effective
unless or until accepted by the board.
Reinstatement of a
certificate surrendered to the board requires
an affirmative vote
of not fewer than six members of the board. (2) An application for a certificate made
under the
provisions of this chapter
may not be withdrawn without approval
of the board. (3) Failure by an individual to renew a certificate
of
registration in accordance with this chapter shall not remove or
limit the
board's
jurisdiction to take any disciplinary action
under this section
against the individual. (N) Sanctions shall not be imposed under division
(B)(28) of
this section against any person who
waives deductibles and
copayments as follows: (1) In compliance with the health benefit plan that
expressly allows such a practice. Waiver of the deductibles or
copayments shall be made only with the full knowledge and consent
of
the plan purchaser, payer, and third-party administrator.
Documentation of
the consent shall be made available to the board
upon request. (2) For professional services rendered to any other person
authorized to practice pursuant to this chapter,
to the extent
allowed by this
chapter and rules adopted by the board. (O) Under the board's investigative duties described in
this
section and subject to division (F) of this section, the
board
shall
develop and implement a quality intervention program
designed to improve
through remedial
education the clinical and
communication skills of individuals authorized
under this chapter
to practice medicine and surgery, osteopathic medicine and
surgery, and podiatric medicine and surgery. In
developing and
implementing the quality intervention program, the board may do
all of the following: (1) Offer in appropriate cases as determined by the board an
educational
and assessment program pursuant to an investigation
the
board conducts under this section; (2) Select providers of educational and assessment services,
including a
quality intervention program panel of case reviewers; (3) Make referrals to educational and
assessment service
providers and
approve individual educational programs recommended
by those providers. The
board shall monitor the progress of each
individual
undertaking a recommended individual educational
program. (4) Determine what constitutes successful completion of an
individual educational program and require further monitoring of
the
individual who completed the program or other
action that the
board determines to be appropriate; (5) Adopt rules in accordance with Chapter 119. of the
Revised Code to
further
implement the quality intervention
program. An individual who participates in an individual
educational
program pursuant
to this division shall pay the financial
obligations arising from that
educational program.
Sec. 4731.36. (A) Sections 4731.01 to 4731.47 of the
Revised Code shall not prohibit service in case of emergency,
domestic administration of family remedies, or provision of
assistance to another individual who is self-administering drugs.
Sections 4731.01 to 4731.47 of the Revised Code shall
not
apply to any of the following: (1) A commissioned medical officer of the United States
armed forces, as defined in
section 5903.11 of the Revised Code,
or an employee of the veterans administration of the
United States
or the United States public
health service in the discharge of
the
officer's or employee's professional duties; (2) A dentist authorized under Chapter 4715. of the Revised
Code to
practice dentistry when engaged exclusively in the
practice of
dentistry or when
administering anesthetics in the
practice of
dentistry; (3) A physician or surgeon
in another state or territory
who is a legal practitioner of
medicine or surgery therein when
providing
consultation to
an individual holding a
certificate to
practice issued under this chapter who is responsible for the
examination, diagnosis, and treatment of the patient who is the
subject of the
consultation, if one of the following applies: (a) The physician or surgeon does not provide consultation
in
this
state on a regular or frequent basis. (b) The physician or surgeon provides the consultation
without compensation of any kind, direct or indirect, for the
consultation. (c) The consultation is part of the curriculum of a
medical
school or osteopathic medical school of this state or a program
described in division (A)(2) of section 4731.291 of the Revised
Code. (4) A physician or surgeon in another state or territory
who
is a legal practitioner of medicine or surgery therein and
provided services to a patient in that state or territory, when
providing, not later than one year after the last date services
were provided
in another state or territory, follow-up services
in
person or through the use of any communication, including
oral,
written, or electronic communication, in this state to the
patient
for the same condition; (5) A physician or surgeon residing on the border of a
contiguous state and authorized under the laws
thereof to practice
medicine
and surgery therein, whose practice extends within the
limits of
this state. Such
practitioner shall not either in
person or through the use of any
communication, including oral,
written, or electronic
communication, open an office or appoint a
place to
see patients or receive calls within the limits of this
state. (6) A board, committee, or corporation engaged in the
conduct described in
division (A) of section
2305.25
2305.251 of
the
Revised Code when acting within the scope of
the functions of
the
board, committee, or corporation; (7) The conduct of an independent review organization
accredited by the
superintendent of insurance under section
3901.80 of the Revised
Code for the purpose of external reviews
conducted under
sections 1751.84, 1751.85, 3923.67, 3923.68,
3923.76, and 3923.77 of the
Revised Code. (B) Sections 4731.51 to 4731.61 of the Revised Code do not
apply to any graduate of a podiatric school or college while
performing those acts that may be prescribed by or incidental to
participation in an accredited podiatric internship, residency,
or
fellowship program situated in this state approved by the
state
medical board. (C) This chapter does not apply to an acupuncturist who
complies
with Chapter 4762. of the Revised Code. (D) This chapter does not prohibit
the administration of
drugs by any of the following: (1) An individual who is licensed or otherwise specifically
authorized by the Revised Code to administer drugs; (2) An individual who is not licensed or otherwise
specifically
authorized by the Revised Code to administer drugs,
but is
acting
pursuant to the rules for delegation of medical
tasks adopted
under section 4731.053 of the Revised Code; (3) An individual specifically authorized to administer
drugs pursuant to
a rule adopted under the Revised Code that is in
effect on
the effective date of this amendment, as long as the
rule remains in effect,
specifically authorizing an individual to
administer drugs. (E)
The exemptions described in divisions (A)(3), (4), and
(5)
of this section do not apply to a physician or surgeon whose
certificate to
practice issued under this chapter is under
suspension or has been revoked
or permanently revoked by action of
the state medical board.
Sec. 4734.45.
(A) The state chiropractic board
shall
investigate evidence that appears to show that a person
has
violated any provision of this chapter or the rules adopted under
it. Any
person may report to the board in writing or by other
means any information
the
person has that appears to show a
violation of any provision of
this chapter or the rules adopted
under it. In the absence of bad faith, a
person
who reports to
the board, cooperates in an investigation, or testifies
before the
board in an
adjudication shall not be liable for civil damages as
a
result of reporting, cooperating, or providing testimony. (B) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil action, except that for good cause, the board or its
executive
director may disclose or authorize disclosure of
information
gathered pursuant to an investigation. The board and its
employees may share appropriate information
in the board's
possession with any federal, state, or local law
enforcement,
prosecutorial, or regulatory agency or its officers
or agents engaging in an
investigation. The board
and its
employees may cooperate in any other manner with the
agency or its
officers or agents engaging in an investigation.
An agency that receives confidential information shall comply
with the same
requirements regarding confidentiality as those with
which the board must
comply, notwithstanding any conflicting
provision of the Revised Code or procedure
of the agency that
applies when the agency is dealing with
other information in its
possession. The information may
be admitted into evidence in a
criminal trial in accordance with
the Rules of Evidence, or in an
administrative hearing
conducted by an agency, but the court or
agency shall require
that appropriate measures be taken to ensure
that
confidentiality is maintained with respect to any part of the
information that
contains names or other identifying information
about patients, complainants,
or others whose confidentiality was
protected by the state chiropractic board
when the
information was
in the board's possession. Measures to ensure confidentiality
that may be taken by the court or agency include sealing its
records or
redacting specific information
from its records. (C) All hearings and investigations of the board shall be
considered civil actions for the purposes of section
2305.251
2305.252 of
the Revised Code.
Sec. 4760.14. (A) The state medical board
shall investigate
evidence that appears to show that any person
has violated this
chapter or the rules adopted under it. Any person
may report to
the board in a signed writing any information the
person has that
appears to show a violation of any provision of
this chapter or
the rules adopted under it. In the absence of bad faith, a
person
who reports such information or testifies before the board in an
adjudication conducted under Chapter 119. of the Revised Code
shall not be liable for civil damages as a
result of reporting the
information or providing testimony. Each
complaint or allegation
of a violation received by
the board shall be assigned a case
number and be recorded by the
board. (B) Investigations of alleged violations of this chapter or
rules adopted under it shall be supervised by the supervising
member elected by the board in accordance with section 4731.02
of
the Revised Code and by the secretary as provided
in section
4760.15 of the Revised Code. The board's
president may designate
another member of the board to supervise
the investigation in
place of the supervising member. A member
of the board who
supervises the investigation of a case shall
not participate in
further adjudication of the case. (C) In investigating a possible violation of this chapter or
the rules adopted under it, the board may administer oaths, order
the taking of depositions, issue subpoenas, and compel the
attendance of witnesses and production of books, accounts,
papers,
records, documents, and testimony, except that a subpoena
for
patient record information shall not be issued without
consultation with the attorney general's office and approval of
the secretary and supervising member of the board. Before
issuance of a
subpoena for patient record
information, the
secretary and supervising
member shall determine whether there is
probable cause to
believe that the complaint filed alleges a
violation of this
chapter or the rules adopted under it and that
the records sought
are relevant to the alleged violation and
material to the
investigation. The subpoena may apply only to
records
that cover a reasonable period of
time surrounding the
alleged violation. On failure to comply
with any subpoena issued by the board
and after reasonable notice
to the person being subpoenaed, the
board may move for an order
compelling the production of persons
or records pursuant to the
Rules of Civil Procedure. A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board.
Service of a
subpoena issued by the board may be made by
delivering a copy of the subpoena
to the person named therein,
reading it to the person, or leaving it at
the person's usual
place of residence. When the person being
served is an
anesthesiologist assistant, service of the subpoena may be
made by
certified mail, restricted delivery, return receipt
requested, and
the subpoena shall be deemed served on the date
delivery is made
or the date the person refuses to accept
delivery. A sheriff's deputy who serves a subpoena shall
receive the
same fees as a sheriff. Each
witness who appears before the board
in obedience to a subpoena shall receive
the fees and mileage
provided for witnesses in civil cases in the courts of
common
pleas. (D) All hearings and investigations of the board shall be
considered civil actions for the purposes of section
2305.251
2305.252 of the Revised Code. (E) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil
action. The board shall conduct all investigations and
proceedings in
a manner that
protects the confidentiality of patients and persons
who file
complaints
with the board. The board shall not make
public the names
or any other identifying information about
patients or
complainants unless proper consent is given. The board may
share any information it receives pursuant to
an investigation, including
patient records and patient record
information, with law enforcement agencies,
other licensing
boards,
and other governmental agencies
that are prosecuting,
adjudicating, or investigating alleged
violations of statutes or
administrative rules. An
agency or board that receives the
information shall comply with the
same requirements regarding
confidentiality as those with which the state
medical board must
comply, notwithstanding any conflicting provision
of the Revised
Code
or procedure of the agency or board that applies when it is
dealing with other information in its possession. In a judicial
proceeding,
the information may
be admitted into evidence only in
accordance with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that confidentiality
is
maintained with respect to any part of the information that
contains names or
other identifying information about patients or
complainants whose
confidentiality was protected by the state
medical board when the information
was in the board's possession.
Measures to ensure confidentiality that may be
taken by the court
include sealing its records or deleting specific information from
its
records. (F) The state medical board shall develop
requirements for
and provide appropriate initial training and continuing
education
for investigators employed by the board to carry out its
duties
under this chapter. The training and continuing education
may
include enrollment in courses operated or approved by the
Ohio
peace officer training council that the board
considers
appropriate under conditions set forth in section
109.79 of the
Revised Code. (G) On a quarterly basis, the board shall
prepare a report
that documents the disposition of all cases
during the preceding
three months. The report shall contain the
following information
for each case with which the board has
completed its activities: (1) The case number assigned to the complaint or
alleged
violation; (2) The type of certificate to practice, if any, held
by the
individual against whom the complaint is directed; (3) A description of the allegations contained in the
complaint; (4) The disposition of the case. The report shall state how many cases are still pending,
and
shall be prepared in a manner that
protects the identity
of each
person involved in each case. The report is a public record for
purposes of section 149.43 of the Revised Code.
Sec. 4762.14. (A) The state medical board
shall investigate
evidence that appears to show that any person
has violated this
chapter or the rules adopted under it. Any person
may report to
the board in a signed writing any information the
person has that
appears to show a violation of any provision of
this chapter or
the rules adopted under it. In the absence of bad faith, a
person
who reports such information or testifies before the board in an
adjudication conducted under Chapter 119. of the Revised Code
shall not be liable for civil damages as a
result of reporting the
information or providing testimony. Each
complaint or allegation
of a violation received by
the board shall be assigned a case
number and be recorded by the
board. (B) Investigations of alleged violations of this chapter or
rules adopted under it shall be supervised by the supervising
member elected by the board in accordance with section 4731.02
of
the Revised Code and by the secretary as provided
in section
4762.15 of the Revised Code. The board's
president may designate
another member of the board to supervise
the investigation in
place of the supervising member. A member
of the board who
supervises the investigation of a case shall
not participate in
further adjudication of the case. (C) In investigating a possible violation of this chapter or
the rules adopted under it, the board may administer oaths, order
the taking of depositions, issue subpoenas, and compel the
attendance of witnesses and production of books, accounts,
papers,
records, documents, and testimony, except that a subpoena
for
patient record information shall not be issued without
consultation with the attorney general's office and approval of
the secretary and supervising member of the board. Before
issuance of a
subpoena for patient record
information, the
secretary and supervising
member shall determine whether there is
probable cause to
believe that the complaint filed alleges a
violation of this
chapter or the rules adopted under it and that
the records sought
are relevant to the alleged violation and
material to the
investigation. The subpoena may apply only to
records
that cover a reasonable period of
time surrounding the
alleged violation. On failure to comply
with any subpoena issued by the board
and after reasonable notice
to the person being subpoenaed, the
board may move for an order
compelling the production of persons
or records pursuant to the
Rules of Civil Procedure. A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board.
Service of a
subpoena issued by the board may be made by
delivering a copy of the subpoena
to the person named therein,
reading it to the person, or leaving it at
the person's usual
place of residence. When the person being
served is an
acupuncturist, service of the subpoena may be
made by certified
mail, restricted delivery, return receipt
requested, and the
subpoena shall be deemed served on the date
delivery is made or
the date the person refuses to accept
delivery. A sheriff's deputy who serves a subpoena shall
receive the
same fees as a sheriff. Each
witness who appears before the board
in obedience to a subpoena shall receive
the fees and mileage
provided for witnesses in civil cases in the courts of
common
pleas. (D) All hearings and investigations of the board shall be
considered civil actions for the purposes of section
2305.251
2305.252 of the Revised Code. (E) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil
action. The board shall conduct all investigations and
proceedings in
a manner that
protects the confidentiality of patients and persons
who file
complaints
with the board. The board shall not make
public the names
or any other identifying information about
patients or
complainants unless proper consent is given. The board may
share any information it receives pursuant to
an investigation, including
patient records and patient record
information, with
law
enforcement agencies, other licensing
boards, and other governmental
agencies that are prosecuting,
adjudicating, or investigating alleged
violations of statutes or
administrative rules. An agency or board that
receives the
information shall comply with the
same requirements regarding
confidentiality as those with which the state
medical board must
comply, notwithstanding any conflicting provision of the Revised
Code
or procedure of the agency or board that applies when it is
dealing with other information in its possession. In a judicial
proceeding,
the information may
be admitted into evidence only in
accordance with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that confidentiality
is
maintained with respect to any part of the information that
contains names or
other identifying information about patients or
complainants whose
confidentiality was protected by the state
medical board when the information
was in the board's possession.
Measures to ensure confidentiality that may be
taken by the court
include sealing its records or deleting specific information from
its
records. (F) The state medical board shall develop
requirements for
and provide appropriate initial training and continuing
education
for investigators employed by the board to carry out its
duties
under this chapter. The training and continuing education
may
include enrollment in courses operated or approved by the
Ohio
peace officer training council that the board
considers
appropriate under conditions set forth in section
109.79 of the
Revised Code. (G) On a quarterly basis, the board shall
prepare a report
that documents the disposition of all cases
during the preceding
three months. The report shall contain the
following information
for each case with which the board has
completed its activities: (1) The case number assigned to the complaint or
alleged
violation; (2) The type of certificate to practice, if any, held
by the
individual against whom the complaint is directed; (3) A description of the allegations contained in the
complaint; (4) The disposition of the case. The report shall state how many cases are still pending,
and
shall be prepared in a manner that
protects the identity
of each
person involved in each case. The report
is a public record for
purposes of section 149.43 of the Revised Code.
Section 2. That existing sections 109.36, 1751.21, 2305.25,
2305.251, 2305.38, 3701.74, 4715.03, 4723.28, 4730.26, 4731.22,
4731.36, 4734.45, 4760.14, and 4762.14 of the Revised Code are
hereby repealed.
Section 3. Section 3701.74 of the Revised Code is presented
in
this act as a composite of the section as amended by both Am.
Sub. H.B. 508 and Sub. H.B. 506 of
the 123rd General Assembly.
The
General Assembly, applying the
principle stated in division
(B) of
section 1.52 of the Revised
Code that amendments are to be
harmonized if reasonably capable of
simultaneous operation, finds
that the composite is the resulting
version of the section in
effect prior to the effective date of
the section as presented in
this act.
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