SENATORS Spada, Austria

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

Section 1.  That sections 2907.01, 4732.01, 4732.02, 4732.141, and 4732.17 be amended and sections 2907.13, 2907.17, 2907.171, 2907.18, 4732.021, 4732.171, 4732.172, 4732.173, and 4732.31 of the Revised Code be enacted to read as follows:

Sec. 2907.01.  As used in sections 2907.01 to 2907.37 of the Revised Code:

(A) "Sexual conduct" means vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

(B) "Sexual contact" means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person.

(C) "Sexual activity" means sexual conduct or sexual contact, or both.

(D) "Prostitute" means a male or female who promiscuously engages in sexual activity for hire, regardless of whether the hire is paid to the prostitute or to another.

(E) Any material or performance is "harmful to juveniles," if it is offensive to prevailing standards in the adult community with respect to what is suitable for juveniles, and if any of the following apply:

(1) It tends to appeal to the prurient interest of juveniles;

(2) It contains a display, description, or representation of sexual activity, masturbation, sexual excitement, or nudity;

(3) It contains a display, description, or representation of bestiality or extreme or bizarre violence, cruelty, or brutality;

(4) It contains a display, description, or representation of human bodily functions of elimination;

(5) It makes repeated use of foul language;

(6) It contains a display, description, or representation in lurid detail of the violent physical torture, dismemberment, destruction, or death of a human being;

(7) It contains a display, description, or representation of criminal activity that tends to glorify or glamorize the activity, and that, with respect to juveniles, has a dominant tendency to corrupt.

(F) When considered as a whole, and judged with reference to ordinary adults or, if it is designed for sexual deviates or other specially susceptible group, judged with reference to that group, any material or performance is "obscene" if any of the following apply:

(1) Its dominant appeal is to prurient interest;

(2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, masturbation, sexual excitement, or nudity in a way that tends to represent human beings as mere objects of sexual appetite;

(3) Its dominant tendency is to arouse lust by displaying or depicting bestiality or extreme or bizarre violence, cruelty, or brutality;

(4) Its dominant tendency is to appeal to scatological interest by displaying or depicting human bodily functions of elimination in a way that inspires disgust or revulsion in persons with ordinary sensibilities, without serving any genuine scientific, educational, sociological, moral, or artistic purpose;

(5) It contains a series of displays or descriptions of sexual activity, masturbation, sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination, the cumulative effect of which is a dominant tendency to appeal to prurient or scatological interest, when the appeal to such an interest is primarily for its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose.

(G) "Sexual excitement" means the condition of human male or female genitals when in a state of sexual stimulation or arousal.

(H) "Nudity" means the showing, representation, or depiction of human male or female genitals, pubic area, or buttocks with less than a full, opaque covering, or of a female breast with less than a full, opaque covering of any portion thereof below the top of the nipple, or of covered male genitals in a discernibly turgid state.

(I) "Juvenile" means an unmarried person under the age of eighteen.

(J) "Material" means any book, magazine, newspaper, pamphlet, poster, print, picture, figure, image, description, motion picture film, phonographic record, or tape, or other tangible thing capable of arousing interest through sight, sound, or touch.

(K) "Performance" means any motion picture, preview, trailer, play, show, skit, dance, or other exhibition performed before an audience.

(L) "Spouse" means a person married to an offender at the time of an alleged offense, except that such person shall not be considered the spouse when any of the following apply:

(1) When the parties have entered into a written separation agreement authorized by section 3103.06 of the Revised Code;

(2) During the pendency of an action between the parties for annulment, divorce, dissolution of marriage, or legal separation;

(3) In the case of an action for legal separation, after the effective date of the judgment for legal separation.

(M) "Minor" means a person under the age of eighteen.

(N) "Mental health client or patient," "mental health professional," and "mental health service" have the same meanings as in section 2305.51 of the Revised Code.

Sec. 2907.13.  (A) No mental health professional shall engage in sexual conduct with another who is a mental health client or patient of the mental health professional and is not the spouse of the mental health professional.

(B) No mental health professional shall have sexual contact with another who is a mental health client or patient of the mental health professional and is not the spouse of the mental health professional.

(C) Whoever violates this section is guilty of sexual exploitation of a mental health client or patient.

(1) A violation of division (A) of this section is a misdemeanor of the first degree. If the offender previously has been convicted of or pleaded guilty to a violation of division (A) or (B) of this section, a violation of division (A) of this section is a felony of the fourth degree.

(2) A violation of division (B) of this section is a misdemeanor of the second degree. If the offender previously has been convicted of or pleaded guilty to a violation of division (A) or (B) of this section, a violation of division (B) of this section is a felony of the fifth degree.

Sec. 2907.17.  If a mental health professional is indicted or charged and bound over to the court of common pleas for trial for an alleged violation of section 2907.13 of the Revised Code, the prosecuting attorney handling the case shall send written notice of the indictment or the charge and bind over to the regulatory or licensing board or agency, if any, that has the administrative authority to suspend or revoke the mental health professional's professional license, certification, registration, or authorization.

Sec. 2907.171.  The failure of the prosecuting attorney to give the notice required by section 2907.17 of the Revised Code does not give rise to a claim for damages against the prosecuting attorney or the county. The failure of the prosecuting attorney to give the notice does not constitute grounds for declaring a mistrial or new trial, for setting aside a conviction or sentence, or for granting postconviction relief to a defendant.

Sec. 2907.18.  If a mental health professional is convicted of or pleads guilty to a violation of section 2907.13 of the Revised Code, the court shall transmit a certified copy of the judgment entry of conviction to the regulatory or licensing board or agency, if any, that has the administrative authority to suspend or revoke the mental health professional's professional license, certification, registration, or authorization.

Sec. 4732.01.  As used in sections 4732.01 to 4732.25 of the Revised Code:

(A) "Psychologist" means any person who holds himself self out to the public by any title or description of services incorporating the words "psychologic," "psychological," "psychologist," "psychology," or any other terms that imply he the person is trained, experienced, or an expert in the field of psychology.

(B) "The practice of psychology" means rendering or offering to render to individuals, groups, organizations, or the public any service involving the application of psychological procedures to assessment, diagnosis, prevention, treatment, or amelioration of psychological problems or emotional or mental disorders of individuals or groups; or to the assessment or improvement of psychological adjustment or functioning of individuals or groups, whether or not there is a diagnosable pre-existing psychological problem. Practice of psychology includes the practice of school psychology. For purposes of this chapter, teaching or research shall not be regarded as the practice of psychology, even when dealing with psychological subject matter, provided it does not otherwise involve the professional practice of psychology in which patient or client welfare is directly affected.

(C) "Psychological procedures" include but are not restricted to application of principles, methods, or procedures of understanding, predicting, or influencing behavior, such as the principles pertaining to learning, conditioning, perception, motivation, thinking, emotions, or interpersonal relationships; the methods or procedures of verbal interaction, interviewing, counseling, behavior modification, environmental manipulation, group process, psychological psychotherapy, or hypnosis; and the methods or procedures of administering or interpreting tests of mental abilities, aptitudes, interests, attitudes, personality characteristics, emotions, or motivation.

(D) "School psychologist" means any person who holds himself self out to the public by any title or description of services incorporating the words "school psychologist" or "school psychology," or who holds himself self out to be trained, experienced, or an expert in the practice of school psychology.

(E) "Practice of school psychology" means rendering or offering to render to individuals, groups, organizations, or the public any of the following services:

(1) Evaluation, diagnosis, or test interpretation limited to assessment of intellectual ability, learning patterns, achievement, motivation, or personality factors directly related to learning problems in an educational setting;

(2) Counseling services for children or adults for amelioration or prevention of educationally related learning problems;

(3) Educational or vocational consultation or direct educational services. This does not include industrial consultation or counseling services to clients undergoing vocational rehabilitation.

(F) "Licensed psychologist" means an individual holding a current, valid license to practice psychology issued under section 4732.12 or 4732.15 of the Revised Code.

(G) "Licensed school psychologist" means an individual holding a current, valid license to practice school psychology issued under section 4732.12 or 4732.15 of the Revised Code.

(H) "Certificated school psychologist" means an individual holding a current, valid school psychologist certificate issued under division (M) of section 3319.22 of the Revised Code.

(I) "Mental health professional" and "mental health service" have the same meanings as in section 2305.51 of the Revised Code.

Sec. 4732.02.  The governor, with the advice and consent of the senate, shall appoint a state board of psychology consisting of seven nine persons who are citizens of the United States and residents of this state. One member shall not be a psychologist or other health professional Three members shall be patient advocates who are not mental health professionals and who either are parents or other relatives of a person who has received or is receiving mental health services or are representatives of organizations that represent persons who have received or are receiving mental health services. At least one patient advocate member shall be a parent or other relative of a mental health service recipient and at least one patient advocate member shall be a representative of an organization representing mental health service recipients. Each of the remaining members shall be a licensed psychologist or a licensed school psychologist. The terms of the licensed psychologist and licensed school psychologist members that are in effect on the effective date of this amendment shall continue as under the law in effect prior to the effective date of this amendment. Of the original patient advocate members whose positions are created on the effective date of this amendment, two one shall replace the current member who is not a psychologist or other health professional at the end of that member's term, one shall be appointed for one year terms, one for two years, two for three years a term that ends on October 5, 2003, one for four years, and one shall be appointed for five years a term that ends on October 5, 2006. Thereafter, terms of office for all members shall be for five years, commencing on the sixth day of October and ending on the fifth day of October. Each member shall hold office from the date of his appointment until the end of the term for which he the member was appointed. Any member appointed to fill a vacancy occurring prior to the expiration of the term for which his the member's predecessor was appointed shall hold office for the remainder of such term. Any member shall continue in office subsequent to the expiration date of his the member's term until his the member's successor takes office, or until a period of sixty days has elapsed, whichever occurs first. No person shall be appointed to more than two five-year terms in succession. The licensed psychologist and licensed school psychologist members of the board shall be so chosen that they represent the diverse fields of specialization and practice in the profession of psychology and the profession of school psychology. The governor may make such appointments from lists submitted annually by the Ohio psychological association and by the Ohio school psychologists association. A vacancy in an unexpired term shall be filled in the same manner as the original appointment. The

The governor may remove any member for malfeasance, misfeasance, or nonfeasance after a hearing in accordance with Chapter 119. of the Revised Code. The governor shall remove, after a hearing in accordance with Chapter 119. of the Revised Code, any member who has been convicted of or pleaded guilty to the commission of a felony offense under any law of this state, another state, or the United States. No person may be appointed to the board who has been convicted of or pleaded guilty to a felony offense under any law of this state, another state, or the United States.

Sec. 4732.021.  A member of the state board of psychology shall not engage in any conduct involving a conflict of interest with the member's board duties.

Sec. 4732.141.  (A)(1) On August 31, 1998, and on or before the thirty-first day of August of each even-numbered year thereafter beginning in 1998 and until the requirement set forth in division (A)(2) of this section applies, each person licensed under this chapter by the state board of psychology shall have completed, in the preceding two-year period, not less than twenty hours of continuing education in psychology or the number of hours determined under division (D) of this section. Each such

(2) On or before the thirty-first day of August of each even-numbered year after the biennium in which this amendment takes effect, each person licensed under this chapter by the state board of psychology shall have completed, in the preceding two-year period, not less than twenty-three hours of continuing education in psychology, including not less than three hours of continuing education in professional conduct and ethics, or the number of hours determined under division (D) of this section.

(3) Each person subject to division (A)(1) or (2) of this section shall certify to the board, at the time of biennial registration pursuant to section 4732.14 of the Revised Code and on the registration form prescribed by the board under that section, that in the preceding two years the person has completed continuing psychology education in compliance with this section. The board shall adopt rules establishing the procedure for a person to certify to the board and for properly recording with the Ohio psychological association or the state board of education completion of the continuing education.

(B) Continuing psychology education may be applied to meet the requirement of division (A) of this section if both of the following requirements are met:

(1) It is obtained through a program or course approved by the state board of psychology, the Ohio psychological association, the Ohio association of black psychologists, or the American psychological association or, in the case of a licensed school psychologist or a licensed psychologist with a school psychology specialty, by the state board of education, the Ohio school psychologists association, or the national association of school psychologists;

(2) Completion of the program or course is recorded with the Ohio psychological association or the state board of education in accordance with rules adopted by the state board of psychology in accordance with division (A) of this section.

The state board of psychology may disapprove any program or course that has been approved by the Ohio psychological association, Ohio association of black psychologists, American psychological association, state board of education, Ohio school psychologists association, or national association of school psychologists. Such program or course may not be applied to meet the requirement of division (A) of this section.

(C) Each person licensed under this chapter shall be given a sufficient choice of continuing education programs or courses in psychology, including programs or courses on professional conduct and ethics when required under division (A)(2) of this section, to ensure that the person has had a reasonable opportunity to participate in programs or courses that are relevant to the person's practice in terms of subject matter and level.

(D) The board shall adopt rules providing for reductions of the hours of continuing psychology education required by this section for persons in their first registration period.

(E) Each person licensed under this chapter shall retain in the person's records for at least three years the receipts, vouchers, or certificates necessary to document completion of continuing psychology education. Proof of continuing psychology education recorded with the Ohio psychological association or the state board of education in accordance with the procedures established pursuant to division (A) of this section shall serve as sufficient documentation of completion. With cause, the board may request the documentation from the person. The board also may request the documentation from persons licensed under this chapter selected at random, without cause. The board may review any continuing psychology education records recorded by the Ohio psychological association or the state board of education.

(F) The board may excuse persons licensed under this chapter, as a group or as individuals, from all or any part of the requirements of this section because of an unusual circumstance, emergency, or special hardship.

(G) The state board of psychology shall approve one or more continuing education courses of study that assist psychologists and school psychologists in recognizing the signs of domestic violence and its relationship to child abuse. Psychologists and school psychologists are not required to take the courses.

Sec. 4732.17.  (A) The state board of psychology may refuse to issue a license to any applicant, may issue a reprimand, or suspend or revoke the license of any licensed psychologist or licensed school psychologist, on any of the following grounds:

(1) Conviction of a felony, or of any offense involving moral turpitude, in a court of this or any other state or in a federal court;

(2) Using fraud or deceit in the procurement of the license to practice psychology or school psychology or knowingly assisting another in the procurement of such a license through fraud or deceit;

(3) Accepting commissions or rebates or other forms of remuneration for referring persons to other professionals;

(4) Willful, unauthorized communication of information received in professional confidence;

(5) Being negligent in the practice of psychology or school psychology;

(6) Using any controlled substance or alcoholic beverage to an extent that such use impairs the person's ability to perform the work of a psychologist or school psychologist with safety to the public;

(7) Subject to section 4732.28 of the Revised Code, violating any rule of professional conduct promulgated by the board;

(8) Practicing in an area of psychology for which the person is clearly untrained or incompetent;

(9) An adjudication by a court, as provided in section 5122.301 of the Revised Code, that the person is incompetent for the purpose of holding the license. Such person may have the person's license issued or restored only upon determination by a court that the person is competent for the purpose of holding the license and upon the decision by the board that such license be issued or restored. The board may require an examination prior to such issuance or restoration.

(10) 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 psychological 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;

(11) Advertising that the person 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 psychological services, would otherwise be required to pay;

(12) Notwithstanding division (A)(10) and (11) of this section, sanctions shall not be imposed against any licensee who waives deductibles and copayments:

(a) In compliance with the health benefit plan that expressly allows such a practice. Waiver of the deductibles or copays shall be made only with the full knowledge and consent of the plan purchaser, payer, and third-party administrator. Such consent shall be made available to the board upon request.

(b) 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.

(B) Before Except as provided in section 4732.171 of the Revised Code, before the board may deny, suspend, or revoke a license under this section, or otherwise discipline the holder of a license, written charges shall be filed with the board by the secretary and a hearing shall be had thereon in accordance with Chapter 119. of the Revised Code.

Sec. 4732.171.  On receipt of a complaint that any of the grounds listed in division (A) of section 4732.17 of the Revised Code exist, the state board of psychology may suspend the license of the licensed psychologist or licensed school psychologist prior to holding a hearing in accordance with chapter 119. of the Revised Code if it determines, based on the complaint, that there is an immediate threat to the public.

After suspending a license pursuant to this section, the board shall notify the licensed psychologist or licensed school psychologist of the suspension in accordance with section 119.07 of the Revised Code. If the individual whose license is suspended 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 license.

Sec. 4732.172.  (A) Except as provided in division (B) of this section, if, at the conclusion of a hearing required by section 4732.17 of the Revised Code, the state board of psychology determines that a licensed psychologist or licensed school psychologist has engaged in sexual conduct or had sexual contact with the licensed psychologist's or licensed school psychologist's patient or client in violation of any prohibition contained in Chapter 2907. of the Revised Code, the board shall do one of the following:

(1) Suspend the licensed psychologist's or licensed school psychologist's license;

(2) Permanently revoke the licensed psychologist's or licensed school psychologist's license.

(B) If it determines at the conclusion of the hearing that neither of the sanctions described in division (A) of this section is appropriate, the board shall impose another sanction it considers appropriate and issue a written finding setting forth the reasons for the sanction imposed and the reason that neither of the sanctions described in division (A) of this section is appropriate.

Sec. 4732.173.  Any finding made, and the record of any sanction imposed, by the state board of psychology under section 4732.17, 4732.171, or 4732.172 of the Revised Code is a public record under section 149.43 of the Revised Code.

Sec. 4732.31.  (A) The state board of psychology shall provide access to the following information through the internet:

(1) The names of all licensed psychologists and licensed school psychologists;

(2) The names of all licensed psychologists and licensed school psychologists who have been reprimanded by the board for misconduct, the names of all psychologists or school psychologists who have current licenses but whose licenses are under an active suspension imposed for misconduct, the names of all former licensed psychologists and licensed school psychologists whose licenses have been suspended or revoked for misconduct, and the reason for each reprimand, suspension, or revocation;

(3) Written findings made under division (B) of section 4732.172 of the Revised Code.

(B) Division (A)(2) of this section does not apply to a suspension of the license of a psychologist or school psychologist that is an automatic suspension imposed under section 4732.14 of the Revised Code.

Section 2.  That existing sections 2907.01, 4732.01, 4732.02, 4732.141, and 4732.17 of the Revised Code are hereby repealed.

Section 3.  Of the three patient advocates who are not mental health professionals and who are required to be appointed to the State Board of Psychology under section 4732.02 of the Revised Code, as amended by this act, one shall replace the current member who is not a psychologist or other health professional at the end of that member's term and two shall be appointed as new members in accordance with that section.