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H. B. No. 126As Reported by the House Health CommitteeAs Reported by the House Health Committee
125th General Assembly | Regular Session | 2003-2004 |
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REPRESENTATIVES Brinkman, Blasdel, Buehrer, Callender, Clancy, Collier, Daniels, DeWine, Distel, Driehaus, Faber, Fessler, Flowers, Gibbs, Gilb, Grendell, Hagan, Hughes, Husted, McGregor, Niehaus, T. Patton, Raga, Raussen, Reidelbach, Reinhard, Schneider, Seaver, Wagner, Schaffer, Seitz, Sferra, Taylor, Widowfield, Willamowski, Williams, White, Young, Kearns, Hoops, Jolivette
A BILL
To amend sections 3719.06, 4731.22, and
4731.223 and to enact
section
2919.123 of the
Revised Code regarding the provision or use of
RU-486
(mifepristone) for
an abortion.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 3719.06, 4731.22, and
4731.223 be amended and
section
2919.123 of the Revised Code be
enacted to read as
follows:
Sec. 2919.123. (A) No person shall knowingly give, sell,
dispense, administer, otherwise provide, or prescribe RU-486
(mifepristone) to
another for the purpose of inducing an abortion
in any person or
enabling the other person to induce an abortion
in any person,
unless the person who gives, sells, dispenses, administers, or
otherwise provides or prescribes the RU-486 (mifepristone) is a
physician, the physician satisfies all the criteria established by
federal law that a physician must satisfy in order to provide RU-486 (mifepristone) for inducing
abortions, and the physician provides the RU-486 (mifepristone) to the other person for the purpose
of inducing an abortion in accordance with all provisions of
federal law that govern the use of RU-486 (mifepristone) for
inducing abortions. A person who gives, sells, dispenses, administers, otherwise provides, or prescribes RU-486 (mifepristone) to another as described in division (A) of this section shall not be prosecuted based on a violation of the criteria contained in this division unless the person knows that the person is not a physician, that the person did not satisfy all the specified criteria established by federal law, or that the person did not provide the RU-486 (mifepristone) in accordance with the specified provisions of federal law, whichever is applicable. (B) No physician who provides RU-486 (mifepristone) to another for the purpose of
inducing an
abortion as authorized under division (A)
of this section shall
knowingly fail to comply with the applicable
requirements of any federal law
that
pertain to follow-up examinations or care for persons to whom
or
for whom RU-486 (mifepristone) is provided for the purpose of
inducing an abortion.
(C)(1) If a physician provides RU-486 (mifepristone) to another for the purpose of inducing an
abortion as authorized under division (A) of this section and if
the physician knows that the person who uses the RU-486 (mifepristone) for the purpose of
inducing an abortion experiences during or after the use an
incomplete abortion, severe bleeding, or an adverse reaction to
the RU-486 (mifepristone) or is hospitalized, receives a
transfusion, or experiences any other serious event, the physician
promptly must provide a written report of the incomplete abortion,
severe bleeding, adverse reaction, hospitalization, transfusion,
or serious event to the state medical board. The board shall
compile and retain all reports it receives under this division.
Except as otherwise provided in this division, all reports the
board receives under this division are public records open to
inspection under section 149.43 of the Revised Code. In no case
shall the board release to any person the name or any other
personal identifying information regarding a person who uses
RU-486 (mifepristone) for the purpose of inducing an abortion and
who is the subject of a report the board receives under this
division. (2) No physician who provides RU-486 (mifepristone) to another for the purpose of inducing an
abortion as authorized under division (A) of this section shall
knowingly fail to file a report required under division (C)(1) of this
section. (D)
Division (A) of this section does not apply to any of the following: (1) A
pregnant woman who obtains or possesses RU-486 (mifepristone) for
the purpose of inducing an abortion to terminate her own
pregnancy; (2) The legal transport of RU-486 (mifepristone) by any person or entity and the legal delivery of the RU-486 (mifepristone) by any person to the recipient, provided that this division does not apply regarding any conduct related to the RU-486 (mifepristone) other than its transport and delivery to the recipient;
(3) The distribution, provision, or sale of RU-486 (mifepristone) by any legal manufacturer or distributor of RU-486 (mifepristone), provided the manufacturer or distributor made a good faith effort to comply with any applicable requirements of federal law regarding the distribution, provision, or sale. (E) Whoever violates this section is guilty of unlawful
distribution of an abortion-inducing drug, a felony of the fourth
degree. If the offender previously has been convicted of or
pleaded guilty to a violation of this section or of section
2919.12, 2919.121, 2919.13, 2919.14, 2919.151, 2919.17, or 2919.18
of the Revised Code, unlawful distribution of an abortion-inducing
drug is a felony of the third degree. If the offender is a professionally licensed person, in
addition to any other sanction imposed by law for the offense, the
offender is subject to sanctioning as provided by law by the
regulatory or licensing board or agency that has the
administrative authority to suspend or revoke the offender's
professional license, including the sanctioning provided in
section 4731.22 of the Revised Code for offenders who have a
certificate to practice or certificate of registration issued
under that chapter.
(F) As used in this section:
(1) "Federal law" means any law, rule, or regulation of the
United States or any drug approval letter of the food and drug
administration of the United States that governs or regulates the
use of RU-486 (mifepristone) for the purpose of inducing
abortions. (2) "Personal identifying information" has the same
meaning
as in section 2913.49 of the Revised Code. (3) "Physician" has the same meaning as in section 2305.11
of the Revised Code. (4) "Professionally licensed person" has the same meaning as
in section 2925.01 of the Revised Code.
Sec. 3719.06. (A)(1) A licensed health professional
authorized to
prescribe drugs, if acting in the course of
professional practice, in accordance with the laws regulating the
professional's practice,
and in accordance with rules adopted by
the state
board of pharmacy,
and subject to section 2919.123 of
the Revised Code, may, except as provided in division
(A)(2) of
this section, do the following: (a) Prescribe schedule II, III, IV, and
V controlled
substances; (b) Administer or personally furnish to
patients schedule
II, III,
IV, and V controlled substances; (c) Cause schedule II, III, IV, and
V
controlled substances
to be administered under the prescriber's
direction and
supervision. (2) A licensed health professional authorized to
prescribe
drugs who
is a clinical nurse specialist, certified nurse-midwife,
or certified
nurse practitioner
is subject to both of the
following: (a) A schedule II controlled substance may be prescribed
only for
a patient with a terminal condition, as defined in
section 2133.01 of the
Revised Code, only if the nurse's
collaborating physician
initially prescribed the substance for the
patient, and only in an
amount
that does not exceed the amount
necessary for the patient's use in a
single, twenty-four-hour
period. (b) No controlled substance shall be personally furnished to
any
patient. (B) No licensed health professional
authorized to prescribe
drugs shall prescribe,
administer, or personally furnish a
schedule III anabolic
steroid for the purpose of
human muscle
building or enhancing human athletic performance
and no pharmacist
shall dispense a schedule III anabolic steroid
for either purpose,
unless it has been approved for that purpose
under the "Federal
Food, Drug, and Cosmetic Act," 52 Stat. 1040 (1938), 21 U.S.C.A.
301, as amended.
(C) Each written prescription shall be properly
executed,
dated, and signed by the prescriber on the
day when issued and
shall bear the full name and address of the person for
whom, or
the owner of the animal for which, the
controlled
substance is
prescribed and the full name,
address, and registry number under
the federal drug abuse control
laws of the prescriber. If the
prescription is for an animal, it
shall state the species
of the
animal for which the controlled substance is prescribed.
(D) A prescription for RU-486 (mifepristone) shall be in
writing and in accordance with section 2919.123 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.
If the board takes disciplinary action against an individual
under division (B) of this section for a second or subsequent plea
of guilty to, or judicial finding of guilt of, a violation of
section 2919.123 of the Revised Code, the disciplinary action
shall consist of a suspension of the individual's certificate to
practice for a period of at least one year or, if determined
appropriate by the board, a more serious sanction involving the
individual's certificate to practice. Any consent agreement
entered into under this division with an individual that pertains
to a second or subsequent plea of guilty to, or judicial finding
of guilt of, a violation of that section shall provide for a
suspension of the individual's certificate to practice for a
period of at least one year or, if determined appropriate by the
board, a more serious sanction involving the individual's
certificate to practice. (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 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 of the individual's second
or subsequent plea of guilty to, or judicial finding of guilt of,
a violation of section 2919.123 of the Revised Code, or 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
automatically suspended under this
division fails
to make a
timely request for an adjudication under
Chapter 119. of
the
Revised Code,
the board shall
enter
do whichever of the
following is applicable: (1) If the automatic suspension under this division is for a
second or subsequent plea of guilty to, or judicial finding of
guilt of, a violation of section 2919.123 of the Revised Code, the
board shall enter an order suspending the individual's certificate
to practice for a period of at least one year or, if determined
appropriate by the board, imposing a more serious sanction
involving the individual's certificate to practice. (2) In all circumstances in which division (I)(1) of this section does not
apply, 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. 4731.223. (A) As used in this section, "prosecutor"
has the same meaning as in section 2935.01 of the Revised Code. (B) Whenever any person holding a valid certificate issued
pursuant to this chapter
pleads guilty to, is subject to a
judicial finding of guilt of, or
is subject to a judicial finding
of eligibility for
intervention in lieu of
conviction for a
violation of Chapter 2907., 2925., or 3719. of the
Revised Code
or
of any substantively comparable ordinance of a municipal
corporation in connection with the person's practice,
or for a
second or subsequent time pleads guilty to, or is subject to a
judicial finding of guilt of, a violation of section 2919.123 of
the Revised Code, the
prosecutor in
the case, on forms prescribed
and provided by the state
medical board, shall promptly notify the
board of the conviction or
guilty plea. Within thirty days of
receipt of that
information, the board
shall initiate action in
accordance with Chapter 119. of the
Revised Code to determine
whether to suspend or revoke the
certificate under section 4731.22
of the Revised Code. (C) The prosecutor in any case against any person holding
a
valid certificate issued pursuant to this chapter, on
forms
prescribed and provided by the state medical board, shall notify
the board of any of the following: (1) A plea of guilty to, a finding of guilt by a jury
or
court of,
or judicial finding of eligibility for intervention in
lieu of conviction
for
a felony, or a case in which the trial
court issues an order of dismissal upon technical or procedural
grounds of a
felony charge; (2) A plea of guilty to,
a finding of guilt by a jury
or
court of,
or judicial finding of eligibility for intervention in
lieu of conviction
for
a misdemeanor committed in the course of
practice, or a case
in which the trial court issues an order of
dismissal upon
technical
or procedural grounds of a charge of a
misdemeanor, if the
alleged act was committed in the course of
practice; (3) A plea of guilty to, a finding of guilt by a jury
or
court of,
or judicial finding of eligibility for intervention in
lieu of conviction
for
a misdemeanor involving moral turpitude, or
a case
in which the trial court issues an order of dismissal upon
technical or
procedural grounds of a charge of a misdemeanor
involving moral
turpitude. The report shall include the name and address of the
certificate holder, the nature of the offense for which the
action
was taken, and the certified court documents recording the
action.
Section 2. That existing sections 3719.06, 4731.22,
and 4731.223 of the
Revised Code
are hereby repealed.
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