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H. B. No. 280 As Reported by the House Health CommitteeAs Reported by the House Health Committee
127th General Assembly | Regular Session | 2007-2008 |
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Cosponsors:
Representatives Aslanides, Setzer, Uecker, Brinkman, Flowers, Combs, Huffman, Zehringer, Widener, Adams, Hite, Jones, Hottinger, Wachtmann, Seitz, Evans, Latta, Bubp, McGregor, J., Fessler, Wagner, Wagoner, Collier, Schindel, Wolpert, Coley, Gibbs, Patton, DeGeeter, White, Bolon, Blessing, Hagan, J., Mandel, Goodwin, Batchelder, Distel, Oelslager, Brady, Barrett, Sears, Mecklenborg
A BILL
To amend sections 2919.25, 3702.30, and 4731.22 and
to enact section 3701.791 of the Revised Code
requiring facilities that perform abortions to
display a sign and enhancing the criminal penalty
for causing or attempting to cause physical harm
to a family or household member who was pregnant
at the time of the offense.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2919.25, 3702.30, and 4731.22 be
amended and section 3701.791 of the Revised Code be enacted to
read as follows:
Sec. 2919.25. (A) No person shall knowingly cause or
attempt
to cause physical harm to a family or household member.
(B) No person shall recklessly cause serious physical harm
to
a family or household member.
(C) No person, by threat of force, shall knowingly cause a
family or household member to believe that the offender will
cause
imminent physical harm to the family or household member.
(D)(1) Whoever violates this section is guilty of domestic
violence.
(2) Except as otherwise provided in division (D)(3) or (4) to
(5) of this section, a
violation of division (C) of this section
is a misdemeanor of the
fourth
degree, and a violation of division
(A) or (B) of
this
section is a misdemeanor of the first degree.
(3) Except as otherwise provided in division (D)(4) of this
section, if the offender
previously
has
pleaded guilty to or been
convicted of domestic
violence, a violation of
an existing or
former municipal ordinance or law of this or any other state or
the United States that is
substantially similar to domestic
violence,
a violation of
section 2903.14,
2909.06, 2909.07,
2911.12, 2911.211,
or 2919.22 of the Revised Code if the victim of
the violation was a
family or
household member at the time of the
violation, a violation of
an existing or former municipal
ordinance or law of this or any other state or the United States
that is substantially similar to any of those sections if the
victim of the violation was a family or household member at the
time of the commission of the violation, or any offense of
violence if the victim of the offense was a family or household
member at the time of the commission of the offense,
a violation
of
division (A) or (B) of this section is a felony of
the
fourth
degree, and a violation of division (C) of this section
is a
misdemeanor of the second degree.
(4) If the offender previously has pleaded guilty to or been
convicted of two or more offenses of domestic violence or two or
more violations or offenses of the type described in division
(D)(3) of this section involving a person who was a family or
household member at the time of the violations or offenses, a
violation of division (A) or (B) of this section is a felony of
the third degree, and a violation of division (C) of this section
is a misdemeanor of the first degree.
(5) If the offender knew the victim of the violation was
pregnant at the time of the violation, a violation of division (A)
or (B) of this section is a felony of the fifth degree and a
violation of division (C) of this section is a misdemeanor of the
third degree.
(E)
Notwithstanding any provision of law to the contrary, no
court or unit of state or local government shall charge any fee,
cost, deposit, or money in connection with the filing of charges
against a person alleging that the person violated this section or
a municipal ordinance substantially similar to this section or in
connection with the prosecution of any charges so filed.
(F) As used in this section and sections 2919.251 and
2919.26
of the Revised Code:
(1) "Family or household member" means any of the
following:
(a) Any of the following who is residing or has resided with
the offender:
(i) A spouse, a person living as a spouse, or a former
spouse
of the offender;
(ii) A parent or a child of the offender, or another person
related by consanguinity or affinity to the offender;
(iii) A parent or a child of a spouse, person living as a
spouse, or former spouse of the offender, or another person
related by consanguinity or affinity to a spouse, person living
as
a spouse, or former spouse of the offender.
(b) The natural parent of any child of whom the offender is
the other natural
parent or is the putative other natural parent.
(2) "Person living as a spouse" means a person who is
living
or has lived with the offender in a common law marital
relationship, who otherwise is cohabiting with the offender, or
who
otherwise has cohabited with the offender within five years
prior
to the date of the alleged commission of the act in
question.
Sec. 3701.791. (A) As used in this section, "medical
emergency" means a condition of a pregnant woman that, in the
reasonable judgment of the physician who is attending the woman,
creates an immediate threat of serious risk to the life or
physical health of the woman from the continuation of the
pregnancy necessitating the immediate performance or inducement of
an abortion.
(B) Except as provided in division (D) of this section, an
office or facility at which abortions are performed or induced
shall post the notice described in division (C) of this section in
a conspicuous location in an area of the office or facility that
is accessible to all patients, employees, and visitors.
The notice shall be displayed on a poster with dimensions of
at least seventeen inches by eleven inches. The first two
sentences of the notice shall be printed in at least a
forty-four-point typeface and the remaining lines shall be in at
least a thirty-point typeface.
(C) The department of health shall publish the following
notice on its internet web site in a manner that can be copied and
produced in poster form:
"NO ONE CAN FORCE YOU TO HAVE AN ABORTION.
NO ONE – NOT A PARENT, NOT A HUSBAND, NOT A BOYFRIEND – NO
ONE.
Under Ohio law, an abortion cannot be legally performed on
anyone, regardless of her age, unless she VOLUNTARILY CONSENTS to
having the abortion.
Ohio law requires that, before an abortion can legally be
performed, the pregnant female must sign a form indicating that
she consents to having the abortion "voluntarily" and "WITHOUT
COERCION BY ANY PERSON."
IF SOMEONE IS TRYING TO FORCE YOU TO HAVE AN ABORTION AGAINST
YOUR WILL:
DO NOT SIGN THE CONSENT FORM
IF YOU ARE AT AN ABORTION FACILITY, TELL AN EMPLOYEE OF THE
FACILITY THAT SOMEONE IS TRYING TO FORCE YOU TO HAVE AN ABORTION."
(D) Division (B) of this section does not apply to an office
or facility at which abortions are performed or induced due only
to a medical emergency.
Sec. 3702.30. (A) As used in this section:
(1) "Ambulatory surgical facility" means a facility,
whether
or not part of the same organization as a hospital, that
is
located in a building distinct from
another in which inpatient
care is provided, and to which any of the
following apply:
(a) Outpatient surgery is routinely performed in the
facility, and
the facility functions separately from a
hospital's
inpatient surgical service and from the offices of private
physicians, podiatrists, and dentists.
(b) Anesthesia is administered in the facility by
an
anesthesiologist or certified registered nurse anesthetist,
and
the facility functions separately from a hospital's inpatient
surgical
service and from the offices of private physicians,
podiatrists, and
dentists.
(c) The facility applies to be certified by the
United
States
centers for medicare and medicaid services as an ambulatory
surgical center for purposes of
reimbursement under Part B of the
medicare
program, Part B of Title XVIII
of the "Social Security
Act," 79 Stat. 286 (1965),
42 U.S.C.A. 1395, as amended.
(d) The facility applies to be certified by a
national
accrediting body approved by the centers for medicare and medicaid
services for purposes of deemed compliance with the
conditions for
participating in the medicare program as an
ambulatory surgical
center.
(e) The facility bills or receives from any
third-party
payer, governmental health care program, or other person or
government entity any ambulatory surgical
facility fee that is
billed or paid in addition to any fee for
professional services.
(f) The facility is held out to any person or government
entity as an ambulatory surgical facility or similar facility by
means of
signage, advertising, or other promotional efforts.
"Ambulatory surgical facility" does not include
a hospital
emergency department.
(2) "Ambulatory surgical facility
fee" means a fee for
certain overhead costs associated with
providing surgical services
in an outpatient setting. A fee is
an ambulatory surgical
facility
fee only if it directly or
indirectly pays for costs
associated
with any of the following:
(a) Use of operating and recovery rooms,
preparation areas,
and waiting rooms and lounges for patients and
relatives;
(b) Administrative functions, record keeping,
housekeeping,
utilities, and rent;
(c) Services provided by nurses, orderlies,
technical
personnel, and others involved in patient care related
to
providing surgery.
"Ambulatory surgical facility fee" does
not include any
additional payment in excess of a professional
fee that is
provided to encourage physicians, podiatrists, and
dentists to
perform certain surgical procedures in their office
or their group
practice's office rather than a health care
facility, if the
purpose of the additional fee is to compensate
for additional cost
incurred in performing office-based surgery.
(3) "Governmental health care program" has the same
meaning
as in section 4731.65 of the Revised Code.
(4) "Health care facility" means any of the following:
(a) An ambulatory surgical facility;
(b) A freestanding dialysis center;
(c) A freestanding inpatient rehabilitation facility;
(d) A freestanding birthing center;
(e) A freestanding radiation therapy center;
(f) A freestanding or mobile diagnostic imaging center.
(5) "Third-party payer" has the same meaning as in
section
3901.38 of the Revised Code.
(B) By rule adopted in accordance with sections
3702.12 and
3702.13 of the Revised Code, the
director of health shall
establish quality standards for health care
facilities. The
standards may incorporate accreditation standards or other
quality
standards established by any entity recognized by the director.
(C)
Every ambulatory surgical facility shall require
that
each physician who practices at the facility comply with all
relevant provisions in the Revised Code that relate to the
obtaining of informed consent
from a patient.
(D) The director shall issue a license to each health care
facility that makes application for a license and demonstrates to
the director
that it meets the quality standards established
by
the rules adopted under division (B) of
this section
and satisfies
the informed consent
compliance
requirements specified in division
(C) of this section.
(E)(1) Except as provided in section 3702.301 of the Revised
Code, no
health
care facility shall operate without a
license
issued under this section.
(2) If the department of health finds that a physician who
practices at a health care facility is not complying with any
provision of the Revised Code related to the obtaining of informed
consent from a patient, the department shall report its finding to
the state medical board, the physician, and the health care
facility.
(3) This division does not create, and shall not be
construed
as creating, a new cause of action or substantive legal
right
against a health care facility and in favor of a patient who
allegedly sustains harm as a result of the failure of the
patient's physician to obtain informed consent from the patient
prior to performing a procedure on or otherwise caring for the
patient in the health care facility.
(F) The rules adopted under division
(B) of this section
shall include
all of the following:
(1) Provisions governing
application for, renewal,
suspension, and revocation of
a license under this
section;
(2) Provisions governing orders issued pursuant to section
3702.32 of the Revised Code for a health care facility to cease
its operations or to prohibit certain types of services provided
by a health care facility;
(3) Provisions governing the imposition under section
3702.32
of the Revised Code of civil penalties for violations of
this
section or the rules adopted under this section, including a
scale
for determining the amount of the penalties.
(G) An ambulatory surgical facility that performs or induces
abortions shall comply with section 3701.791 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 section 3701.79 of the Revised Code or
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 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;
(31) 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;
(32) 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;
(33) Failure to comply with the terms of a consult agreement
entered into with a pharmacist pursuant to section 4729.39 of the
Revised Code;
(34) 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;
(35) Failure to supervise an acupuncturist in accordance
with
Chapter 4762. of the Revised Code and the board's rules for
supervision of an
acupuncturist;
(36) 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;
(37) Assisting suicide as defined in section 3795.01 of the
Revised Code;
(38) Performing or inducing an abortion at an office or
facility with knowledge that the office or facility fails to post
the notice required under section 3701.791 of the Revised Code.
(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 2305.252 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 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 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.
Section 2. That existing sections 2919.25, 3702.30, and
4731.22 of the Revised Code are hereby repealed.
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