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S. B. No. 245 As IntroducedAs Introduced
127th General Assembly | Regular Session | 2007-2008 |
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A BILL
To amend sections 4762.02 to 4762.06, 4762.08 to
4762.11, 4762.13, 4762.131, 4762.132, 4762.14 to
4762.16, and 4762.18 and to enact section 4762.22
of the Revised Code to modify the laws regarding
the practice of acupuncturists.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4762.02, 4762.03, 4762.04, 4762.05,
4762.06, 4762.08, 4762.09, 4762.10, 4762.11, 4762.13, 4762.131,
4762.132, 4762.14, 4762.15, 4762.16, and 4762.18 be amended and
section 4762.22 of the Revised Code be enacted to read as follows:
Sec. 4762.02. (A) Except as provided in division (B) of
this
section, no person shall engage in the practice of
acupuncture
unless the person holds a valid certificate of
registration
license as an
acupuncturist issued by the
state
medical board
under this
chapter.
(B) Division (A) of this
section does
not apply to the
following:
(2) A person who performs meets both of the following
requirements:
(a) Performs acupuncture as part of a
training
program in
acupuncture operated by an educational
institution that
holds an
effective certificate of authorization
issued by the Ohio
board
of
regents under section 1713.02 of the
Revised Code or a
school
that
holds an effective certificate of
registration issued
by the
state board of
career colleges and schools under section
3332.05
of
the
Revised Code;
(b) Performs the acupuncture under the general supervision of
an acupuncturist who has held a license under this chapter for not
less than twelve months;
(3) A chiropractor who holds a certificate to practice
acupuncture issued by the state chiropractic board under section
4734.283 of the Revised Code.
Sec. 4762.03. (A) An individual seeking a certificate of
registration license as an acupuncturist shall file with the state
medical board
a written application on a form prescribed and
supplied by the board.
The application shall include all of the
following:
(1) Evidence satisfactory to the board that the applicant is
at least
eighteen years of age and of good moral character;
(2) Evidence satisfactory to the board that the applicant has
been
designated as a diplomate in
acupuncture or oriental medicine
by the national
certification commission for acupuncture and
oriental medicine and
that the designation is current and active;
(3) Any other information the board requires.
(B) The board shall review all applications received under
this
section. The board shall determine whether an applicant meets
the
requirements
to receive a certificate of registration license
not later than sixty days after
receiving a complete application.
The affirmative vote of not fewer
than
six members of the board is
required to determine that an applicant meets the
requirements for
a certificate license.
(C) At the time of making application for a certificate of
registration license, the applicant shall pay
the board a fee of
one hundred dollars, no part of which shall be
returned.
Sec. 4762.04. If the state medical board determines under
section 4762.03
of the Revised Code that an applicant meets the
requirements
for a certificate of
registration license as an
acupuncturist, the secretary of the board shall register
the
applicant as an acupuncturist and issue to the applicant a
certificate of
registration license as an acupuncturist. The
certificate license shall expire biennially and
may be renewed in
accordance with section 4762.06 of the Revised Code.
Sec. 4762.05. Upon application by the holder of a
certificate of
registration license as an acupuncturist, the state
medical board
shall issue a duplicate certificate license to
replace one that is missing or damaged,
to reflect a name change,
or for any other reasonable cause. The fee for a
duplicate
certificate license is thirty-five dollars.
Sec. 4762.06. (A) A person seeking to renew a certificate of
registration license as an acupuncturist shall, on or before the
thirty-first day of
January
of each even-numbered year, apply for
renewal of the certificate license.
The state medical board shall
send
renewal notices at least one month prior to the
expiration
date.
Applications shall be submitted to the board on forms the
board shall
prescribe and supply. Each application shall be
accompanied by a biennial
renewal fee of one hundred dollars.
The applicant shall report any criminal offense that
constitutes grounds
for refusing to issue a certificate of
registration license under
section 4762.13 of the Revised Code to
which the applicant has pleaded
guilty, of
which the applicant has
been found guilty, or for which the applicant
has been found
eligible for
intervention in lieu of conviction, since last
signing an application for a
certificate of registration license
as an acupuncturist.
(B) To be eligible for renewal, an acupuncturist must certify
to
the board that the acupuncturist has maintained the
acupuncturist's
designation as a diplomate
in acupuncture or
oriental medicine by the
national
certification commission for
acupuncture and oriental
medicine.
(C) If an applicant submits a complete renewal application
and
qualifies for
renewal pursuant to division (B) of this
section, the board
shall issue to the applicant a renewed
certificate of
registration license as an acupuncturist.
(D) A certificate of registration license that is not renewed
on or
before its expiration date is automatically
suspended on
its
expiration date. The
board shall reinstate a
certificate license
suspended for failure to renew upon an applicant's
submission of
the biennial renewal fee and the applicable monetary penalty.
The
penalty for reinstatement is twenty-five dollars if the
certificate
license has been suspended for two years or less and
fifty dollars if the certificate license has been suspended for
more than
two years.
Sec. 4762.08. A person who holds a certificate of
registration license as an
acupuncturist issued under this chapter
may use the
following titles, initials, or abbreviations, or the
equivalent
of such titles, initials, or abbreviations, to identify
the person as an
acupuncturist: "Acupuncturist,"
"Registered
Licensed Acupuncturist," "R. Ac.,"
"Reg. Ac.,"
"Certified
Acupuncturist,"
"C.A.," "C. Ac.," "L.Ac.,"
"Diplomate of
Acupuncture
(NCCAOM),"
"Dipl. Ac. (NCCAOM)," or "National
Board
Certified
in
Acupuncture (NCCAOM)."
The person
shall not use
other titles,
initials, or abbreviations in conjunction with the
person's
practice of acupuncture, including the title "doctor."
Sec. 4762.09. An acupuncturist who holds a certificate of
registration license issued under this chapter shall conspicuously
display
at the
acupuncturist's primary place of business both of
the
following:
(A) The acupuncturist's certificate of registration license,
as
evidence that the acupuncturist is authorized to
practice
acupuncture in this state;
(B) A notice specifying that the practice of acupuncture
under the certificate of registration license is
regulated by the
state
medical board and the address and telephone
number of the
board's
office.
Sec. 4762.10. All (A) If a person licensed under this
chapter has held the license for less than twelve months, both of
the following apply to the acupuncturist's practice of
a
person
who holds a certificate of registration as an
acupuncturist
issued
under this chapter in addition to the requirements of
division (C) of this section:
(A)(1) The acupuncturist shall perform acupuncture for a
patient
only if the patient has received a written referral or
prescription for acupuncture from a physician or chiropractor. As
specified in the referral or
prescription, the acupuncturist shall
provide reports to the
physician or chiropractor on the patient's
condition or progress in treatment and
comply with the conditions
or restrictions on the acupuncturist's
course of treatment.
(B)(2) The acupuncturist shall perform acupuncture
under the
general supervision of the patient's referring or prescribing
physician or chiropractor.
General
supervision does not
require
that the acupuncturist and physician or chiropractor practice in
the same
office.
(C)(B) If a person licensed under this chapter has held the
license for twelve months or longer, both of the following apply
to the acupuncturist's practice in addition to the applicable
requirements of division (C) of this section:
(1) Before performing acupuncture on a patient, the
acupuncturist shall confirm that the patient has undergone a
diagnostic examination within the past twelve months by a
physician or chiropractor acting within the physician or
chiropractor's scope of practice by obtaining from the patient a
signed form stating that the patient has undergone the
examination.
(2) If the patient does not provide the signed form specified
in division (B)(1) of this section, the acupuncturist shall
provide to the patient a written recommendation to undergo a
diagnostic examination by a physician or chiropractor. The
recommendation shall be provided on a form prescribed by the state
medical board.
(C) In the practice of acupuncture pursuant to a license
issued under this chapter, all of the following apply:
(1) Prior to treating a patient, the acupuncturist shall
advise the patient that acupuncture is not a substitute for
conventional
medical diagnosis and treatment.
(D)(2) On initially meeting a patient in person, the
acupuncturist shall provide in writing the acupuncturist's name,
business
address, and business telephone number,
and information
on acupuncture, including the
techniques that are used.
(E)(3) While treating a patient,
the acupuncturist shall not
make a diagnosis. If a patient's condition
is not improving or a
patient requires emergency medical treatment, the
acupuncturist
shall consult promptly with a
physician.
(F) An (4) The acupuncturist shall maintain records for each
patient
treated.
In each patient's records,
the acupuncturist
shall
include the written
referral or prescription pursuant to
which the
acupuncturist is
treating the patient.
The records
shall be
confidential and shall be retained for
not less than
three years
following termination of treatment.
In the case of an acupuncturist who has held a license under
this chapter for less than twelve months, the acupuncturist shall
include in a patient's records the written referral or
prescription pursuant to which the acupuncturist is treating the
patient.
Sec. 4762.11. All of the following apply to an
acupuncturist's supervising a
physician or chiropractor for a
patient supervising an acupuncturist who has been licensed under
this chapter for less than twelve months:
(A) Before making the referral or prescription for
acupuncture,
the physician
shall perform a medical diagnostic
examination of the patient or review the
results of a medical
diagnostic examination recently performed by another
physician,
or, in the case of a chiropractor, the chiropractor shall perform
a chiropractic diagnostic examination of the patient or review the
results of a chiropractic diagnostic examination recently
performed by another chiropractor.
(B) The physician or chiropractor shall make the referral or
prescription in
writing and specify in the referral or
prescription all of the
following:
(1) The physician's or chiropractor's diagnosis of the
ailment or condition that
is to be treated by acupuncture;
(2) A time by which or the intervals at which the
acupuncturist
must provide reports to the physician or
chiropractor regarding the patient's condition or
progress in
treatment;
(3) The conditions or restrictions placed in accordance with
division
(C) of this section
on the acupuncturist's course of
treatment.
(C) The physician shall place
conditions or restrictions on
the
acupuncturist's course of treatment in compliance with
accepted or
prevailing standards of medical care, or, in the case
of a chiropractor, the chiropractor shall place conditions or
restrictions on the acupuncturist's course of treatment in
compliance with accepted or prevailing standards of chiropractic
care.
(D) The physician or chiropractor shall
be personally
available for consultation with the acupuncturist. If the
physician or chiropractor is not on the premises at which
acupuncture is performed, the physician or chiropractor shall be
readily available to the
acupuncturist through
some means of
telecommunication and be in a location that under normal
circumstances is not more than sixty minutes travel time away from
the
location where the acupuncturist is practicing.
Sec. 4762.13. (A) The state medical board, by
an affirmative
vote of not fewer than six members, may revoke
or may refuse to
grant a certificate of registration license as an acupuncturist to
a
person found by the board to have committed fraud,
misrepresentation, or deception in applying for or securing the
certificate license.
(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 of registration license as an
acupuncturist, refuse to
issue a certificate license to an
applicant, refuse to reinstate a
certificate license, or reprimand
or place on probation the holder
of a certificate
license for any
of the following reasons:
(1) Permitting the holder's name or certificate license to be
used by another
person;
(2) Failure to comply with the requirements of this
chapter,
Chapter 4731. of the Revised Code, or any
rules adopted by the
board;
(3) Violating or attempting to violate, directly or
indirectly, or assisting in or abetting the violation of, or
conspiring to violate, any provision of this chapter,
Chapter
4731. of the Revised Code, or the
rules adopted by the board;
(4) A departure from, or failure to conform to, minimal
standards of care
of similar practitioners under the same or
similar circumstances whether or
not actual injury to the patient
is established;
(5) Inability to practice according to
acceptable and
prevailing standards of care by reason of mental
illness or
physical illness, including physical deterioration
that adversely
affects cognitive, motor, or perceptive skills;
(6) 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;
(7) Willfully betraying a professional confidence;
(8) Making a false, fraudulent,
deceptive, or misleading
statement in soliciting or advertising
for patients or in securing
or attempting to secure a certificate of
registration license to
practice as an acupuncturist.
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.
(9) Representing, with the purpose of obtaining
compensation
or other advantage personally or for any other
person, that an
incurable disease or injury, or other incurable
condition, can be
permanently cured;
(10) The obtaining of, or attempting to obtain, money or a
thing of value by fraudulent misrepresentations in the course
of
practice;
(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 felony;
(12) Commission of an act that constitutes a felony 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 committed in the course of
practice;
(14) 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;
(15) 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;
(16) Commission of an act involving moral turpitude that
constitutes a
misdemeanor in this state, regardless of the
jurisdiction in
which the act was committed;
(17) A plea of guilty to, a
judicial finding of guilt of, or
a judicial finding of eligibility
for intervention in lieu of
conviction for violating any state or federal law
regulating the
possession, distribution, or use of any drug,
including
trafficking in drugs;
(18) Any of the following actions taken by the
state agency
responsible for regulating the practice of acupuncture 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;
(19) Violation of the conditions placed
by the board on a
certificate of registration license;
(20) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4731.051
of
the Revised Code;
(21) Failure to cooperate in an investigation conducted by
the board under section 4762.14 of the Revised
Code, 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;
(22) Failure to comply with the standards of the national
certification
commission for acupuncture and oriental medicine
regarding professional
ethics, commitment to patients, commitment
to the profession, and commitment
to the public;
(23) Failure to have adequate professional liability
insurance coverage in accordance with section 4762.22 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 acupuncturist or applicant to resolve an
allegation of a violation of this chapter or any rule adopted
under it. A consent agreement, when ratified by an
affirmative
vote of not fewer than six members of the board,
shall constitute
the findings and order of the board with
respect to the matter
addressed in the agreement. If the board
refuses to ratify a
consent agreement, the admissions and
findings contained in the
consent agreement shall be of no force
or effect.
(D) For purposes of divisions (B)(12), (15), and (16) of
this
section, the commission of the act may be established by a
finding
by the board, pursuant to an
adjudication under Chapter 119. of
the Revised Code, that the applicant
or certificate license holder
committed the act in question. The board shall have no
jurisdiction under these divisions in cases where the trial court
renders a final judgment in the certificate license holder's favor
and
that judgment is based upon an adjudication on the merits. The
board shall have jurisdiction under these divisions in cases
where
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 the provisions of
this
section or upon the board's jurisdiction to take action under
the
provisions of 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) For purposes of this division, any
individual who holds a
certificate of registration license issued under
this chapter, or
applies for a certificate of registration license, 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.
(1) In enforcing division (B)(5) of this
section, the board,
upon a showing of a possible violation, may
compel any individual
who holds a certificate of registration
license issued under this
chapter or who has applied for a certificate of
registration
license pursuant to this chapter to submit to a mental
examination, physical examination, including an
HIV test, or both
a mental and 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 acupuncturist
unable to
practice because of the reasons set forth in division
(B)(5) of this section, the
board shall require the acupuncturist
to submit to care,
counseling, or treatment by physicians approved
or designated by
the board, as a condition for an initial,
continued, reinstated,
or renewed certificate of registration
license. An individual affected
by this division shall be afforded
an opportunity to
demonstrate to the board the ability to resume
practicing in compliance with
acceptable and prevailing standards
of care.
(2) For purposes of division (B)(6) of this
section, if the
board has reason to believe that any individual
who holds a
certificate of registration license issued under this chapter
or
any applicant for a certificate of registration license 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 qualified to conduct such
examination and 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 license or deny the individual's
application and shall
require the individual, as a condition for an initial, continued,
reinstated, or renewed certificate of registration license, to
submit to
treatment.
Before being eligible to apply for reinstatement of a
certificate license suspended under this division, the
acupuncturist shall demonstrate
to the board the ability to resume
practice in compliance with acceptable and prevailing standards
of
care. The demonstration shall include 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 such
assessments and shall describe the basis for their
determination.
The board may reinstate a certificate license suspended under
this division after such demonstration and after the individual
has entered into a written consent agreement.
When the impaired acupuncturist resumes practice,
the board
shall require continued monitoring of the acupuncturist. The
monitoring shall include monitoring of
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 falsification stating whether the acupuncturist has
maintained
sobriety.
(G) If the secretary and supervising member
determine that
there is clear and convincing evidence that an
acupuncturist 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 of
registration license without
a prior
hearing. Written allegations shall be prepared for
consideration
by the board.
The board, upon review of the allegations and by an
affirmative
vote of not fewer than six of its members, excluding
the
secretary and supervising member, may suspend a certificate
license 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 acupuncturist 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
acupuncturist requests the hearing, unless otherwise
agreed to by
both the board and the certificate license holder.
A 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. 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)(11), (13),
or (14) 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 and supporting court documents, the
board shall
reinstate the certificate of registration license. 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
opportunity for 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,
it may order any of the sanctions
specified in division (B) of
this section.
(I) The certificate of registration license of an
acupuncturist and
the acupuncturist's practice in this state are
automatically suspended
as of the date the acupuncturist 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 the suspension
shall be considered
practicing without a
certificate license.
The board shall notify the individual subject to
the
suspension by certified mail or in person in accordance with
section
119.07 of the Revised Code. If an individual whose
certificate license is suspended under this division fails to make
a
timely request for an
adjudication under Chapter 119. of the
Revised Code, the board shall enter
a final order permanently
revoking the individual's certificate
of registration license.
(J) In any instance in which the board is required
by Chapter
119. of the Revised Code to give notice of
opportunity for hearing
and 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 the 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
shall be accompanied by a
written statement of the
conditions under which the
acupuncturist's
certificate license may be reinstated. The board
shall adopt rules in accordance with
Chapter 119. of the Revised
Code governing conditions to be imposed for
reinstatement.
Reinstatement of a certificate license 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 of
registration license as an
acupuncturist to an applicant,
revokes
an individual's certificate
of registration license, refuses to
renew a certificate of registration license,
or refuses to
reinstate an individual's certificate of
registration license, 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
of registration
license as an acupuncturist and the board shall not accept an
application for reinstatement of the certificate license or for
issuance
of a new certificate license.
(M) Notwithstanding any other provision of the
Revised Code,
all of the following apply:
(1) The surrender of a certificate of
registration license as
an acupuncturist issued under this chapter
is not effective unless
or until accepted by the board. Reinstatement
of a certificate
license surrendered to the board requires an affirmative
vote of
not fewer than six members of the board.
(2) An application made under this
chapter for a certificate
of registration
license may not be withdrawn without approval of
the board.
(3) Failure by an individual to renew a certificate
of
registration license in accordance with section 4762.06 of the
Revised Code shall not remove or limit the board's
jurisdiction to
take disciplinary action under this section against
the
individual.
Sec. 4762.131. On receipt of a notice pursuant to
section
2301.373 of the Revised Code, the state medical board shall comply
with that section with respect to a certificate of registration
license issued
pursuant to this chapter.
Sec. 4762.132. If the state medical board has reason to
believe that any person who has been granted a certificate license
under
this chapter is mentally ill or mentally
incompetent, it may
file in the probate court of the county in
which the person has a
legal residence an affidavit in the form
prescribed in section
5122.11 of the Revised Code and signed by
the board secretary or a
member of the board secretary's
staff, whereupon the same
proceedings shall be had as provided in Chapter 5122. of the
Revised Code. The attorney general may represent the board
in
any
proceeding commenced under this section.
If any person who has been granted a certificate license is
adjudged by a probate court to be mentally ill or mentally
incompetent, the person's certificate license shall be
automatically
suspended
until the person has filed with the state
medical board a
certified copy of an adjudication by a probate
court of the
person's
subsequent restoration to competency or has
submitted to the
board proof, satisfactory to the board, that the
person has
been
discharged as having a restoration to competency
in the manner
and form provided in section 5122.38 of the Revised
Code. The
judge of the probate court shall forthwith notify the
state medical
board of an adjudication of mental illness or mental
incompetence, and shall
note any
suspension of a certificate
license in the margin of the court's record
of such certificate
license.
Sec. 4762.14. (A) The state medical board
shall investigate
evidence that appears to show that any person
has violated this
chapter or the rules adopted under it. Any person
may report to
the board in a signed writing any information the
person has that
appears to show a violation of any provision of
this chapter or
the rules adopted under it. In the absence of bad faith, a
person
who reports such information or testifies before the board in an
adjudication conducted under Chapter 119. of the Revised Code
shall not be liable for civil damages as a
result of reporting the
information or providing testimony. Each
complaint or allegation
of a violation received by
the board shall be assigned a case
number and be recorded by the
board.
(B) Investigations of alleged violations of this chapter or
rules adopted under it shall be supervised by the supervising
member elected by the board in accordance with section 4731.02
of
the Revised Code and by the secretary as provided
in section
4762.15 of the Revised Code. The board's
president may designate
another member of the board to supervise
the investigation in
place of the supervising member. A member
of the board who
supervises the investigation of a case shall
not participate in
further adjudication of the case.
(C) In investigating a possible violation of this chapter or
the rules adopted under it, the board may administer oaths, order
the taking of depositions, issue subpoenas, and compel the
attendance of witnesses and production of books, accounts,
papers,
records, documents, and testimony, except that a subpoena
for
patient record information shall not be issued without
consultation with the attorney general's office and approval of
the secretary and supervising member of the board. Before
issuance
of a
subpoena for patient record
information, the
secretary and
supervising
member shall determine whether there is
probable cause
to
believe that the complaint filed alleges a
violation of this
chapter or the rules adopted under it and that
the records sought
are relevant to the alleged violation and
material to the
investigation. The subpoena may apply only to
records
that cover a
reasonable period of
time surrounding the
alleged violation.
On failure to comply
with any subpoena issued by the board
and after reasonable notice
to the person being subpoenaed, the
board may move for an order
compelling the production of persons
or records pursuant to the
Rules of Civil Procedure.
A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the
board.
Service of a
subpoena issued by the board may be made by
delivering a copy of the subpoena
to the person named therein,
reading it to the person, or leaving it at
the person's usual
place of residence. When the person being
served is an
acupuncturist, service of the subpoena may be
made by certified
mail, restricted delivery, return receipt
requested, and the
subpoena shall be deemed served on the date
delivery is made or
the date the person refuses to accept
delivery.
A sheriff's deputy who serves a subpoena shall
receive the
same fees as a sheriff. Each
witness who appears before the board
in obedience to a subpoena shall receive
the fees and mileage
provided for witnesses in civil cases in the courts of
common
pleas.
(D) All hearings and investigations of the board shall be
considered civil actions for the purposes of section
2305.252 of
the Revised Code.
(E) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil
action.
The board shall conduct all investigations and
proceedings in
a manner that
protects the confidentiality of patients and persons
who file
complaints
with the board. The board shall not make
public the names
or any other identifying information about
patients or
complainants unless proper consent is given.
The board may
share any information it receives pursuant to
an investigation, including
patient records and patient record
information, with
law
enforcement agencies, other licensing
boards, and other governmental
agencies that are prosecuting,
adjudicating, or investigating alleged
violations of statutes or
administrative rules. An agency or board that
receives the
information shall comply with the
same requirements regarding
confidentiality as those with which the state
medical board must
comply, notwithstanding any conflicting provision of the Revised
Code
or procedure of the agency or board that applies when it is
dealing with other information in its possession. In a judicial
proceeding,
the information may
be admitted into evidence only in
accordance with
the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that confidentiality
is
maintained with respect to any part of the information that
contains names or
other identifying information about patients or
complainants whose
confidentiality was protected by the state
medical board when the information
was in the board's possession.
Measures to ensure confidentiality that may be
taken by the court
include sealing its records or deleting specific information from
its
records.
(F) The state medical board shall develop
requirements for
and provide appropriate initial training and continuing
education
for investigators employed by the board to carry out its
duties
under this chapter. The training and continuing education
may
include enrollment in courses operated or approved by the
Ohio
peace officer training council that the board
considers
appropriate under conditions set forth in section
109.79 of the
Revised Code.
(G) On a quarterly basis, the board shall
prepare a report
that documents the disposition of all cases
during the preceding
three months. The report shall contain the
following information
for each case with which the board has
completed its activities:
(1) The case number assigned to the complaint or
alleged
violation;
(2) The type of certificate license to practice, if any, held
by the
individual against whom the complaint is directed;
(3) A description of the allegations contained in the
complaint;
(4) The disposition of the case.
The report shall state how many cases are still pending,
and
shall be prepared in a manner that
protects the identity
of each
person involved in each case. The report
is a public record for
purposes of section 149.43 of the Revised Code.
Sec. 4762.15. (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 license
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, the
prosecutor in
the case, on forms prescribed and provided by the
state
medical board, shall promptly notify the board of the
conviction. 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 license under section 4762.13 of the Revised Code.
(C) The prosecutor in any case against any person holding
a
valid certificate license 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 license holder, the nature of the offense for which
the
action was taken, and the certified court documents recording
the
action.
Sec. 4762.16. (A) Within sixty days after
the imposition of
any formal disciplinary
action taken by any health care facility,
including
a hospital, health care facility operated by an a health
insuring
corporation, ambulatory surgical center, or similar
facility, against any
individual holding a valid certificate of
registration license as an
acupuncturist, the chief administrator
or executive officer of the facility
shall
report to the state
medical board the name of the
individual, the action taken by the
facility, and a summary of the
underlying facts leading to the
action taken. Upon request, the board shall
be provided certified
copies of the patient records that were the
basis for the
facility's
action. Prior to release to the board, the summary
shall be
approved by the peer review committee that reviewed the
case or
by the governing board of the facility.
The filing of a report with the board or decision not
to file
a report, investigation by the board, or any disciplinary action
taken by the board, does not preclude a health care
facility from
taking
disciplinary action against an acupuncturist.
In the absence of fraud or bad faith, no individual or entity
that provides
patient records to the board shall be liable in
damages to any
person as a result of providing the records.
(B) An acupuncturist, professional association
or society of
acupuncturists,
physician, or professional association or society
of
physicians that believes a violation of
any provision of this
chapter, Chapter 4731.
of the Revised Code, or rule of the
board
has
occurred shall report to the board the information
upon which
the belief is based. This division does not require
any treatment
provider approved
by the board under section 4731.25 of the
Revised
Code or any employee, agent, or representative of such a
provider to make reports with respect to an acupuncturist
participating in treatment or aftercare for substance abuse
as
long as the acupuncturist
maintains participation in accordance
with the
requirements of section 4731.25 of the Revised
Code and
the treatment provider or
employee, agent, or representative of
the provider has no reason to
believe that the acupuncturist has
violated any
provision of this chapter or rule adopted under it,
other than
being impaired by alcohol, drugs, or other substances.
This
division does not require reporting by any member of an
impaired
practitioner committee established by a health care
facility or by any representative or agent of a committee or
program
sponsored by a
professional association or society of
acupuncturists to provide
peer
assistance to acupuncturists with
substance abuse problems
with respect to an acupuncturist who has
been referred for
examination to a treatment program approved by
the board under
section 4731.25 of the Revised Code if the
acupuncturist cooperates with the referral for examination
and
with any determination that the acupuncturist should enter
treatment
and as
long as the committee member, representative, or
agent has no
reason to believe that the acupuncturist has ceased
to
participate in the treatment program in accordance with section
4731.25 of the Revised Code or has violated any
provision of this
chapter or rule adopted under it, other than
being impaired by
alcohol, drugs, or other substances.
(C) Any professional association or society composed
primarily
of acupuncturists that suspends or revokes an
individual's
membership for violations of professional ethics,
or
for reasons of professional incompetence or professional
malpractice, within sixty days after a final decision, shall
report to the board, on forms prescribed and provided by the
board, the name of the individual, the action taken by
the
professional organization,
and a summary of the underlying facts
leading to the action
taken.
The filing of a report with the board or decision not to file
a report,
investigation by the board, or any disciplinary action
taken by
the board, does not preclude a professional
organization
from taking
disciplinary action against an acupuncturist.
(D) Any insurer providing professional
liability insurance to
any person holding a valid certificate of
registration license as
an acupuncturist or any other entity that
seeks to indemnify the
professional liability of an
acupuncturist shall notify the board
within thirty days after the
final disposition of any written
claim for damages where such
disposition results in a payment
exceeding twenty-five thousand
dollars. The notice shall contain
the following information:
(1) The name and address of the person submitting the
notification;
(2) The name and address of the insured who is the
subject of
the claim;
(3) The name of the person filing the written claim;
(4) The date of final disposition;
(5) If applicable, the identity of the court in which
the
final disposition of the claim took place.
(E) The board may investigate possible violations of
this
chapter or the rules adopted under it that are brought to its
attention
as a result of the
reporting
requirements of this
section, except that the board shall
conduct an investigation if a
possible violation involves repeated
malpractice. As used in this
division,
"repeated malpractice" means three or more claims for
malpractice within the previous five-year period, each
resulting
in a judgment or settlement in excess of twenty-five thousand
dollars in favor of the claimant, and each involving negligent
conduct by the acupuncturist.
(F) All summaries, reports, and records
received and
maintained by the board pursuant to this section
shall be held in
confidence and shall not be subject to discovery
or introduction
in evidence in any federal or state civil action
involving an
acupuncturist, supervising physician, or health care
facility
arising out of
matters that are the subject of the reporting
required by this
section. The board may use the information
obtained only as the basis for
an investigation, as evidence in a
disciplinary hearing against
an acupuncturist or supervising
physician, or in any subsequent trial or
appeal of a
board action
or order.
The board may disclose the summaries and reports it
receives
under this section only to health care facility committees
within
or
outside this state that are involved in credentialing or
recredentialing
an acupuncturist or supervising physician or
reviewing their privilege to
practice within a particular
facility. The board shall indicate
whether or not the information
has been verified. Information
transmitted by the board shall be
subject to the same
confidentiality provisions as when maintained
by the board.
(G) Except for reports filed by an individual
pursuant to
division (B) of this section, the board shall send a copy
of any
reports or summaries it receives
pursuant to this section to the
acupuncturist. The acupuncturist
shall have the right to file a
statement with the board concerning the correctness or relevance
of the information. The statement shall at all times
accompany
that part of the record in contention.
(H) An individual or entity
that reports to the board or
refers an impaired acupuncturist to a treatment provider
approved
by the board under section 4731.25 of the
Revised Code shall not
be subject to suit for
civil damages as a result of the report,
referral, or provision
of the information.
(I) In the absence of fraud or bad faith, a
professional
association or society of acupuncturists that
sponsors a
committee
or program to provide peer assistance to
an acupuncturist with
substance abuse problems, a representative or
agent of such a
committee or program, and a member of the state
medical board
shall not be held liable in damages to any person by
reason of
actions taken to refer an acupuncturist to a
treatment provider
approved under section 4731.25 of the
Revised Code for examination
or treatment.
Sec. 4762.18. (A) Subject to division (E) of this section,
the
attorney general, the prosecuting attorney of any county in
which
the offense was committed or the offender resides, the state
medical board, or any other person having knowledge of a person
engaged either directly or by complicity in the practice of
acupuncture
without having first obtained
a certificate of
registration license to do so pursuant to this chapter, may, in
accord
with provisions of the Revised Code
governing injunctions,
maintain an action in the name of the
state to enjoin any person
from engaging either directly or by
complicity in the unlawful
practice
of acupuncture by
applying for an injunction in any court
of competent
jurisdiction.
(B) Prior to application for an injunction under division (A)
of this section, the secretary of
the state medical board shall
notify the person allegedly engaged either
directly or by
complicity in the unlawful practice of acupuncture
by
registered
mail that the secretary has received information
indicating that
this person is so engaged. The person shall
answer the secretary
within thirty days showing that the person is
either
properly
licensed for the stated activity or that the person is not
in
violation of this chapter. If
the answer is not forthcoming within
thirty
days after notice by the
secretary, the secretary shall
request that the attorney general,
the prosecuting attorney of the
county in which the offense was
committed or the offender resides,
or the state medical board
proceed as authorized in this section.
(C) Upon the filing of a verified petition in court, the
court
shall conduct a hearing on the petition and shall give the
same
preference to this proceeding as is given all proceedings
under
Chapter
119. of the Revised Code, irrespective of the
position of the proceeding on the calendar of the court.
(D) Injunction proceedings as authorized by this section
shall be in addition to, and
not in lieu of, all penalties and
other remedies provided in
this chapter.
(E) An injunction proceeding permitted by division (A) of
this section may not be maintained against a person described in
division (B) of section 4762.02 of the Revised Code or a
chiropractor who holds a valid certificate to practice acupuncture
issued under section 4734.283 of the Revised Code.
Sec. 4762.22. An acupuncturist licensed under this chapter
shall have professional liability insurance coverage in an amount
not less than five hundred thousand dollars.
Section 2. That existing sections 4762.02, 4762.03, 4762.04,
4762.05, 4762.06, 4762.08, 4762.09, 4762.10, 4762.11, 4762.13,
4762.131, 4762.132, 4762.14, 4762.15, 4762.16, and 4762.18 of the
Revised Code are hereby repealed.
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