The online versions of legislation provided on this website are not official. Enrolled bills are the final version passed by the Ohio General Assembly and presented to the Governor for signature. The official version of acts signed by the Governor are available from the Secretary of State's Office in the Continental Plaza, 180 East Broad St., Columbus.
|
Sub. S. B. No. 245 As Reported by the House Health CommitteeAs Reported by the House Health Committee
127th General Assembly | Regular Session | 2007-2008 |
| |
Cosponsors:
Senators Miller, D., Spada
A BILL
To amend sections 4725.01, 4730.11, 4762.02, 4762.03,
4762.031, 4762.04
to 4762.06, 4762.08 to
4762.11, 4762.13,
4762.131, 4762.132, 4762.15,
4762.16, and 4762.18
and to enact section 4762.22
of the Revised Code
to modify the laws regarding
the practice of
acupuncturists, to
specify
the
conditions that optometrists must meet when
prescribing
certain anti-inflammatory drugs, and
to
provide that certain physician assistant
students
are not
required to obtain a master's
or higher
degree as a condition of
being
eligible to
practice in Ohio.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4725.01, 4730.11, 4762.02, 4762.03,
4762.031, 4762.04,
4762.05,
4762.06, 4762.08, 4762.09, 4762.10,
4762.11, 4762.13,
4762.131,
4762.132, 4762.15, 4762.16, and
4762.18 be amended and
section 4762.22 of the Revised Code be
enacted to read as follows:
Sec. 4725.01. As used in this chapter:
(A)(1) The "practice of optometry" means the application
of
optical principles, through technical methods and devices, in
the
examination of human eyes for the purpose of ascertaining
departures from the normal, measuring their functional powers,
adapting optical accessories for the aid thereof, and detecting
ocular abnormalities that may be evidence of disease, pathology,
or injury.
(2) In the case of a licensed optometrist who holds a
topical
ocular pharmaceutical agents certificate, the "practice
of
optometry" has the same meaning as in division (A)(1) of this
section, except that it also includes administering topical
ocular
pharmaceutical agents.
(3) In the case of a licensed optometrist who holds a
therapeutic pharmaceutical agents certificate, the "practice of
optometry" has the same meaning as in division (A)(1)
of
this
section, except that it also includes
all of the following:
(a) Employing, applying,
administering, and prescribing
instruments, devices, and procedures,
other than invasive
procedures, for purpose
of examination, investigation, diagnosis,
treatment, or
prevention
of any disease, injury, or other
abnormal
condition of
the visual
system;
(b)
Employing, applying, administering, and prescribing
topical ocular
pharmaceutical agents;
(c) Employing, applying, administering, and prescribing
therapeutic pharmaceutical agents;
(d) Assisting an individual in determining the individual's
blood glucose level by using a commercially available
glucose-monitoring device. Nothing in this section precludes a
licensed optometrist who holds a therapeutic pharmaceutical agents
certificate from using any particular type of commercially
available glucose-monitoring device.
(B) "Topical ocular pharmaceutical agent" means
a drug or
dangerous drug that is a topical drug and used in the practice of
optometry as follows:
(1) In the case of a licensed optometrist who holds a topical
ocular pharmaceutical agents certificate, for evaluative purposes
in the practice of optometry as set forth in division (A)(1) of
this section;
(2) In the case of a licensed optometrist who holds a
therapeutic pharmaceutical agents certificate, for purposes of
examination, investigation, diagnosis, treatment, or prevention of
any disease, injury, or other abnormal condition of the visual
system.
(C) "Therapeutic pharmaceutical agent" means a drug or
dangerous drug that is used for examination, investigation,
diagnosis, treatment, or
prevention of any disease, injury, or
other abnormal condition of the
visual system in the practice of
optometry by a licensed
optometrist who holds a therapeutic
pharmaceutical agents
certificate, and is any of the following:
(1) An oral drug or dangerous drug in one of the following
classifications:
(a) Anti-infectives, including antibiotics, antivirals,
antimicrobials, and antifungals;
(d) Analgesics, including only analgesic drugs that are
available without a prescription, analgesic drugs or dangerous
drugs that require a prescription but are not controlled
substances, and schedule III controlled substances authorized by
the state board of optometry in rules adopted under section
4725.091 of the Revised Code;
(e) Anti-inflammatories, excluding all drugs or dangerous
drugs classified as oral steroids other than methylpredisolone,
which, except that methylpredisolone may be used under a
therapeutic pharmaceutical agents
certificate only if it is
prescribed under all of the following conditions are met:
(i) The drug is prescribed for For use in allergy cases;
(ii) The drug is prescribed for For use by an individual who
is
eighteen years of age or older;
(iii) The drug is prescribed on On the basis of an
individual's
particular episode of illness;
(iv) The drug is prescribed in In an amount that does not
exceed
the amount packaged for a single course of therapy.
(2) Epinephrine administered by injection to individuals in
emergency situations to counteract anaphylaxis or anaphylactic
shock. Notwithstanding any provision of this section to the
contrary, administration of epinephrine in this manner does not
constitute performance of an invasive procedure.
(3) An oral drug or dangerous drug that is not included under
division (C)(1) of this section, if the drug or dangerous drug is
approved, exempt from approval, certified, or exempt from
certification by the federal food and drug administration for
ophthalmic purposes and the drug or dangerous drug is specified in
rules adopted by the state board of optometry under
section
4725.09 of the Revised Code.
(D) "Controlled substance" has the same meaning as in section
3719.01 of the Revised Code.
(E) "Drug" and "dangerous drug" have the same meanings as in
section 4729.01 of the Revised Code.
(F) "Invasive procedure" means any procedure that involves
cutting or otherwise infiltrating human tissue by mechanical
means
including surgery, laser surgery, ionizing radiation,
therapeutic
ultrasound, administering medication by injection, or
the removal
of intraocular foreign bodies.
(G) "Visual system" means the human eye and its accessory
or
subordinate anatomical parts.
(H) "Certificate of licensure" means a certificate issued
by
the state board of optometry under section 4725.13 of
the
Revised
Code authorizing the holder to practice optometry as
provided in
division (A)(1) of this section.
(I) "Topical ocular pharmaceutical agents certificate"
means
a certificate issued by the state board of optometry under
section
4725.13 of the Revised Code authorizing the
holder to
practice
optometry as provided in division (A)(2) of this
section.
(J) "Therapeutic pharmaceutical agents certificate" means
a
certificate issued by the state board of optometry under
division
(A)(3) or (4) of section 4725.13 of the
Revised Code
authorizing
the holder to practice optometry as provided in
division (A)(3) of
this section.
Sec. 4730.11. (A) For an individual to be eligible to
receive a certificate to practice as a physician assistant, all of
the following apply:
(1) The applicant shall be at least eighteen years of age.
(2) The applicant shall be of good moral character.
(3) The applicant shall hold current certification by the
national commission on certification of physician assistants or a
successor organization that is recognized by the state medical
board.
(4) Effective January 1, 2008, except as provided in division
(B) of this section, the applicant shall meet one of the following
educational requirements:
(a) The applicant shall hold a master's or higher degree that
was obtained from a program accredited by the accreditation review
commission on education for the physician assistant or a
predecessor or successor organization recognized by the board;.
(b) The applicant shall hold a degree other than a master's
or higher degree that was obtained from a program accredited by
the accreditation review commission on education for the physician
assistant or a predecessor or successor organization recognized by
the board and shall hold a master's or higher degree in a course
of study with clinical relevance to the practice of physician
assistants that was obtained from a program accredited by a
regional or specialized and professional accrediting agency
recognized by the council for higher education accreditation.
(B) It is not necessary for an applicant to hold a master's
or higher degree as a condition of receiving a certificate to
practice as a physician assistant if the applicant presents
evidence satisfactory to the board of holding a either of the
following:
(1) A current, valid license or other form of authority to
practice as a physician assistant that was issued by another
jurisdiction prior to January 1, 2008;
(2) A degree, other than a master's or higher degree, that is
obtained
as a result of being enrolled on January 1, 2008, in
a
program in this state that was accredited by the accreditation
review
commission on education for the physician assistant but
did not
grant a master's or higher degree to individuals enrolled
in the
program on that date, and completing the program on or
before December 31, 2009.
(C) This section does not require an individual to obtain a
master's or higher degree as a condition of retaining or renewing
a certificate to practice as a physician assistant if either any
of
the following is the case apply:
(1) Prior to January 1, 2008, the individual received a
certificate to practice as a physician assistant under this
chapter without holding a master's or higher degree.
(2) On or after January 1, 2008, the individual received a
certificate to practice as a physician assistant under this
chapter on the basis of holding a license issued in another
jurisdiction, as specified in division (B)(1) of this section.
(3) On or after January 1, 2008, the individual received a
certificate to practice as a physician assistant under this
chapter on the basis of obtaining a degree as specified in
division (B)(2) of this section.
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
to
practice 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
acupuncture as part of a
training
program in
acupuncture, but only if both of the following
conditions are met:
(a) The training program is 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) The person performs the acupuncture under the general
supervision of
an acupuncturist who holds a certificate to
practice as an acupuncturist issued under this chapter and is not
practicing within the supervisory period required by section
4762.10 of the Revised Code.
(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 to practice 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 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 to
practice
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.
(C) At the time of making application for a certificate of
registration to practice, the applicant shall pay
the board a fee
of
one hundred dollars, no part of which shall be
returned.
Sec. 4762.031. In addition to any other eligibility
requirement set forth in this chapter, each applicant for a
certificate of registration to practice as an acupuncturist shall
comply with
sections 4776.01 to 4776.04 of the Revised Code. The
state medical
board shall not grant to an applicant a certificate
of
registration to practice as an acupuncturist unless the board,
in its
discretion, decides that the results of the criminal
records check
do not make the applicant ineligible for a
certificate issued
pursuant to section 4762.04 of the Revised
Code.
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 to practice as an
acupuncturist, the secretary of the board shall register
the
applicant as an acupuncturist and issue to the applicant a
certificate
of
registration to practice as an acupuncturist. The
certificate 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 to practice as an acupuncturist, the
state
medical board
shall issue a duplicate certificate 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 is thirty-five dollars.
Sec. 4762.06. (A) A person seeking to renew a certificate of
registration to practice as an acupuncturist shall, on or before
the
thirty-first day of
January
of each even-numbered year, apply
for
renewal of the certificate.
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 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 to practice 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 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 to practice as an acupuncturist.
(D) A certificate of registration to practice that is not
renewed on or
before its expiration date is automatically
suspended on
its
expiration date. If a certificate has been
suspended pursuant
to
this division for two years or less, the
board shall reinstate
the
certificate upon an
applicant's
submission of a renewal
application, the biennial
renewal fee,
and the applicable
monetary penalty.
The penalty for
reinstatement is twenty-five
dollars. If a certificate
has
been
suspended pursuant to this
division for more
than
two years, it
may be restored upon an
applicant's submission
of a restoration
application, the biennial
registration fee, and
the applicable
monetary penalty and
compliance with sections
4776.01 to 4776.04
of the Revised Code.
The board shall not
restore a certificate
to practice unless the
board, in its
discretion, decides that
the results of the
criminal records check
do not make the
applicant ineligible for a
certificate issued
pursuant to
section 4762.04 of the Revised
Code. The penalty for
restoration
is fifty dollars.
Sec. 4762.08. A person who holds a certificate of
registration to practice 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 to practice 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,
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 is
regulated by the
state
medical board and the address and telephone
number of the
board's
office.
Sec. 4762.10. All (A) As used in this section, "disciplinary
action" means an action taken by the state medical board pursuant
to section 4762.13 of the Revised Code.
(B) The practice of an acupuncturist is subject to a
supervisory period if either of the following applies:
(1) Except as otherwise provided in division (B)(1) of this
section, if an acupuncturist practicing on the effective date of
this amendment has practiced for less than one year and is not
subject to any disciplinary action, supervision shall be for a
period beginning on the effective date of this amendment and
ending when the acupuncturist has practiced for one year from the
date the initial certificate was granted. If the acupuncturist is
subject to disciplinary action during that period, the supervision
shall continue until the acupuncturist has not been subject to any
disciplinary action for one year.
(2) Except as otherwise provided in division (B)(2) of this
section, if an acupuncturist is granted an initial certificate to
practice on or after the effective date of this amendment, the
supervisory period shall begin on the date the certificate is
granted and end one year thereafter. If the acupuncturist is
subject to disciplinary action during that year, the supervision
shall continue until the acupuncturist has not been subject to any
disciplinary action for one year.
(C) During an acupuncturist's supervisory period, 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 (E) 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)(D) After an acupuncturist's supervisory period has ended,
both of the following apply
to the acupuncturist's practice in
addition to the applicable
requirements of division (E) of this
section:
(1) Before treating a patient for a particular condition, the
acupuncturist shall confirm whether the patient has undergone
within the past six months a diagnostic examination that was
related to the condition for which the patient is seeking
acupuncture and was performed by a
physician or chiropractor
acting within the physician or
chiropractor's scope of practice.
Confirmation that the diagnostic examination was performed may be
made 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 (D)(1) of this section or the acupuncturist otherwise
determines that the patient has not undergone the diagnostic
examination specified in that division, the acupuncturist shall
provide to the patient a written recommendation to undergo a
diagnostic examination by a physician or chiropractor.
(E) In the practice of acupuncture pursuant to a certificate
to practice
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.
During an acupuncturist's supervisory period, 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 during the acupuncturist's
supervisory period required by section 4762.10 of the Revised
Code:
(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 to practice as an
acupuncturist to
a
person found by the board to have committed
fraud,
misrepresentation, or deception in applying for or securing
the
certificate.
(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 to practice as
an
acupuncturist, refuse to
issue a certificate to an
applicant,
refuse to reinstate a
certificate, or reprimand
or place on
probation the holder
of a certificate for any
of the following
reasons:
(1) Permitting the holder's name or certificate 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 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 to practice as an acupuncturist;
(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 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 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 to practice issued under
this chapter,
or
applies for a certificate of registration to practice, 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
to practice issued under
this
chapter or who has applied for a certificate of
registration
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
to
practice. 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 to practice issued under this chapter
or
any applicant for a certificate of registration 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 or deny the individual's
application and shall
require
the individual, as a condition for an initial, continued,
reinstated, or renewed certificate of registration, to
submit to
treatment.
Before being eligible to apply for reinstatement of a
certificate 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 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 to practice 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
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 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 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
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 to practice 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.
The board shall notify the individual subject to
the
suspension by certified mail or in person in accordance with
section
119.07 of the Revised Code. If an individual whose
certificate is suspended under this division fails to make
a
timely request for an
adjudication under Chapter 119. of the
Revised Code, the board shall enter
a final order permanently
revoking the individual's certificate
of registration to practice.
(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 to practice 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 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 to practice as an
acupuncturist to an applicant,
revokes
an individual's certificate
of registration, refuses to
renew a certificate of registration,
or refuses to
reinstate an
individual's certificate of
registration, 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
to practice as
an acupuncturist 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 of
registration to
practice as
an acupuncturist issued under this chapter
is not
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 made under this
chapter for a certificate
of registration
may not be withdrawn without approval of
the
board.
(3) Failure by an individual to renew a certificate
of
registration 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
to
practice as an acupuncturist 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 under
this chapter a certificate to practice as an acupuncturist 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 is
adjudged
by a probate court to be mentally ill or mentally
incompetent, the
person's certificate 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 in the margin of the
court's record
of such certificate.
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 to
practice as an acupuncturist
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 under
section 4762.13 of the Revised Code.
(C) The prosecutor in any case against any person holding
a
valid certificate to practice issued pursuant to this chapter, on
forms prescribed and provided by the state medical board, shall
notify
the board of any of the following:
(1) A plea of guilty to, a finding of guilt by a jury
or
court of,
or judicial finding of eligibility for intervention in
lieu of conviction
for
a felony, or a case in which the trial
court issues an order of dismissal upon technical or procedural
grounds of a
felony charge;
(2) A plea of guilty to,
a finding of guilt by a jury
or
court of,
or judicial finding of eligibility for intervention in
lieu of conviction
for
a misdemeanor committed in the course of
practice, or a case
in which the trial court issues an order of
dismissal upon
technical
or procedural grounds of a charge of a
misdemeanor, if the
alleged act was committed in the course of
practice;
(3) A plea of guilty to, a finding of guilt by a jury
or
court of,
or judicial finding of eligibility for intervention in
lieu of conviction
for
a misdemeanor involving moral turpitude, or
a case
in which the trial court issues an order of dismissal upon
technical or
procedural grounds of a charge of a misdemeanor
involving moral
turpitude.
The report shall include the name and address of the
certificate holder, the nature of the offense for which
the
action was taken, and the certified court documents recording
the
action.
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 to practice 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 to practice
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 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 who holds a certificate to
practice issued under this chapter
shall have professional
liability insurance coverage in an amount that is
not less than
five hundred thousand dollars.
Section 2. That existing sections 4725.01, 4730.11, 4762.02,
4762.03,
4762.031, 4762.04,
4762.05, 4762.06, 4762.08, 4762.09,
4762.10,
4762.11, 4762.13,
4762.131, 4762.132, 4762.15, 4762.16,
and
4762.18 of the
Revised Code are hereby repealed.
|