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H. B. No. 292 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Representatives Grossman, Stebelton, Reece, Dovilla, Gardner, Baker, Wachtmann
A BILL
To amend sections 4731.051, 4731.07, 4731.224,
4731.24, and 4731.25 and to enact sections
4778.01, 4778.02, 4778.04, 4778.05, 4778.06,
4778.07, 4778.08, 4778.10, 4778.12, 4778.14,
4778.15, 4778.16, 4778.18, 4778.19, 4778.20,
4778.21, 4778.22, 4778.24, and 4778.99 of the
Revised Code regarding licensure of genetic
counselors.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4731.051, 4731.07, 4731.224,
4731.24, and 4731.25 be amended and sections 4778.01, 4778.02,
4778.04, 4778.05, 4778.06, 4778.07, 4778.08, 4778.10, 4778.12,
4778.14, 4778.15, 4778.16, 4778.18, 4778.19, 4778.20, 4778.21,
4778.22, 4778.24, and 4778.99 of the Revised Code be enacted to
read as follows:
Sec. 4731.051. The state medical board shall adopt rules in
accordance with Chapter 119. of the Revised Code establishing
universal blood and body fluid precautions that shall be used by
each person who performs exposure prone invasive procedures and is
authorized to practice by this chapter or Chapter 4730., 4760.,
4762., or 4774., or 4778. of the Revised Code. The rules shall
define and establish requirements for universal blood and body
fluid precautions that include the following:
(A) Appropriate use of hand washing;
(B) Disinfection and sterilization of equipment;
(C) Handling and disposal of needles and other sharp
instruments;
(D) Wearing and disposal of gloves and other protective
garments and devices.
Sec. 4731.07. The state medical board shall keep a record of
its proceedings. It shall also keep a register of applicants for
certificates of registration and certificates to practice issued
under this chapter and Chapters 4730., 4760., 4762., and 4774. of
the Revised Code and licenses and temporary licenses issued under
Chapter 4778. of the Revised Code. The register shall show the
name of the applicant and whether the applicant was granted or
refused a certificate, license, or temporary license. With respect
to applicants to practice medicine and surgery or osteopathic
medicine and surgery, the register shall show the name of the
institution that granted the applicant the degree of doctor of
medicine or osteopathic medicine. The books and records of the
board shall be prima-facie evidence of matters therein contained.
Sec. 4731.224. (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 a health
insuring corporation, ambulatory surgical center, or similar
facility, against any individual holding a valid certificate to
practice issued pursuant to this chapter, 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. As used in this
division, "formal disciplinary action" means any action resulting
in the revocation, restriction, reduction, or termination of
clinical privileges for violations of professional ethics, or for
reasons of medical incompetence, medical malpractice, or drug or
alcohol abuse. "Formal disciplinary action" includes a summary
action, an action that takes effect notwithstanding any appeal
rights that may exist, and an action that results in an individual
surrendering clinical privileges while under investigation and
during proceedings regarding the action being taken or in return
for not being investigated or having proceedings held. "Formal
disciplinary action" does not include any action taken for the
sole reason of failure to maintain records on a timely basis or
failure to attend staff or section meetings.
The filing or nonfiling of a report with the board,
investigation by the board, or any disciplinary action taken by
the board, shall not preclude any action by a health care facility
to suspend, restrict, or revoke the individual's clinical
privileges.
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) If any individual authorized to practice under this
chapter or any professional association or society of such
individuals believes that a violation of any provision of this
chapter, Chapter 4730., 4760., 4762., or 4774., or 4778. of the
Revised Code, or any rule of the board has occurred, the
individual, association, or society 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 impaired practitioner participating in treatment or aftercare
for substance abuse as long as the practitioner maintains
participation in accordance with the requirements of section
4731.25 of the Revised Code, and as long as the treatment provider
or employee, agent, or representative of the provider has no
reason to believe that the practitioner has violated any provision
of this chapter or any rule adopted under it, other than the
provisions of division (B)(26) of section 4731.22 of the Revised
Code. 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
individuals authorized to practice under this chapter to provide
peer assistance to practitioners with substance abuse problems
with respect to a practitioner who has been referred for
examination to a treatment program approved by the board under
section 4731.25 of the Revised Code if the practitioner cooperates
with the referral for examination and with any determination that
the practitioner should enter treatment and as long as the
committee member, representative, or agent has no reason to
believe that the practitioner 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 any
rule adopted under it, other than the provisions of division
(B)(26) of section 4731.22 of the Revised Code.
(C) Any professional association or society composed
primarily of doctors of medicine and surgery, doctors of
osteopathic medicine and surgery, doctors of podiatric medicine
and surgery, or practitioners of limited branches of medicine 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 individual.
(D) Any insurer providing professional liability insurance to
an individual authorized to practice under this chapter, or any
other entity that seeks to indemnify the professional liability of
such an individual, 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
medical 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 practicing individual.
(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 a
health care professional or 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
individual whose practice is regulated under this chapter, 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 the individual or in reviewing the individual's
clinical privileges. 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
individual who is the subject of the reports or summaries. The
individual 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, pursuant to this section,
reports to the board or refers an impaired practitioner 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, no professional
association or society of individuals authorized to practice under
this chapter that sponsors a committee or program to provide peer
assistance to practitioners with substance abuse problems, no
representative or agent of such a committee or program, and no
member of the state medical board shall be held liable in damages
to any person by reason of actions taken to refer a practitioner
to a treatment provider approved under section 4731.25 of the
Revised Code for examination or treatment.
Sec. 4731.24. Except as provided in sections 4731.281 and
4731.40 of the Revised Code, all receipts of the state medical
board, from any source, shall be deposited in the state treasury.
Until July 1, 1998, the funds shall be deposited to the credit of
the occupational licensing and regulatory fund. On and after July
1, 1998, the funds shall be deposited to the credit of the state
medical board operating fund, which is hereby created on July 1,
1998. All funds deposited into the state treasury under this
section shall be used solely for the administration and
enforcement of this chapter and Chapters 4730., 4760., 4762.,
and
4774., and 4778. of the Revised Code by the board.
Sec. 4731.25. The state medical board, in accordance with
Chapter 119. of the Revised Code, shall adopt and may amend and
rescind rules establishing standards for approval of physicians
and facilities as treatment providers for impaired practitioners
who are regulated under this chapter or Chapter 4730., 4760.,
4762., or 4774., or 4778. of the Revised Code. The rules shall
include standards for both inpatient and outpatient treatment. The
rules shall provide that in order to be approved, a treatment
provider must have the capability of making an initial examination
to determine what type of treatment an impaired practitioner
requires. Subject to the rules, the board shall review and approve
treatment providers on a regular basis. The board, at its
discretion, may withdraw or deny approval subject to the rules.
An approved impaired practitioner treatment provider shall:
(A) Report to the board the name of any practitioner
suffering or showing evidence of suffering impairment as described
in division (B)(5) of section 4730.25 of the Revised Code,
division (B)(26) of section 4731.22 of the Revised Code, division
(B)(6) of section 4760.13 of the Revised Code, division (B)(6) of
section 4762.13 of the Revised Code, or division (B)(6) of section
4774.13 of the Revised Code, or division (B)(6) of section 4778.14
of the Revised Code who fails to comply within one week with a
referral for examination;
(B) Report to the board the name of any impaired practitioner
who fails to enter treatment within forty-eight hours following
the provider's determination that the practitioner needs
treatment;
(C) Require every practitioner who enters treatment to agree
to a treatment contract establishing the terms of treatment and
aftercare, including any required supervision or restrictions of
practice during treatment or aftercare;
(D) Require a practitioner to suspend practice upon entry
into any required inpatient treatment;
(E) Report to the board any failure by an impaired
practitioner to comply with the terms of the treatment contract
during inpatient or outpatient treatment or aftercare;
(F) Report to the board the resumption of practice of any
impaired practitioner before the treatment provider has made a
clear determination that the practitioner is capable of practicing
according to acceptable and prevailing standards of care;
(G) Require a practitioner who resumes practice after
completion of treatment to comply with an aftercare contract that
meets the requirements of rules adopted by the board for approval
of treatment providers;
(H) Report the identity of any practitioner practicing under
the terms of an aftercare contract to hospital administrators,
medical chiefs of staff, and chairpersons of impaired practitioner
committees of all health care institutions at which the
practitioner holds clinical privileges or otherwise practices. If
the practitioner does not hold clinical privileges at any health
care institution, the treatment provider shall report the
practitioner's identity to the impaired practitioner committee of
the county medical society, osteopathic academy, or podiatric
medical association in every county in which the practitioner
practices. If there are no impaired practitioner committees in the
county, the treatment provider shall report the practitioner's
identity to the president or other designated member of the county
medical society, osteopathic academy, or podiatric medical
association.
(I) Report to the board the identity of any practitioner who
suffers a relapse at any time during or following aftercare.
Any individual authorized to practice under this chapter who
enters into treatment by an approved treatment provider shall be
deemed to have waived any confidentiality requirements that would
otherwise prevent the treatment provider from making reports
required under this section.
In the absence of fraud or bad faith, no person or
organization that conducts an approved impaired practitioner
treatment program, no member of such an organization, and no
employee, representative, or agent of the treatment provider shall
be held liable in damages to any person by reason of actions taken
or recommendations made by the treatment provider or its
employees, representatives, or agents.
Sec. 4778.01. As used in this chapter:
(A) "American board of genetic counseling, inc." means the
American board of genetic counseling, inc., its successor
organization, or an equivalent organization recognized by the
state medical board.
(B) "American board of medical genetics, inc." means the
American board of medical genetics, inc., its successor
organization, or an equivalent organization recognized by the
state medical board.
(C) "Certified genetic counselor" means an individual who
possesses the certified genetic counselor credential from the
American board of genetic counseling, inc., or is a diplomate of
the American board of medical genetics, inc.
(D) "Genetic counselor" means an individual who engages in
any of the activities listed in section 4778.10 of the Revised
Code regardless of whether the individual is authorized to do so.
(E) "Physician" means an individual authorized under Chapter
4731. of the Revised Code to practice medicine and surgery or
osteopathic medicine and surgery.
Sec. 4778.02. (A) Beginning one year after the effective
date of this section, no person shall do either of the following
without a valid license or temporary license issued under this
chapter:
(1) Except as provided in division (B) of this section,
practice as a genetic counselor.
(2) Hold the person out in any manner as a genetic counselor,
including using any sign, advertisement, card, letterhead,
circular, or other writing, document, or design, the evident
purpose of which is to induce others to believe the person is
authorized to practice as a genetic counselor.
(B) Division (A)(1) of this section does not apply to any of
the following:
(1) An individual engaging in the scope of practice for which
the individual holds a valid license or certificate;
(2) An individual performing a task as part of a genetic
counseling graduate program described in division (B)(2) of
section 4778.04 of the Revised Code.
(3) An individual to whom all of the following apply:
(a) The individual is a certified genetic counselor;
(b) The individual is a resident of another state.
(c) The individual engages in the activities listed in
section 4778.10 of the Revised Code not more than thirty days in a
calendar year.
Sec. 4778.04. (A) An individual seeking a license to
practice as a genetic counselor shall file with the state medical
board a written application on a form prescribed and supplied by
the board. The application shall include all the information the
board considers necessary to process the application, including
evidence satisfactory to the board that the applicant meets the
requirements specified in division (B) of this section.
At the time an application is submitted, the applicant shall
pay the board the application fee specified by the board in rules
adopted under section 4778.12 of the Revised Code. No part of the
fee shall be returned.
(B) To be eligible to receive a license to practice as a
genetic counselor, an applicant must meet all of the following
requirements:
(1) Be at least eighteen years of age and of good moral
character;
(2) Have attained a master's degree or higher degree from a
genetic counseling graduate program accredited by the American
board of genetic counseling, inc.;
(3) Have attained the certified genetic counselor credential
from the American board of genetic counseling, inc.;
(4) Have satisfied any other requirements established by the
board in rules adopted under section 4778.12 of the Revised Code.
(C) The board shall review all applications received under
this section. Not later than sixty days after receiving an
application it considers complete, the board shall determine
whether the applicant meets the requirements for a license to
practice as a genetic counselor. The affirmative vote of not fewer
than six members of the board is required for that determination.
Sec. 4778.05. In addition to meeting any other eligibility
requirement of this chapter and rules adopted under it, each
applicant for a license to practice as a genetic counselor shall
comply with sections 4776.01 to 4776.04 of the Revised Code. The
state medical board shall not grant a license to practice as a
genetic counselor unless the board decides that the results of the
criminal records check do not make the applicant ineligible for
the license.
Sec. 4778.06. (A) If the state medical board determines
under section 4778.04 of the Revised Code that an applicant meets
the requirements for a license to practice as a genetic counselor,
the secretary of the board shall issue the license to the
applicant.
(B) A license issued under this section is valid for the
length of time specified in rules adopted under section 4778.12 of
the Revised Code.
(C) The board shall renew a license held by an individual who
continues to meet the requirements of this section on application
and payment of a fee unless the license has been suspended or
revoked under section 4778.14 of the Revised Code. Renewal shall
be in accordance with the procedure specified by the board in
rules adopted under section 4778.12 of the Revised Code. The board
shall impose continuing education requirements in accordance with
rules adopted under section 4778.12 of the Revised Code.
Sec. 4778.07. (A) On receipt of an application for a license
as a genetic counselor, the state medical board may issue a
temporary license to an applicant if all of the following apply:
(1) The applicant meets the requirements specified in section
4778.04 of the Revised Code other than having attained the
certified genetic counselor credential from the American board of
genetic counseling, inc.;
(2) The applicant is in active candidate status with the
American board of genetic counseling, inc.;
(3) The applicant pays the temporary license fee specified by
the board in rules adopted under section 4778.12 of the Revised
Code.
(B) A temporary license allows the holder to engage in the
activities authorized by section 4778.10 of the Revised Code while
the holder is under the general supervision of a genetic counselor
licensed under section 4778.06 of the Revised Code or a physician.
General supervision does not require the supervising licensed
genetic counselor or physician to be present while the holder
engages in such activities, but does require the licensed genetic
counselor or physician to have professional responsibility for the
holder and be readily accessible to the holder for professional
consultation and assistance.
A temporary license is valid from the date of issuance until
the earlier of one year from that date or the date a license is
issued under section 4778.06 of the Revised Code. A temporary
license may be renewed only while the applicant is in active
candidate status with the American board of genetic counseling,
inc. Renewal shall be in accordance with the procedures specified
by the board in rules adopted under section 4778.12 of the Revised
Code.
Sec. 4778.08. On application by the holder of a license to
practice as a genetic counselor, the state medical board shall
issue a duplicate 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 license is thirty-five dollars.
Sec. 4778.10. (A)(1) "Collaborating physician" means a
physician who works with a genetic counselor and provides medical
support to the genetic counselor as memorialized in a
collaborative agreement;
(2) "Collaborative agreement" means a written, formal
document that memorializes the relationship between a genetic
counselor and the genetic counselor's collaborating physician and
establishes the criteria governing a genetic counselor's
performance of the tasks described in division (B)(9) of this
section.
(B) An individual who holds a valid license to practice as a
genetic counselor may engage in all of the following activities:
(1) Obtain and evaluate the medical histories of a patient
and the patient's family members to determine the risk for genetic
or medical conditions and diseases in the patient, the patient's
offspring, or the patient's family members;
(2) Discuss with a patient and the patient's family the
features, natural history, means of diagnosis, genetic and
environmental factors, and management of risk for genetic or
medical conditions and diseases;
(3) Identify and coordinate genetic laboratory tests and
other diagnostic studies as appropriate for genetic assessment;
(4) Integrate the results of genetic laboratory tests and
other diagnostic tests with individual and family medical
histories;
(5) Explain to a patient and the patient's family the
clinical implications of the results of genetic laboratory tests
and other diagnostic tests;
(6) Evaluate the response of a patient or the patient's
family members to one or more genetic conditions or the risk of
reoccurrence and provide patient-centered counseling and guidance;
(7) Identify and use community resources that provide
medical, educational, financial, and psychosocial support and
advocacy;
(8) Provide medical, genetic, and counseling information to
patients, their families, and other health care professionals;
(9) Pursuant to a collaborative agreement with a
collaborating physician, do both of the following:
(a) Order genetic or other tests for the purpose of
diagnosing a medical condition or inherited disorder or
determining the carrier status of one or more of the patient's
family members;
(b) Select the most appropriate, accurate, and cost-effective
methods of diagnosis.
Sec. 4778.12. (A) Subject to division (B) of this section,
the state medical board shall adopt, and may amend and rescind,
rules in accordance with Chapter 119. of the Revised Code to
implement and administer this chapter. At a minimum, the rules
shall establish all of the following:
(1) For purposes of division (B)(4) of section 4778.04 of the
Revised Code, any requirements, other than those specified in that
section, to attain licensure;
(2) For purposes of division (A) of section 4778.04, division
(C) of section 4778.06, and division (A) of section 4778.07 of the
Revised Code, the fees to apply for or renew a license or
temporary license;
(3) For purposes of division (B) of section 4778.06 of the
Revised Code, the length of time a license is valid;
(4) For purposes of division (C) of section 4778.06 or
division (B) of section 4778.07 of the Revised Code, procedures
for renewing a license or temporary license;
(5) For purposes of division (C) of section 4778.06 of the
Revised Code, continuing education requirements for individuals
who hold a license under this chapter;
(6) Any other requirements the board considers appropriate to
implement this chapter.
(B) To the maximum extent possible, the rules adopted under
division (A) of this section shall be consistent with the
standards, guidelines, or policy directives adopted by the
American board of genetic counseling, inc.
Sec. 4778.14. (A) The state medical board, by an affirmative
vote of not fewer than six members, may revoke or may refuse to
grant a license or temporary license to practice as a genetic
counselor to an individual found by the board to have committed
fraud, misrepresentation, or deception in applying for or securing
the license or temporary 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 license or temporary license to practice
as a genetic counselor, refuse to issue a license or temporary
license to an applicant, refuse to reinstate a license or
temporary license, or reprimand or place on probation the holder
of a license or temporary license for any of the following
reasons:
(1) Permitting the holder's name, license, or temporary
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 securing or attempting to secure a license or
temporary license to practice as a genetic counselor.
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) The obtaining of, or attempting to obtain, money or a
thing of value by fraudulent misrepresentations in the course of
practice;
(10) 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;
(11) Commission of an act that constitutes a felony in this
state, regardless of the jurisdiction in which the act was
committed;
(12) 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;
(13) A plea of guilty to, a judicial finding of guilt of, or
a judicial finding of eligibility for intervention in lieu of
conviction for, a misdemeanor involving moral turpitude;
(14) Commission of an act in the course of practice that
constitutes a misdemeanor in this state, regardless of the
jurisdiction in which the act was committed;
(15) Commission of an act involving moral turpitude that
constitutes a misdemeanor in this state, regardless of the
jurisdiction in which the act was committed;
(16) 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;
(17) Any of the following actions taken by the state agency
responsible for regulating the practice of genetic counselors 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;
(18) Violation of the conditions placed by the board on a
license or temporary license to practice as a genetic counselor;
(19) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4731.051 of
the Revised Code;
(20) Failure to cooperate in an investigation conducted by
the board under section 4778.18 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;
(21) Failure to maintain the certified genetic counselor
credential from the American board of genetic counseling, inc.;
(22) Failure to comply with any of the rules of ethics
established by the American board of genetic counseling, inc.
(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 a genetic counselor 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)(11), (14), and (15) 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, license holder, or temporary
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 license or temporary 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 on technical or procedural grounds.
(E) The sealing of conviction records by any court shall have
no effect on a prior board order entered under the provisions of
this section or on 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
license or temporary license to practice as a genetic counselor
issued under this chapter, or applies for a license or temporary
license 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,
on a showing of a possible violation, may compel any individual
who holds a license or temporary license to practice as a genetic
counselor issued under this chapter or who has applied for a
license or temporary license to practice to submit to a mental or
physical examination, or both. A physical examination may include
an HIV test. 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 a genetic counselor unable to
practice because of the reasons set forth in division (B)(5) of
this section, the board shall require the genetic counselor 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 license or temporary license 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
license or temporary license to practice as a genetic counselor
issued under this chapter or any applicant for a license or
temporary license to practice suffers such impairment, the board
may compel the individual to submit to a mental or physical
examination, or both. The expense of the examination is the
responsibility of the individual compelled to be examined. Any
mental or physical examination required under this division shall
be undertaken by a treatment provider or physician 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
license or temporary license or deny the individual's application
and shall require the individual, as a condition for an initial,
continued, reinstated, or renewed license or temporary license to
practice, to submit to treatment.
Before being eligible to apply for reinstatement of a license
or temporary license suspended under this division, the genetic
counselor 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 license or temporary license
suspended under this division after such demonstration and after
the individual has entered into a written consent agreement.
When the impaired genetic counselor resumes practice, the
board shall require continued monitoring of the genetic counselor.
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, on
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 genetic counselor has
maintained sobriety.
(G) If the secretary and supervising member determine that
there is clear and convincing evidence that a genetic counselor
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 license or temporary license to practice
without a prior hearing. Written allegations shall be prepared for
consideration by the board.
The board, on 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 license or temporary 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 genetic counselor 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 genetic counselor requests the hearing, unless otherwise
agreed to by both the board and the license or temporary 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)(10), (12),
or (13) of this section, and the judicial finding of guilt, guilty
plea, or judicial finding of eligibility for intervention in lieu
of conviction is overturned on appeal, on exhaustion of the
criminal appeal, a petition for reconsideration of the order may
be filed with the board along with appropriate court documents. On
receipt of a petition and supporting court documents, the board
shall reinstate the license or temporary license to practice as a
genetic counselor. 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 license or temporary license to practice of a genetic
counselor and the counselor's practice in this state are
automatically suspended as of the date the genetic counselor
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 of 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 license or temporary 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 license
or temporary 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 license or temporary license 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 license or
temporary license of the genetic counselor 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 license or temporary 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 license or temporary
license to practice as a genetic counselor to an applicant,
revokes an individual's license or temporary license, refuses to
renew a license or temporary license, or refuses to reinstate an
individual's license or temporary 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 license or temporary license to practice as a genetic counselor
and the board shall not accept an application for reinstatement of
the license or temporary license or for issuance of a new license
or temporary license.
(M) Notwithstanding any other provision of the Revised Code,
all of the following apply:
(1) The surrender of a license or temporary license to
practice as a genetic counselor issued under this chapter is not
effective unless or until accepted by the board. Reinstatement of
a license or temporary 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 license or
temporary license to practice may not be withdrawn without
approval of the board.
(3) Failure by an individual to renew a license or temporary
license to practice in accordance with section 4774.06 of the
Revised Code shall not remove or limit the board's jurisdiction to
take disciplinary action under this section against the
individual.
Sec. 4778.15. On receipt of a notice pursuant to section
3123.43 of the Revised Code, the state medical board shall comply
with sections 3123.41 to 3123.50 of the Revised Code and any
applicable rules adopted under section 3123.63 of the Revised Code
with respect to a license or temporary license issued under this
chapter.
Sec. 4778.16. If the state medical board has reason to
believe that any person who has been granted a license or
temporary license to practice as a genetic counselor 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 license or temporary
license to practice is adjudged by a probate court to be mentally
ill or mentally incompetent, the person's license or temporary
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 license or temporary license in the
margin of the court's record of such license or temporary license.
Sec. 4778.18. (A) The state medical board shall investigate
evidence that appears to show that any individual 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 this chapter or 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 board's secretary, pursuant to section
4778.20 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 a genetic
counselor, 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 license, 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
individual involved in each case. The report is a public record
for purposes of section 149.43 of the Revised Code.
Sec. 4778.19. (A) As used in this section, "prosecutor" has
the same meaning as in section 2935.01 of the Revised Code.
(B) Whenever any individual holding a valid license or
temporary license to practice as a genetic counselor issued under
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 license under section 4778.16 of the Revised
Code.
(C) The prosecutor in any case against any person holding a
valid license to practice issued under 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 license
or temporary license holder, the nature of the offense for which
the action was taken, and the certified court documents recording
the action.
Sec. 4778.20. The secretary of the state medical board shall
enforce the laws relating to the practice of genetic counselors.
If the secretary has knowledge or notice of a violation of this
chapter or the rules adopted under it, the secretary shall
investigate the matter, and, upon probable cause appearing, file a
complaint and prosecute the offender. When requested by the
secretary, the prosecuting attorney of the proper county shall
take charge of and conduct the prosecution.
Sec. 4778.21. 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
practicing as a genetic counselor without having first obtained
under this chapter a license or temporary license to practice as a
genetic counselor, may, in accordance 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 unlawfully practicing as a genetic counselor by
applying for an injunction in any court of competent jurisdiction.
Prior to application for an injunction, the secretary of the
state medical board shall notify the individual allegedly engaged
either directly or by complicity in the unlawful practice by
registered mail that the secretary has received information
indicating that this individual is so engaged. The individual
shall answer the secretary within thirty days showing that the
individual is either properly licensed for the stated activity or
that the individual 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.
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.
Injunction proceedings shall be in addition to, and not in
lieu of, all penalties and other remedies provided in this
chapter.
Sec. 4778.22. All fees, penalties, and other funds received
by the state medical board under this chapter shall be deposited
in accordance with section 4731.24 of the Revised Code.
Sec. 4778.24. In the absence of fraud or bad faith, the
state medical board, a current or former board member, an agent of
the board, a person formally requested by the board to be the
board's representative, or an employee of the board shall not be
held liable in damages to any person as the result of any act,
omission, proceeding, conduct, or decision related to official
duties undertaken or performed pursuant to this chapter. If any
such person asks to be defended by the state against any claim or
action arising out of any act, omission, proceeding, conduct, or
decision related to the person's official duties, and if the
request is made in writing at a reasonable time before trial and
the person requesting defense cooperates in good faith in the
defense of the claim or action, the state shall provide and pay
for the person's defense and shall pay any resulting judgment,
compromise, or settlement. At no time shall the state pay any part
of a claim or judgment that is for punitive or exemplary damages.
Sec. 4778.99. Whoever violates section 4778.02 of the
Revised Code is guilty of a misdemeanor of the first degree on a
first offense and felony of the fifth degree on each subsequent
offense.
Section 2. That existing sections 4731.051, 4731.07,
4731.224, 4731.24, and 4731.25 of the Revised Code are hereby
repealed.
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