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Am. Sub. H. B. No. 292 As Passed by the SenateAs Passed by the Senate
129th General Assembly | Regular Session | 2011-2012 |
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Cosponsors:
Representatives Grossman, Stebelton, Reece, Dovilla, Gardner, Baker, Wachtmann, Fende, Antonio, Carney, Celeste, Duffey, Garland, Yuko, Beck, Blair, Boyd, Cera, Combs, Conditt, Damschroder, DeVitis, Hackett, Johnson, Maag, Milkovich, Pelanda, Ruhl, Sears, Slaby, Stinziano, Weddington, Winburn
Senators Jones, Tavares, Brown, Hite, Hughes, Kearney, Lehner, Manning, Niehaus, Oelslager, Sawyer
A BILL
To amend sections 4731.07, 4731.19, 4731.22,
4731.222, 4731.224, 4731.24, and 4731.25 and to
enact sections 4731.297, 4778.01, 4778.02,
4778.03, 4778.04, 4778.05, 4778.06, 4778.07,
4778.08, 4778.09, 4778.10, 4778.11, 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 to establish licensure
requirements for genetic counselors, to modify
certain laws governing the State Medical Board,
and to create a visiting clinical professional
development certificate for certain physicians who
are not licensed in Ohio.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4731.07, 4731.19, 4731.22, 4731.222,
4731.224, 4731.24, 4731.25, and 4731.293 be amended and sections
4731.297, 4778.01, 4778.02, 4778.03, 4778.04, 4778.05, 4778.06,
4778.07, 4778.08, 4778.09, 4778.10, 4778.11, 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. 4731.07. 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 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 or
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. 4731.19. (A) A person seeking a certificate to practice
a limited branch of medicine shall file with the state medical
board an application in a manner prescribed by the board. The
application shall include or be accompanied by evidence of all of
the following:
(1) That Evidence that the applicant is at least eighteen
years of age and of good moral character;
(2) That Evidence that the applicant has attained high school
graduation or its equivalent;
(3) That Evidence that the applicant holds one of the
following:
(a) A diploma or certificate from a school, college, or
institution in good standing as determined by the board, showing
the completion of the required courses of instruction;
(b) A diploma or certificate from a school, college, or
institution in another state or jurisdiction showing completion of
a course of instruction that meets course requirements determined
by the board through rules adopted under section 4731.05 of the
Revised Code;
(c) For not less than five years preceding application, a
current license, registration, or certificate in good standing in
another state for massage therapy or cosmetic therapy.
(4) Evidence that the applicant has successfully passed an
examination, prescribed in rules described in section 4731.16 of
the Revised Code, to determine competency to practice the
applicable limited branch of medicine;
(5) An affidavit signed by the applicant attesting to the
accuracy and truthfulness of information submitted under this
section and consenting to release of information;
(6) Any other information the board requires.
(B) An applicant for a certificate to practice a limited
branch of medicine shall comply with the requirements of section
4731.171 of the Revised Code.
(C) At the time of making application for a certificate to
practice a limited branch of medicine, the applicant shall pay to
the board a fee of one hundred fifty dollars, no part of which
shall be returned. No application shall be considered filed until
the board receives the appropriate fee.
(D) The board may investigate the application materials
received under this section and contact any agency or organization
for recommendations or other information about the applicant.
Sec. 4731.22. (A) The state medical board, by an affirmative
vote of not fewer than six of its members, may revoke or may
refuse to grant a certificate to a person found by the board to
have committed fraud during the administration of the examination
for a certificate to practice or to have committed fraud,
misrepresentation, or deception in applying for or securing any
certificate to practice or certificate of registration issued by
the board.
(B) The board, by an affirmative vote of not fewer than six
members, shall, to the extent permitted by law, limit, revoke, or
suspend an individual's certificate to practice, refuse to
register an individual, refuse to reinstate a certificate, or
reprimand or place on probation the holder of a certificate for
one or more of the following reasons:
(1) Permitting one's name or one's certificate to practice or
certificate of registration to be used by a person, group, or
corporation when the individual concerned is not actually
directing the treatment given;
(2) Failure to maintain minimal standards applicable to the
selection or administration of drugs, or failure to employ
acceptable scientific methods in the selection of drugs or other
modalities for treatment of disease;
(3) Selling, giving away, personally furnishing, prescribing,
or administering drugs for other than legal and legitimate
therapeutic purposes or a plea of guilty to, a judicial finding of
guilt of, or a judicial finding of eligibility for intervention in
lieu of conviction of, a violation of any federal or state law
regulating the possession, distribution, or use of any drug;
(4) Willfully betraying a professional confidence.
For purposes of this division, "willfully betraying a
professional confidence" does not include providing any
information, documents, or reports to a child fatality review
board under sections 307.621 to 307.629 of the Revised Code and
does not include the making of a report of an employee's use of a
drug of abuse, or a report of a condition of an employee other
than one involving the use of a drug of abuse, to the employer of
the employee as described in division (B) of section 2305.33 of
the Revised Code. Nothing in this division affects the immunity
from civil liability conferred by that section upon a physician
who makes either type of report in accordance with division (B) of
that section. As used in this division, "employee," "employer,"
and "physician" have the same meanings as in section 2305.33 of
the Revised Code.
(5) Making a false, fraudulent, deceptive, or misleading
statement in the solicitation of or advertising for patients; in
relation to the practice of medicine and surgery, osteopathic
medicine and surgery, podiatric medicine and surgery, or a limited
branch of medicine; or in securing or attempting to secure any
certificate to practice or certificate of registration issued by
the board.
As used in this division, "false, fraudulent, deceptive, or
misleading statement" means a statement that includes a
misrepresentation of fact, is likely to mislead or deceive because
of a failure to disclose material facts, is intended or is likely
to create false or unjustified expectations of favorable results,
or includes representations or implications that in reasonable
probability will cause an ordinarily prudent person to
misunderstand or be deceived.
(6) A departure from, or the failure to conform to, minimal
standards of care of similar practitioners under the same or
similar circumstances, whether or not actual injury to a patient
is established;
(7) Representing, with the purpose of obtaining compensation
or other advantage as personal gain or for any other person, that
an incurable disease or injury, or other incurable condition, can
be permanently cured;
(8) The obtaining of, or attempting to obtain, money or
anything of value by fraudulent misrepresentations in the course
of practice;
(9) A plea of guilty to, a judicial finding of guilt of, or a
judicial finding of eligibility for intervention in lieu of
conviction for, a felony;
(10) Commission of an act that constitutes a felony in this
state, regardless of the jurisdiction in which the act was
committed;
(11) A plea of guilty to, a judicial finding of guilt of, or
a judicial finding of eligibility for intervention in lieu of
conviction for, a misdemeanor committed in the course of practice;
(12) Commission of an act in the course of practice that
constitutes a misdemeanor in this state, regardless of the
jurisdiction in which the act was committed;
(13) A plea of guilty to, a judicial finding of guilt of, or
a judicial finding of eligibility for intervention in lieu of
conviction for, a misdemeanor involving moral turpitude;
(14) Commission of an act involving moral turpitude that
constitutes a misdemeanor in this state, regardless of the
jurisdiction in which the act was committed;
(15) Violation of the conditions of limitation placed by the
board upon a certificate to practice;
(16) Failure to pay license renewal fees specified in this
chapter;
(17) Except as authorized in section 4731.31 of the Revised
Code, engaging in the division of fees for referral of patients,
or the receiving of a thing of value in return for a specific
referral of a patient to utilize a particular service or business;
(18) Subject to section 4731.226 of the Revised Code,
violation of any provision of a code of ethics of the American
medical association, the American osteopathic association, the
American podiatric medical association, or any other national
professional organizations that the board specifies by rule. The
state medical board shall obtain and keep on file current copies
of the codes of ethics of the various national professional
organizations. The individual whose certificate is being suspended
or revoked shall not be found to have violated any provision of a
code of ethics of an organization not appropriate to the
individual's profession.
For purposes of this division, a "provision of a code of
ethics of a national professional organization" does not include
any provision that would preclude the making of a report by a
physician of an employee's use of a drug of abuse, or of a
condition of an employee other than one involving the use of a
drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing in
this division affects the immunity from civil liability conferred
by that section upon a physician who makes either type of report
in accordance with division (B) of that section. As used in this
division, "employee," "employer," and "physician" have the same
meanings as in section 2305.33 of the Revised Code.
(19) Inability to practice according to acceptable and
prevailing standards of care by reason of mental illness or
physical illness, including, but not limited to, physical
deterioration that adversely affects cognitive, motor, or
perceptive skills.
In enforcing this division, the board, upon a showing of a
possible violation, may compel any individual authorized to
practice by this chapter or who has submitted an application
pursuant to this chapter to submit to a mental examination,
physical examination, including an HIV test, or both a mental and
a physical examination. The expense of the examination is the
responsibility of the individual compelled to be examined. Failure
to submit to a mental or physical examination or consent to an HIV
test ordered by the board constitutes an admission of the
allegations against the individual unless the failure is due to
circumstances beyond the individual's control, and a default and
final order may be entered without the taking of testimony or
presentation of evidence. If the board finds an individual unable
to practice because of the reasons set forth in this division, the
board shall require the individual to submit to care, counseling,
or treatment by physicians approved or designated by the board, as
a condition for initial, continued, reinstated, or renewed
authority to practice. An individual affected under this division
shall be afforded an opportunity to demonstrate to the board the
ability to resume practice in compliance with acceptable and
prevailing standards under the provisions of the individual's
certificate. For the purpose of this division, any individual who
applies for or receives a certificate to practice under this
chapter accepts the privilege of practicing in this state and, by
so doing, shall be deemed to have given consent to submit to a
mental or physical examination when directed to do so in writing
by the board, and to have waived all objections to the
admissibility of testimony or examination reports that constitute
a privileged communication.
(20) Except when civil penalties are imposed under section
4731.225 or 4731.281 of the Revised Code, and subject to section
4731.226 of the Revised Code, violating or attempting to violate,
directly or indirectly, or assisting in or abetting the violation
of, or conspiring to violate, any provisions of this chapter or
any rule promulgated by the board.
This division does not apply to a violation or attempted
violation of, assisting in or abetting the violation of, or a
conspiracy to violate, any provision of this chapter or any rule
adopted by the board that would preclude the making of a report by
a physician of an employee's use of a drug of abuse, or of a
condition of an employee other than one involving the use of a
drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing in
this division affects the immunity from civil liability conferred
by that section upon a physician who makes either type of report
in accordance with division (B) of that section. As used in this
division, "employee," "employer," and "physician" have the same
meanings as in section 2305.33 of the Revised Code.
(21) The violation of section 3701.79 of the Revised Code or
of any abortion rule adopted by the public health council pursuant
to section 3701.341 of the Revised Code;
(22) Any of the following actions taken by an agency
responsible for authorizing, certifying, or regulating an
individual to practice a health care occupation or provide health
care services in this state or another jurisdiction, for any
reason other than the nonpayment of fees: the limitation,
revocation, or suspension of an individual's license to practice;
acceptance of an individual's license surrender; denial of a
license; refusal to renew or reinstate a license; imposition of
probation; or issuance of an order of censure or other reprimand;
(23) The violation of section 2919.12 of the Revised Code or
the performance or inducement of an abortion upon a pregnant woman
with actual knowledge that the conditions specified in division
(B) of section 2317.56 of the Revised Code have not been satisfied
or with a heedless indifference as to whether those conditions
have been satisfied, unless an affirmative defense as specified in
division (H)(2) of that section would apply in a civil action
authorized by division (H)(1) of that section;
(24) The revocation, suspension, restriction, reduction, or
termination of clinical privileges by the United States department
of defense or department of veterans affairs or the termination or
suspension of a certificate of registration to prescribe drugs by
the drug enforcement administration of the United States
department of justice;
(25) Termination or suspension from participation in the
medicare or medicaid programs by the department of health and
human services or other responsible agency for any act or acts
that also would constitute a violation of division (B)(2), (3),
(6), (8), or (19) of this section;
(26) Impairment of ability to practice according to
acceptable and prevailing standards of care because of habitual or
excessive use or abuse of drugs, alcohol, or other substances that
impair ability to practice.
For the purposes of this division, any individual authorized
to practice by this chapter accepts the privilege of practicing in
this state subject to supervision by the board. By filing an
application for or holding a certificate to practice under this
chapter, an individual shall be deemed to have given consent to
submit to a mental or physical examination when ordered to do so
by the board in writing, and to have waived all objections to the
admissibility of testimony or examination reports that constitute
privileged communications.
If it has reason to believe that any individual authorized to
practice by this chapter or any applicant for certification to
practice suffers such impairment, the board may compel the
individual to submit to a mental or physical examination, or both.
The expense of the examination is the responsibility of the
individual compelled to be examined. Any mental or physical
examination required under this division shall be undertaken by a
treatment provider or physician who is qualified to conduct the
examination and who is chosen by the board.
Failure to submit to a mental or physical examination ordered
by the board constitutes an admission of the allegations against
the individual unless the failure is due to circumstances beyond
the individual's control, and a default and final order may be
entered without the taking of testimony or presentation of
evidence. If the board determines that the individual's ability to
practice is impaired, the board shall suspend the individual's
certificate or deny the individual's application and shall require
the individual, as a condition for initial, continued, reinstated,
or renewed certification to practice, to submit to treatment.
Before being eligible to apply for reinstatement of a
certificate suspended under this division, the impaired
practitioner shall demonstrate to the board the ability to resume
practice in compliance with acceptable and prevailing standards of
care under the provisions of the practitioner's certificate. The
demonstration shall include, but shall not be limited to, the
following:
(a) Certification from a treatment provider approved under
section 4731.25 of the Revised Code that the individual has
successfully completed any required inpatient treatment;
(b) Evidence of continuing full compliance with an aftercare
contract or consent agreement;
(c) Two written reports indicating that the individual's
ability to practice has been assessed and that the individual has
been found capable of practicing according to acceptable and
prevailing standards of care. The reports shall be made by
individuals or providers approved by the board for making the
assessments and shall describe the basis for their determination.
The board may reinstate a certificate suspended under this
division after that demonstration and after the individual has
entered into a written consent agreement.
When the impaired practitioner resumes practice, the board
shall require continued monitoring of the individual. The
monitoring shall include, but not be limited to, compliance with
the written consent agreement entered into before reinstatement or
with conditions imposed by board order after a hearing, and, upon
termination of the consent agreement, submission to the board for
at least two years of annual written progress reports made under
penalty of perjury stating whether the individual has maintained
sobriety.
(27) A second or subsequent violation of section 4731.66 or
4731.69 of the Revised Code;
(28) Except as provided in division (N) of this section:
(a) Waiving the payment of all or any part of a deductible or
copayment that a patient, pursuant to a health insurance or health
care policy, contract, or plan that covers the individual's
services, otherwise would be required to pay if the waiver is used
as an enticement to a patient or group of patients to receive
health care services from that individual;
(b) Advertising that the individual will waive the payment of
all or any part of a deductible or copayment that a patient,
pursuant to a health insurance or health care policy, contract, or
plan that covers the individual's services, otherwise would be
required to pay.
(29) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4731.051 of
the Revised Code;
(30) Failure to provide notice to, and receive acknowledgment
of the notice from, a patient when required by section 4731.143 of
the Revised Code prior to providing nonemergency professional
services, or failure to maintain that notice in the patient's
file;
(31) Failure of a physician supervising a physician assistant
to maintain supervision in accordance with the requirements of
Chapter 4730. of the Revised Code and the rules adopted under that
chapter;
(32) Failure of a physician or podiatrist to enter into a
standard care arrangement with a clinical nurse specialist,
certified nurse-midwife, or certified nurse practitioner with whom
the physician or podiatrist is in collaboration pursuant to
section 4731.27 of the Revised Code or failure to fulfill the
responsibilities of collaboration after entering into a standard
care arrangement;
(33) Failure to comply with the terms of a consult agreement
entered into with a pharmacist pursuant to section 4729.39 of the
Revised Code;
(34) Failure to cooperate in an investigation conducted by
the board under division (F) of this section, including failure to
comply with a subpoena or order issued by the board or failure to
answer truthfully a question presented by the board at a
deposition or in written interrogatories, except that failure to
cooperate with an investigation shall not constitute grounds for
discipline under this section if a court of competent jurisdiction
has issued an order that either quashes a subpoena or permits the
individual to withhold the testimony or evidence in issue;
(35) Failure to supervise an acupuncturist in accordance with
Chapter 4762. of the Revised Code and the board's rules for
supervision of an acupuncturist;
(36) Failure to supervise an anesthesiologist assistant in
accordance with Chapter 4760. of the Revised Code and the board's
rules for supervision of an anesthesiologist assistant;
(37) Assisting suicide as defined in section 3795.01 of the
Revised Code;
(38) Failure to comply with the requirements of section
2317.561 of the Revised Code;
(39) Failure to supervise a radiologist assistant in
accordance with Chapter 4774. of the Revised Code and the board's
rules for supervision of radiologist assistants;
(40) Performing or inducing an abortion at an office or
facility with knowledge that the office or facility fails to post
the notice required under section 3701.791 of the Revised Code;
(41) Failure to comply with the standards and procedures
established in rules under section 4731.054 of the Revised Code
for the operation of or the provision of care at a pain management
clinic;
(42) Failure to comply with the standards and procedures
established in rules under section 4731.054 of the Revised Code
for providing supervision, direction, and control of individuals
at a pain management clinic;
(43) Failure to comply with the requirements of section
4729.79 of the Revised Code, unless the state board of pharmacy no
longer maintains a drug database pursuant to section 4729.75 of
the Revised Code;
(41)(44) Failure to comply with the requirements of section
2919.171 of the Revised Code or failure to submit to the
department of health in accordance with a court order a complete
report as described in section 2919.171 of the Revised Code;
(45) Failure to supervise a genetic counselor holding a
supervised practice license in accordance with Chapter 4778. of
the Revised Code and the board's rules for supervision of the
genetic counselor;
(46) Failure to fulfill the responsibilities of collaboration
after entering into a collaborative agreement with a genetic
counselor under division (B) of section 4778.11 of the Revised
Code or failure to comply with the board's rules regarding such
agreements.
(C) Disciplinary actions taken by the board under divisions
(A) and (B) of this section shall be taken pursuant to an
adjudication under Chapter 119. of the Revised Code, except that
in lieu of an adjudication, the board may enter into a consent
agreement with an individual to resolve an allegation of a
violation of this chapter or any rule adopted under it. A consent
agreement, when ratified by an affirmative vote of not fewer than
six members of the board, shall constitute the findings and order
of the board with respect to the matter addressed in the
agreement. If the board refuses to ratify a consent agreement, the
admissions and findings contained in the consent agreement shall
be of no force or effect.
A telephone conference call may be utilized for ratification
of a consent agreement that revokes or suspends an individual's
certificate to practice. The telephone conference call shall be
considered a special meeting under division (F) of section 121.22
of the Revised Code.
If the board takes disciplinary action against an individual
under division (B) of this section for a second or subsequent plea
of guilty to, or judicial finding of guilt of, a violation of
section 2919.123 of the Revised Code, the disciplinary action
shall consist of a suspension of the individual's certificate to
practice for a period of at least one year or, if determined
appropriate by the board, a more serious sanction involving the
individual's certificate to practice. Any consent agreement
entered into under this division with an individual that pertains
to a second or subsequent plea of guilty to, or judicial finding
of guilt of, a violation of that section shall provide for a
suspension of the individual's certificate to practice for a
period of at least one year or, if determined appropriate by the
board, a more serious sanction involving the individual's
certificate to practice.
(D) For purposes of divisions (B)(10), (12), and (14) of this
section, the commission of the act may be established by a finding
by the board, pursuant to an adjudication under Chapter 119. of
the Revised Code, that the individual committed the act. The board
does not have jurisdiction under those divisions if the trial
court renders a final judgment in the individual's favor and that
judgment is based upon an adjudication on the merits. The board
has jurisdiction under those divisions if the trial court issues
an order of dismissal upon technical or procedural grounds.
(E) The sealing of conviction records by any court shall have
no effect upon a prior board order entered under this section or
upon the board's jurisdiction to take action under this section
if, based upon a plea of guilty, a judicial finding of guilt, or a
judicial finding of eligibility for intervention in lieu of
conviction, the board issued a notice of opportunity for a hearing
prior to the court's order to seal the records. The board shall
not be required to seal, destroy, redact, or otherwise modify its
records to reflect the court's sealing of conviction records.
(F)(1) The board shall investigate evidence that appears to
show that a person has violated any provision of this chapter or
any rule adopted under it. Any person may report to the board in a
signed writing any information that the person may have that
appears to show a violation of any provision of this chapter or
any rule adopted under it. In the absence of bad faith, any person
who reports information of that nature or who testifies before the
board in any adjudication conducted under Chapter 119. of the
Revised Code shall not be liable in damages in a civil action as a
result of the report or testimony. Each complaint or allegation of
a violation received by the board shall be assigned a case number
and shall be recorded by the board.
(2) Investigations of alleged violations of this chapter or
any rule adopted under it shall be supervised by the supervising
member elected by the board in accordance with section 4731.02 of
the Revised Code and by the secretary as provided in section
4731.39 of the Revised Code. The president may designate another
member of the board to supervise the investigation in place of the
supervising member. No member of the board who supervises the
investigation of a case shall participate in further adjudication
of the case.
(3) In investigating a possible violation of this chapter or
any rule adopted under this chapter, the board may administer
oaths, order the taking of depositions, inspect and copy any
books, accounts, papers, records, or documents, issue subpoenas,
and compel the attendance of witnesses and production of books,
accounts, papers, records, documents, and testimony, except that a
subpoena for patient record information shall not be issued
without consultation with the attorney general's office and
approval of the secretary and supervising member of the board.
Before issuance of a subpoena for patient record information, the
secretary and supervising member shall determine whether there is
probable cause to believe that the complaint filed alleges a
violation of this chapter or any rule adopted under it and that
the records sought are relevant to the alleged violation and
material to the investigation. The subpoena may apply only to
records that cover a reasonable period of time surrounding the
alleged violation.
On failure to comply with any subpoena issued by the board
and after reasonable notice to the person being subpoenaed, the
board may move for an order compelling the production of persons
or records pursuant to the Rules of Civil Procedure.
A subpoena issued by the board may be served by a sheriff,
the sheriff's deputy, or a board employee designated by the board.
Service of a subpoena issued by the board may be made by
delivering a copy of the subpoena to the person named therein,
reading it to the person, or leaving it at the person's usual
place of residence. When the person being served is a person whose
practice is authorized by this chapter, service of the subpoena
may be made by certified mail, restricted delivery, return receipt
requested, and the subpoena shall be deemed served on the date
delivery is made or the date the person refuses to accept
delivery.
A sheriff's deputy who serves a subpoena shall receive the
same fees as a sheriff. Each witness who appears before the board
in obedience to a subpoena shall receive the fees and mileage
provided for under section 119.094 of the Revised Code.
(4) All hearings and investigations of the board shall be
considered civil actions for the purposes of section 2305.252 of
the Revised Code.
(5) Information received by the board pursuant to an
investigation is confidential and not subject to discovery in any
civil action.
The board shall conduct all investigations and proceedings in
a manner that protects the confidentiality of patients and persons
who file complaints with the board. The board shall not make
public the names or any other identifying information about
patients or complainants unless proper consent is given or, in the
case of a patient, a waiver of the patient privilege exists under
division (B) of section 2317.02 of the Revised Code, except that
consent or a waiver of that nature is not required if the board
possesses reliable and substantial evidence that no bona fide
physician-patient relationship exists.
The board may share any information it receives pursuant to
an investigation, including patient records and patient record
information, with law enforcement agencies, other licensing
boards, and other governmental agencies that are prosecuting,
adjudicating, or investigating alleged violations of statutes or
administrative rules. An agency or board that receives the
information shall comply with the same requirements regarding
confidentiality as those with which the state medical board must
comply, notwithstanding any conflicting provision of the Revised
Code or procedure of the agency or board that applies when it is
dealing with other information in its possession. In a judicial
proceeding, the information may be admitted into evidence only in
accordance with the Rules of Evidence, but the court shall require
that appropriate measures are taken to ensure that confidentiality
is maintained with respect to any part of the information that
contains names or other identifying information about patients or
complainants whose confidentiality was protected by the state
medical board when the information was in the board's possession.
Measures to ensure confidentiality that may be taken by the court
include sealing its records or deleting specific information from
its records.
(6) On a quarterly basis, the board shall prepare a report
that documents the disposition of all cases during the preceding
three months. The report shall contain the following information
for each case with which the board has completed its activities:
(a) The case number assigned to the complaint or alleged
violation;
(b) The type of certificate to practice, if any, held by the
individual against whom the complaint is directed;
(c) A description of the allegations contained in the
complaint;
(d) The disposition of the case.
The report shall state how many cases are still pending and
shall be prepared in a manner that protects the identity of each
person involved in each case. The report shall be a public record
under section 149.43 of the Revised Code.
(G) If the secretary and supervising member determine both of
the following, they may recommend that the board suspend an
individual's certificate to practice without a prior hearing:
(1) That there is clear and convincing evidence that an
individual has violated division (B) of this section;
(2) That the individual's continued practice presents a
danger of immediate and serious harm to the public.
Written allegations shall be prepared for consideration by
the board. The board, upon review of those allegations and by an
affirmative vote of not fewer than six of its members, excluding
the secretary and supervising member, may suspend a certificate
without a prior hearing. A telephone conference call may be
utilized for reviewing the allegations and taking the vote on the
summary suspension.
The board shall issue a written order of suspension by
certified mail or in person in accordance with section 119.07 of
the Revised Code. The order shall not be subject to suspension by
the court during pendency of any appeal filed under section 119.12
of the Revised Code. If the individual subject to the summary
suspension requests an adjudicatory hearing by the board, the date
set for the hearing shall be within fifteen days, but not earlier
than seven days, after the individual requests the hearing, unless
otherwise agreed to by both the board and the individual.
Any summary suspension imposed under this division shall
remain in effect, unless reversed on appeal, until a final
adjudicative order issued by the board pursuant to this section
and Chapter 119. of the Revised Code becomes effective. The board
shall issue its final adjudicative order within seventy-five days
after completion of its hearing. A failure to issue the order
within seventy-five days shall result in dissolution of the
summary suspension order but shall not invalidate any subsequent,
final adjudicative order.
(H) If the board takes action under division (B)(9), (11), or
(13) of this section and the judicial finding of guilt, guilty
plea, or judicial finding of eligibility for intervention in lieu
of conviction is overturned on appeal, upon exhaustion of the
criminal appeal, a petition for reconsideration of the order may
be filed with the board along with appropriate court documents.
Upon receipt of a petition of that nature and supporting court
documents, the board shall reinstate the individual's certificate
to practice. The board may then hold an adjudication under Chapter
119. of the Revised Code to determine whether the individual
committed the act in question. Notice of an opportunity for a
hearing shall be given in accordance with Chapter 119. of the
Revised Code. If the board finds, pursuant to an adjudication held
under this division, that the individual committed the act or if
no hearing is requested, the board may order any of the sanctions
identified under division (B) of this section.
(I) The certificate to practice issued to an individual under
this chapter and the individual's practice in this state are
automatically suspended as of the date of the individual's second
or subsequent plea of guilty to, or judicial finding of guilt of,
a violation of section 2919.123 of the Revised Code, or the date
the individual pleads guilty to, is found by a judge or jury to be
guilty of, or is subject to a judicial finding of eligibility for
intervention in lieu of conviction in this state or treatment or
intervention in lieu of conviction in another jurisdiction for any
of the following criminal offenses in this state or a
substantially equivalent criminal offense in another jurisdiction:
aggravated murder, murder, voluntary manslaughter, felonious
assault, kidnapping, rape, sexual battery, gross sexual
imposition, aggravated arson, aggravated robbery, or aggravated
burglary. Continued practice after suspension shall be considered
practicing without a certificate.
The board shall notify the individual subject to the
suspension by certified mail or in person in accordance with
section 119.07 of the Revised Code. If an individual whose
certificate is automatically suspended under this division fails
to make a timely request for an adjudication under Chapter 119. of
the Revised Code, the board shall do whichever of the following is
applicable:
(1) If the automatic suspension under this division is for a
second or subsequent plea of guilty to, or judicial finding of
guilt of, a violation of section 2919.123 of the Revised Code, the
board shall enter an order suspending the individual's certificate
to practice for a period of at least one year or, if determined
appropriate by the board, imposing a more serious sanction
involving the individual's certificate to practice.
(2) In all circumstances in which division (I)(1) of this
section does not apply, enter a final order permanently revoking
the individual's certificate to practice.
(J) If the board is required by Chapter 119. of the Revised
Code to give notice of an opportunity for a hearing and if the
individual subject to the notice does not timely request a hearing
in accordance with section 119.07 of the Revised Code, the board
is not required to hold a hearing, but may adopt, by an
affirmative vote of not fewer than six of its members, a final
order that contains the board's findings. In that final order, the
board may order any of the sanctions identified under division (A)
or (B) of this section.
(K) Any action taken by the board under division (B) of this
section resulting in a suspension from practice shall be
accompanied by a written statement of the conditions under which
the individual's certificate to practice may be reinstated. The
board shall adopt rules governing conditions to be imposed for
reinstatement. Reinstatement of a certificate suspended pursuant
to division (B) of this section requires an affirmative vote of
not fewer than six members of the board.
(L) When the board refuses to grant a certificate to an
applicant, revokes an individual's certificate to practice,
refuses to register an applicant, or refuses to reinstate an
individual's certificate to practice, the board may specify that
its action is permanent. An individual subject to a permanent
action taken by the board is forever thereafter ineligible to hold
a certificate to practice and the board shall not accept an
application for reinstatement of the certificate or for issuance
of a new certificate.
(M) Notwithstanding any other provision of the Revised Code,
all of the following apply:
(1) The surrender of a certificate issued under this chapter
shall not be effective unless or until accepted by the board. A
telephone conference call may be utilized for acceptance of the
surrender of an individual's certificate to practice. The
telephone conference call shall be considered a special meeting
under division (F) of section 121.22 of the Revised Code.
Reinstatement of a certificate surrendered to the board requires
an affirmative vote of not fewer than six members of the board.
(2) An application for a certificate made under the
provisions of this chapter may not be withdrawn without approval
of the board.
(3) Failure by an individual to renew a certificate of
registration in accordance with this chapter shall not remove or
limit the board's jurisdiction to take any disciplinary action
under this section against the individual.
(N) Sanctions shall not be imposed under division (B)(28) of
this section against any person who waives deductibles and
copayments as follows:
(1) In compliance with the health benefit plan that expressly
allows such a practice. Waiver of the deductibles or copayments
shall be made only with the full knowledge and consent of the plan
purchaser, payer, and third-party administrator. Documentation of
the consent shall be made available to the board upon request.
(2) For professional services rendered to any other person
authorized to practice pursuant to this chapter, to the extent
allowed by this chapter and rules adopted by the board.
(O) Under the board's investigative duties described in this
section and subject to division (F) of this section, the board
shall develop and implement a quality intervention program
designed to improve through remedial education the clinical and
communication skills of individuals authorized under this chapter
to practice medicine and surgery, osteopathic medicine and
surgery, and podiatric medicine and surgery. In developing and
implementing the quality intervention program, the board may do
all of the following:
(1) Offer in appropriate cases as determined by the board an
educational and assessment program pursuant to an investigation
the board conducts under this section;
(2) Select providers of educational and assessment services,
including a quality intervention program panel of case reviewers;
(3) Make referrals to educational and assessment service
providers and approve individual educational programs recommended
by those providers. The board shall monitor the progress of each
individual undertaking a recommended individual educational
program.
(4) Determine what constitutes successful completion of an
individual educational program and require further monitoring of
the individual who completed the program or other action that the
board determines to be appropriate;
(5) Adopt rules in accordance with Chapter 119. of the
Revised Code to further implement the quality intervention
program.
An individual who participates in an individual educational
program pursuant to this division shall pay the financial
obligations arising from that educational program.
Sec. 4731.222. Before restoring to good standing (A) This
section applies to both of the following:
(1) An applicant seeking restoration of a certificate issued
under this chapter that has been in a suspended or inactive state
for any cause for more than two years, or before issuing;
(2) An applicant seeking issuance of a certificate pursuant
to section 4731.29, 4731.295, 4731.57, or 4731.571 of the Revised
Code to an applicant who for more than two years has not been
engaged in the practice of medicine and surgery, osteopathic
medicine and surgery, podiatric medicine and surgery, or a limited
branch of medicine as an any of the following:
(a) An active practitioner, as a;
(b) A participant in a program of graduate medical education,
as defined in section 4731.091 of the Revised Code, as a;
(c) A student in a college of podiatry determined by the
state medical board to be in good standing, or as a;
(d) A student in a school, college, or institution giving
instruction in a limited branch of medicine determined by the
board to be in good standing under section 4731.19 4731.16 of the
Revised Code, the state medical board may require the applicant to
pass an oral or written examination, or both, to determine the
applicant's present fitness to resume practice.
The authority of (B) Before restoring a certificate to good
standing for or issuing a certificate to an applicant subject to
this section, the state medical board to may impose terms and
conditions
includes including the following:
(A)(1) Requiring the applicant to pass an oral or written
examination, or both, to determine the applicant's present fitness
to resume practice;
(2) Requiring the applicant to obtain additional training and
to pass an examination upon completion of such training;
(B)(3) Restricting or limiting the extent, scope, or type of
practice of the applicant.
The board shall consider the moral background and the
activities of the applicant during the period of suspension or
inactivity, in accordance with section 4731.08 of the Revised
Code. The board shall not restore a certificate under this section
unless the applicant complies with sections 4776.01 to 4776.04 of
the Revised Code.
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. 4731.293. (A) The state medical board may issue,
without examination, a visiting medical clinical research faculty
certificate to any person who applies for the certificate and
provides to the board all of the following:
(1) Evidence satisfactory to the board of all of the
following:
(a) That the applicant holds a current, unrestricted license
to practice medicine and surgery or osteopathic medicine and
surgery issued by another state or country and;
(b) That the applicant has been appointed to serve in this
state on the academic staff of a medical school accredited by the
liaison committee on medical education or an osteopathic medical
school accredited by the American osteopathic association;
(c) That the applicant is an international medical graduate
who holds a medical degree from an educational institution listed
in the international medical education directory.
(2) An affidavit and supporting documentation from the dean
of the medical school or the department director or chairperson of
a teaching hospital affiliated with the school that the applicant
is qualified to perform teaching and research activities and will
be permitted to work only under the authority of the department
director or chairperson of a teaching hospital affiliated with the
medical school where the applicant's teaching and research
activities will occur;
(3) A description from the medical school or teaching
hospital of the scope of practice in which the applicant will be
involved, including the types of teaching, research, and
procedures in which the applicant will be engaged;
(4) A description from the medical school or teaching
hospital of the type and amount of patient contact that will occur
in connection with the applicant's teaching and research
activities. Except as provided in division (E) of this section,
the board shall not issue more than one visiting medical faculty
certificate to any particular person.
(B) An applicant for a visiting medical an initial clinical
research faculty certificate
shall submit evidence satisfactory
to the board that the applicant meets the requirements of division
(A) of this section. The applicant shall pay a fee of three
hundred seventy-five dollars.
The board shall maintain a register
of all persons who hold a visiting medical faculty certificate.
(C) The holder of a visiting medical clinical research
faculty certificate may practice medicine and surgery or
osteopathic medicine and surgery only as is incidental to the
certificate holder's teaching or research duties at the medical
school or
the a teaching hospitals hospital affiliated with the
school. The board may revoke a certificate on receiving proof
satisfactory to the board that the certificate holder of the
certificate has engaged in practice in this state outside the
scope of the certificate or that there are grounds for action
against the certificate holder under section 4731.22 of the
Revised Code.
(D) A visiting medical clinical research faculty certificate
is valid for
the shorter of three years or the duration of, except
that the certificate ceases to be valid if the holder's
appointment to the academic staff of the school is no longer valid
or the certificate is revoked pursuant to division (C) of this
section. The certificate may not be renewed.
(E) If a person was granted a visiting medical faculty
certificate before the effective date of this amendment, the
person may apply for a second visiting medical faculty
certificate, unless the person's first certificate was revoked.
The board may issue the second certificate if the applicant
complies with division (B) of this section (1) Three months before
a clinical research faculty certificate expires, the board shall
mail or cause to be mailed to the certificate holder a notice of
renewal addressed to the certificate holder's last known address.
Failure of a certificate holder to receive a notice of renewal
from the board shall not excuse the certificate holder from the
requirements contained in this section. The notice shall inform
the certificate holder of the renewal procedure. The notice also
shall inform the certificate holder of the reporting requirement
established by division (H) of section 3701.79 of the Revised
Code. At the discretion of the board, the information may be
included on the application for renewal or on an accompanying
page.
(2) A clinical research faculty certificate may be renewed
for an additional three-year period. There is no limit on the
number of times a certificate may be renewed. A person seeking
renewal of a certificate shall apply to the board. The board shall
provide the application for renewal in a form determined by the
board.
(3) An applicant is eligible for renewal if the applicant
does all of the following:
(a) Pays a renewal fee of three hundred seventy-five dollars;
(b) Reports any criminal offense 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 filing an application for a
clinical research faculty certificate;
(c) Provides to the board an affidavit and supporting
documentation from the dean of the medical school or the
department director or chairperson of a teaching hospital
affiliated with the school that the applicant is in compliance
with the applicant's current clinical research faculty
certificate;
(d) Provides evidence satisfactory to the board of all of the
following:
(i) That the applicant continues to maintain a current,
unrestricted license to practice medicine and surgery or
osteopathic medicine and surgery issued by another state or
country;
(ii) That the applicant's initial appointment to serve in
this state on the academic staff of a medical school is still
valid or has been renewed;
(iii) That the applicant has completed one hundred fifty
hours of continuing medical education that meet the requirements
set forth in section 4731.281 of the Revised Code.
(4) Regardless of whether the certificate has expired, a
person who was granted a visiting medical faculty certificate
under this section as it existed immediately prior to the
effective date of this amendment may apply for a clinical research
faculty certificate as a renewal. The board may issue the clinical
research faculty certificate if the applicant meets the
requirements of division (E)(3) of this section. The board may not
issue a clinical research faculty certificate if the visiting
medical faculty certificate was revoked.
(F) The board shall maintain a register of all persons who
hold clinical research faculty certificates.
(G) The board may adopt any rules it considers necessary to
implement this section. The rules shall be adopted in accordance
with Chapter 119. of the Revised Code.
Sec. 4731.297. (A) The state medical board shall issue,
without examination, to an applicant who meets the requirements of
this section a visiting clinical professional development
certificate authorizing the practice of medicine and surgery or
osteopathic medicine and surgery as part of the applicant's
participation in a clinical professional development program.
(B) To be eligible for a visiting clinical professional
development certificate, an applicant shall provide to the board
both of the following:
(1) Documentation satisfactory to the board of all of the
following:
(a) Verification from the school or hospital conducting the
program that the applicant has sufficient financial resources to
support the applicant and any dependents based on the cost of
living in the geographic area of the school or hospital conducting
the program, including room, board, transportation, and related
living expenses;
(b) Valid health and evacuation insurance for the duration of
the applicant's stay in the United States;
(c) Professional liability insurance provided by the program
or the school or hospital conducting the program for the duration
of the applicant's participation in the program;
(d) Proficiency in spoken English as demonstrated by passing
the examination described in section 4731.142 of the Revised Code;
(e) A description from the school or hospital conducting the
program of the scope of medical or surgical activities permitted
during the applicant's participation in the program that includes
all of the following:
(i) The type of practice in which the applicant will be
involved;
(ii) The type of patient contact that will occur;
(iii) The type of supervision the applicant will experience;
(iv) A list of procedures the applicant will learn;
(v) A list of any patient-based research projects in which
the applicant will be involved;
(vi) Whether the applicant will act as a consultant to a
person who holds a certificate to practice medicine and surgery or
osteopathic medicine and surgery issued under this chapter;
(vii) Any other details of the applicant's participation in
the program.
(f) A statement from the school or hospital conducting the
program regarding why the applicant needs advanced training and
the benefits to the applicant's home country of the applicant
receiving the training.
(2) Evidence satisfactory to the board that the applicant
meets all of the following requirements:
(a) Has been accepted for participation in a clinical
professional development program of a medical school or
osteopathic medical school in this state that is accredited by the
liaison committee on medical education or the American osteopathic
association or of a teaching hospital affiliated with such a
medical school;
(b) Is an international medical graduate who holds a medical
degree from an educational institution listed in the international
medical education directory;
(c) Has practiced medicine and surgery or osteopathic
medicine and surgery for at least five years after completing
graduate medical education, including postgraduate residency and
advanced training;
(d) Has credentials that are primary-source verified by the
educational commission for foreign medical graduates or the
federation credentials verification service;
(e) Holds a current, unrestricted license to practice
medicine and surgery or osteopathic medicine and surgery issued in
another country;
(f) Agrees to comply with all state and federal laws
regarding health, health care, and patient privacy;
(g) Agrees to return to the applicant's home state or country
at the conclusion of the clinical professional development
program.
(C) The applicant shall pay a fee of three hundred
seventy-five dollars. The board shall maintain a register of all
persons who hold visiting clinical professional development
certificates.
(D) The holder of a visiting clinical professional
development certificate may practice medicine and surgery or
osteopathic medicine and surgery only as part of the clinical
professional development program in which the certificate holder
participates. The certificate holder's practice must be under the
direct supervision of a qualified faculty member of the medical
school, osteopathic medical school, or teaching hospital
conducting the program who holds a certificate to practice
medicine and surgery or osteopathic medicine and surgery issued
under this chapter.
The program in which the certificate holder participates
shall ensure that the certificate holder does not do any of the
following:
(1) Write orders or prescribe medication;
(2) Bill for services performed;
(3) Occupy a residency or fellowship position approved by the
accreditation council for graduate medical education;
(4) Attempt to have participation in a clinical professional
development program pursuant to this section counted toward
meeting the graduate medical education requirements specified in
section 4731.091 of the Revised Code.
(E) The board may revoke a certificate issued under this
section on receiving proof satisfactory to the board that the
certificate holder has engaged in practice in this state outside
the scope of the certificate or that there are grounds for action
against the certificate holder under section 4731.22 of the
Revised Code.
(F) A visiting clinical professional development certificate
is valid for the shorter of one year or the duration of the
program in which the holder is participating. The certificate
ceases to be valid if the holder resigns or is otherwise
terminated from the program. The certificate may not be extended.
(G) The program in which a certificate holder participates
shall obtain from each patient or patient's parent or legal
guardian written consent to any medical or surgical procedure or
course of procedures in which the certificate holder participates.
(H) The board may adopt any rules it considers necessary to
implement this section. The rules shall be adopted in accordance
with Chapter 119. of the Revised Code.
Sec. 4778.01. As used in this chapter:
(A) "American board of genetic counseling" means the
organization known by that name, its successor organization, or an
equivalent organization recognized by the state medical board.
(B) "American board of medical genetics" means the
organization known by that name, its successor organization, or an
equivalent organization recognized by the state medical board.
(C) "Certified genetic counselor" means either of the
following:
(1) An individual who possesses the certified genetic
counselor credential from the American board of genetic
counseling;
(2) An individual who is a diplomate of the American board of
medical genetics.
(D) "Collaborating physician" means a physician who has
entered into a collaborative agreement with a genetic counselor
under division (B) of section 4778.11 of the Revised Code.
(E) "Collaborative agreement" means the document that is
established under division (B) of section 4778.11 of the Revised
Code by a genetic counselor and the genetic counselor's
collaborating physician.
(F) "Genetic counselor" means an individual who engages in
any of the activities authorized under section 4778.11 of the
Revised Code.
(G) "National society of genetic counselors" means the
organization known by that name, its successor organization, or an
equivalent organization recognized by the state medical board.
(H) "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)(1) Except as provided in division (B) of
this section, no person shall practice as a genetic counselor
unless the person holds a current, valid license to practice as a
genetic counselor issued under this chapter.
(2) No person shall use the title "genetic counselor," or
otherwise hold the person out as a genetic counselor, unless the
person holds a current, valid license to practice as a genetic
counselor issued under this chapter.
(B) Division (A)(1) of this section does not apply to either
of the following:
(1) A student performing an activity as part of a genetic
counseling graduate program described in division (B)(2) of
section 4778.03 of the Revised Code;
(2) A person who is authorized pursuant to another provision
of the Revised Code to perform any of the activities that a
genetic counselor is authorized to perform.
Sec. 4778.03. (A) An individual seeking a license to
practice as a genetic counselor shall file with the state medical
board an application in a manner prescribed 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 an application fee of two hundred dollars. No part
of the fee shall be returned to the applicant or transferred for
purposes of another application.
(B) To be eligible to receive a license to practice as a
genetic counselor, an applicant shall demonstrate to the board
that the applicant meets all of the following requirements:
(1) Is at least eighteen years of age and of good moral
character;
(2) Has attained a master's degree or higher degree from a
genetic counseling graduate program accredited by the American
board of genetic counseling, inc.;
(3) Is a certified genetic counselor;
(4) Has 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 to determine that the
applicant meets the requirements for the license.
Sec. 4778.04. In addition to any other eligibility
requirement set forth in this chapter, 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 to an applicant a license to practice as a
genetic counselor unless the board, in its discretion, decides
that the results of the criminal records check do not make the
applicant ineligible for a license issued pursuant to section
4778.05 of the Revised Code.
Sec. 4778.05. If the state medical board determines under
section 4778.03 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.
The license shall expire biennially and may be renewed in
accordance with section 4778.06 of the Revised Code.
Sec. 4778.06. (A) An individual seeking to renew a license to
practice as a genetic counselor shall, on or before the
thirty-first day of January of each even-numbered year, apply for
renewal of the license. The state medical board shall send renewal
notices at least one month prior to the expiration date.
Renewal applications shall be submitted to the board in a
manner prescribed by the board. Each application shall be
accompanied by a biennial renewal fee of one hundred fifty
dollars.
The applicant shall report any criminal offense 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 license to practice as a genetic counselor.
(B) To be eligible for renewal, a genetic counselor shall
certify to the board that the counselor has done both of the
following:
(1) Maintained the counselor's status as a certified genetic
counselor;
(2) Completed at least thirty hours of continuing education
in genetic counseling that has been approved by the national
society of genetic counselors or American board of genetic
counseling.
(C) If an applicant submits a renewal application that the
board considers to be complete and qualifies for renewal pursuant
to division (B) of this section, the board shall issue to the
applicant a renewed license to practice as a genetic counselor.
(D) The board may require a random sample of genetic
counselors to submit materials documenting that their status as
certified genetic counselors has been maintained and that the
number of hours of continuing education required under division
(B)(2) of this section has been completed.
If a genetic counselor certifies that the genetic counselor
has completed the number of hours and type of continuing education
required for renewal of a license, and the board finds through the
random sample or any other means that the genetic counselor did
not complete the requisite continuing education, the board may
impose a civil penalty of not more than five thousand dollars. The
board's finding shall be made pursuant to an adjudication under
Chapter 119. of the Revised Code and by an affirmative vote of not
fewer than six members. A civil penalty imposed under this
division may be in addition to or in lieu of any other action the
board may take under section 4778.14 of the Revised Code.
Sec. 4778.07. (A) A license to practice as a genetic
counselor issued under section 4778.05 of the Revised Code that is
not renewed on or before its expiration date is automatically
suspended on its expiration date. Continued practice after
suspension shall be considered as practicing in violation of
section 4778.02 of the Revised Code.
(B) If a license has been suspended pursuant to this section
for two years or less, the board shall reinstate the license upon
an applicant's submission of a complete renewal application, the
biennial renewal fee, and a monetary penalty of twenty-five
dollars.
(C)(1) If a license has been suspended pursuant to this
section for more than two years, it may be restored upon an
applicant's submission of a complete restoration application, the
biennial renewal fee, and a monetary penalty of fifty dollars and
compliance with sections 4776.01 to 4776.04 of the Revised Code.
The board shall not restore a license unless the board, in its
discretion, decides that the results of the criminal records check
do not make the applicant ineligible for a license issued pursuant
to section 4778.05 of the Revised Code.
(2) The board may impose terms and conditions for the
restoration, including the following:
(a) Requiring the applicant to pass an oral or written
examination, or both, to determine the applicant's present fitness
to resume practice;
(b) Requiring the applicant to obtain additional training and
to pass an examination upon completion of such training;
(c) Restricting or limiting the extent, scope, or type of
practice of the applicant.
Sec. 4778.08. (A) The state medical board may issue to an
applicant under section 4778.03 of the Revised Code a license to
practice as a genetic counselor, designated as a supervised
practice license, if both of the following apply:
(1) The applicant meets the requirements specified in section
4778.03 of the Revised Code other than being a certified genetic
counselor;
(2) The applicant is in active candidate status with the
American board of genetic counseling.
(B) A supervised practice license authorizes the holder to
engage in the activities authorized by section 4778.11 of the
Revised Code while the holder is under the general supervision of
a genetic counselor licensed under section 4778.05 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 supervised practice 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 4778.05 of the Revised Code. A
supervised practice license may not be renewed.
Sec. 4778.09. (A) The state medical board may issue a license
to practice as a genetic counselor, designated as a special
activity license, to an individual from another state seeking to
practice in this state genetic counseling associated with a rare
disease.
(B) An applicant for a special activity license shall submit
to the board all of the following information:
(1) Evidence that the applicant holds a current, unrestricted
license to practice genetic counseling issued by another state or,
if the applicant practices genetic counseling in another state
that does not license genetic counselors, evidence that the
applicant is a certified genetic counselor;
(2) Evidence that the applicant has actively practiced
genetic counseling within the two-year period immediately
preceding application;
(3) The name of the applicant's sponsoring institution or
organization, a statement of need for genetic counseling from the
sponsoring institution or organization, and the name of the rare
disease for which the applicant will be practicing genetic
counseling in this state.
(C) At the time an application is submitted, the applicant
shall pay a fee of twenty-five dollars. No part of the fee shall
be returned to the applicant or transferred for purposes of
another application.
(D) A special activity license is valid for the shorter of
thirty days or the duration of the genetic counseling associated
with the rare disease for which the license was issued. The
license may not be renewed.
(E) The holder of a special activity license may practice
genetic counseling only to the extent that it is associated with
the rare disease for which the license was issued. The license
holder shall not bill a patient or any third party payer for
genetic counseling provided in this state.
(F) The board may revoke a special activity license on
receiving proof satisfactory to the board that the holder of the
license has engaged in practice in this state outside the scope of
the license or that there are grounds for action against the
license holder under section 4778.14 of the Revised Code.
Sec. 4778.10. 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. 4778.11. (A) 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, perform the
activities specified in division (B) of this section.
(B) A genetic counselor may enter into a collaborative
agreement with a physician who agrees to work with and provide
medical support to the genetic counselor. The agreement shall be
established as a written, formal document that memorializes the
relationship between the genetic counselor and the physician and
establishes the criteria governing the genetic counselor's
performance of both of the following:
(1) 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;
(2) Select the most appropriate, accurate, and cost-effective
methods of diagnosis.
Sec. 4778.12. The state medical board shall adopt rules in
accordance with Chapter 119. of the Revised Code to implement and
administer this chapter. The rules shall include the following:
(A) Any standards and procedures not addressed in this
chapter that the board considers necessary for issuing and
renewing licenses under this chapter;
(B) Any standards and procedures the board considers
necessary to govern the practice of genetic counselors, the
collaborative agreements between genetic counselors and
collaborating physicians, and the supervision of genetic
counselors holding supervised practice licenses;
(C) Any other standards and procedures the board considers
necessary for the administration and enforcement of this chapter.
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 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.
(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 to practice as a genetic
counselor, refuse to issue a license to an applicant, refuse to
reinstate a license, or reprimand or place on probation the holder
of a license for any of the following reasons:
(1) Permitting the holder's name or 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 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 an agency
responsible for authorizing, certifying, or regulating an
individual to practice a health care occupation or provide health
care services in this state or 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 to practice as a genetic counselor;
(19) 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;
(20) Failure to maintain the individual's status as a
certified genetic counselor;
(21) Failure to comply with the code of ethics established by
the national society of genetic counselors.
(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.
A telephone conference call may be utilized for ratification
of a consent agreement that revokes or suspends an individual's
license. The telephone conference call shall be considered a
special meeting under division (F) of section 121.22 of the
Revised Code.
(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 or 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 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 or took other formal action under
Chapter 119. of the Revised Code 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 to practice as a genetic counselor, or applies for a
license, shall be deemed to have given consent to submit to a
mental or physical examination when directed to do so in writing
by the board and to have waived all objections to the
admissibility of testimony or examination reports that constitute
a privileged communication.
(1) In enforcing division (B)(5) of this section, the board,
on a showing of a possible violation, may compel any individual
who holds a license to practice as a genetic counselor or who has
applied for a license to practice as a genetic counselor 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 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 to practice as a genetic counselor or any applicant for a
license suffers such impairment, the board may compel the
individual to submit to a mental or physical examination, or both.
The expense of the examination is the responsibility of the
individual compelled to be examined. Any mental or physical
examination required under this division shall be undertaken by a
treatment provider or physician qualified to conduct such
examination and chosen by the board.
Failure to submit to a mental or physical examination ordered
by the board constitutes an admission of the allegations against
the individual unless the failure is due to circumstances beyond
the individual's control, and a default and final order may be
entered without the taking of testimony or presentation of
evidence. If the board determines that the individual's ability to
practice is impaired, the board shall suspend the individual's
license or deny the individual's application and shall require the
individual, as a condition for an initial, continued, reinstated,
or renewed license, to submit to treatment.
Before being eligible to apply for reinstatement of a 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 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 both of
the following, they may recommend that the board suspend an
individual's license to practice without a prior hearing:
(1) That there is clear and convincing evidence that a
genetic counselor has violated division (B) of this section;
(2) That the individual's continued practice presents a
danger of immediate and serious harm to the public.
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
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 genetic counselor.
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 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 to practice as 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.
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
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 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 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 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 to practice as
a genetic counselor to an applicant, revokes an individual's
license, refuses to renew a license, or refuses to reinstate an
individual's 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 to
practice as a genetic counselor and the board shall not accept an
application for reinstatement of the license or for issuance of a
new license.
(M) Notwithstanding any other provision of the Revised Code,
all of the following apply:
(1) The surrender of a license to practice as a genetic
counselor is not effective unless or until accepted by the board.
A telephone conference call may be utilized for acceptance of the
surrender of an individual's license. The telephone conference
call shall be considered a special meeting under division (F) of
section 121.22 of the Revised Code. Reinstatement of a 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 to
practice may not be withdrawn without approval of the board.
(3) Failure by an individual to renew a license in accordance
with section 4778.06 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 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 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 to practice is
adjudged by a probate court to be mentally ill or mentally
incompetent, the person's 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 in the
margin of the court's record of such 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, inspect and copy any books, accounts,
papers, records, or documents, 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 commission 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 to
practice as a genetic counselor 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 as a genetic counselor, 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
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 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 4731.07, 4731.19, 4731.22,
4731.222, 4731.224, 4731.24, 4731.25, and 4731.293 of the Revised
Code are hereby repealed.
Section 3. Section 4731.22 of the Revised Code is presented
in this act as a composite of the section as amended by both H.B.
78 and Am. Sub. H.B. 93 of the 129th General Assembly. The General
Assembly, applying the principle stated in division (B) of section
1.52 of the Revised Code that amendments are to be harmonized if
reasonably capable of simultaneous operation, finds that the
composite is the resulting version of the section in effect prior
to the effective date of the section as presented in this act.
Section 4. The amendments to section 4731.293 of the Revised
Code made by this act are hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for this necessity is that
swift enactment will allow several extraordinary doctors to renew
their certificates and continue their work in Ohio without
interruption. Otherwise, these doctors will not be permitted to
work in Ohio and will leave the state. Therefore, the amendments
to section 4731.293 of the Revised Code made by this act shall go
into immediate effect.
Section 5. Section 4778.02 of the Revised Code, as enacted by
this act, shall take effect one year after the effective date of
this act.
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