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Sub. H. B. No. 421 As Reported by the House Criminal Justice CommitteeAs Reported by the House Criminal Justice Committee
129th General Assembly | Regular Session | 2011-2012 |
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Representatives Slaby, L., O'Brien
Cosponsors:
Representatives Johnson, Combs, Stebelton, Anielski, McGregor, Maag, Garland
A BILL
To amend sections 2305.33, 2317.02, and 4731.22 and
to enact section 2305.331 of the Revised Code to
grant civil immunity to physicians who report a
patient's use of a drug of abuse or other
condition not involving such use to specified
persons or entities, to exclude the making of
those reports from the grounds for disciplinary
action against physicians, and to apply the civil
immunity of physicians who report to an employer
in the business of public transportation an
employee's use of a drug of abuse or other
condition not involving such use to any violation
of a patient's privacy rights.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2305.33, 2317.02, and 4731.22 be
amended and section 2305.331 of the Revised Code be enacted to
read as follows:
Sec. 2305.33. (A) As used in this section:
(1) "Bus" has the same meaning as in section 4511.78 of the
Revised Code.
(2) "Business of public transportation" means a business that
includes among its functions the transporting of passengers in
interstate or intrastate commerce by aircraft, railroad train,
school or other bus, taxicab, or other type of common carrier,
whether or not a charge is imposed for the transportation.
"Business of public transportation" includes, but is not limited
to, an Ohio transit system.
(3) "Civil action" means a tort or contract action for
damages for harm.
(4) "Employee" means an individual who is employed by an
employer to operate any aircraft, railroad train, school or other
bus, taxicab, or other type of common carrier.
(5) "Employer" means a person that is engaged in the business
of public transportation.
(6) "Harm" means any injury, death, or loss to person or
property or any violation of a patient's privacy or
confidentiality rights under federal or state law.
(7) "Ohio transit system" means a county transit system
operated in accordance with sections 306.01 to 306.13 of the
Revised Code, a regional transit authority operated in accordance
with sections 306.30 to 306.71 of the Revised Code, a regional
transit commission operated in accordance with sections 306.80 to
306.90 of the Revised Code, any municipally owned transportation
system, and any mass transit company that operates exclusively
within the territorial limits of a municipal corporation, or
within the territorial limits of a municipal corporation and one
or more municipal corporations immediately contiguous to that
municipal corporation.
(8) "Physician" means a person who is licensed pursuant to
Chapter 4731. of the Revised Code to practice medicine or surgery
or osteopathic medicine and surgery.
(9) "Prescription" has the same meaning as in section 4729.01
of the Revised Code.
(10) "School bus" has the same meaning as in section 4511.01
of the Revised Code.
(11) "Tort action" means a civil action for damages for
injury, death, or loss to person or property, other than a civil
action for damages for a breach of contract or another agreement
between persons. "Tort action" includes, but is not limited to, a
civil action for damages against a physician on the ground of a
breach of the confidentiality of the physician-patient
relationship.
(B) A physician is not liable in damages in a civil action
for harm that allegedly is incurred by an employee as a result of
the physician reporting any of the following to the employer of
the employee:
(1) The physician has determined that the employee is using a
drug of abuse dispensed pursuant to a prescription and that the
employee's use of the drug of abuse represents a potential risk of
harm injury, death, or loss to person or property of passengers on
any aircraft, railroad train, school or other bus, taxicab, or
other type of common carrier operated by the employee;
(2) The physician has determined that the employee is using a
drug of abuse otherwise than pursuant to a prescription and that
the employee's use of the drug of abuse represents a potential
risk of injury, death, or loss to person or property of passengers
on any aircraft, railroad train, school or other bus, taxicab, or
other type of common carrier operated by the employer.
(3) The physician has determined that the employee has a
condition, other than one involving the use of a drug of abuse,
that represents a potential risk of harm injury, death, or loss to
person or property of passengers on any aircraft, railroad train,
school or other bus, taxicab, or other type of common carrier
operated by the employee.
(C)(1) This section does not create, and shall not be
construed as creating, a new cause of action or substantive legal
right against a physician and in favor of an employee who was a
patient of the physician, who was the subject of a report
described in division (B) of this section, and who allegedly
sustained harm as a result of the report, or in favor of any other
person who allegedly sustained harm as a result of the report.
(2) This section does not impose, and shall not be construed
as imposing, a duty upon a physician to make a report as described
in division (B) of this section to an employer of an employee who
the physician determines is using a drug of abuse dispensed
pursuant to a prescription or is using a drug of abuse other than
pursuant to a prescription, or who the physician determines has a
condition, other than one involving the use of a drug of abuse,
that represents a potential risk of harm injury, death, or loss to
person or property of passengers on the type of common carrier
operated by the employee.
(3) This section does not affect and shall not be construed
as affecting, any immunities from civil liability or defenses
established by another section of the Revised Code or available at
common law, to which a physician may be entitled.
(D) In the event that If a physician makes a report described
in division (B) of this section, the physician also shall make a
report to the employee who was the subject of the report. If the
report to the employer is in writing, the report to the employee
shall be in writing.
Sec. 2305.331. (A) As used in this section:
(1) "Civil action" means a tort or contract action for
damages for harm.
(2) "Harm" means any injury, death, or loss to person or
property or any violation of a patient's privacy or
confidentiality rights under federal or state law.
(3) "Motor vehicle" has the same meaning as in section
4511.01 of the Revised Code.
(4) "Physician" means a person who is licensed pursuant to
Chapter 4731. of the Revised Code to practice medicine and surgery
or osteopathic medicine and surgery.
(5) "Prescription" has the same meaning as in section 4729.01
of the Revised Code.
(B) A physician is not liable in damages in a civil action
for harm that allegedly is incurred by a patient of the physician
as a result of the physician reporting any of the following to the
registrar of motor vehicles as provided in section 4507.20 of the
Revised Code or to another physician, a police or other law
enforcement entity, a family member or other individual involved
in the medical treatment of the patient, a court official, an
employer of the patient, or any other governmental body that is
reasonably able to prevent or lessen the potential risk of injury,
death, or loss to person or property arising from the patient's
operation of a motor vehicle:
(1) The physician has determined that the patient is using a
drug of abuse dispensed pursuant to a prescription and that the
patient's use of the drug of abuse represents a potential risk of
injury, death, or loss to person or property arising from the
patient's operation of a motor vehicle.
(2) The physician has determined that the patient is using a
drug of abuse otherwise than pursuant to a prescription and that
the patient's use of the drug of abuse represents a potential risk
of injury, death, or loss to person or property arising from the
patient's operation of a motor vehicle.
(3) The physician has determined that the patient has a
condition, other than one involving the use of a drug of abuse,
that represents a potential risk of injury, death, or loss to
person or property arising from the patient's operation of a motor
vehicle.
(C)(1) This section does not create, and shall not be
construed as creating, a new cause of action or substantive legal
right against a physician and in favor of a patient of the
physician who was the subject of a report described in division
(B) of this section and who allegedly sustained harm as a result
of the report or in favor of any other person who allegedly
sustained harm as a result of the report.
(2) This section does not impose, and shall not be construed
as imposing, a duty upon a physician to make a report as described
in division (B) of this section to any person or entity regarding
a patient who the physician determines is using a drug of abuse
dispensed pursuant to a prescription or is using a drug of abuse
other than pursuant to a prescription or who the physician
determines has a condition, other than one involving the use of a
drug of abuse, that represents a potential risk of injury, death,
or loss to person or property arising from the patient's operation
of a motor vehicle.
(3) This section does not affect and shall not be construed
as affecting any immunities from civil liability or defenses
established by another section of the Revised Code or available at
common law to which a physician may be entitled.
(D) If a physician makes a report described in division (B)
of this section, the physician also shall make a report to the
patient who was the subject of the report. If the report to a
person or entity described in division (B) of this section is in
writing, the report to the patient shall be in writing.
(E) Any report submitted by a physician to a governmental
body under division (B) of this section is confidential, is not a
public record, and is not subject to disclosure under section
149.43 of the Revised Code.
Sec. 2317.02. The following persons shall not testify in
certain respects:
(A)(1) An attorney, concerning a communication made to the
attorney by a client in that relation or the attorney's advice to
a client, except that the attorney may testify by express consent
of the client or, if the client is deceased, by the express
consent of the surviving spouse or the executor or administrator
of the estate of the deceased client. However, if the client
voluntarily testifies or is deemed by section 2151.421 of the
Revised Code to have waived any testimonial privilege under this
division, the attorney may be compelled to testify on the same
subject.
The testimonial privilege established under this division
does not apply concerning a communication between a client who has
since died and the deceased client's attorney if the communication
is relevant to a dispute between parties who claim through that
deceased client, regardless of whether the claims are by testate
or intestate succession or by inter vivos transaction, and the
dispute addresses the competency of the deceased client when the
deceased client executed a document that is the basis of the
dispute or whether the deceased client was a victim of fraud,
undue influence, or duress when the deceased client executed a
document that is the basis of the dispute.
(2) An attorney, concerning a communication made to the
attorney by a client in that relationship or the attorney's advice
to a client, except that if the client is an insurance company,
the attorney may be compelled to testify, subject to an in camera
inspection by a court, about communications made by the client to
the attorney or by the attorney to the client that are related to
the attorney's aiding or furthering an ongoing or future
commission of bad faith by the client, if the party seeking
disclosure of the communications has made a prima-facie showing of
bad faith, fraud, or criminal misconduct by the client.
(B)(1) A physician or a dentist concerning a communication
made to the physician or dentist by a patient in that relation or
the physician's or dentist's advice to a patient, except as
otherwise provided in this division, division (B)(2), and division
(B)(3) of this section, and except that, if the patient is deemed
by section 2151.421 of the Revised Code to have waived any
testimonial privilege under this division, the physician may be
compelled to testify on the same subject.
The testimonial privilege established under this division
does not apply, and a physician or dentist may testify or may be
compelled to testify, in any of the following circumstances:
(a) In any civil action, in accordance with the discovery
provisions of the Rules of Civil Procedure in connection with a
civil action, or in connection with a claim under Chapter 4123. of
the Revised Code, under any of the following circumstances:
(i) If the patient or the guardian or other legal
representative of the patient gives express consent;
(ii) If the patient is deceased, the spouse of the patient or
the executor or administrator of the patient's estate gives
express consent;
(iii) If a medical claim, dental claim, chiropractic claim,
or optometric claim, as defined in section 2305.113 of the Revised
Code, an action for wrongful death, any other type of civil
action, or a claim under Chapter 4123. of the Revised Code is
filed by the patient, the personal representative of the estate of
the patient if deceased, or the patient's guardian or other legal
representative.
(b) In any civil action concerning court-ordered treatment or
services received by a patient, if the court-ordered treatment or
services were ordered as part of a case plan journalized under
section 2151.412 of the Revised Code or the court-ordered
treatment or services are necessary or relevant to dependency,
neglect, or abuse or temporary or permanent custody proceedings
under Chapter 2151. of the Revised Code.
(c) In any criminal action concerning any test or the results
of any test that determines the presence or concentration of
alcohol, a drug of abuse, a combination of them, a controlled
substance, or a metabolite of a controlled substance in the
patient's whole blood, blood serum or plasma, breath, urine, or
other bodily substance at any time relevant to the criminal
offense in question.
(d) In any criminal action against a physician or dentist. In
such an action, the testimonial privilege established under this
division does not prohibit the admission into evidence, in
accordance with the Rules of Evidence, of a patient's medical or
dental records or other communications between a patient and the
physician or dentist that are related to the action and obtained
by subpoena, search warrant, or other lawful means. A court that
permits or compels a physician or dentist to testify in such an
action or permits the introduction into evidence of patient
records or other communications in such an action shall require
that appropriate measures be taken to ensure that the
confidentiality of any patient named or otherwise identified in
the records is maintained. Measures to ensure confidentiality that
may be taken by the court include sealing its records or deleting
specific information from its records.
(e)(i) If the communication was between a patient who has
since died and the deceased patient's physician or dentist, the
communication is relevant to a dispute between parties who claim
through that deceased patient, regardless of whether the claims
are by testate or intestate succession or by inter vivos
transaction, and the dispute addresses the competency of the
deceased patient when the deceased patient executed a document
that is the basis of the dispute or whether the deceased patient
was a victim of fraud, undue influence, or duress when the
deceased patient executed a document that is the basis of the
dispute.
(ii) If neither the spouse of a patient nor the executor or
administrator of that patient's estate gives consent under
division (B)(1)(a)(ii) of this section, testimony or the
disclosure of the patient's medical records by a physician,
dentist, or other health care provider under division (B)(1)(e)(i)
of this section is a permitted use or disclosure of protected
health information, as defined in 45 C.F.R. 160.103, and an
authorization or opportunity to be heard shall not be required.
(iii) Division (B)(1)(e)(i) of this section does not require
a mental health professional to disclose psychotherapy notes, as
defined in 45 C.F.R. 164.501.
(iv) An interested person who objects to testimony or
disclosure under division (B)(1)(e)(i) of this section may seek a
protective order pursuant to Civil Rule 26.
(v) A person to whom protected health information is
disclosed under division (B)(1)(e)(i) of this section shall not
use or disclose the protected health information for any purpose
other than the litigation or proceeding for which the information
was requested and shall return the protected health information to
the covered entity or destroy the protected health information,
including all copies made, at the conclusion of the litigation or
proceeding.
(2)(a) If any law enforcement officer submits a written
statement to a health care provider that states that an official
criminal investigation has begun regarding a specified person or
that a criminal action or proceeding has been commenced against a
specified person, that requests the provider to supply to the
officer copies of any records the provider possesses that pertain
to any test or the results of any test administered to the
specified person to determine the presence or concentration of
alcohol, a drug of abuse, a combination of them, a controlled
substance, or a metabolite of a controlled substance in the
person's whole blood, blood serum or plasma, breath, or urine at
any time relevant to the criminal offense in question, and that
conforms to section 2317.022 of the Revised Code, the provider,
except to the extent specifically prohibited by any law of this
state or of the United States, shall supply to the officer a copy
of any of the requested records the provider possesses. If the
health care provider does not possess any of the requested
records, the provider shall give the officer a written statement
that indicates that the provider does not possess any of the
requested records.
(b) If a health care provider possesses any records of the
type described in division (B)(2)(a) of this section regarding the
person in question at any time relevant to the criminal offense in
question, in lieu of personally testifying as to the results of
the test in question, the custodian of the records may submit a
certified copy of the records, and, upon its submission, the
certified copy is qualified as authentic evidence and may be
admitted as evidence in accordance with the Rules of Evidence.
Division (A) of section 2317.422 of the Revised Code does not
apply to any certified copy of records submitted in accordance
with this division. Nothing in this division shall be construed to
limit the right of any party to call as a witness the person who
administered the test to which the records pertain, the person
under whose supervision the test was administered, the custodian
of the records, the person who made the records, or the person
under whose supervision the records were made.
(3)(a) If the testimonial privilege described in division
(B)(1) of this section does not apply as provided in division
(B)(1)(a)(iii) of this section, a physician or dentist may be
compelled to testify or to submit to discovery under the Rules of
Civil Procedure only as to a communication made to the physician
or dentist by the patient in question in that relation, or the
physician's or dentist's advice to the patient in question, that
related causally or historically to physical or mental injuries
that are relevant to issues in the medical claim, dental claim,
chiropractic claim, or optometric claim, action for wrongful
death, other civil action, or claim under Chapter 4123. of the
Revised Code.
(b) If the testimonial privilege described in division (B)(1)
of this section does not apply to a physician or dentist as
provided in division (B)(1)(c) of this section, the physician or
dentist, in lieu of personally testifying as to the results of the
test in question, may submit a certified copy of those results,
and, upon its submission, the certified copy is qualified as
authentic evidence and may be admitted as evidence in accordance
with the Rules of Evidence. Division (A) of section 2317.422 of
the Revised Code does not apply to any certified copy of results
submitted in accordance with this division. Nothing in this
division shall be construed to limit the right of any party to
call as a witness the person who administered the test in
question, the person under whose supervision the test was
administered, the custodian of the results of the test, the person
who compiled the results, or the person under whose supervision
the results were compiled.
(4) The testimonial privilege described in division (B)(1) of
this section is not waived when a communication is made by a
physician to a pharmacist or when there is communication between a
patient and a pharmacist in furtherance of the physician-patient
relation.
(5)(a) As used in divisions (B)(1) to (4) of this section,
"communication" means acquiring, recording, or transmitting any
information, in any manner, concerning any facts, opinions, or
statements necessary to enable a physician or dentist to diagnose,
treat, prescribe, or act for a patient. A "communication" may
include, but is not limited to, any medical or dental, office, or
hospital communication such as a record, chart, letter,
memorandum, laboratory test and results, x-ray, photograph,
financial statement, diagnosis, or prognosis.
(b) As used in division (B)(2) of this section, "health care
provider" means a hospital, ambulatory care facility, long-term
care facility, pharmacy, emergency facility, or health care
practitioner.
(c) As used in division (B)(5)(b) of this section:
(i) "Ambulatory care facility" means a facility that provides
medical, diagnostic, or surgical treatment to patients who do not
require hospitalization, including a dialysis center, ambulatory
surgical facility, cardiac catheterization facility, diagnostic
imaging center, extracorporeal shock wave lithotripsy center, home
health agency, inpatient hospice, birthing center, radiation
therapy center, emergency facility, and an urgent care center.
"Ambulatory health care facility" does not include the private
office of a physician or dentist, whether the office is for an
individual or group practice.
(ii) "Emergency facility" means a hospital emergency
department or any other facility that provides emergency medical
services.
(iii) "Health care practitioner" has the same meaning as in
section 4769.01 of the Revised Code.
(iv) "Hospital" has the same meaning as in section 3727.01 of
the Revised Code.
(v) "Long-term care facility" means a nursing home,
residential care facility, or home for the aging, as those terms
are defined in section 3721.01 of the Revised Code; an adult care
facility, as defined in section 5119.70 of the Revised Code; a
nursing facility or intermediate care facility for the mentally
retarded, as those terms are defined in section 5111.20 of the
Revised Code; a facility or portion of a facility certified as a
skilled nursing facility under Title XVIII of the "Social Security
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended.
(vi) "Pharmacy" has the same meaning as in section 4729.01 of
the Revised Code.
(d) As used in divisions (B)(1) and (2) of this section,
"drug of abuse" has the same meaning as in section 4506.01 of the
Revised Code.
(6) Divisions (B)(1), (2), (3), (4), and (5) of this section
apply to doctors of medicine, doctors of osteopathic medicine,
doctors of podiatry, and dentists.
(7) Nothing in divisions (B)(1) to (6) of this section
affects, or shall be construed as affecting, the immunity from
civil liability conferred by section any of the following:
(a) Section 307.628 of the Revised Code
or the immunity from
civil liability conferred by section;
(b) Section 2305.33 of the Revised Code upon physicians who
report an employee's use of a drug of abuse, or a condition of an
employee other than one involving the use of a drug of abuse, to
the employer of the employee in accordance with division (B) of
that section. As used in division (B)(7)(b) of this section,
"employee," "employer," and "physician" have the same meanings as
in section 2305.33 of the Revised Code.
(c) Section 2305.331 of the Revised Code upon physicians who,
in accordance with division (B) of that section, report a
patient's use of a drug of abuse or a condition of a patient other
than one involving the use of a drug of abuse to any of the
persons or entities described in that division. As used in
division (B)(7)(c) of this section, "physician" has the same
meaning as in section 2305.331 of the Revised Code.
(C)(1) A cleric, when the cleric remains accountable to the
authority of that cleric's church, denomination, or sect,
concerning a confession made, or any information confidentially
communicated, to the cleric for a religious counseling purpose in
the cleric's professional character. The cleric may testify by
express consent of the person making the communication, except
when the disclosure of the information is in violation of a sacred
trust and except that, if the person voluntarily testifies or is
deemed by division (A)(4)(c) of section 2151.421 of the Revised
Code to have waived any testimonial privilege under this division,
the cleric may be compelled to testify on the same subject except
when disclosure of the information is in violation of a sacred
trust.
(2) As used in division (C) of this section:
(a) "Cleric" means a member of the clergy, rabbi, priest,
Christian Science practitioner, or regularly ordained, accredited,
or licensed minister of an established and legally cognizable
church, denomination, or sect.
(b) "Sacred trust" means a confession or confidential
communication made to a cleric in the cleric's ecclesiastical
capacity in the course of discipline enjoined by the church to
which the cleric belongs, including, but not limited to, the
Catholic Church, if both of the following apply:
(i) The confession or confidential communication was made
directly to the cleric.
(ii) The confession or confidential communication was made in
the manner and context that places the cleric specifically and
strictly under a level of confidentiality that is considered
inviolate by canon law or church doctrine.
(D) Husband or wife, concerning any communication made by one
to the other, or an act done by either in the presence of the
other, during coverture, unless the communication was made, or act
done, in the known presence or hearing of a third person competent
to be a witness; and such rule is the same if the marital relation
has ceased to exist;
(E) A person who assigns a claim or interest, concerning any
matter in respect to which the person would not, if a party, be
permitted to testify;
(F) A person who, if a party, would be restricted under
section 2317.03 of the Revised Code, when the property or thing is
sold or transferred by an executor, administrator, guardian,
trustee, heir, devisee, or legatee, shall be restricted in the
same manner in any action or proceeding concerning the property or
thing.
(G)(1) A school guidance counselor who holds a valid educator
license from the state board of education as provided for in
section 3319.22 of the Revised Code, a person licensed under
Chapter 4757. of the Revised Code as a professional clinical
counselor, professional counselor, social worker, independent
social worker, marriage and family therapist or independent
marriage and family therapist, or registered under Chapter 4757.
of the Revised Code as a social work assistant concerning a
confidential communication received from a client in that relation
or the person's advice to a client unless any of the following
applies:
(a) The communication or advice indicates clear and present
danger to the client or other persons. For the purposes of this
division, cases in which there are indications of present or past
child abuse or neglect of the client constitute a clear and
present danger.
(b) The client gives express consent to the testimony.
(c) If the client is deceased, the surviving spouse or the
executor or administrator of the estate of the deceased client
gives express consent.
(d) The client voluntarily testifies, in which case the
school guidance counselor or person licensed or registered under
Chapter 4757. of the Revised Code may be compelled to testify on
the same subject.
(e) The court in camera determines that the information
communicated by the client is not germane to the counselor-client,
marriage and family therapist-client, or social worker-client
relationship.
(f) A court, in an action brought against a school, its
administration, or any of its personnel by the client, rules after
an in-camera inspection that the testimony of the school guidance
counselor is relevant to that action.
(g) The testimony is sought in a civil action and concerns
court-ordered treatment or services received by a patient as part
of a case plan journalized under section 2151.412 of the Revised
Code or the court-ordered treatment or services are necessary or
relevant to dependency, neglect, or abuse or temporary or
permanent custody proceedings under Chapter 2151. of the Revised
Code.
(2) Nothing in division (G)(1) of this section shall relieve
a school guidance counselor or a person licensed or registered
under Chapter 4757. of the Revised Code from the requirement to
report information concerning child abuse or neglect under section
2151.421 of the Revised Code.
(H) A mediator acting under a mediation order issued under
division (A) of section 3109.052 of the Revised Code or otherwise
issued in any proceeding for divorce, dissolution, legal
separation, annulment, or the allocation of parental rights and
responsibilities for the care of children, in any action or
proceeding, other than a criminal, delinquency, child abuse, child
neglect, or dependent child action or proceeding, that is brought
by or against either parent who takes part in mediation in
accordance with the order and that pertains to the mediation
process, to any information discussed or presented in the
mediation process, to the allocation of parental rights and
responsibilities for the care of the parents' children, or to the
awarding of parenting time rights in relation to their children;
(I) A communications assistant, acting within the scope of
the communication assistant's authority, when providing
telecommunications relay service pursuant to section 4931.06 of
the Revised Code or Title II of the "Communications Act of 1934,"
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication
made through a telecommunications relay service. Nothing in this
section shall limit the obligation of a communications assistant
to divulge information or testify when mandated by federal law or
regulation or pursuant to subpoena in a criminal proceeding.
Nothing in this section shall limit any immunity or privilege
granted under federal law or regulation.
(J)(1) A chiropractor in a civil proceeding concerning a
communication made to the chiropractor by a patient in that
relation or the chiropractor's advice to a patient, except as
otherwise provided in this division. The testimonial privilege
established under this division does not apply, and a chiropractor
may testify or may be compelled to testify, in any civil action,
in accordance with the discovery provisions of the Rules of Civil
Procedure in connection with a civil action, or in connection with
a claim under Chapter 4123. of the Revised Code, under any of the
following circumstances:
(a) If the patient or the guardian or other legal
representative of the patient gives express consent.
(b) If the patient is deceased, the spouse of the patient or
the executor or administrator of the patient's estate gives
express consent.
(c) If a medical claim, dental claim, chiropractic claim, or
optometric claim, as defined in section 2305.113 of the Revised
Code, an action for wrongful death, any other type of civil
action, or a claim under Chapter 4123. of the Revised Code is
filed by the patient, the personal representative of the estate of
the patient if deceased, or the patient's guardian or other legal
representative.
(2) If the testimonial privilege described in division (J)(1)
of this section does not apply as provided in division (J)(1)(c)
of this section, a chiropractor may be compelled to testify or to
submit to discovery under the Rules of Civil Procedure only as to
a communication made to the chiropractor by the patient in
question in that relation, or the chiropractor's advice to the
patient in question, that related causally or historically to
physical or mental injuries that are relevant to issues in the
medical claim, dental claim, chiropractic claim, or optometric
claim, action for wrongful death, other civil action, or claim
under Chapter 4123. of the Revised Code.
(3) The testimonial privilege established under this division
does not apply, and a chiropractor may testify or be compelled to
testify, in any criminal action or administrative proceeding.
(4) As used in this division, "communication" means
acquiring, recording, or transmitting any information, in any
manner, concerning any facts, opinions, or statements necessary to
enable a chiropractor to diagnose, treat, or act for a patient. A
communication may include, but is not limited to, any
chiropractic, office, or hospital communication such as a record,
chart, letter, memorandum, laboratory test and results, x-ray,
photograph, financial statement, diagnosis, or prognosis.
(K)(1) Except as provided under division (K)(2) of this
section, a critical incident stress management team member
concerning a communication received from an individual who
receives crisis response services from the team member, or the
team member's advice to the individual, during a debriefing
session.
(2) The testimonial privilege established under division
(K)(1) of this section does not apply if any of the following are
true:
(a) The communication or advice indicates clear and present
danger to the individual who receives crisis response services or
to other persons. For purposes of this division, cases in which
there are indications of present or past child abuse or neglect of
the individual constitute a clear and present danger.
(b) The individual who received crisis response services
gives express consent to the testimony.
(c) If the individual who received crisis response services
is deceased, the surviving spouse or the executor or administrator
of the estate of the deceased individual gives express consent.
(d) The individual who received crisis response services
voluntarily testifies, in which case the team member may be
compelled to testify on the same subject.
(e) The court in camera determines that the information
communicated by the individual who received crisis response
services is not germane to the relationship between the individual
and the team member.
(f) The communication or advice pertains or is related to any
criminal act.
(3) As used in division (K) of this section:
(a) "Crisis response services" means consultation, risk
assessment, referral, and on-site crisis intervention services
provided by a critical incident stress management team to
individuals affected by crisis or disaster.
(b) "Critical incident stress management team member" or
"team member" means an individual specially trained to provide
crisis response services as a member of an organized community or
local crisis response team that holds membership in the Ohio
critical incident stress management network.
(c) "Debriefing session" means a session at which crisis
response services are rendered by a critical incident stress
management team member during or after a crisis or disaster.
(L)(1) Subject to division (L)(2) of this section and except
as provided in division (L)(3) of this section, an employee
assistance professional, concerning a communication made to the
employee assistance professional by a client in the employee
assistance professional's official capacity as an employee
assistance professional.
(2) Division (L)(1) of this section applies to an employee
assistance professional who meets either or both of the following
requirements:
(a) Is certified by the employee assistance certification
commission to engage in the employee assistance profession;
(b) Has education, training, and experience in all of the
following:
(i) Providing workplace-based services designed to address
employer and employee productivity issues;
(ii) Providing assistance to employees and employees'
dependents in identifying and finding the means to resolve
personal problems that affect the employees or the employees'
performance;
(iii) Identifying and resolving productivity problems
associated with an employee's concerns about any of the following
matters: health, marriage, family, finances, substance abuse or
other addiction, workplace, law, and emotional issues;
(iv) Selecting and evaluating available community resources;
(v) Making appropriate referrals;
(vi) Local and national employee assistance agreements;
(vii) Client confidentiality.
(3) Division (L)(1) of this section does not apply to any of
the following:
(a) A criminal action or proceeding involving an offense
under sections 2903.01 to 2903.06 of the Revised Code if the
employee assistance professional's disclosure or testimony relates
directly to the facts or immediate circumstances of the offense;
(b) A communication made by a client to an employee
assistance professional that reveals the contemplation or
commission of a crime or serious, harmful act;
(c) A communication that is made by a client who is an
unemancipated minor or an adult adjudicated to be incompetent and
indicates that the client was the victim of a crime or abuse;
(d) A civil proceeding to determine an individual's mental
competency or a criminal action in which a plea of not guilty by
reason of insanity is entered;
(e) A civil or criminal malpractice action brought against
the employee assistance professional;
(f) When the employee assistance professional has the express
consent of the client or, if the client is deceased or disabled,
the client's legal representative;
(g) When the testimonial privilege otherwise provided by
division (L)(1) of this section is abrogated under law.
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 of the
following:
(a) 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;
(b) Making 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 a report as described in this division 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.
(c) Making a report of a patient's use of a drug of abuse or
a report of a condition of a patient other than one involving the
use of a drug of abuse to any of the persons or entities described
in division (B) of section 2305.331 of the Revised Code. Nothing
in this division affects the immunity from civil liability
conferred by that section upon a physician who makes a report as
described in this division in accordance with division (B) of that
section. As used in this division, "physician" has the same
meaning as in section 2305.331 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 from making a
report of the information described in division (B)(4)(b) or (c)
of this section. Nothing in this division affects the immunity
from civil liability conferred by that section 2305.33 or 2305.331
of the Revised Code upon a physician who makes either type of a
report as described in this division in accordance with division
(B) of that either section, whichever is applicable. As used in
this division, "employee," "employer," and "physician" have has
the same
meanings meaning as in section 2305.33 or 2305.331 of
the Revised Code, whichever is applicable.
(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)(a) 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 or division (B)(20)(b) of this
section, 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 (b) Division (B)(20)(a) of this section 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 from making a report of the
information described in division (B)(4)(b) or (c) of this
section. Nothing in this division affects the immunity from civil
liability conferred by that section 2305.33 or 2305.331 of the
Revised Code upon a physician who makes either type of a report as
described in this division in accordance with division (B) of that
either section, whichever is applicable. As used in this division,
"employee," "employer," and "physician" have has the same
meanings meaning as in section 2305.33 or 2305.331 of the Revised
Code, whichever is applicable.
(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.
(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.
Section 2. That existing sections 2305.33, 2317.02, and
4731.22 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.
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