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H. B. No. 518 As IntroducedAs Introduced
129th General Assembly | Regular Session | 2011-2012 |
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Representatives Sears, Landis
Cosponsors:
Representatives Henne, Hackett, Boose, Buchy, Amstutz, Grossman, Adams, J., Rosenberger, Thompson, Stebelton, Wachtmann, Sprague, McGregor
A BILL
To amend sections 119.12, 2305.25, and 2305.252 and
to enact sections 4121.132 and 4121.443 of the
Revised Code to statutorily allow the Bureau of
Workers' Compensation to summarily suspend a
provider's certification to participate in the
Health Partnership Program, to specify procedures
for that suspension, and to exempt documents,
reports, and evidence pertaining to a workers'
compensation fraud investigation from the Public
Records Law.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 119.12, 2305.25, and 2305.252 be
amended and sections 4121.132 and 4121.443 of the Revised Code be
enacted to read as follows:
Sec. 119.12. Any party adversely affected by any order of an
agency issued pursuant to an adjudication denying an applicant
admission to an examination, or denying the issuance or renewal of
a license or registration of a licensee, or revoking or suspending
a license, or allowing the payment of a forfeiture under section
4301.252 of the Revised Code may appeal from the order of the
agency to the court of common pleas of the county in which the
place of business of the licensee is located or the county in
which the licensee is a resident, except that appeals from
decisions of the liquor control commission, the state medical
board, state chiropractic board, and board of nursing, and
decisions of the bureau of workers' compensation regarding
participation in the health partnership program created in
sections 4121.44 and 4121.441 of the Revised Code shall be to the
court of common pleas of Franklin county. If any party appealing
from the order is not a resident of and has no place of business
in this state, the party may appeal to the court of common pleas
of Franklin county.
Any party adversely affected by any order of an agency issued
pursuant to any other adjudication may appeal to the court of
common pleas of Franklin county, except that appeals from orders
of the fire marshal issued under Chapter 3737. of the Revised Code
may be to the court of common pleas of the county in which the
building of the aggrieved person is located and except that
appeals under division (B) of section 124.34 of the Revised Code
from a decision of the state personnel board of review or a
municipal or civil service township civil service commission shall
be taken to the court of common pleas of the county in which the
appointing authority is located or, in the case of an appeal by
the department of rehabilitation and correction, to the court of
common pleas of Franklin county.
This section does not apply to appeals from the department of
taxation.
Any party desiring to appeal shall file a notice of appeal
with the agency setting forth the order appealed from and stating
that the agency's order is not supported by reliable, probative,
and substantial evidence and is not in accordance with law. The
notice of appeal may, but need not, set forth the specific grounds
of the party's appeal beyond the statement that the agency's order
is not supported by reliable, probative, and substantial evidence
and is not in accordance with law. The notice of appeal shall also
be filed by the appellant with the court. In filing a notice of
appeal with the agency or court, the notice that is filed may be
either the original notice or a copy of the original notice.
Unless otherwise provided by law relating to a particular agency,
notices of appeal shall be filed within fifteen days after the
mailing of the notice of the agency's order as provided in this
section. For purposes of this paragraph, an order includes a
determination appealed pursuant to division (C) of section 119.092
of the Revised Code. The amendments made to this paragraph by Sub.
H.B. 215 of the 128th general assembly are procedural, and this
paragraph as amended by those amendments shall be applied
retrospectively to all appeals pursuant to this paragraph filed
before the effective date of those amendments September 13, 2010,
but not earlier than May 7, 2009, which was the date the supreme
court of Ohio released its opinion and judgment in Medcorp, Inc.
v. Ohio Dep't. of Job and Family Servs. (2009), 121 Ohio St.3d
622.
The filing of a notice of appeal shall not automatically
operate as a suspension of the order of an agency. If it appears
to the court that an unusual hardship to the appellant will result
from the execution of the agency's order pending determination of
the appeal, the court may grant a suspension and fix its terms. If
an appeal is taken from the judgment of the court and the court
has previously granted a suspension of the agency's order as
provided in this section, the suspension of the agency's order
shall not be vacated and shall be given full force and effect
until the matter is finally adjudicated. No renewal of a license
or permit shall be denied by reason of the suspended order during
the period of the appeal from the decision of the court of common
pleas. In the case of an appeal from the state medical board or
state chiropractic board, the court may grant a suspension and fix
its terms if it appears to the court that an unusual hardship to
the appellant will result from the execution of the agency's order
pending determination of the appeal and the health, safety, and
welfare of the public will not be threatened by suspension of the
order. This provision shall not be construed to limit the factors
the court may consider in determining whether to suspend an order
of any other agency pending determination of an appeal.
The final order of adjudication may apply to any renewal of a
license or permit which has been granted during the period of the
appeal.
Notwithstanding any other provision of this section, any
order issued by a court of common pleas or a court of appeals
suspending the effect of an order of the liquor control commission
issued pursuant to Chapter 4301. or 4303. of the Revised Code that
suspends, revokes, or cancels a permit issued under Chapter 4303.
of the Revised Code or that allows the payment of a forfeiture
under section 4301.252 of the Revised Code shall terminate not
more than six months after the date of the filing of the record of
the liquor control commission with the clerk of the court of
common pleas and shall not be extended. The court of common pleas,
or the court of appeals on appeal, shall render a judgment in that
matter within six months after the date of the filing of the
record of the liquor control commission with the clerk of the
court of common pleas. A court of appeals shall not issue an order
suspending the effect of an order of the liquor control commission
that extends beyond six months after the date on which the record
of the liquor control commission is filed with a court of common
pleas.
Notwithstanding any other provision of this section, any
order issued by a court of common pleas suspending the effect of
an order of the state medical board or state chiropractic board
that limits, revokes, suspends, places on probation, or refuses to
register or reinstate a certificate issued by the board or
reprimands the holder of the certificate shall terminate not more
than fifteen months after the date of the filing of a notice of
appeal in the court of common pleas, or upon the rendering of a
final decision or order in the appeal by the court of common
pleas, whichever occurs first.
Within thirty days after receipt of a notice of appeal from
an order in any case in which a hearing is required by sections
119.01 to 119.13 of the Revised Code, the agency shall prepare and
certify to the court a complete record of the proceedings in the
case. Failure of the agency to comply within the time allowed,
upon motion, shall cause the court to enter a finding in favor of
the party adversely affected. Additional time, however, may be
granted by the court, not to exceed thirty days, when it is shown
that the agency has made substantial effort to comply. The record
shall be prepared and transcribed, and the expense of it shall be
taxed as a part of the costs on the appeal. The appellant shall
provide security for costs satisfactory to the court of common
pleas. Upon demand by any interested party, the agency shall
furnish at the cost of the party requesting it a copy of the
stenographic report of testimony offered and evidence submitted at
any hearing and a copy of the complete record.
Notwithstanding any other provision of this section, any
party desiring to appeal an order or decision of the state
personnel board of review shall, at the time of filing a notice of
appeal with the board, provide a security deposit in an amount and
manner prescribed in rules that the board shall adopt in
accordance with this chapter. In addition, the board is not
required to prepare or transcribe the record of any of its
proceedings unless the appellant has provided the deposit
described above. The failure of the board to prepare or transcribe
a record for an appellant who has not provided a security deposit
shall not cause a court to enter a finding adverse to the board.
Unless otherwise provided by law, in the hearing of the
appeal, the court is confined to the record as certified to it by
the agency. Unless otherwise provided by law, the court may grant
a request for the admission of additional evidence when satisfied
that the additional evidence is newly discovered and could not
with reasonable diligence have been ascertained prior to the
hearing before the agency.
The court shall conduct a hearing on the appeal and shall
give preference to all proceedings under sections 119.01 to 119.13
of the Revised Code, over all other civil cases, irrespective of
the position of the proceedings on the calendar of the court. An
appeal from an order of the state medical board issued pursuant to
division (G) of either section 4730.25 or 4731.22 of the Revised
Code, or the state chiropractic board issued pursuant to section
4734.37 of the Revised Code, or the liquor control commission
issued pursuant to Chapter 4301. or 4303. of the Revised Code
shall be set down for hearing at the earliest possible time and
takes precedence over all other actions. The hearing in the court
of common pleas shall proceed as in the trial of a civil action,
and the court shall determine the rights of the parties in
accordance with the laws applicable to a civil action. At the
hearing, counsel may be heard on oral argument, briefs may be
submitted, and evidence may be introduced if the court has granted
a request for the presentation of additional evidence.
The court may affirm the order of the agency complained of in
the appeal if it finds, upon consideration of the entire record
and any additional evidence the court has admitted, that the order
is supported by reliable, probative, and substantial evidence and
is in accordance with law. In the absence of this finding, it may
reverse, vacate, or modify the order or make such other ruling as
is supported by reliable, probative, and substantial evidence and
is in accordance with law. The court shall award compensation for
fees in accordance with section 2335.39 of the Revised Code to a
prevailing party, other than an agency, in an appeal filed
pursuant to this section.
The judgment of the court shall be final and conclusive
unless reversed, vacated, or modified on appeal. These appeals may
be taken either by the party or the agency, shall proceed as in
the case of appeals in civil actions, and shall be pursuant to the
Rules of Appellate Procedure and, to the extent not in conflict
with those rules, Chapter 2505. of the Revised Code. An appeal by
the agency shall be taken on questions of law relating to the
constitutionality, construction, or interpretation of statutes and
rules of the agency, and, in the appeal, the court may also review
and determine the correctness of the judgment of the court of
common pleas that the order of the agency is not supported by any
reliable, probative, and substantial evidence in the entire
record.
The court shall certify its judgment to the agency or take
any other action necessary to give its judgment effect.
Sec. 2305.25. As used in this section and sections 2305.251
to 2305.253 of the Revised Code:
(A)(1) "Health care entity" means an entity, whether acting
on its own behalf or on behalf of or in affiliation with other
health care entities, that conducts as part of its regular
business activities professional credentialing or quality review
activities involving the competence of, professional conduct of,
or quality of care provided by health care providers, including
both individuals who provide health care and entities that provide
health care.
(2) "Health care entity" includes any entity described in
division (A)(1) of this section, regardless of whether it is a
government entity; for-profit or nonprofit corporation; limited
liability company; partnership; professional corporation; state or
local society composed of physicians, dentists, optometrists,
psychologists, or pharmacists; or other health care organization.
(B) "Health insuring corporation" means an entity that holds
a certificate of authority under Chapter 1751. of the Revised
Code. "Health insuring corporation" includes wholly owned
subsidiaries of a health insuring corporation.
(C) "Hospital" means either of the following:
(1) An institution that has been registered or licensed by
the department of health as a hospital;
(2) An entity, other than an insurance company authorized to
do business in this state, that owns, controls, or is affiliated
with an institution that has been registered or licensed by the
department of health as a hospital.
(D) "Incident report or risk management report" means a
report of an incident involving injury or potential injury to a
patient as a result of patient care provided by health care
providers, including both individuals who provide health care and
entities that provide health care, that is prepared by or for the
use of a peer review committee of a health care entity and is
within the scope of the functions of that committee.
(E)(1) "Peer review committee" means a utilization review
committee, quality assessment committee, performance improvement
committee, tissue committee, credentialing committee, or other
committee that does either of the following:
(a) Conducts professional credentialing or quality review
activities involving the competence of, professional conduct of,
or quality of care provided by health care providers, including
both individuals who provide health care and entities that provide
health care;
(b) Conducts any other attendant hearing process initiated as
a result of a peer review committee's recommendations or actions.
(2) "Peer review committee" includes all of the following:
(a) A peer review committee of a hospital or long-term care
facility or a peer review committee of a nonprofit health care
corporation that is a member of the hospital or long-term care
facility or of which the hospital or facility is a member;
(b) A peer review committee of a community mental health
center;
(c) A board or committee of a hospital, a long-term care
facility, or other health care entity when reviewing professional
qualifications or activities of health care providers, including
both individuals who provide health care and entities that provide
health care;
(d) A peer review committee, professional standards review
committee, or arbitration committee of a state or local society
composed of members who are in active practice as physicians,
dentists, optometrists, psychologists, or pharmacists;
(e) A peer review committee of a health insuring corporation
that has at least a two-thirds majority of member physicians in
active practice and that conducts professional credentialing and
quality review activities involving the competence or professional
conduct of health care providers that adversely affects or could
adversely affect the health or welfare of any patient;
(f) A peer review committee of a health insuring corporation
that has at least a two-thirds majority of member physicians in
active practice and that conducts professional credentialing and
quality review activities involving the competence or professional
conduct of a health care facility that has contracted with the
health insuring corporation to provide health care services to
enrollees, which conduct adversely affects, or could adversely
affect, the health or welfare of any patient;
(g) A peer review committee of a sickness and accident
insurer that has at least a two-thirds majority of physicians in
active practice and that conducts professional credentialing and
quality review activities involving the competence or professional
conduct of health care providers that adversely affects or could
adversely affect the health or welfare of any patient;
(h) A peer review committee of a sickness and accident
insurer that has at least a two-thirds majority of physicians in
active practice and that conducts professional credentialing and
quality review activities involving the competence or professional
conduct of a health care facility that has contracted with the
insurer to provide health care services to insureds, which conduct
adversely affects, or could adversely affect, the health or
welfare of any patient;
(i) A peer review committee of any insurer authorized under
Title XXXIX of the Revised Code to do the business of medical
professional liability insurance in this state that conducts
professional quality review activities involving the competence or
professional conduct of health care providers that adversely
affects or could affect the health or welfare of any patient;
(j) A peer review committee of the bureau of workers'
compensation or the industrial commission that is responsible for
reviewing the professional qualifications and the performance of
providers certified by the bureau to participate in the health
partnership program or for conducting medical examinations or file
reviews for the bureau or the commission;
(k) Any other peer review committee of a health care entity.
(F) "Physician" means an individual authorized to practice
medicine and surgery, osteopathic medicine and surgery, or
podiatric medicine and surgery.
(G) "Sickness and accident insurer" means an entity
authorized under Title XXXIX of the Revised Code to do the
business of sickness and accident insurance in this state.
(H) "Tort action" means a civil action for damages for
injury, death, or loss to a patient of a health care entity. "Tort
action" includes a product liability claim, as defined in section
2307.71 of the Revised Code, and an asbestos claim, as defined in
section 2307.91 of the Revised Code, but does not include a civil
action for a breach of contract or another agreement between
persons.
Sec. 2305.252. (A) Proceedings and records within the scope
of a peer review committee of a health care entity shall be held
in confidence and shall not be subject to discovery or
introduction in evidence in any civil action against a health care
entity or health care provider, including both individuals who
provide health care and entities that provide health care, arising
out of matters that are the subject of evaluation and review by
the peer review committee. No individual who attends a meeting of
a peer review committee, serves as a member of a peer review
committee, works for or on behalf of a peer review committee, or
provides information to a peer review committee shall be permitted
or required to testify in any civil action as to any evidence or
other matters produced or presented during the proceedings of the
peer review committee or as to any finding, recommendation,
evaluation, opinion, or other action of the committee or a member
thereof. Information, documents, or records otherwise available
from original sources are not to be construed as being unavailable
for discovery or for use in any civil action merely because they
were produced or presented during proceedings of a peer review
committee, but the information, documents, or records are
available only from the original sources and cannot be obtained
from the peer review committee's proceedings or records. An
individual who testifies before a peer review committee, serves as
a representative of a peer review committee, serves as a member of
a peer review committee, works for or on behalf of a peer review
committee, or provides information to a peer review committee
shall not be prevented from testifying as to matters within the
individual's knowledge, but the individual cannot be asked about
the individual's testimony before the peer review committee,
information the individual provided to the peer review committee,
or any opinion the individual formed as a result of the peer
review committee's activities. An order by a court to produce for
discovery or for use at trial the proceedings or records described
in this section is a final order.
(B) Division (A) of this section applies to a peer review
committee of the bureau of workers' compensation that is
responsible for reviewing the professional qualifications and the
performance of providers certified by the bureau to participate in
the health partnership program created under sections 4121.44 and
4121.441 of the Revised Code, except that the proceedings and
records within the scope of the peer review committee are subject
to discovery or court subpoena and may be admitted into evidence
in any criminal action or administrative or civil action
initiated, prosecuted, or adjudicated by the bureau involving an
alleged violation of applicable law or administrative rule. The
bureau may share proceedings and records within the scope of the
peer review committee, including claimant records and claim file
information, with law enforcement agencies, licensing boards, and
other governmental agencies that are prosecuting, adjudicating, or
investigating alleged violations of applicable law or
administrative rule. Recipients of claimant records and claim file
information provided by the bureau pursuant to this division shall
take appropriate measures to maintain the confidentiality of the
information.
Sec. 4121.132. (A) As used in this section, "workers'
compensation fraud investigation" means any investigation
conducted by the administrator of workers' compensation or a
designee of the administrator under the authority of division (F)
of section 4121.13 of the Revised Code that relates to a
fraudulent workers' compensation act.
(B) All documents, reports, and evidence in the possession of
the administrator or the administrator's designee that pertain to
a workers' compensation fraud investigation are confidential law
enforcement investigatory records under section 149.43 of the
Revised Code. Notwithstanding the requirements of that section,
the administrator shall not prohibit public inspection of the
records that pertain to a workers' compensation fraud
investigation for a period longer than two years after the date
the investigation is closed.
(C) Except when made confidential or otherwise exempt from
section 149.43 of the Revised Code, all documents, reports, and
evidence in the possession of the administrator or the
administrator's designee that do not pertain to a workers'
compensation fraud investigation are public records under section
149.43 of the Revised Code, and are not by that possession alone
confidential law enforcement investigatory records.
(D) All documents, reports, and evidence in the possession of
the bureau of workers' compensation special investigation
department or the administrator's designee that pertain to a
workers' compensation fraud investigation are not subject to
subpoena in civil actions or administrative proceeding by any
court or tribunal of this state until opened for public inspection
by the administrator in accordance with division (B) of this
section or with section 149.43 of the Revised Code, unless the
administrator or the administrator's designee consents.
(E) Notwithstanding divisions (B), (C), and (D) of this
section, the administrator may do either of the following:
(1) Share documents, reports, and evidence that are the
subject of this section with any of the following persons or
entities, provided that the recipient agrees to maintain the
confidential or privileged status of the confidential or
privileged document, report, or evidence and has authority to do
so:
(a) Any person employed by, or acting on behalf of, the
administrator;
(b) Local, state, federal, and international regulatory and
law enforcement agencies;
(c) Local, state, and federal prosecutors.
(2) Disclose documents, reports, and evidence that are the
subject of this section in the furtherance of any regulatory or
legal action brought by or on behalf of the administrator or the
state, resulting from the exercise of the administrator's official
duties.
(F) The administrator may enter into agreements with the
persons or entities listed in division (E) of this section
governing the sharing and use of documents, reports, and evidence
consistent with the requirements of this section.
(G) No waiver of any applicable privilege or claim of
confidentiality in the documents, reports, and evidence described
in this section shall occur as a result of sharing or receiving
documents, reports, and evidence as authorized in divisions (E) or
(F) of this section.
(H) The administrator and the administrator's designee are
not subject to subpoena in civil actions by any court of this
state to testify concerning any matter of which they have
knowledge pursuant to a pending workers' compensation fraud
investigation by the administrator.
Sec. 4121.443. (A) The bureau of workers' compensation may
summarily suspend the certification of a provider to participate
in the health partnership program created under sections 4121.44
and 4121.441 of the Revised Code without a prior hearing if the
bureau determines any of the following apply to the provider:
(1) The professional license, certification, or registration
held by the provider has been revoked or suspended.
(2) The provider has been convicted of or has pleaded guilty
to a violation of section 2913.48 or sections 2923.31 to 2923.36
of the Revised Code or any other criminal offense related to the
delivery of or billing for health care benefits.
(3) The continued participation by the provider in the health
partnership program presents a danger to the health and safety of
claimants.
(B) The bureau shall issue a written order of summary
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 provider subject
to the summary suspension requests an adjudicatory hearing by the
bureau, the date set for the hearing shall be not later than
fifteen days, but not earlier than seven days, after the provider
requests the hearing, unless otherwise agreed to by both the
bureau and the provider.
(C) Any summary suspension imposed under this section shall
remain in effect, unless reversed on appeal, until a final
adjudication order issued by the bureau pursuant to this section
and Chapter 119. of the Revised Code takes effect. The bureau
shall issue its final adjudication order within seventy-five days
after completion of its hearing. A failure to issue the order
within the seventy-five-day time period shall result in
dissolution of the summary suspension order but shall not
invalidate any subsequent, final adjudication order.
Section 2. That existing sections 119.12, 2305.25, and
2305.252 of the Revised Code are hereby repealed.
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