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H. B. No. 78 As Passed by the SenateAs Passed by the Senate
129th General Assembly | Regular Session | 2011-2012 |
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Representatives Uecker, Roegner
Cosponsors:
Representatives Adams, J., Snitchler, Henne, Brenner, Beck, Boose, McClain, Grossman, Thompson, Stautberg, Martin, Huffman, Kozlowski, Dovilla, Derickson, Hall, Combs, Slaby, Hottinger, Goodwin, Carey, Maag, Gardner, Bubp, Hayes, Mecklenborg, Blessing, Young, Sears, Hackett, Butler, Johnson, Amstutz, Wachtmann, Blair, Schuring, Buchy, Gonzales, Newbold, Rosenberger, McKenney, Burke, Adams, R., Balderson, Conditt, Driehaus, Hagan, C., Peterson, Sprague Speaker Batchelder
Senators Jones, Jordan, Coley, Bacon, Daniels, Faber, Grendell, Hite, Niehaus, Obhof, Oelslager, Patton, Schaffer, Seitz, Wagoner, Widener, Wilson
A BILL
To amend sections 2305.11, 2307.52, 2919.16, and
4731.22, to enact new sections 2919.17 and
2919.18, to enact section 2919.171, and to repeal
sections 2919.17 and 2919.18 of the Revised Code
to revise the criminal laws governing
post-viability abortions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2305.11, 2307.52, 2919.16, and
4731.22 be amended and new sections 2919.17 and 2919.18 and
section 2919.171 of the Revised Code be enacted to read as
follows:
Sec. 2305.11. (A) An action for libel, slander, malicious
prosecution, or false imprisonment, an action for malpractice
other than an action upon a medical, dental, optometric, or
chiropractic claim, or an action upon a statute for a penalty or
forfeiture shall be commenced within one year after the cause of
action accrued, provided that an action by an employee for the
payment of unpaid minimum wages, unpaid overtime compensation, or
liquidated damages by reason of the nonpayment of minimum wages or
overtime compensation shall be commenced within two years after
the cause of action accrued.
(B) A civil action for unlawful abortion pursuant to section
2919.12 of the Revised Code, a civil action authorized by division
(H) of section 2317.56 of the Revised Code, a civil action
pursuant to division (B)(1) or (2) of section 2307.51 of the
Revised Code for performing a dilation and extraction procedure or
attempting to perform a dilation and extraction procedure in
violation of section 2919.15 of the Revised Code, and a civil
action pursuant to division (B)(1) or (2) of section 2307.52 of
the Revised Code for terminating or attempting to terminate a
human pregnancy after viability in violation of division (A) or
(B) of section 2919.17 of the Revised Code shall be commenced
within one year after the performance or inducement of the
abortion, within one year after the attempt to perform or induce
the abortion in violation of division (A) or (B) of section
2919.17 of the Revised Code, within one year after the performance
of the dilation and extraction procedure, or, in the case of a
civil action pursuant to division (B)(2) of section 2307.51 of the
Revised Code, within one year after the attempt to perform the
dilation and extraction procedure.
(C) As used in this section, "medical claim," "dental claim,"
"optometric claim," and "chiropractic claim" have the same
meanings as in section 2305.113 of the Revised Code.
Sec. 2307.52. (A) As used in this section:
(1) "Frivolous conduct" has the same meaning as in section
2323.51 of the Revised Code.
(2) "Viable" has the same meaning as in section 2919.16 of
the Revised Code.
(B)(1) A woman upon whom an abortion is purposely performed
or induced or attempted to be performed or induced in violation of
division (A) of section 2919.17 of the Revised Code has and may
commence a civil action for compensatory damages, punitive or
exemplary damages if authorized by section 2315.21 of the Revised
Code, and court costs and reasonable attorney's fees against the
person who purposely performed or induced or attempted to perform
or induce the abortion in violation of division (A) of section
2919.17 of the Revised Code.
(2) A woman upon whom an abortion is purposely performed or
induced or attempted to be performed or induced in violation of
division (B) of section 2919.17 of the Revised Code has and may
commence a civil action for compensatory damages, punitive or
exemplary damages if authorized by section 2315.21 of the Revised
Code, and court costs and reasonable attorney's fees against the
person who purposely performed or induced or attempted to perform
or induce the abortion in violation of division (B) of section
2919.17 of the Revised Code.
(C) If a judgment is rendered in favor of the defendant in a
civil action commenced pursuant to division (B)(1) or (2) of this
section and the court finds, upon the filing of a motion under
section 2323.51 of the Revised Code, that the commencement of the
civil action constitutes frivolous conduct and that the defendant
was adversely affected by the frivolous conduct, the court shall
award in accordance with section 2323.51 of the Revised Code
reasonable attorney's fees to the defendant.
Sec. 2919.16. As used in sections 2919.16 to 2919.18 of the
Revised Code:
(A) "Fertilization" means the fusion of a human spermatozoon
with a human ovum.
(B) "Gestational age" or "gestation" means the age of an
unborn human child as calculated from the first day of the last
menstrual period of a pregnant woman.
(C) "Health care facility" means a hospital, clinic,
ambulatory surgical treatment center, other center, medical
school, office of a physician, infirmary, dispensary, medical
training institution, or other institution or location in or at
which medical care, treatment, or diagnosis is provided to a
person.
(D) "Hospital" has the same meanings as in sections 3701.01,
3727.01, and 5122.01 of the Revised Code.
(E) "Live birth" has the same meaning as in division (A) of
section 3705.01 of the Revised Code.
(F) "Medical emergency" means a condition that a pregnant
woman's physician determines, in the physician's good faith and in
the exercise of reasonable medical judgment, based upon the facts
known to the physician at that time, so complicates the woman's
pregnancy as to necessitate the immediate performance or
inducement of an abortion in order to prevent the death of the
pregnant woman or to avoid a serious risk of the substantial and
irreversible impairment of a major bodily function of the pregnant
woman that delay in the performance or inducement of the abortion
would create.
(G) "Physician" has the same meaning as in section 2305.113
of the Revised Code.
(H) "Pregnant" means the human female reproductive condition,
that commences with fertilization, of having a developing fetus.
(I) "Pregnancy" means the condition of being pregnant.
(J) "Premature infant" means a human whose live birth occurs
prior to thirty-eight weeks of gestational age.
(J)(K) "Serious risk of the substantial and irreversible
impairment of a major bodily function" means any medically
diagnosed condition that so complicates the pregnancy of the woman
as to directly or indirectly cause the substantial and
irreversible impairment of a major bodily function, including, but
not limited to, the following conditions:
(3) Prematurely ruptured membrane;
(5) Multiple sclerosis. A medically diagnosed condition that
constitutes a "serious risk of the substantial and irreversible
impairment of a major bodily function" includes pre-eclampsia,
inevitable abortion, and premature rupture of the membranes, may
include, but is not limited to, diabetes and multiple sclerosis,
and does not include a condition related to the woman's mental
health.
(K)(L) "Unborn human child" means an individual organism of
the species homo sapiens from fertilization until live birth.
(L)(M) "Viable" means the stage of development of a human
fetus at which in the determination of a physician, based on the
particular facts of a woman's pregnancy that are known to the
physician and in light of medical technology and information
reasonably available to the physician, there is a realistic
possibility of the maintaining and nourishing of a life outside of
the womb with or without temporary artificial life-sustaining
support.
Sec. 2919.17. (A) No person shall purposely perform or
induce or attempt to perform or induce an abortion on a pregnant
woman when the unborn child is viable.
(B)(1) It is an affirmative defense to a charge under
division (A) of this section that the abortion was performed or
induced or attempted to be performed or induced by a physician and
that the physician determined, in the physician's good faith
medical judgment, based on the facts known to the physician at
that time, that either of the following applied:
(a) The unborn child was not viable.
(b) The abortion was necessary to prevent the death of the
pregnant woman or a serious risk of the substantial and
irreversible impairment of a major bodily function of the pregnant
woman.
(2) No abortion shall be considered necessary under division
(B)(1)(b) of this section on the basis of a claim or diagnosis
that the pregnant woman will engage in conduct that would result
in the pregnant woman's death or a substantial and irreversible
impairment of a major bodily function of the pregnant woman or
based on any reason related to the woman's mental health.
(C) Except when a medical emergency exists that prevents
compliance with section 2919.18 of the Revised Code, the
affirmative defense set forth in division (B)(1)(a) of this
section does not apply unless the physician who performs or
induces or attempts to perform or induce the abortion performs the
viability testing required by division (A) of section 2919.18 of
the Revised Code and certifies in writing, based on the results of
the tests performed, that in the physician's good faith medical
judgment the unborn child is not viable.
(D) Except when a medical emergency exists that prevents
compliance with one or more of the following conditions, the
affirmative defense set forth in division (B)(1)(b) of this
section does not apply unless the physician who performs or
induces or attempts to perform or induce the abortion complies
with all of the following conditions:
(1) The physician who performs or induces or attempts to
perform or induce the abortion certifies in writing that, in the
physician's good faith medical judgment, based on the facts known
to the physician at that time, the abortion is necessary to
prevent the death of the pregnant woman or a serious risk of the
substantial and irreversible impairment of a major bodily function
of the pregnant woman.
(2) Another physician who is not professionally related to
the physician who intends to perform or induce the abortion
certifies in writing that, in that physician's good faith medical
judgment, based on the facts known to that physician at that time,
the abortion is necessary to prevent the death of the pregnant
woman or a serious risk of the substantial and irreversible
impairment of a major bodily function of the pregnant woman.
(3) The physician performs or induces or attempts to perform
or induce the abortion in a hospital or other health care facility
that has appropriate neonatal services for premature infants.
(4) The physician who performs or induces or attempts to
perform or induce the abortion terminates or attempts to terminate
the pregnancy in the manner that provides the best opportunity for
the unborn child to survive, unless that physician determines, in
the physician's good faith medical judgment, based on the facts
known to the physician at that time, that the termination of the
pregnancy in that manner poses a greater risk of the death of the
pregnant woman or a greater risk of the substantial and
irreversible impairment of a major bodily function of the pregnant
woman than would other available methods of abortion.
(5) The physician certifies in writing the available method
or techniques considered and the reasons for choosing the method
or technique employed.
(6) The physician who performs or induces or attempts to
perform or induce the abortion has arranged for the attendance in
the same room in which the abortion is to be performed or induced
or attempted to be performed or induced at least one other
physician who is to take control of, provide immediate medical
care for, and take all reasonable steps necessary to preserve the
life and health of the unborn child immediately upon the child's
complete expulsion or extraction from the pregnant woman.
(E) For purposes of this section, there is a rebuttable
presumption that an unborn child of at least twenty-four weeks
gestational age is viable.
(F) Whoever violates this section is guilty of terminating or
attempting to terminate a human pregnancy after viability, a
felony of the fourth degree.
(G) The state medical board shall revoke a physician's
license to practice medicine in this state if the physician
violates this section.
(H) Any physician who performs or induces an abortion or
attempts to perform or induce an abortion with actual knowledge
that neither of the affirmative defenses set forth in division
(B)(1) of this section applies, or with a heedless indifference as
to whether either affirmative defense applies, is liable in a
civil action for compensatory and exemplary damages and reasonable
attorney's fees to any person, or the representative of the estate
of any person, who sustains injury, death, or loss to person or
property as the result of the performance or inducement or the
attempted performance or inducement of the abortion. In any action
under this division, the court also may award any injunctive or
other equitable relief that the court considers appropriate.
(I) A pregnant woman on whom an abortion is performed or
induced or attempted to be performed or induced in violation of
division (A) of this section is not guilty of violating division
(A) of this section or of attempting to commit, conspiring to
commit, or complicity in committing a violation of division (A) of
this section.
Sec. 2919.171. (A) A physician who performs or induces or
attempts to perform or induce an abortion on a pregnant woman
shall submit a report to the department of health in accordance
with the forms, rules, and regulations adopted by the department
that includes all of the information the physician is required to
certify in writing or determine under sections 2919.17 and 2919.18
of the Revised Code:
(B) By September 30 of each year, the department of health
shall issue a public report that provides statistics for the
previous calendar year compiled from all of the reports covering
that calendar year submitted to the department in accordance with
this section for each of the items listed in division (A) of this
section. The report shall also provide the statistics for each
previous calendar year in which a report was filed with the
department pursuant to this section, adjusted to reflect any
additional information that a physician provides to the department
in a late or corrected report. The department shall ensure that
none of the information included in the report could reasonably
lead to the identification of any pregnant woman upon whom an
abortion is performed.
(C)(1) The physician shall submit the report described in
division (A) of this section to the department of health within
fifteen days after the woman is discharged. If the physician fails
to submit the report more than thirty days after that fifteen-day
deadline, the physician shall be subject to a late fee of five
hundred dollars for each additional thirty-day period or portion
of a thirty-day period the report is overdue. A physician who is
required to submit to the department of health a report under
division (A) of this section and who has not submitted a report or
has submitted an incomplete report more than one year following
the fifteen-day deadline may, in an action brought by the
department of health, be directed by a court of competent
jurisdiction to submit a complete report to the department of
health within a period of time stated in a court order or be
subject to contempt of court.
(2) If a physician fails to comply with the requirements of
this section, other than filing a late report with the department
of health, or fails to submit a complete report to the department
of health in accordance with a court order, the physician is
subject to division (B)(41) of section 4731.22 of the Revised
Code.
(3) No person shall falsify any report required under this
section. Whoever violates this division is guilty of abortion
report falsification, a misdemeanor of the first degree.
(D) Within ninety days of the effective date of this section,
the department of health shall adopt rules pursuant to section
111.15 of the Revised Code to assist in compliance with this
section.
Sec. 2919.18. (A) Except in a medical emergency that
prevents compliance with this division, no physician shall perform
or induce or attempt to perform or induce an abortion on a
pregnant woman after the beginning of the twentieth week of
gestation unless, prior to the performance or inducement of the
abortion or the attempt to perform or induce the abortion, the
physician determines, in the physician's good faith medical
judgment, that the unborn child is not viable, and the physician
makes that determination after performing a medical examination of
the pregnant woman and after performing or causing to be performed
those tests for assessing gestational age, weight, lung maturity,
or other tests that the physician, in that physician's good faith
medical judgment, believes are necessary to determine whether an
unborn child is viable.
(B) Except in a medical emergency that prevents compliance
with this division, no physician shall perform or induce or
attempt to perform or induce an abortion on a pregnant woman after
the beginning of the twentieth week of gestation without first
entering the determination made in division (A) of this section
and the associated findings of the medical examination and tests
in the medical record of the pregnant woman.
(C) Whoever violates this section is guilty of failure to
perform viability testing, a misdemeanor of the fourth degree.
(D) The state medical board shall suspend a physician's
license to practice medicine in this state for a period of not
less than six months if the physician violates this section.
Sec. 4731.22. (A) The state medical board, by an affirmative
vote of not fewer than six of its members, may revoke or may
refuse to grant a certificate to a person found by the board to
have committed fraud during the administration of the examination
for a certificate to practice or to have committed fraud,
misrepresentation, or deception in applying for or securing any
certificate to practice or certificate of registration issued by
the board.
(B) The board, by an affirmative vote of not fewer than six
members, shall, to the extent permitted by law, limit, revoke, or
suspend an individual's certificate to practice, refuse to
register an individual, refuse to reinstate a certificate, or
reprimand or place on probation the holder of a certificate for
one or more of the following reasons:
(1) Permitting one's name or one's certificate to practice or
certificate of registration to be used by a person, group, or
corporation when the individual concerned is not actually
directing the treatment given;
(2) Failure to maintain minimal standards applicable to the
selection or administration of drugs, or failure to employ
acceptable scientific methods in the selection of drugs or other
modalities for treatment of disease;
(3) Selling, giving away, personally furnishing, prescribing,
or administering drugs for other than legal and legitimate
therapeutic purposes or a plea of guilty to, a judicial finding of
guilt of, or a judicial finding of eligibility for intervention in
lieu of conviction of, a violation of any federal or state law
regulating the possession, distribution, or use of any drug;
(4) Willfully betraying a professional confidence.
For purposes of this division, "willfully betraying a
professional confidence" does not include providing any
information, documents, or reports to a child fatality review
board under sections 307.621 to 307.629 of the Revised Code and
does not include the making of a report of an employee's use of a
drug of abuse, or a report of a condition of an employee other
than one involving the use of a drug of abuse, to the employer of
the employee as described in division (B) of section 2305.33 of
the Revised Code. Nothing in this division affects the immunity
from civil liability conferred by that section upon a physician
who makes either type of report in accordance with division (B) of
that section. As used in this division, "employee," "employer,"
and "physician" have the same meanings as in section 2305.33 of
the Revised Code.
(5) Making a false, fraudulent, deceptive, or misleading
statement in the solicitation of or advertising for patients; in
relation to the practice of medicine and surgery, osteopathic
medicine and surgery, podiatric medicine and surgery, or a limited
branch of medicine; or in securing or attempting to secure any
certificate to practice or certificate of registration issued by
the board.
As used in this division, "false, fraudulent, deceptive, or
misleading statement" means a statement that includes a
misrepresentation of fact, is likely to mislead or deceive because
of a failure to disclose material facts, is intended or is likely
to create false or unjustified expectations of favorable results,
or includes representations or implications that in reasonable
probability will cause an ordinarily prudent person to
misunderstand or be deceived.
(6) A departure from, or the failure to conform to, minimal
standards of care of similar practitioners under the same or
similar circumstances, whether or not actual injury to a patient
is established;
(7) Representing, with the purpose of obtaining compensation
or other advantage as personal gain or for any other person, that
an incurable disease or injury, or other incurable condition, can
be permanently cured;
(8) The obtaining of, or attempting to obtain, money or
anything of value by fraudulent misrepresentations in the course
of practice;
(9) A plea of guilty to, a judicial finding of guilt of, or a
judicial finding of eligibility for intervention in lieu of
conviction for, a felony;
(10) Commission of an act that constitutes a felony in this
state, regardless of the jurisdiction in which the act was
committed;
(11) A plea of guilty to, a judicial finding of guilt of, or
a judicial finding of eligibility for intervention in lieu of
conviction for, a misdemeanor committed in the course of practice;
(12) Commission of an act in the course of practice that
constitutes a misdemeanor in this state, regardless of the
jurisdiction in which the act was committed;
(13) A plea of guilty to, a judicial finding of guilt of, or
a judicial finding of eligibility for intervention in lieu of
conviction for, a misdemeanor involving moral turpitude;
(14) Commission of an act involving moral turpitude that
constitutes a misdemeanor in this state, regardless of the
jurisdiction in which the act was committed;
(15) Violation of the conditions of limitation placed by the
board upon a certificate to practice;
(16) Failure to pay license renewal fees specified in this
chapter;
(17) Except as authorized in section 4731.31 of the Revised
Code, engaging in the division of fees for referral of patients,
or the receiving of a thing of value in return for a specific
referral of a patient to utilize a particular service or business;
(18) Subject to section 4731.226 of the Revised Code,
violation of any provision of a code of ethics of the American
medical association, the American osteopathic association, the
American podiatric medical association, or any other national
professional organizations that the board specifies by rule. The
state medical board shall obtain and keep on file current copies
of the codes of ethics of the various national professional
organizations. The individual whose certificate is being suspended
or revoked shall not be found to have violated any provision of a
code of ethics of an organization not appropriate to the
individual's profession.
For purposes of this division, a "provision of a code of
ethics of a national professional organization" does not include
any provision that would preclude the making of a report by a
physician of an employee's use of a drug of abuse, or of a
condition of an employee other than one involving the use of a
drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing in
this division affects the immunity from civil liability conferred
by that section upon a physician who makes either type of report
in accordance with division (B) of that section. As used in this
division, "employee," "employer," and "physician" have the same
meanings as in section 2305.33 of the Revised Code.
(19) Inability to practice according to acceptable and
prevailing standards of care by reason of mental illness or
physical illness, including, but not limited to, physical
deterioration that adversely affects cognitive, motor, or
perceptive skills.
In enforcing this division, the board, upon a showing of a
possible violation, may compel any individual authorized to
practice by this chapter or who has submitted an application
pursuant to this chapter to submit to a mental examination,
physical examination, including an HIV test, or both a mental and
a physical examination. The expense of the examination is the
responsibility of the individual compelled to be examined. Failure
to submit to a mental or physical examination or consent to an HIV
test ordered by the board constitutes an admission of the
allegations against the individual unless the failure is due to
circumstances beyond the individual's control, and a default and
final order may be entered without the taking of testimony or
presentation of evidence. If the board finds an individual unable
to practice because of the reasons set forth in this division, the
board shall require the individual to submit to care, counseling,
or treatment by physicians approved or designated by the board, as
a condition for initial, continued, reinstated, or renewed
authority to practice. An individual affected under this division
shall be afforded an opportunity to demonstrate to the board the
ability to resume practice in compliance with acceptable and
prevailing standards under the provisions of the individual's
certificate. For the purpose of this division, any individual who
applies for or receives a certificate to practice under this
chapter accepts the privilege of practicing in this state and, by
so doing, shall be deemed to have given consent to submit to a
mental or physical examination when directed to do so in writing
by the board, and to have waived all objections to the
admissibility of testimony or examination reports that constitute
a privileged communication.
(20) Except when civil penalties are imposed under section
4731.225 or 4731.281 of the Revised Code, and subject to section
4731.226 of the Revised Code, violating or attempting to violate,
directly or indirectly, or assisting in or abetting the violation
of, or conspiring to violate, any provisions of this chapter or
any rule promulgated by the board.
This division does not apply to a violation or attempted
violation of, assisting in or abetting the violation of, or a
conspiracy to violate, any provision of this chapter or any rule
adopted by the board that would preclude the making of a report by
a physician of an employee's use of a drug of abuse, or of a
condition of an employee other than one involving the use of a
drug of abuse, to the employer of the employee as described in
division (B) of section 2305.33 of the Revised Code. Nothing in
this division affects the immunity from civil liability conferred
by that section upon a physician who makes either type of report
in accordance with division (B) of that section. As used in this
division, "employee," "employer," and "physician" have the same
meanings as in section 2305.33 of the Revised Code.
(21) The violation of section 3701.79 of the Revised Code or
of any abortion rule adopted by the public health council pursuant
to section 3701.341 of the Revised Code;
(22) Any of the following actions taken by the agency
responsible for regulating the practice of medicine and surgery,
osteopathic medicine and surgery, podiatric medicine and surgery,
or the limited branches of medicine in another jurisdiction, for
any reason other than the nonpayment of fees: the limitation,
revocation, or suspension of an individual's license to practice;
acceptance of an individual's license surrender; denial of a
license; refusal to renew or reinstate a license; imposition of
probation; or issuance of an order of censure or other reprimand;
(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 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.
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, 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 that
there is clear and convincing evidence that an individual has
violated division (B) of this section and that the individual's
continued practice presents a danger of immediate and serious harm
to the public, they may recommend that the board suspend the
individual's certificate to practice without a prior hearing.
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.
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 2305.11, 2307.52, 2919.16,
4731.22 and sections 2919.17 and 2919.18 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 Am. Sub.
H.B. 280, Sub. H.B. 525, and Sub. S.B. 229 of the 127th 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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