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H. B. No. 271 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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A BILL
To amend sections 2305.234 and 2305.2341 of the
Revised Code to expand the immunity from liability
for health care professionals, health care
workers, and nonprofit health care referral
organizations when providing specific care to an
indigent and uninsured person.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2305.234 and 2305.2341 of the
Revised Code be amended to read as follows:
Sec. 2305.234. (A) As used in this section:
(1) "Chiropractic claim," "medical claim," and "optometric
claim" have the same meanings as in section 2305.113 of the
Revised Code.
(2) "Dental claim" has the same meaning as in section
2305.113 of the Revised Code, except that it does not include any
claim arising out of a dental operation or any derivative claim
for relief that arises out of a dental operation.
(3) "Governmental health care program" has the same meaning
as in section 4731.65 of the Revised Code.
(4) "Health care facility or location" means a hospital,
clinic, ambulatory surgical facility, office of a health care
professional or associated group of health care professionals,
training institution for health care professionals, or any other
place where medical, dental, or other health-related diagnosis,
care, or treatment is provided to a person.
(5) "Health care professional" means any of the following who
provide medical, dental, or other health-related diagnosis, care,
or treatment:
(a) Physicians authorized under Chapter 4731. of the Revised
Code to practice medicine and surgery or osteopathic medicine and
surgery;
(b) Registered nurses and licensed practical nurses licensed
under Chapter 4723. of the Revised Code and individuals who hold a
certificate of authority issued under that chapter that authorizes
the practice of nursing as a certified registered nurse
anesthetist, clinical nurse specialist, certified nurse-midwife,
or certified nurse practitioner;
(c) Physician assistants authorized to practice under Chapter
4730. of the Revised Code;
(d) Dentists and dental hygienists licensed under Chapter
4715. of the Revised Code;
(e) Physical therapists, physical therapist assistants,
occupational therapists, and occupational therapy assistants
licensed under Chapter 4755. of the Revised Code;
(f) Chiropractors licensed under Chapter 4734. of the Revised
Code;
(g) Optometrists licensed under Chapter 4725. of the Revised
Code;
(h) Podiatrists authorized under Chapter 4731. of the Revised
Code to practice podiatry;
(i) Dietitians licensed under Chapter 4759. of the Revised
Code;
(j) Pharmacists licensed under Chapter 4729. of the Revised
Code;
(k) Emergency medical technicians-basic, emergency medical
technicians-intermediate, and emergency medical
technicians-paramedic, certified under Chapter 4765. of the
Revised Code;
(l) Respiratory care professionals licensed under Chapter
4761. of the Revised Code;
(m) Speech-language pathologists and audiologists licensed
under Chapter 4753. of the Revised Code;
(n) Professional clinical counselors, professional
counselors, independent social workers, social workers,
independent marriage and family therapists, and marriage and
family therapists, licensed under Chapter 4757. of the Revised
Code;
(o) Psychologists licensed under Chapter 4732. of the Revised
Code;
(p) Independent chemical dependency counselors, chemical
dependency counselors III, chemical dependency counselors II, and
chemical dependency counselors I, licensed under Chapter 4758. of
the Revised Code.
(6) "Health care worker" means a person other than a health
care professional who provides medical, dental, or other
health-related care or treatment under the direction of a health
care professional with the authority to direct that individual's
activities, including medical technicians, medical assistants,
dental assistants, orderlies, aides, and individuals acting in
similar capacities.
(7) "Indigent and uninsured person" means a person who meets
all of the following requirements:
(a) The person's income is not greater than two hundred per
cent of the current poverty line as defined by the United States
office of management and budget and revised in accordance with
section 673(2) of the "Omnibus Budget Reconciliation Act of 1981,"
95 Stat. 511, 42 U.S.C. 9902, as amended.
(b) The person is not eligible to receive medical assistance
under Chapter 5111. of the Revised Code or assistance under any
other governmental health care program.
(c) Either of the following applies:
(i) The person is not a policyholder, certificate holder,
insured, contract holder, subscriber, enrollee, member,
beneficiary, or other covered individual under a health insurance
or health care policy, contract, or plan.
(ii) The person is a policyholder, certificate holder,
insured, contract holder, subscriber, enrollee, member,
beneficiary, or other covered individual under a health insurance
or health care policy, contract, or plan, but the insurer, policy,
contract, or plan denies coverage or is the subject of insolvency
or bankruptcy proceedings in any jurisdiction.
(8) "Nonprofit health care referral organization" means an
entity that is not operated for profit and refers patients to, or
arranges for the provision of, health-related diagnosis, care, or
treatment by a health care professional or health care worker.
(9) "Operation" means any procedure that involves cutting or
otherwise infiltrating human tissue by mechanical means, including
surgery, laser surgery, ionizing radiation, therapeutic
ultrasound, or the removal of intraocular foreign bodies.
"Operation" does not include the administration of medication by
injection, unless the injection is administered in conjunction
with a procedure infiltrating human tissue by mechanical means
other than the administration of medicine by injection.
"Operation" does not include routine dental restorative
procedures, the scaling of teeth, or extractions of teeth that are
not impacted.
(10) "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 or government entities.
(11) "Volunteer" means an individual who provides any
medical, dental, or other health-care related diagnosis, care, or
treatment without the expectation of receiving and without receipt
of any compensation or other form of remuneration from an indigent
and uninsured person, another person on behalf of an indigent and
uninsured person, any health care facility or location, any
nonprofit health care referral organization, or any other person
or government entity.
(12) "Community control sanction" has the same meaning as in
section 2929.01 of the Revised Code.
(13) "Deep sedation" means a drug-induced depression of
consciousness during which a patient cannot be easily aroused but
responds purposefully following repeated or painful stimulation, a
patient's ability to independently maintain ventilatory function
may be impaired, a patient may require assistance in maintaining a
patent airway and spontaneous ventilation may be inadequate, and
cardiovascular function is usually maintained.
(14) "General anesthesia" means a drug-induced loss of
consciousness during which a patient is not arousable, even by
painful stimulation, the ability to independently maintain
ventilatory function is often impaired, a patient often requires
assistance in maintaining a patent airway, positive pressure
ventilation may be required because of depressed spontaneous
ventilation or drug-induced depression of neuromuscular function,
and cardiovascular function may be impaired.
(B)(1) Subject to divisions division (F) and (G)(3) of this
section, a health care professional who is a volunteer and
complies with division (B)(2) of this section is not liable in
damages to any person or government entity in a tort or other
civil action, including an action on a medical, dental,
chiropractic, optometric, or other health-related claim, for
injury, death, or loss to person or property that allegedly arises
from an action or omission of the volunteer in the provision to an
indigent and uninsured person of medical, dental, or other
health-related diagnosis, care, or treatment, including the
provision of samples of medicine and other medical products,
unless the action or omission constitutes willful or wanton
misconduct.
(2) To qualify for the immunity described in division (B)(1)
of this section, a health care professional shall do all of the
following prior to providing diagnosis, care, or treatment:
(a) Determine, in good faith, that the indigent and uninsured
person is mentally capable of giving informed consent to the
provision of the diagnosis, care, or treatment and is not subject
to duress or under undue influence;
(b) Inform the person of the provisions of this section,
including notifying the person that, by giving informed consent to
the provision of the diagnosis, care, or treatment, the person
cannot hold the health care professional liable for damages in a
tort or other civil action, including an action on a medical,
dental, chiropractic, optometric, or other health-related claim,
unless the action or omission of the health care professional
constitutes willful or wanton misconduct;
(c) Obtain the informed consent of the person and a written
waiver, signed by the person or by another individual on behalf of
and in the presence of the person, that states that the person is
mentally competent to give informed consent and, without being
subject to duress or under undue influence, gives informed consent
to the provision of the diagnosis, care, or treatment subject to
the provisions of this section. A written waiver under division
(B)(2)(c) of this section shall state clearly and in conspicuous
type that the person or other individual who signs the waiver is
signing it with full knowledge that, by giving informed consent to
the provision of the diagnosis, care, or treatment, the person
cannot bring a tort or other civil action, including an action on
a medical, dental, chiropractic, optometric, or other
health-related claim, against the health care professional unless
the action or omission of the health care professional constitutes
willful or wanton misconduct.
(3) A physician or podiatrist who is not covered by medical
malpractice insurance, but complies with division (B)(2) of this
section, is not required to comply with division (A) of section
4731.143 of the Revised Code.
(C) Subject to divisions division (F) and (G)(3) of this
section, health care workers who are volunteers are not liable in
damages to any person or government entity in a tort or other
civil action, including an action upon a medical, dental,
chiropractic, optometric, or other health-related claim, for
injury, death, or loss to person or property that allegedly arises
from an action or omission of the health care worker in the
provision to an indigent and uninsured person of medical, dental,
or other health-related diagnosis, care, or treatment, unless the
action or omission constitutes willful or wanton misconduct.
(D) Subject to divisions division (F) and (G)(3) of this
section, a nonprofit health care referral organization is not
liable in damages to any person or government entity in a tort or
other civil action, including an action on a medical, dental,
chiropractic, optometric, or other health-related claim, for
injury, death, or loss to person or property that allegedly arises
from an action or omission of the nonprofit health care referral
organization in referring indigent and uninsured persons to, or
arranging for the provision of, medical, dental, or other
health-related diagnosis, care, or treatment by a health care
professional described in division (B)(1) of this section or a
health care worker described in division (C) of this section,
unless the action or omission constitutes willful or wanton
misconduct.
(E) Subject to divisions division (F) and (G)(3) of this
section and to the extent that the registration requirements of
section 3701.071 of the Revised Code apply, a health care facility
or location associated with a health care professional described
in division (B)(1) of this section, a health care worker described
in division (C) of this section, or a nonprofit health care
referral organization described in division (D) of this section is
not liable in damages to any person or government entity in a tort
or other civil action, including an action on a medical, dental,
chiropractic, optometric, or other health-related claim, for
injury, death, or loss to person or property that allegedly arises
from an action or omission of the health care professional or
worker or nonprofit health care referral organization relative to
the medical, dental, or other health-related diagnosis, care, or
treatment provided to an indigent and uninsured person on behalf
of or at the health care facility or location, unless the action
or omission constitutes willful or wanton misconduct.
(F)(1) Except as provided in division (F)(2) of this section,
the The immunities provided by divisions (B), (C), (D), and (E) of
this section are not available to a health care professional,
health care worker, nonprofit health care referral organization,
or health care facility or location if, at the time of an alleged
injury, death, or loss to person or property, the health care
professionals or health care workers involved are providing one of
the following:
(a) Any medical, dental, or other health-related diagnosis,
care, or treatment pursuant to a community service work order
entered by a court under division (B) of section 2951.02 of the
Revised Code or imposed by a court as a community control
sanction;
(b) Performance of an operation to which any one of the
following applies:
(i) The operation requires the administration of deep
sedation or general anesthesia.
(ii) The operation is a procedure that is not typically
performed in an office.
(iii) The individual involved is a health care professional,
and the operation is beyond the scope of practice or the
education, training, and competence, as applicable, of the health
care professional.
(c) Delivery of a baby or any other the purposeful
termination of a human pregnancy.
(2) Division (F)(1) of this section does not apply when a
health care professional or health care worker provides medical,
dental, or other health-related diagnosis, care, or treatment that
is necessary to preserve the life of a person in a medical
emergency.
(G)(1) This section does not create a new cause of action or
substantive legal right against a health care professional, health
care worker, nonprofit health care referral organization, or
health care facility or location.
(2) This section does not affect any immunities from civil
liability or defenses established by another section of the
Revised Code or available at common law to which a health care
professional, health care worker, nonprofit health care referral
organization, or health care facility or location may be entitled
in connection with the provision of emergency or other medical,
dental, or other health-related diagnosis, care, or treatment.
(3) This section does not grant an immunity from tort or
other civil liability to a health care professional, health care
worker, nonprofit health care referral organization, or health
care facility or location for actions that are outside the scope
of authority of health care professionals or health care workers.
(4) This section does not affect any legal responsibility of
a health care professional, health care worker, or nonprofit
health care referral organization to comply with any applicable
law of this state or rule of an agency of this state.
(5)(4) This section does not affect any legal responsibility
of a health care facility or location to comply with any
applicable law of this state, rule of an agency of this state, or
local code, ordinance, or regulation that pertains to or regulates
building, housing, air pollution, water pollution, sanitation,
health, fire, zoning, or safety.
Sec. 2305.2341. (A) The medical liability insurance
reimbursement program is hereby established. Free clinics and
federally qualified health center look-alikes, including the
clinics' and centers' staff and volunteer health care
professionals and volunteer health care workers, may participate
in the medical liability insurance reimbursement program
established by this section. The coverage provided under the
program shall be limited to claims that arise out of the
diagnosis, treatment, and care of patients of free clinics and
centers, as defined in division (D) of this section.
(B) A free clinic or federally qualified health center
look-alike is eligible to receive reimbursement under the medical
liability insurance reimbursement program for the premiums that
the clinic or center pays for medical liability insurance coverage
for the clinic or center, its staff, and volunteer health care
professionals and health care workers. Free clinics and federally
qualified health center look-alikes shall register with the
department of health by the thirty-first day of January of each
year in order to participate in and to obtain reimbursement under
the program. Clinics that register with the department in
accordance with this division shall receive priority over centers
that register for reimbursement.
Free clinics and federally qualified health center
look-alikes shall provide all of the following to the department
of health at the time of registration:
(1) A statement of the number of volunteer and paid health
care professionals and health care workers providing health care
services at the free clinic or federally qualified health center
look-alike at that time;
(2) A statement of the number of health care services
rendered by the free clinic or federally qualified health center
look-alike during the previous fiscal year;
(3) A signed form acknowledging that the free clinic or
federally qualified health center look-alike agrees to follow its
medical liability insurer's risk management and loss prevention
policies;
(4) A copy of the medical liability insurance policy
purchased by the free clinic or federally qualified health center
look-alike, or the policy's declaration page, and documentation of
the premiums paid by the clinic or center.
(C) The department of health shall reimburse free clinics and
federally qualified health center look-alikes participating in the
professional liability insurance reimbursement program for up to
eighty per cent of the premiums that the clinic or center pays for
medical liability insurance coverage up to twenty thousand
dollars. Appropriations to the department of health may be made
from the general fund of the state for this purpose.
(D) As used in this section:
(1) "Federally qualified health center look-alike" means a
public or not-for-profit health center that meets the eligibility
requirements to receive a federal public health services grant
under the "Public Health Services Act," 117 Stat. 2020, 42 U.S.C.
254b, as amended, but does not receive grant funding.
(2) "Free clinic" means a nonprofit organization exempt from
federal income taxation under section 501(c)(3) of the "Internal
Revenue Code of 1986," as amended, or a program component of a
nonprofit organization, whose primary mission is to provide health
care services for free or for a minimal administrative fee to
individuals with limited resources. A free clinic facilitates the
delivery of health care services through the use of volunteer
health care professionals and voluntary care networks. For this
purpose, a free clinic shall comply with all of the following:
(a) If a free clinic does request a minimal administrative
fee, a free clinic shall not deny an individual access to its
health care services based on an individual's ability to pay the
fee.
(b) A free clinic shall not bill a patient for health care
services rendered.
(c) Free clinics shall not perform operations, as defined by
divisions division (A)(9) and (F)(1)(b) of section 2305.234 of the
Revised Code.
A clinic is not a free clinic if the clinic bills medicaid,
medicare, or other third-party payers for health care services
rendered at the clinic, and receives twenty-five per cent or more
of the clinic's annual revenue from the third-party payments.
(3) "Health care professional" and "health care worker" have
the same meanings as in section 2305.234 of the Revised Code.
Section 2. That existing sections 2305.234 and 2305.2341 of
the Revised Code are hereby repealed.
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