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H. B. No. 314 As IntroducedAs Introduced
130th General Assembly | Regular Session | 2013-2014 |
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Representatives Baker, Kunze
Cosponsors:
Representatives Hagan, C., Landis, Antonio, Sprague, Boose, Smith, Stebelton, Hood, Green, Sears, Driehaus, Patterson, O'Brien, Becker
A BILL
To amend sections 4715.30, 4723.481, and 4730.41 and
to enact sections 3719.061, 4723.283, 4725.191,
4730.252, and 4731.229 of the Revised Code to
require a prescriber to obtain written informed
consent from a minor's parent, guardian, or other
person responsible for the minor before issuing a
controlled substance prescription to the minor and
to establish sanctions for a prescriber's failure
to comply with this requirement.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 4715.30, 4723.481, and 4730.41 be
amended and sections 3719.061, 4723.283, 4725.191, 4730.252, and
4731.229 of the Revised Code be enacted to read as follows:
Sec. 3719.061. (A)(1) As used in this section:
(a) "Medical emergency" means a situation that in a
prescriber's good faith medical judgment creates an immediate
threat of serious risk to the life or physical health of a minor.
(b) "Minor" means a person under eighteen years of age who is
not emancipated.
(2) For the purposes of this section, a person under eighteen
years of age shall be considered emancipated only if the person
has married, entered the armed services of the United States,
became employed and self-sustaining, or has otherwise become
independent from the care and control of the person's parent,
guardian, or custodian.
(B) Except in a medical emergency, before issuing a
prescription for a controlled substance to a minor, a prescriber
shall obtain the informed consent of the minor's parent, guardian,
or other person responsible for the minor. The informed consent
must be recorded on a form separate from any other document the
prescriber uses to obtain informed consent for other treatment
provided to the minor and contain all of the following:
(1) The name and quantity of the controlled substance being
prescribed and the amount of each dose;
(2) A statement indicating that a controlled substance is a
drug or other substance that the United States drug enforcement
agency has identified as having a potential for abuse;
(3) The number of refills authorized by the prescription;
(4) The signature of the minor's parent, guardian, or other
person responsible for the minor and the date of signing.
(C) The signed consent form shall be maintained in the
minor's medical record.
Sec. 4715.30. (A) An applicant for or holder of a
certificate or license issued under this chapter is subject to
disciplinary action by the state dental board for any of the
following reasons:
(1) Employing or cooperating in fraud or material deception
in applying for or obtaining a license or certificate;
(2) Obtaining or attempting to obtain money or anything of
value by intentional misrepresentation or material deception in
the course of practice;
(3) Advertising services in a false or misleading manner or
violating the board's rules governing time, place, and manner of
advertising;
(4) Commission of an act that constitutes a felony in this
state, regardless of the jurisdiction in which the act was
committed;
(5) 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;
(6) Conviction of, a plea of guilty to, a judicial finding of
guilt of, a judicial finding of guilt resulting from a plea of no
contest to, or a judicial finding of eligibility for intervention
in lieu of conviction for, any felony or of a misdemeanor
committed in the course of practice;
(7) Engaging in lewd or immoral conduct in connection with
the provision of dental services;
(8) Selling, prescribing, giving away, or administering drugs
for other than legal and legitimate therapeutic purposes, or
conviction of, a plea of guilty to, a judicial finding of guilt
of, a judicial finding of guilt resulting from a plea of no
contest to, or a judicial finding of eligibility for intervention
in lieu of conviction for, a violation of any federal or state law
regulating the possession, distribution, or use of any drug;
(9) Providing or allowing dental hygienists, expanded
function dental auxiliaries, or other practitioners of auxiliary
dental occupations working under the certificate or license
holder's supervision, or a dentist holding a temporary limited
continuing education license under division (C) of section 4715.16
of the Revised Code working under the certificate or license
holder's direct supervision, to provide dental care that departs
from or fails to conform to accepted standards for the profession,
whether or not injury to a patient results;
(10) Inability to practice under accepted standards of the
profession because of physical or mental disability, dependence on
alcohol or other drugs, or excessive use of alcohol or other
drugs;
(11) Violation of any provision of this chapter or any rule
adopted thereunder;
(12) Failure to use universal blood and body fluid
precautions established by rules adopted under section 4715.03 of
the Revised Code;
(13) Except as provided in division (H) of this section,
either of the following:
(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 dental services, would
otherwise 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 certificate or license holder;
(b) Advertising that the certificate or license holder 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 dental services, would
otherwise be required to pay.
(14) Failure to comply with section 4729.79 of the Revised
Code, unless the state board of pharmacy no longer maintains a
drug database pursuant to section 4729.75 of the Revised Code;
(15) Any of the following actions taken by an agency
responsible for authorizing, certifying, or regulating an
individual to practice a health care occupation or provide health
care services in this state or another jurisdiction, for any
reason other than the nonpayment of fees: the limitation,
revocation, or suspension of an individual's license to practice;
acceptance of an individual's license surrender; denial of a
license; refusal to renew or reinstate a license; imposition of
probation; or issuance of an order of censure or other reprimand;
(16) Failure to cooperate in an investigation conducted by
the board under division (D) of section 4715.03 of the Revised
Code, including failure to comply with a subpoena or order issued
by the board or failure to answer truthfully a question presented
by the board at a deposition or in written interrogatories, except
that failure to cooperate with an investigation shall not
constitute grounds for discipline under this section if a court of
competent jurisdiction has issued an order that either quashes a
subpoena or permits the individual to withhold the testimony or
evidence in issue;
(17) Failure to comply with section 3719.061 of the Revised
Code.
(B) A manager, proprietor, operator, or conductor of a dental
facility shall be subject to disciplinary action if any dentist,
dental hygienist, expanded function dental auxiliary, or qualified
personnel providing services in the facility is found to have
committed a violation listed in division (A) of this section and
the manager, proprietor, operator, or conductor knew of the
violation and permitted it to occur on a recurring basis.
(C)(1) Subject to Chapter 119. of the Revised Code, the board
may take one or more of the following disciplinary actions if one
or more of the grounds for discipline listed in divisions (A)(1)
to (16) and (B) of this section exist:
(1)(a) Censure the license or certificate holder;
(2)(b) Place the license or certificate on probationary
status for such period of time the board determines necessary and
require the holder to:
(a)(i) Report regularly to the board upon the matters which
are the basis of probation;
(b)(ii) Limit practice to those areas specified by the board;
(c)(iii) Continue or renew professional education until a
satisfactory degree of knowledge or clinical competency has been
attained in specified areas.
(3)(c) Suspend the certificate or license;
(4)(d) Revoke the certificate or license.
(2) Subject to Chapter 119. of the Revised Code, the board
shall suspend for not less than six months the license of a
dentist who fails to comply with section 3719.061 of the Revised
Code.
Where the board places a holder of a license or certificate
on probationary status pursuant to division (C)(2)(1)(b) of this
section, the board may subsequently suspend or revoke the license
or certificate if it determines that the holder has not met the
requirements of the probation or continues to engage in activities
that constitute grounds for discipline pursuant to division (A) or
(B) of this section.
Any order suspending a license or certificate for a grounds
for discipline listed in divisions (A)(1) to (16) of this section
shall state the conditions under which the license or certificate
will be restored, which may include a conditional restoration
during which time the holder is in a probationary status pursuant
to division (C)(2)(1)(b) of this section. The board shall restore
the license or certificate unconditionally when such conditions
are met.
(D) If the physical or mental condition of an applicant or a
license or certificate holder is at issue in a disciplinary
proceeding, the board may order the license or certificate holder
to submit to reasonable examinations by an individual designated
or approved by the board and at the board's expense. The physical
examination may be conducted by any individual authorized by the
Revised Code to do so, including a physician assistant, a clinical
nurse specialist, a certified nurse practitioner, or a certified
nurse-midwife. Any written documentation of the physical
examination shall be completed by the individual who conducted the
examination.
Failure to comply with an order for an examination shall be
grounds for refusal of a license or certificate or summary
suspension of a license or certificate under division (E) of this
section.
(E) If a license or certificate holder has failed to comply
with an order under division (D) of this section, the board may
apply to the court of common pleas of the county in which the
holder resides for an order temporarily suspending the holder's
license or certificate, without a prior hearing being afforded by
the board, until the board conducts an adjudication hearing
pursuant to Chapter 119. of the Revised Code. If the court
temporarily suspends a holder's license or certificate, the board
shall give written notice of the suspension personally or by
certified mail to the license or certificate holder. Such notice
shall inform the license or certificate holder of the right to a
hearing pursuant to Chapter 119. of the Revised Code.
(F) Any holder of a certificate or license issued under this
chapter who has pleaded guilty to, has been convicted of, or has
had a judicial finding of eligibility for intervention in lieu of
conviction entered against the holder in this state for aggravated
murder, murder, voluntary manslaughter, felonious assault,
kidnapping, rape, sexual battery, gross sexual imposition,
aggravated arson, aggravated robbery, or aggravated burglary, or
who has pleaded guilty to, has been convicted of, or has had a
judicial finding of eligibility for treatment or intervention in
lieu of conviction entered against the holder in another
jurisdiction for any substantially equivalent criminal offense, is
automatically suspended from practice under this chapter in this
state and any certificate or license issued to the holder under
this chapter is automatically suspended, as of the date of the
guilty plea, conviction, or judicial finding, whether the
proceedings are brought in this state or another jurisdiction.
Continued practice by an individual after the suspension of the
individual's certificate or license under this division shall be
considered practicing without a certificate or license. The board
shall notify the suspended individual of the suspension of the
individual's certificate or license under this division by
certified mail or in person in accordance with section 119.07 of
the Revised Code. If an individual whose certificate or license is
suspended under this division fails to make a timely request for
an adjudicatory hearing, the board shall enter a final order
revoking the individual's certificate or license.
(G) If the supervisory investigative panel determines both of
the following, the panel may recommend that the board suspend an
individual's certificate or license without a prior hearing:
(1) That there is clear and convincing evidence that an
individual has violated division divisions (A)(1) to (16) of this
section;
(2) That the individual's continued practice presents a
danger of immediate and serious harm to the public.
Written allegations shall be prepared for consideration by
the board. The board, upon review of those allegations and by an
affirmative vote of not fewer than four dentist members of the
board and seven of its members in total, excluding any member on
the supervisory investigative panel, may suspend a certificate or
license without a prior hearing. A telephone conference call may
be utilized for reviewing the allegations and taking the vote on
the summary suspension.
The board shall issue a written order of suspension by
certified mail or in person in accordance with section 119.07 of
the Revised Code. The order shall not be subject to suspension by
the court during pendency or 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) Sanctions shall not be imposed under division (A)(13) of
this section against any certificate or license holder 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
who holds a certificate or license issued pursuant to this chapter
to the extent allowed by this chapter and the rules of the board.
(I) In no event shall the board consider or raise during a
hearing required by Chapter 119. of the Revised Code the
circumstances of, or the fact that the board has received, one or
more complaints about a person unless the one or more complaints
are the subject of the hearing or resulted in the board taking an
action authorized by this section against the person on a prior
occasion.
(J) The board may share any information it receives pursuant
to an investigation under division (D) of section 4715.03 of the
Revised Code, 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 dental 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
dental 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.
Sec. 4723.283. The board of nursing, by a vote of a quorum,
shall suspend for not less than six months the certificate of
authority of a clinical nurse specialist, certified nurse-midwife,
or certified nurse practitioner who fails to comply with section
3719.061 of the Revised Code. Disciplinary action under this
section shall be taken pursuant to an adjudication conducted under
Chapter 119. of the Revised Code.
When investigating or conducting a hearing on an alleged
violation of section 3719.061 of the Revised Code, the board may
take any action it is authorized to take under division (D), (F),
or (G) of section 4723.28 of the Revised Code.
Sec. 4723.481. This section establishes standards and
conditions regarding the authority of a clinical nurse specialist,
certified nurse-midwife, or certified nurse practitioner to
prescribe drugs and therapeutic devices under a certificate to
prescribe issued under section 4723.48 of the Revised Code.
(A) A clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner shall not prescribe any drug or
therapeutic device that is not included in the types of drugs and
devices listed on the formulary established in rules adopted under
section 4723.50 of the Revised Code.
(B) The prescriptive authority of a clinical nurse
specialist, certified nurse-midwife, or certified nurse
practitioner shall not exceed the prescriptive authority of the
collaborating physician or podiatrist, including the collaborating
physician's authority to treat chronic pain with controlled
substances and products containing tramadol as described in
section 4731.052 of the Revised Code.
(C)(1) Except as provided in division (C)(2) or (3) of this
section, a clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner may prescribe to a patient a schedule
II controlled substance only if all of the following are the case:
(a) The patient has a terminal condition, as defined in
section 2133.01 of the Revised Code.
(b) The collaborating physician of the clinical nurse
specialist, certified nurse-midwife, or certified nurse
practitioner initially prescribed the substance for the patient.
(c) The prescription is for an amount that does not exceed
the amount necessary for the patient's use in a single,
twenty-four-hour period.
(2) The restrictions on prescriptive authority in division
(C)(1) of this section do not apply if a clinical nurse
specialist, certified nurse-midwife, or certified nurse
practitioner issues the prescription to the patient from any of
the following locations:
(a) A hospital registered under section 3701.07 of the
Revised Code;
(b) An entity owned or controlled, in whole or in part, by a
hospital or by an entity that owns or controls, in whole or in
part, one or more hospitals;
(c) A health care facility operated by the department of
mental health and addiction services or the department of
developmental disabilities;
(d) A nursing home licensed under section 3721.02 of the
Revised Code or by a political subdivision certified under section
3721.09 of the Revised Code;
(e) A county home or district home operated under Chapter
5155. of the Revised Code that is certified under the medicare or
medicaid program;
(f) A hospice care program, as defined in section 3712.01 of
the Revised Code;
(g) A community mental health services provider, as defined
in section 5122.01 of the Revised Code;
(h) An ambulatory surgical facility, as defined in section
3702.30 of the Revised Code;
(i) A freestanding birthing center, as defined in section
3702.141 of the Revised Code;
(j) A federally qualified health center, as defined in
section 3701.047 of the Revised Code;
(k) A federally qualified health center look-alike, as
defined in section 3701.047 of the Revised Code;
(l) A health care office or facility operated by the board of
health of a city or general health district or the authority
having the duties of a board of health under section 3709.05 of
the Revised Code;
(m) A site where a medical practice is operated, but only if
the practice is comprised of one or more physicians who also are
owners of the practice; the practice is organized to provide
direct patient care; and the clinical nurse specialist, certified
nurse-midwife, or certified nurse practitioner providing services
at the site has a standard care arrangement and collaborates with
at least one of the physician owners who practices primarily at
that site.
(3) A clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner shall not issue to a patient a
prescription for a schedule II controlled substance from a
convenience care clinic even if the clinic is owned or operated by
an entity specified in division (C)(2) of this section.
(D) A pharmacist who acts in good faith reliance on a
prescription issued by a clinical nurse specialist, certified
nurse-midwife, or certified nurse practitioner under division
(C)(2) of this section is not liable for or subject to any of the
following for relying on the prescription: damages in any civil
action, prosecution in any criminal proceeding, or professional
disciplinary action by the state board of pharmacy under Chapter
4729. of the Revised Code.
(E) A clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner may personally furnish to a patient a
sample of any drug or therapeutic device included in the types of
drugs and devices listed on the formulary, except that all of the
following conditions apply:
(1) The amount of the sample furnished shall not exceed a
seventy-two-hour supply, except when the minimum available
quantity of the sample is packaged in an amount that is greater
than a seventy-two-hour supply, in which case the packaged amount
may be furnished.
(2) No charge may be imposed for the sample or for furnishing
it.
(3) Samples of controlled substances may not be personally
furnished.
(F) A clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner may personally furnish to a patient a
complete or partial supply of a drug or therapeutic device
included in the types of drugs and devices listed on the
formulary, except that all of the following conditions apply:
(1) The clinical nurse specialist, certified nurse-midwife,
or certified nurse practitioner shall personally furnish only
antibiotics, antifungals, scabicides, contraceptives, prenatal
vitamins, antihypertensives, drugs and devices used in the
treatment of diabetes, drugs and devices used in the treatment of
asthma, and drugs used in the treatment of dyslipidemia.
(2) The clinical nurse specialist, certified nurse-midwife,
or certified nurse practitioner shall not furnish the drugs and
devices in locations other than a health department operated by
the board of health of a city or general health district or the
authority having the duties of a board of health under section
3709.05 of the Revised Code, a federally funded comprehensive
primary care clinic, or a nonprofit health care clinic or program.
(3) The clinical nurse specialist, certified nurse-midwife,
or certified nurse practitioner shall comply with all safety
standards for personally furnishing supplies of drugs and devices,
as established in rules adopted under section 4723.50 of the
Revised Code.
(G) A clinical nurse specialist, certified nurse-midwife, or
certified nurse practitioner shall comply with section 3719.061 of
the Revised Code if the nurse prescribes a controlled substance to
a minor, as defined in that section.
Sec. 4725.191. By an affirmative vote of a majority of its
members, the state board of optometry shall suspend for not less
than six months the operation of an optometrist's certificate of
licensure if the optometrist fails to comply with section 3719.061
of the Revised Code. Disciplinary action under this section shall
be taken pursuant to an adjudication conducted under Chapter 119.
of the Revised Code.
Sec. 4730.252. By an affirmative vote of not fewer than six
members, the state medical board shall suspend for not less than
six months the certificate to practice of a physician assistant
who fails to comply with section 3719.061 of the Revised Code.
Except as specified in division (J) of section 4730.25 of the
Revised Code, disciplinary action under this section shall be
taken pursuant to an adjudication conducted under Chapter 119. of
the Revised Code.
Sec. 4730.41. (A) A certificate to prescribe issued under
this chapter authorizes a physician assistant to prescribe and
personally furnish drugs and therapeutic devices in the exercise
of physician-delegated prescriptive authority.
(B) In exercising physician-delegated prescriptive authority,
a physician assistant is subject to all of the following:
(1) The physician assistant shall exercise
physician-delegated prescriptive authority only to the extent that
the physician supervising the physician assistant has granted that
authority.
(2) The physician assistant shall comply with all conditions
placed on the physician-delegated prescriptive authority, as
specified by the supervising physician who is supervising the
physician assistant in the exercise of physician-delegated
prescriptive authority.
(3) If the physician assistant possesses physician-delegated
prescriptive authority for controlled substances, the physician
assistant shall register with the federal drug enforcement
administration.
(4) If the physician assistant possesses physician-delegated
prescriptive authority for schedule II controlled substances, the
physician assistant shall comply with section 4730.411 of the
Revised Code.
(5) If the physician assistant prescribes controlled
substances to a minor, the physician assistant shall comply with
section 3719.061 of the Revised Code. As used in this division,
"minor" has the same meaning as in section 3719.061 of the Revised
Code.
Sec. 4731.229. By an affirmative vote of not fewer than six
of its members, the state medical board shall suspend for not less
than six months the certificate to practice medicine and surgery,
osteopathic medicine and surgery, or podiatric medicine and
surgery of a physician who fails to comply with section 3719.061
of the Revised Code.
When investigating or conducting a hearing on an alleged
violation of section 3719.061 of the Revised Code, the board may
take any action it is authorized to take under division (F) of
section 4731.22 of the Revised Code.
Except as specified in division (J) of section 4731.22 of the
Revised Code, disciplinary action under this section shall be
taken pursuant to an adjudication conducted under Chapter 119. of
the Revised Code.
Section 2. That existing sections 4715.30, 4723.481, and
4730.41 of the Revised Code are hereby repealed.
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