130th Ohio General Assembly
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H. B. No. 314  As Introduced
As Introduced

130th General Assembly
Regular Session
2013-2014
H. B. No. 314


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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