Text of Statute
(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 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 (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, podiatry, 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 (18) Subject to section 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 (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 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 (21) The violation of any abortion rule adopted by the public health council
pursuant to section (22) Any of the following actions taken by the agency responsible for
regulating the practice of medicine and surgery, osteopathic medicine and
surgery, podiatry, 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 (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 (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 (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 (30) Failure of a collaborating physician to fulfill the responsibilities
agreed to by the physician and an advanced practice nurse participating in a
pilot program under section (31) Failure to provide notice to, and receive acknowledgment of the notice
from, a patient when required by section (32) Failure of a physician supervising a physician assistant to maintain
supervision in accordance with the requirements of Chapter (33) 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 (34) Failure to comply with the terms of a consult agreement entered into
with a pharmacist pursuant to section (35) 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;
(36) Failure to supervise an acupuncturist in accordance with Chapter (37) Failure to supervise an anesthesiologist assistant in accordance with
Chapter (C) Disciplinary actions taken by the board under divisions (A) and (B) of
this section shall be taken pursuant to an adjudication under Chapter (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 (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 (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 (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 witnesses in civil cases in the
courts of common pleas.
(4) All hearings and investigations of the board shall be considered civil
actions for the purposes of section (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 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 (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 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 (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 (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 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 (J) If the board is required by Chapter (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
podiatry. 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 An individual who participates in an individual educational program pursuant
to this division shall pay the financial obligations arising from that
educational program.
HISTORY: GC § 1275; 99 v 498, § 32; 106 v 177; Bureau of Code Revision,
10-1-53; 132 v H 418 (Eff 12-1-67); 135 v H 989 (Eff 9-16-74); 136 v H 682 (Eff
7-28-75); 136 v S 75 (Eff 11-3-75); 136 v H 1426 (Eff 7-1-76); 137 v H 1 (Eff
8-26-77); 137 v H 725 (Eff 3-16-78); 137 v S 157 (Eff 10-9-78); 139 v H 317 (Eff
8-27-82); 140 v H 109 (Eff 9-27-83); 141 v H 319 (Eff 3-24-86); 141 v H 769 (Eff
3-17-87); 141 v H 428 (Eff 12-23-86); 143 v H 208 (Eff 4-11-90); 143 v H 615
(Eff 3-27-91); 144 v H 108 (Eff 5-28-92); 144 v H 419 (Eff 3-15-93); 144 v H 478
(Eff 1-14-93); 145 v S 279 (Eff 10-20-94); 145 v H 391 (Eff 7-21-94); 146 v H
144 (Eff 11-21-95); 146 v S 143 (Eff 3-5-96); 146 v S 154 (Eff 9-10-96); 146 v S
259 (Eff 11-6-96); 147 v H 215 (Eff 9-29-97); 147 v S 31 (Eff 4-10-98); 147 v S
66 (Eff 7-22-98); 147 v H 606 (Eff 3-9-99); 148 v S 56 (Eff 9-15-99); 148 v S
107 (Eff 3-23-2000); 148 v H 241 (Eff 5-17-2000); 148 v S 278 (Eff 5-31-2000);
148 v H 341. Eff 8-10-2000.
See provisions, § 5 of SB 278 (148 v --) following RC § The provisions of § 3 of HB 341 (148 v --) read as follows:
SECTION 3. The authority of the State Medical Board to take disciplinary
action against a person who was found eligible for treatment in lieu of
conviction in this state on or before the effective date of Am. Sub. S.B. 107 of
the 123rd General Assembly is not altered by the amendments and enactments made
by this act to conform provisions in Chapters 4731. and 4762. of the Revised
Code with S.B. 107's creation of intervention in lieu of conviction.
© Copyright 2000
Containing legislation passed and filed through August 1, 2000.