Ohio physicians: Suspension of your medical license may be just the start of your troubles

The State Medical Board of Ohio has the authority to take a disciplinary action against a physician’s professional license ranging from a Public Reprimand, to suspension, probation, or revocation. In addition, as noted in a previous post, effective September 29, 2015, the Medical Board was granted the authority by the Ohio General Assembly to issue a monetary fine against physicians (or Physician Assistants) found to be in violation of the Medical Practice Act (R.C. 4730 &4731). (See January 11, 2017 blog post about monetary fines).

In addition to a Medical Board disciplinary action, physicians should also be aware that if they are subjected to discipline by the Medical Board, they may also face additional repercussions to their professional practice and livelihood including, but not limited to:

Public Record: All final actions of the Medical Board constitute a public record. The general public will be able to review a summary of the disciplinary action and a copy of the Notice of Opportunity for Hearing, Consent Agreement, or Adjudication Order with Report and Recommendation at the e-license verification page located at: https://elicense.ohio.gov/OH_HomePage.
NPDB: Disciplinary actions of the Medical Board are reported to the National Practitioner Data Bank (NPDB). While the NPDB is not available to the general public, the following eligible entities have access to information on the NPDB: The Department of Health and Human Services, hospitals, health centers, health plans, medical malpractice payors, and state licensing boards. A health care organization can run a continuous query on practitioner reports. Therefore, as soon as you receive discipline from the Board, it is likely your employer will learn about it.
DEA action: A physician’s Drug Enforcement Administration (DEA) license will be suspended during any period of medical licensure suspension. Criminal fines and/or imprisonment are available for any person who knowingly or intentionally (i) possesses a listed chemical with the intent to manufacture a controlled substance without proper registration; (ii) possesses or distributes a listed chemical with knowledge or a reasonable belief that the listed chemical will be used to manufacture a controlled substance; or (iii) evades the Controlled Substance Act’s recordkeeping and reporting requirements by receiving or distributing listed chemicals in small units. Violators of the aforementioned provisions may also be enjoined for up to ten years from handling listed chemicals. The physician must apply to have the DEA reinstated after his or her medical license is reinstated;
Hospital Privileges: Hospital privileges could be suspended or revoked;
Board certifications: Board certifications that the physician has may be limited, suspended, or revoked;
Sister State Discipline: Other state medical boards in which the physician is licensed can institute disciplinary actions based on the Ohio matter;
Medicare/Medicaid participation: A physician’s participation as a Medicaid/Medicare provider may be subject to revocation, thereby excluding them from obtaining reimbursement for services rendered to Medicare/Medicaid patients;
Third Party Payors (Insurance Company participation): Participation as an approved provider for private insurer(s) could be terminated, thereby excluding the physician from obtaining reimbursement for services rendered to patients insured by such insurer(s); and
Bureau of Worker’s Compensation: The BWC can revoke a physician’s certification in the Health Partnership Program—where they participate in a managed-care program for injured workers—if the provider has a misdemeanor committed in the course of practice, involving moral turpitude, or a conviction that is either a felony, cited under the Controlled Substances Act, or is an act involving dishonesty, fraud or misrepresentation. OAC 4123-6-02.2(B)(5).

While each case is different and each physician who is subjected to a disciplinary action by the Medical Board may not be subject to any or all of these additional actions, it is important to understand and appreciate that a Medical Board action may not be the end of the issues that a physician faces when subjected to a Medical Board disciplinary action.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to contact one of the attorneys at the Collis Law Group at (614) 486-3909 or email me: Beth@collislaw.com.

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Ohio Physicians: Timely open and respond to all letters from the Medical Board

Keep your address up to date

As a physician licensed to practice medicine in Ohio, you are required (under R.C. 4731.281) to maintain your current accurate mailing address with the State Medical Board of Ohio. You may update your address online at: http://med.ohio.gov/UpdateAddress.aspx

The address on file with the Medical Board will be the official address that the Board will use to contact a physician if they become the subject of an investigation, or if the Board proposes to take a disciplinary action against a physician.

Certified Mail

If the Medical Board takes an action against a physician, they will be mailed a letter outlining the charges to their address of record with the Board. Under RC 119.07, the Notice of a Board Order shall be given by registered mail, return receipt requested, and shall include the charges or other reasons for the proposed action, the law or rule directly involved, and a statement informing that the party is entitled to a hearing if the party requests it within thirty days of the time of mailing the notice.

If you receive a certified mail from the Medical Board, it is imperative that you open it!  If the Medical Board has mailed a certified letter to a physician, it will include important information and often requires an action to be taken by the physician within a short period of time.

For example, if the Medical Board issues a Notice of Opportunity for Hearing to a physician, the physician is only provided with 30 days (from the date of mailing by the Board) to request a hearing. Failure to timely request a hearing may result in a board-ordered sanction, and the physician would be provided with no means to defend their case. The sanction takes the form of a Final Adjudication Order under RC 119.

Failure to cooperate in an Investigation

Failing to respond to a subpoena request or to respond to Interrogatory questions sent from the Medical Board may also result in a disciplinary action taken against the physician by the Medical Board. R.C. 4731.22(34) provides that failure to cooperate in an investigation conducted by the Board, including failure to answer a subpoena or order issued by the Board, or failure to answer truthfully a question presented by the Board in an investigative interview, an investigative office conference, at a deposition, or in written interrogatories, will result in disciplinary action.

Publication notification

If you fail to accept delivery of certain notifications, the Medical Board has the authority to publish the notification in your local newspaper. If any notice sent is returned for failure of delivery, the agency either shall make personal delivery of the notice by an employee or the agent shall publish the notice once a week for three consecutive weeks in a newspaper of general circulation in the county where the last known address of the party is located. When notice is given by publication, a proof of publication affidavit, with the first publication of the notice set forth in the affidavit, shall be mailed by ordinary mail to the party at the party’s last known address and the notice shall be deemed received as of the date of the last publication.

Refusal of delivery by personal service or mail is not failure to deliver and service is still deemed to be complete. Therefore, it is important to keep your address up to date in order to accept all certified mail that is sent from the Medical Board. Be sure to carefully review all letters from the Board as they often include short timelines in which a response may be required.

If you have any questions about this post or the State Medical Board of Ohio, please feel free to contact one of the attorneys at the Collis Law Group LLC at 614-486-3909 or email me at Beth@collislaw.com.

Ohio Physicians: If you are not covered by medical malpractice insurance, you are required to provide your patients with written notice.

For a variety of reasons, physicians are occasionally not covered by medical malpractice insurance. A physician licensed in Ohio is required to provide a patient with written notice of the physician’s lack of malpractice insurance coverage prior to providing nonemergency professional services to the patient.

Pursuant to R.C. 4731.143, the required notice must be in writing and provided alone on its own page.

The written notice must also provide space for the patient to acknowledge receipt of the notice. The physician must obtain the patient’s signature, acknowledging the patient’s receipt of the notice, prior to providing nonemergency professional services to the patient, and the physician must maintain the signed notice in the patient’s medical record. Merely telling the patient verbally of the lack of malpractice insurance is not sufficient.

The written notice is required to be as follows:

NOTICE:

Dr……………. (here state the full name of the license holder) is not covered by medical malpractice insurance.

The undersigned acknowledges the receipt of this notice.

___________________________
(Patient’s Signature)

___________________________
(Date)

Failure to comply with any of the requirements of R.C. 4731.143 can subject a physician to disciplinary action by the Medical Board.

If you have any questions about this post or the State Medical Board of Ohio, please feel free to contact one of the attorneys at the Collis Law Group, LLC at 614-486-3909, or email me at Beth@collislaw.com.

Ohio Physicians considering retirement should make the decision voluntarily and prior to being compelled to retire by the State Medical Board of Ohio

Questions often arise as to when it is appropriate to retire from the practice of medicine.  In many instances, physicians who are happy and healthy do not want to consider retirement.  Many physicians have told me that they have devoted their entire life to their medical practice and that, because they do not have any other hobbies, skills, or interests, they desire to continue to practice medicine. Additionally, physicians have told me that they are concerned that they may not have the financial means to stop working. Finally, many physicians are concerned that they will miss the daily interaction with their staff and their patients.

The State Medical Board of Ohio (“Medical Board”) does not have a specific retirement age.  A Physician with a valid license to practice medicine in Ohio may continue to do so for so as long as they are mentally and physically fit to practice and comply with Medical Board laws and rules.  However, if the Medical Board has reason to believe that a physician is unfit to practice medicine, the Medical Board has the legal authority to order a physician to a medical or mental health evaluation.

Ohio Revised Code Section 4731.22(B)(19) provides:

“(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 or certificate to recommend, refuse to issue a certificate to an individual, refuse to renew a certificate, refuse to reinstate a certificate, or reprimand or place on probation the holder of a certificate for one or more of the following reasons:

(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.

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. (emphasis added)

If the Medical Board has reason to believe that a physician is unable to practice according to acceptable and prevailing standards of care by reason of mental illness or physical illness, a formal disciplinary action may be commenced.  This action may include (but is not limited to) ordering the physician to undergo a mental and/or physical examination.  Failure to submit to a mental and/or physical examination as ordered by the board constitutes an admission of the allegations against the physician, unless the failure is due to circumstances beyond the physician’s control.

On the basis of the mental and/or physical examination, the Medical Board can require the physician to submit to care, counseling, or treatment by physicians approved or designated by the Medical Board as a condition for reinstatement to practice.  The physician will receive an opportunity to demonstrate to the Medical Board their ability to resume practice in compliance with acceptable and prevailing standards under the provisions of the individual’s certificate.

In order to suspend a physician’s medical license, or to recommend retirement, the Medical Board must find that the physician’s continued practice, “presents a danger of immediate and serious harm to the public.”

In the past few years, we have seen the Medical Board order certain physicians to submit to a mental and/or physical examination. Based on the result of those examinations, the Medical Board has either suspended the physician’s license or requested that they enter into a “voluntary” permanent retirement of their medical license.

As always, if you have questions about this post or the State Medical Board of Ohio in general, please feel free to contact one of the attorneys at the Collis Law Group LLC at 614-486-3909 or email me at beth@collislaw.com.

Ohio Medical Board to Impose Monetary Fines

The State Medical Board of Ohio is authorized to impose a range of sanctions against a physician for violating the Board’s laws and rules. The sanctions range from a reprimand to suspension, limitation, revocation or permanent revocation of a medical license. R.C. 4731.22(B)(22).  http://codes.ohio.gov/orc/4731.22v1.  However, for actions that arise AFTER September 29, 2015, in addition to imposing one of the sanctions listed above, the Medical Board is also authorized to impose a monetary fine against a physician for violating the Board’s laws or rules.

The chart listing the range of monetary fines can be found on the Medical Board’s website at: http://www.med.ohio.gov/Portals/0/DNN/PDF-FOLDERS/For-The-Public/FiningGuidelinesIncludingCivilPenalties.pdf.

The monetary fines imposed by the Medical Board are steep. It would be expected that the sanction for being convicted of a felony or crime involved in the practice of medicine would result in a substantial fine; however, even in cases that may appear less egregious the Medical Board is authorized to impose substantial monetary fines. For example:

  • prescribing a controlled substance to self or a family member in violation of OAC 4731-11-08, the Medical Board may impose a fine ranging from $3,000-$10,000, with the “standard fine” being $4,500.00;
  • willfully betraying a professional confidence, the Medical Board may impose a fine ranging from $5,000-$20,000, with the “standard fine” being $9,500.00;
  • supervising a physician assistant, anesthesiology assistant, or radiology assistant without a supervisory plan and approved supervisory agreement may result in a monetary fine ranging from $5,000-$20,000, with the “standard fine” being $9,000.

In addition, the Board Members have made it clear that inability to pay a monetary fine is not a defense. The Medical Board will not look at a licensee’s ability to pay prior to imposing a monetary fine.

As a licensed physician in Ohio, you should be familiar with the Medical Board’s laws and rules which can be found at the Medical Board’s website at: http://www.med.ohio.gov/.  You should also be familiar with the Board’s disciplinary authority.

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, feel free to contact me at beth@collislaw.com or call me at 614-486-3909.

The Ohio Medical Board’s “slip rule” and when to contact the Ohio Medical Board if you relapse

Happy New Year!

I am often asked what Ohio physicians who are under probation with the Ohio Medical Board should do, if they relapse on drugs and/or alcohol or if they believe they have inadvertently been exposed to alcohol or a drug that may cause impairment.

If you are licensed to practice medicine in the State of Ohio, the Ohio Medical Board may take an action against your professional license if it has reason to believe that you are impaired in your ability to practice medicine (OAC 4731-16-01).  In such event, typically, a physician will enter into a Step I Consent Agreement with the Ohio Medical Board in which the physician’s medical license is suspended while they seek treatment for substance or alcohol abuse or addiction.

Once the physician has completed treatment and the Ohio Medical Board determines they are fit to resume practice,  the physician will be offered a Step II Consent Agreement, which reinstates the physician’s medical license subject to probationary terms.  Once a physician’s license is reinstated, they are generally placed on probation for five years. During probation, they are typically required to maintain abstinence, submit to random drug and/or alcohol testing, complete aftercare treatment, attend AA (12 Step) meetings, and complete other monitoring conditions.

During probation, the physician is not permitted to consume any alcohol and/or ingest drugs (except as prescribed).  The physician will be subjected to random alcohol and/or drug testing that is highly sensitive and can detect even incidental exposure.

What should the physician who is under probation with the Ohio Medical Board do if they consume alcohol or a drug to which they have not been prescribed or  believe they have been inadvertently exposed to these substances? 

A relapse is defined in Ohio Administrative Code 4731-16-01(B) as follows:

“Relapse” means any use of, or obtaining for the purpose of using, alcohol or a drug or substance that may impair ability to practice, by someone who has received a diagnosis of and treatment for chemical dependency or abuse, except pursuant to the directions of a treating physician who has knowledge of the patient’s history and of the disease of addiction, or pursuant to the direction of a physician in a medical emergency. An instance of use that occurs during detoxification treatment or inpatient or residential treatment before a practitioner’s disease of addiction has been brought into remission does not constitute a relapse.”

If a physician relapses on alcohol or a drug to which they have not been prescribed, the Ohio Medical Board may take further action against their professional license, including but not limited to suspending their license and/or requiring them to seek additional treatment.  However, if the physician is experiencing a first time relapse by consuming alcohol (or a drug) for less than one day, the Ohio Medical Board may determine that it will not take further action, if the physician immediately seeks treatment, self reports to the Ohio Medical Board within 48 hours of the relapse and follows all other requirements of OAC 4731-16-02(D).

OAC 4731-16-02, commonly known at the “slip-rule”, may prevent a physician from having their Ohio medical license suspended or being subjected to further discipline by the Ohio Medical Board in the event of a relapse. However, the physician must meet all of the requirements of the rule.  If you are a physician who is subject to monitoring by the Ohio Medical Board for alcohol or drug addiction or abuse, you should be familiar with the requirements of OAC 4731-16. http://codes.ohio.gov/oac/4731-16

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, please feel free to contact one of the attorneys at the Collis Law Group LLC at 614-486-3909 or email me at beth@collislaw.com.

Failing to request a hearing can be a very costly mistake.

Today, I attended the monthly meeting of the State Medical Board of Ohio.  I was surprised to see that in all six cases handled by the Board, the licensees had failed to request a hearing.  Despite the fact that the Board may impose any sanction, ranging from dismissal to permanent revocation of a license, in each case where the licensee failed to request a hearing, the Board either revoked or permanently revoked their licenses.

The Board Members expressed concern that if these licensees had not requested a hearing or attended the Board meeting, these licensees were not interested in maintaining an Ohio license.  Therefore, the Board revoked their licenses.  By failing to request a hearing, the Board is often left with unanswered questions.

Often, professionals will tell me that do not want to request a hearing or appear before the Board because they have already submitted documentation in support of their case and they believe they have, “no other information to provide to the Board”.

Failing to request a hearing can be a very costly mistake.  There is no more powerful information than the personal testimony of a license holder.  Boards typically like to see that an individual understands the gravity of charges against them, that the individual accepts responsibility for their conduct, that the individual expresses remorse for their conducts, and how the individual will handle a similar situation in the future.

Often, I find that cases appear to be far more serious on paper and that once testimony is provided from the licensee and by those who support the licensee, the Board is able to have their questions answered and view the case in a much less serious light.  In some instances, I have also seen that the sanction the Board imposes after a hearing is less harsh than the Board was contemplating prior to the hearing.

Failing to request a hearing can be a very costly mistake.  It is recommended that a licensee request a hearing and to present testimony in your defense.  If you want to retain your medical license, you need to fight for it.

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, please feel free to contact me at beth@collislaw.com or at 614-486-3909.