Ohio Medical Board Proposes Confidential Monitoring Program for Licensees With Mental or Physical Illness Other Than a Substance Use Disorder

The State Medical Board of Ohio (“Board”) has proposed rules for a new confidential monitoring program, which, if approved, is anticipated to be implemented later this year and the rules for which would be contained in OAC 4731-28, Mental or Physical Impairment.

The proposed program would be non-disciplinary and voluntary. The licensee’s participation in the proposed program would be governed by a written contract (called a participation agreement) between the licensee and the Board. The Board’s intent of the proposed program is to enable licensees, who would otherwise be subject to formal discipline, to avoid formal discipline for issues related to mental or physical illness.

The proposed program will be administered by the Board and not by a third party private monitoring organization (such as the Ohio Physicians’ Health Program “OPHP”).

Eligibility criteria for the proposed program includes, but is not limited to:

1) The Board may conduct any investigation necessary to evaluate the totality of circumstances, including requiring a physical or mental examination;

2) The individual must provide continuing authorization for the disclosure and release of information between the Board, the individual, and any other persons or entities involved in the evaluation, treatment or monitoring of the individual;

3) The individual must be willing to begin treatment or demonstrate that they have been significantly compliant with their established treatment plan;

4) Any individual that has been issued a Notice of Opportunity for Hearing that is pending is not eligible; and

5) There is no information indicating that allowing the individual to participate in the proposed program will create a substantial risk of potential harm to patients.

As proposed, OAC 4731-28-04 authorizes the Board to disqualify a participant from the proposed program for any alleged violation of their participation agreement, as determined by the sole discretion of the Secretary and Supervising Member, and shall constitute grounds for the Board to take a public disciplinary action against the licensee.
Finally, as proposed, OAC 4731-28-05 outlines the conditions that the participant must complete to have the participation agreement terminated.

The full draft of the proposed rules may be found at the Board’s website at: http://med.ohio.gov/Laws-Rules/Newly-Adopted-and-Proposed-Rules/Confidential-Monitoring-Program.

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

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OHIO PHYSICIANS: DO YOU KNOW THE REPORTING REQUIREMENTS?

Did you know that in Ohio, if you give aid to a sick or injured person, the failure to report to law enforcement any gunshot or stab wound that you have treated or observed, or any serious physical harm to a person that you know or have reasonable cause to believe resulted from an offense of violence, could result in a misdemeanor criminal charge and conviction?

Ohio Revised Code 2921.22(B) provides:
“Except for conditions that are within the scope of division (E) of this section, no person giving aid to a sick or injured person shall negligently fail to report to law enforcement authorities any gunshot or stab wound treated or observed by the person, or any serious physical harm to persons that the person knows or has reasonable cause to believe resulted from an offense of violence.”

Many are unaware of this reporting requirement.  However, ignorance of the law is no defense.

Unless you have completed a residency program in emergency medicine, trauma, or surgery, you might have never heard of this reporting law.  We are not aware that medical schools in Ohio routinely address this reporting law.

Often, patients who have been involved in or have been a victim of a crime, or an incident involving a gunshot or stab wound or serious physical harm, are unwilling or unable to truthfully explain to their medical professional how the injury occurred.  In certain instances, it may be difficult to determine if an injury is the result of a crime of violence.  Physicians should be aware that a patient who has been involved in a crime might try to tell the physician that they were “accidently” injured (for example, while hunting or by mistake).

If you have reasonable cause to believe that a gunshot or stab wound or serious physical harm resulted from an offense of violence, the failure report to law enforcement could result in criminal charges and conviction for misdemeanor, Failure to Report a Crime, and the conviction could result in a disciplinary action against your Ohio medical license (R.C. 4731.22(B)(11)).

As always, 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, or contact me at beth@collislaw.com or 614-486-3909.

Medical Marijuana Control Program Update

On September 8, 2016, Ohio House Bill 523 legalized medical marijuana in Ohio. The Medical Marijuana Control Program will allow patients, with certain medical conditions and upon the recommendation of an Ohio-licensed physician, to purchase and use medical marijuana. The Ohio Medical Marijuana Control Program takes effect on September 8, 2018.

Physicians may recommend, but not prescribe, medical marijuana to patients who suffer from certain medical conditions. A physician in Ohio who wants to recommend medical marijuana for a patient must first apply for a Certificate to Recommend through the State Medical Board of Ohio. Applications are available on the Medical Board’s website at http://www.med.ohio.gov.

Ohio physicians applying for the Certificate to Recommend medical marijuana must hold an active and unrestricted Ohio Medical license. Prior to applying for the Certificate, a physician must complete “two hours of continuing medical education” related to diagnosing and treating patients with medical marijuana among other requirements. (See O.A.C. Section 4731-32-02 for more details, and a complete list of Application requirements.)

Prior to recommending medical marijuana for a patient, O.A.C. 4731-32-03 requires that a physician must perform tasks including but not limited to:

• Establish and maintain a bona fide physician-patient relationship;
• Create and maintain a medical record;
• Examine the patient;
• Inquire about the patient’s medical history and any current medications; and
• Include in the patient’s record a diagnosis of the patient’s condition.

There are certain qualifying medical conditions for recommending medical marijuana including but not limited to Parkinson’s disease, ulcerative colitis, fibromyalgia, and cancer. (See R.C. 3796.01(A)(6) for full list of medical conditions).

Qualifying patients must first register with the Ohio Board of Pharmacy. Prior to recommending medical marijuana, a physician must determine from the medical marijuana patient registry whether the patient has an active registration for medical marijuana. O.A.C. 4731-32-03. Only patients who are registered with the Ohio Board of Pharmacy may receive a recommendation for medical marijuana.

Physicians may recommend medical marijuana to minors with the consent of the minor’s parent or legal representative. O.A.C. 4731-32-03(C)(5).

You can find the Ohio Medical Board rules regarding the Medical Marijuana Control Program at: http://codes.ohio.gov/oac/4731-32.

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

Medical Practice Closure Considerations

We receive questions concerning the steps that are required or necessary in connection with the closure of a medical practice.  Typically, a physician who has devoted their entire life to the day-to-day practice of medicine is faced with numerous legal, accounting, and administrative tasks, some of which extend beyond the actual shut-down of the practice.  Planning, organization, communication, and administration are key elements to avoid issues after the closure.

Practice closure matters include but are not limited to:

Staff Notification: Staff of the practice should be notified of the closure.  A physician may have to prepare to hire temporary staff if employees leave prior to closing date.

Patient Notification: The State Medical Board of Ohio (“Ohio Medical Board”) has laws and rules pertaining to the notice that a physician is required to give patients.  These laws and rules include, but are not limited to, when notice must be given, the information that is required to be included in the notice, and how notice must be given.

Government/Payor/Agency Notifications: Notice concerning the closure of the practice must be coordinated and given to entities including, but not limited to, the DEA, Medicare, Medicaid, private insurance payors, hospitals, professional associations, and the Ohio Medical Board.  Each entity may have different requirements.

Professional Liability Insurance: If necessary, extended reporting professional liability insurance (so called, “tail coverage”) should be obtained, which provides coverage against claims reported after the liability policy expires.

Medical Records: The storage or transfer of paper and electronic medical records in compliance with Federal and State law including, but not limited to, HIPAA must be completed.  An address or PO Box to receive, and procedure to respond to, medical records requests after the closure of the medical practice must be established and followed.

Service and Supply Providers: Notice concerning the closure of the practice to providers including, but not limited to, providers of ancillary services, medical supplies, and other services and supplies should be coordinated and given.  Accounts with such providers should be closed.

Business Entity Issues: Termination of any Lease Agreement(s), termination of utilities services, collection of accounts receivables, sale of medical and office equipment, dissolving the medical practice legal entity with the Ohio Secretary of State, and filing of final Federal, State, and local tax returns must be coordinated and completed.

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

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.

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.