The Differences Between Suspension, Permanent Revocation and Non-Permanent Revocation of a Medical License by the State Medical Board of Ohio

The State Medical Board of Ohio (“Medical Board”) is authorized to take disciplinary action against a licensee based on a violation of Ohio Revised Code Section 4731.22(B). Discipline can include, but is not limited to, suspension, permanent revocation and non-permanent revocation of a medical license.

A suspension results in the loss of the license to practice medicine for either an indefinite or a specified period of time.  The licensee may apply for reinstatement of the medical license following completion of all terms and conditions required by the Medical Board for reinstatement of the license.

A non-permanent revocation results in the loss of the license to practice medicine.  The licensee may re-apply for licensure.

A permanent revocation results in the loss of the license to practice medicine.  The licensee is forever barred from being licensed to practice medicine.

The Medical Board’s Disciplinary Guidelines provide maximum and minimum penalties for certain offenses: http://med.ohio.gov/Portals/0/Disciplinary%20Guidelines%20rev.%2006-13-2018.pdf?ver=2018-06-13-143928-823.  However, the Medical Board is not bound by the Disciplinary Guidelines and may impose any sanction authorized by law including, but not limited to, permanent revocation.

Although a licensee whose license to practice medicine has been non-permanently revoked may re-apply for licensure, a non-permanent revocation is viewed as a higher level of discipline than a suspension.  The Medical Board typically imposes non-permanent (and permanent) revocation for the most serious violations of its laws or rules.

The Medical Board meets the second Wednesday of each month and reviews all disciplinary matters in an open forum.  The Medical Board’s monthly Agenda can be found at the Medical Board’s website at: http://med.ohio.gov/The-Board/Board-Meetings-Minutes.

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 Collis Law Group LLC at (614) 486-3909 or email me at Beth@collislaw.com.

 

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.

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.

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 .. Stop prescribing to self and family members!

Although I have blogged in the past about physicians prescribing medications to themselves and family members, the word is not getting out! (See my previous blog post from March 5, 2012)  Therefore, I thought it best to address the issue again.

In the past month, I have handled several cases where physicians have been investigated by the State Medical Board of Ohio for prescribing to family members.

I also recently had the opportunity to lecture to a group of medical students where the question about prescribing to family members was raised.  During my lecture, I warned the medical students to be aware that as soon as they are awarded their medical license, they will be inundated with requests from family members to refill prescriptions or, in some cases, to take over their medical care.  One student asked me if she could prescribe medications to her child.  In response, I urged the medical student to find her child a pediatrician in order to avoid compromising the physician’s professional livelihood.

The Medical Board recently updated its Position Statement to address the parameters of Ohio physicians prescribing to themselves and family members.  The Medical Board’s updated Position Statement case be found at: http://med.ohio.gov/Portals/0/DNN/PDF-FOLDERS/Laws-Rules/Position-Statements/Statement-on-Prescribing-Controlled-Substances-to-Oneself-or-a-Family-Member.pdf.

Although there are certain very limited exceptions when a physician in Ohio may prescribe to a family member, it is always BEST to seek qualified independent medical care for yourself and/or your family members.  Do not risk a Medical Board investigation into your prescribing practices to yourself or a family member.

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

 

Sanctions Against Physicians on Probation Increase in Severity

In 2012, I wrote a blog post about how the State Medical Board of Ohio was cracking down on physicians who were on probation. See “On Probation with the Medical Board? Beware, There is a New Sheriff in Town.” When writing that post two years ago, I could not have anticipated the changes that would take place and how these changes are affecting physicians who are under probation.

At any one time, the Ohio Medical Board monitors over three hundred physicians who are subjected to probationary terms. Many are on probation for substance abuse or alcohol abuse problems.  These individuals are required to call into a lab testing site daily and to submit to random OBSERVED urine screen anywhere from 2-4 times per month. They are also required to notify their doctors of their addiction, notify the Board of all medications they have been prescribed, and in many cases they are required to keep a log of all controlled substances they prescribe. They are required to attend AA or NA support meetings and personally report to the Board on a quarterly basis. All of these requirements are on top of their daily work assignments and while juggling family commitments.

In the past, minor violations of these requirements were accepted by the Board. You might miss a call in for a drug screen or one AA meeting. However, these seemingly minor violations are now the basis for additional discipline by the Board against the physician.

I recently learned that a physician’s probation was extended for 30 days for failing to call into the testing site on ONE occasion (and they were not even selected to provide a sample on that day). In the past year, I have also handled three cases where the Board has proposed to discipline a physicians for technical violations of their Consent Agreements, a few missed calls or a few missed AA meetings (even in cases where there is no evidence of a positive drug screen).

So, beware. Minor violations will not be taken lightly. Regroup. Set your priorities in place and be 100% compliant with the terms of your Consent Agreement, or you could face further Board discipline.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please feel free to call my office at (614) 486-3909 and ask to speak with one of the attorneys or email me at beth@collislaw.com.

 

Is Professional Courtesy Dead among Physicians?

Going back to the time of Hippocrates, physicians have provided medical treatment to their colleagues and their colleagues’ family members without charge. The rationale was to discourage physicians from treating themselves and their family members and also to encourage professional courtesy among physicians.

It is rare today that physicians have the time, desire, or financial means to take on patients without charge. However, if a physician is in position to do so, the rules of the game still apply. You still need to treat a pro bono patient EXACTLY as you would treat a paying patient.

You need to do a physical examination and document in the patient’s chart all the medications you prescribe and the treatment plan. Too often, I have had physicians tell me in my office that they did not create a chart because they were “not billing insurance.” This is improper. The State Medical Board of Ohio does not have different rules for the treatment of patients who you charge and those you do not charge. The Medical Board never even asks if you were paid for the treatment. This is not the standard.

The American Medical Association has also drafted an Opinion on Professional Courtesy and it states that while “professional courtesy is a long-standing tradition in the medical community, it is NOT an ethical requirement”. The Opinion also warns physicians that they should be aware that accepting insurance payments while waiving patient co-payments may violate AMA Opinion 6.12 “Foregiveness or Waiver of Insurance Co-Payment .” American Medical Association Opinion 6.13.  In addition, in Ohio, it is against the law to waive an insurance co-pay for a patient or to advertise that you will waive an insurance co-pay. Ohio Revised Code 4731.22(B)(28)(a) and (b).

If you want to provide medical treatment to another for free you may do so as a professional courtesy. However, you may not bill insurance and waive the co-payment to the patient.  You must provide treatment to this patient in the same manner and in accordance with the same medical and legal laws, rules and standards applicable to all other patients.

As always, if you have any questions about this post or about the State Medical Board of Ohio, you may contact any of the attorneys at Collis, Smiles and Collis in Columbus, Ohio at 614-486-3909.

Physicians .. have you read the rules?

The practice of medicine in Ohio is outlined by one statute section, Ohio Revised Code 4731, and one set of rules drafted by the Medical Board, Ohio Administrative Code 4731. This Code section and these rule outline the requirements to be licensed as a physician, podiatrist, massage therapist or physician’s assistant in Ohio and also define the scope of practice of medicine in Ohio. However, I am always surprised that most physicians with whom I speak have no idea that these laws and rules even exist.

Ohio Revised Code Chapter 4731 is the law governing the practice of medicine in Ohio. The Ohio Administrative Code is drafted by the Medical Board members and is reviewed and approved through a rule making process. Physicians in Ohio are required to know, understand and follow the guidelines established in these laws and rules.

These laws and rules can be found at the Medical Board’s website at: http://www.med.state.oh.us. You can also follow the following link to find these sections: http://codes.ohio.gov/orc/4731
or for the administrative rules go to: http://codes.ohio.gov/oac/4731

Pertinent sections of these laws and rules include:

Basis for disciplinary action can be found at R.C. 4731.22(B) which can be found at: http://codes.ohio.gov/orc/4731.22.

To learn more about licensing and continuing education go to: OAC 4731-10, which can be found at: http://codes.ohio.gov/oac/4731-10.

To learn more about prescribing of controlled substances go to: OAC 4731-11, which can be found at: http://codes.ohio.gov/oac/4731-11.

To learn more about the Medical Board’s hearing process go to: OAC 4731-13, which can be found at: http://codes.ohio.gov/oac/4731-13.

To learn more about the duty to report to the Medical Board go to: OAC 4731-15, which can be found at: http://codes.ohio.gov/oac/4731-15.

To learn more about what to do if you believe you suffer from  chemical dependency go to: OAC 4731-17, which can be found at:  http://codes.ohio.gov/oac/4731-17.

As practicing medical professionals in Ohio, you are required to know, understand and follow the laws  and rules in ORC 4731 and OAC 4731. Take the time to read the rules and, if you have questions, contact experienced legal counsel to assist you.

As always, if you have any questions about this post, please feel free to contact me at beth@collislaw.com.

On probation with the Medical Board? Beware .. there is a new sheriff in town

Physicians who are on probation with the State Medical Board of Ohio related to alcohol or chemical dependency or abuse are generally required to submit to monitoring conditions during probation, including submitting to random urine drug tests, attending weekly AA meetings, completing 104 aftercare sessions, attending quarterly Board appearances,  and having a physician monitor their practice.

In the past, as long as a physician on probation did not have a positive alcohol screen, i.e. illegal substance or prescription medication without  a valid prescription, the Board generally did not always require perfect compliance with all other probationary terms. Again, generally,if a physician failed to submit a quarterly declarations of compliance or failed to attend all required AA meetings, the Board would customarily  address the issue at their quarterly meeting or would send the physician a “friendly” letter advising them that they were not in compliance and requesting that steps be taken to ensure compliance.

Under the direction of former Board Member, Mr. Albert, the Board rarely charged a probationer with failure to comply with the terms of their Consent Agreement, unless they tested positive for drugs or alcohol.  Most recently, however, the Board has taken a much stricter position on probationers who are not 100% in compliance with ALL the terms in their Board Orders or Consent Agreements.

Recently, the Medical Board issued a Notice of Opportunity for Hearing to a physician who had been on probation with the Board since 2005.  Despite the fact that all of the physician’s urine screens were negative, the Board proposed to discipline the physician for allegedly failing to comply with the following terms of the physician’s Consent Agreement: failure to submit quarterly reports to the Board in a timely manner; failure to submit AA logs to the Board; failure to seek Board approval for required courses and for a monitoring physician. Despite no evidence of relapse, the Board voted at its June meeting to revoke this physician’s medical license for failure to be 100% in compliance with the Board’s Order or Consent Agreement.

If you are under probation, please beware. The terms and conditions of Board Orders or Consent Agreements are mandatory. Failure to strictly comply with all terms and conditions of the Board Order or Consent Agreement can serve as the basis for further Board disciplinary action.

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

Medical Board actions are public and posted on Board’s website!

I am often asked by physicians, if a disciplinary action taken by the Medical Board against their license will be available to the public. The answer is Yes.  Under the Ohio Public Records law, R.C. 149.43, any official action taken by a governmental agency is a public record. http://codes.ohio.gov/orc/149.43

What does this mean? Prior to the internet, to obtain a public record from a governmental agency, a written request was required for the document. You can still do that today.  Now, however, all Medical Board disciplinary actions are posted on the Medical Board’s website.  Interested persons can go to the link on the Medical Board’s website to obtain information about a particular licensee, enter their name and they will be presented with a summary list of any discipline against that physician. A person can click on the “view documents” box (which is in bright yellow) and download the entire disciplinary record (copies of Citation letters, Consent Agreements, Adjudication Orders or any Court appeals documents).  To find information about your medical license or to look up another physician, go to: https://license.ohio.gov/lookup/default.asp?division=78

Information about a medical diagnosis or medical condition that might have formed the basis of a disciplinary action is not redacted and is included in the public record.  All the information, including any medical diagnosis, criminal conviction, boundary violation, the factual and legal basis for the action and the disciplinary action taken against the licensee is all included in the public record on the Medical Board’s website.

As a follow-up question, I am often asked whether the disciplinary action is taken off the website and out of the public record once the licensee completes any suspension or probation period. Unfortunately no. Once a disciplinary action is taken, it is on the professionals’ “permanent record” and will not be sealed, removed or redacted. Even in cases where the basis for the disciplinary action is a criminal action that has been sealed or expunged, the Medical Board is not required to seal or expunge any information available to the public.

The argument given for including all disciplinary actions of the Medical Board in the public record is that consumers should be able to know if their medical professional has been the subject of discipline by the Medical Board.

However, only proposed disciplinary actions and final actions (be it a Consent Agreement or Adjudication Order) are made public. Complaints submitted to the Medical Board and any Board investigations are confidential. Under R.C. 4731.22(F)(5), investigations of the Medical Board are confidential and are not open for public disclosure. However, this restriction  also pertains to the licensee and their legal counsel. When a complaint is filed with the Medical Board, the licensee may be notified of the general nature of the complaint, but they will not be provided with a copy of the complaint or even given the name of the person who filed the complaint. This rule however does not prevent the Medical Board from sharing any part of its investigation with other governmental agencies such as a police department or another Board.

As always, if you have any questions about this post or would like me address a particular question, feel free to email me at Beth@collislaw.com or call me at 614-486-3909.