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.

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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.

Rich Doc/Poor Doc

In my practice of representing physicians who are under investigation by the State Medical Board of Ohio, DEA, local law enforcement, and/or their employer, I have seen many professionals struggle with multiple issues.  Recently, I have noticed  that far too many physicians are in disastrous shape financially.  Many physicians have poor money management and/or business management skills that have led them to entering into risky contracts or taking on jobs that they otherwise would have not considered.

Most physicians do not have the time, training, or education to be good money managers and, therefore, generally, many make poor financial decisions.  Many physicians enter the practice of medicine deeply in debt with student loans.  Many residents live beyond their means in the belief that once they complete their residencies, they will be given lucrative employment contracts.  Often, young physicians are so far in debt after completing their training, they are forced to accept work in undesirable practices to pay their debt.

Too often, physicians are also seen as “easy targets” for unscrupulous people.  I am always surprised to learn of highly educated physicians who enter into risky business dealings or fail to perform due diligence when purchasing property or entering into a business venture.

I have seen numerous instances in which physicians who are strapped with debt make unwise decisions as to where they will work and who they choose to associate themselves with in their medical practice.  Often, these physicians will seek ways to save money in their medical practice that leads to poor patient care or that is contrary to law.  Last year, the State Medical Board of Ohio disciplined a number of physicians who (in an effort to save money) purchased non-FDA approved medications from outside of the United States to administer to their patients.  These physicians did not realize that they were violating the law by purchasing these medications.  Nevertheless, these physicians were each subjected to disciplinary action by the Board.

I have also seen physicians continue to work for high volume practices in which they are constantly pushed to order expensive tests to ensure that the practice is highly compensated.  Often, these physicians tell me that they felt trapped in these jobs because the high salaries allow them to pay their debts.  I have also seen physicians take “moonlighting” jobs in areas outside of their specialty in an effort to repay debt only to find themselves investigated by the Board or DEA for practicing or prescribing outside of their scope of expertise.

The best way to have choices as a physician is to live within your means and to take the time and effort to do research before joining a particular practice or entering into a particular business dealing.  Physicians who are financially strapped risk making poor personal and business decisions that can lead to discipline by the Board or another agency.

A qualified accountant can be of assistance regarding your taxes.  A relationship with an attorney can be of benefit when researching a particular job or business venture.  A financial planner can offer guidance as to investments.   Utilizing these types of individuals allows you as a physician to do what you do best…to practice medicine.

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

Physicians’ Legal Obligation to Report to the State Medical Board of Ohio

Last week, the State Medical Board of Ohio issued a landmark decision in which the Medical Board permanently revoked the license of a physician for failing to report to the Medical Board allegations of sexual misconduct concerning the physician’s colleague.

Pursuant to ORC 4732.224(B), an individual licensed by the Medical Board who has reason to believe that a violation of any provision of the Medical Board’s statutes or rules has occurred shall report to the Medical Board. Although this law has been in effect for many years, this was the first time we are aware that the Medical Board has disciplined a licensee for failing to report a licensee under this law. It was also remarkable that the sanction imposed was a permanent revocation, which is the most serious sanction that can be imposed by the Medical Board.

An interesting factor of this case also rests in the subjective wording of the reporting statute, which provides that a licensee who “has reason to believe” that a violation of Medical Board law or rule has occurred shall report to the Medical Board. This subjective wording can make it difficult for a physician to know when they must report to the Medical Board allegations made against a colleague.  However, OAC 4731-15-01(D) provides guidance by indicating that “reason to believe” or “a belief” does not require absolute certainty or complete unquestioning acceptance, but only an opinion that a violation has occurred based upon firsthand knowledge or reliable information.

In this case, the Board’s attorneys argued that the physician’s failure to report to the Medical Board allegations of sexual misconduct concerning the physician’s medical partner with patients in the practice was a violation of the reporting statute. Despite the fact that the physician who allegedly engaged in misconduct was terminated from employment at the medical practice, the physician who failed to report to the Medical Board the alleged misconduct permanently lost his medical license.

Although there are certain exceptions to the reporting requirement in OAC 4731-15-01(B), those exceptions are limited and require a fact specific analysis in each individual case.

Under OAC 4731-15-01(E), a report required to be made must be made to the Medical Board within 48 hours. Under OAC 4731-15-01(G), each report must include (i) the name of the practitioner or other individual in violation, (ii) the violation which is believed to have occurred, and (iii) the date(s) of and place(s) of occurrence(s), if known.

This case is a cautionary tale to Ohio physicians. If you have reason to believe that another licensed professional is violating any of the provisions of the Ohio Medical Practice Act (ORC 4731 et seq and OAC 4731 et seq), you are required to report to the Medical Board.

As always, if you have any questions about this post or about the State Medical Board of Ohio in general, please feel free to call one of the attorneys at the Collis Law Group LLC 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.

 

Ohio Medical Board approach to physicians with mental health issues may have a chilling effect on physicians seeking treatment

Pursuant to Ohio Revised Code Section 4731.22(B)(19), the Medical Board in Ohio can suspend the license of a physician if it is determined that a physician has an “…inability to practice according to acceptable and prevailing standard of care by reason of mental illness . . .”.  This suggests that the Board must link a physician’s mental illness to an inability to safely practice medicine.  In fact, the Medical Board does not need to show immediate harm to the public or evidence of poor or substandard medical practice to limit or restrict a physician’s license if it is determined that he or she suffers from a mental illness.

Under the Ohio Medical Board statute, if the Board has reason to believe that a physician suffers from a mental illness that could affect their ability to practice medicine, the Board can order the physician to undergo a psychiatric evaluation with a Board approved psychiatrist (a psychiatrist selected and approved by the Medical Board). The evaluation, which generally runs between $2,500-$4,800, is at the expense of the physician. Generally, before the evaluation, the physician is required to sign a release form and submit his or her medical records, including mental health records, to the Board approved psychiatrist for review. After reviewing the physician’s medical records, the Board approved psychiatrist will evaluate the physician and make a determination. The evaluation may or may not include psychological testing and may or may not include the psychiatrist contacting family members, colleagues or co-workers to evaluate the physician’s “ability to practice.”

After the evaluation, the Board approved psychiatrist will make one of the following recommendations to the Board:

-physician may continue to practice medicine with no Board monitoring; or

-physician may continue to practice medicine as long as they enter into a monitoring agreement that requires them to maintain treatment with a psychiatrist or therapist and for the therapist to submit quarterly reports to the Board; or

-the physician is unfit to practice medicine and his or her license will be suspended until such time as s/he can provide the Medical Board with evaluations from two additional psychiatrists that s/he is fit to resume practice. These evaluations are, again, at the expense of the physician.

If the physician is required to enter into any type of monitoring agreement with the Medical Board, the agreement is a public document.  Such agreement typically includes the physican’s medical diagnosis and conditions under which he or she may continue to practice medicine. It is reported to the National Practitioner’s Data Bank and is accessible to the public on the Medical Board website.

Many physicians throughout the state have voiced strong opposition to the lack of confidentiality of the monitoring program, the onerous nature of the monitoring conditions and the chilling effect that curtails many from seeking appropriate medical care for fear that their confidential medical records would be reviewed by Medical Board Members or staff. (Confidential medical records are NOT released to the public. However, the physician’s medical diagnosis, monitoring conditions and name of their treating doctor is released to the public.)

Many individuals have been contacting the Medical Board with their concerns about the punitive way in which the Medical Board treats physicians who suffer from a mental health condition. Many individuals are also pushing for Ohio to institute a confidential program to monitor physicians. If you believe that physicians should be provided with a confidential monitoring program, I recommend that you contact the State Medical Board of Ohio and voice your concerns.

As always, if you have any questions about this post or the State Medical Board of Ohio in general, please contact one of the attorneys at Collis, Smiles & Collis, LLC at 614-486-3909, or by email to Beth@collislaw.com.

 

How are decisions made by the State Medical Board of Ohio

I am often asked by clients, “Who makes the final determination as to the sanction that will be imposed against a physician at the State Medical Board of Ohio?”  In theory, this is a simple answer. The Board Members review all the evidence in the case and a vote of six members will result in a sanction against a physician. Alternatively, if the case does not proceed to a hearing, two members of the Board, the Board Secretary and Supervising Member review the evidence and offer terms for a settlement in lieu of proceeding to a hearing.

To make the appropriate determination as to the sanction that should be imposed, the Medical Board has Disciplinary Guidelines, which are posted on the Board’s website (http://www.med.ohio.gov/pdf/meddis.pdf) that outline appropriate sanctions for various violations of the Medical Board’s laws and rules.

In addition, the Medical Board is to review similar prior Board actions and make a determination that is consistent with similar sanctions that have been imposed in similar cases in the past. This is called following precedence.

However, this is all “In Theory”.  What we have seen in the past year is that the Medical Board has been reluctant to follow the disciplinary guidelines (they are advisory only, not mandatory) and the Board has been unwilling to follow prior Board decisions in imposing discipline against physicians.

This change can be based on a variety of factors. First, each year as Board vacancies open up, the Governor is charged with appointing new Board members. New members often come to the Board and look at cases differently than former Board panels.  This change can be refreshing as a shakeup in the Board makeup can bring fresh perspectives to the Board. However, it also leads to inconsistent results, and leaves members of the medical community unaware of how they might be sanctioned if they do violate a Board law or rule.

Recently, we have seen that if the case before the Board does not affect the physician’s medical practice (i.e. a conviction unrelated to medicine) that the Board members have been reluctant to sanction the physician. On the opposite end, if the case involves prescribing of pain medications or even minor violations of a prior Board sanction, the Board has been very punitive.

In this time of uncertainly, I still believe that you put your client in the best position before the Board if you provide the Board Members with as much information through the settlement or hearing process as possible. Board Members often complain that they do not have enough information about the physician to make a reasoned decision about their case. Therefore, I have found that while the Disciplinary Guidelines and prior case actions can be helpful in determining how the Board might proceed in any case, a recommended way to handle any case is to put as much information about the physician and their facts and circumstances about their case before the Board.  This might mean taking more cases to hearing than the Board has seen in recent years.  However, until the Board settles into a rhythm of making consistent decisions on similar cases, this might be the only way to effectively represent the client before the Board.

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 Collis, Smiles and Collis at 614-486-3909, check out our website for more information at www.collislaw.com or email me at beth@collislaw.com.