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.

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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 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.