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: 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 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.

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.