As Passed by the Senate

129th General Assembly Regular Session 2011-2012

S. B. No. 72

Senator Lehner 

Cosponsors: Senators Bacon, Beagle, Cates, Daniels, Faber, Gillmor, Grendell, Hite, Hughes, Jordan, Patton, Schaffer, Seitz, Wagoner, Wilson, Jones, Manning, Niehaus, Obhof, Widener 

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A BILL

To amend sections 2305.11, 2307.52, 2919.16, and

1

4731.22, to enact new sections 2919.17 and

2

2919.18, to enact section 2919.171, and to repeal

3

sections 2919.17 and 2919.18 of the Revised Code

4

to revise the criminal laws governing

5

post-viability abortions.

6

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2305.11, 2307.52, 2919.16, and	7
4731.22 be amended and new sections 2919.17 and 2919.18 and	8
section 2919.171 of the Revised Code be enacted to read as	9
follows:	10

Sec. 2305.11.  (A) An action for libel, slander, malicious	11
prosecution, or false imprisonment, an action for malpractice	12
other than an action upon a medical, dental, optometric, or	13
chiropractic claim, or an action upon a statute for a penalty or	14
forfeiture shall be commenced within one year after the cause of	15
action accrued, provided that an action by an employee for the	16
payment of unpaid minimum wages, unpaid overtime compensation, or	17
liquidated damages by reason of the nonpayment of minimum wages or	18
overtime compensation shall be commenced within two years after	19
the cause of action accrued.	20

(B) A civil action for unlawful abortion pursuant to section	21
2919.12 of the Revised Code, a civil action authorized by division	22
(H) of section 2317.56 of the Revised Code, a civil action	23
pursuant to division (B)(1) or (2) of section 2307.51 of the	24
Revised Code for performing a dilation and extraction procedure or	25
attempting to perform a dilation and extraction procedure in	26
violation of section 2919.15 of the Revised Code, and a civil	27
action pursuant to division (B)(1) or (2) of section 2307.52 of	28
the Revised Code for terminating or attempting to terminate a	29
human pregnancy after viability in violation of division (A) or	30
(B) of section 2919.17 of the Revised Code shall be commenced	31
within one year after the performance or inducement of the	32
abortion, within one year after the attempt to perform or induce	33
the abortion in violation of division (A) or (B) of section	34
2919.17 of the Revised Code, within one year after the performance	35
of the dilation and extraction procedure, or, in the case of a	36
civil action pursuant to division (B)(2) of section 2307.51 of the	37
Revised Code, within one year after the attempt to perform the	38
dilation and extraction procedure.	39

(C) As used in this section, "medical claim," "dental claim,"	40
"optometric claim," and "chiropractic claim" have the same	41
meanings as in section 2305.113 of the Revised Code.	42

Sec. 2307.52.  (A) As used in this section:

43

(1) "Frivolous conduct" has the same meaning as in section	44
2323.51 of the Revised Code.	45

(2) "Viable" has the same meaning as in section 2919.16 of	46
the Revised Code.	47

(B)(1) A woman upon whom an abortion is purposely performed	48
or induced or attempted to be performed or induced in violation of	49
division (A) of section 2919.17 of the Revised Code has and may	50
commence a civil action for compensatory damages, punitive or	51
exemplary damages if authorized by section 2315.21 of the Revised	52
Code, and court costs and reasonable attorney's fees against the	53
person who purposely performed or induced or attempted to perform	54
or induce the abortion in violation of division (A) of section	55
2919.17 of the Revised Code.	56

(2) A woman upon whom an abortion is purposely performed or	57
induced or attempted to be performed or induced in violation of	58
division (B) of section 2919.17 of the Revised Code has and may	59
commence a civil action for compensatory damages, punitive or	60
exemplary damages if authorized by section 2315.21 of the Revised	61
Code, and court costs and reasonable attorney's fees against the	62
person who purposely performed or induced or attempted to perform	63
or induce the abortion in violation of division (B) of section	64
2919.17 of the Revised Code.	65

(C) If a judgment is rendered in favor of the defendant in a	66
civil action commenced pursuant to division (B)(1) or (2) of this	67
section and the court finds, upon the filing of a motion under	68
section 2323.51 of the Revised Code, that the commencement of the	69
civil action constitutes frivolous conduct and that the defendant	70
was adversely affected by the frivolous conduct, the court shall	71
award in accordance with section 2323.51 of the Revised Code	72
reasonable attorney's fees to the defendant.	73

Sec. 2919.16.  As used in sections 2919.16 to 2919.18 of the	74
Revised Code:	75

(A) "Fertilization" means the fusion of a human spermatozoon	76
with a human ovum.	77

(B) "Gestational age" or "gestation" means the age of an	78
unborn humanchild as calculated from the first day of the last	79
menstrual period of a pregnant woman.	80

(C) "Health care facility" means a hospital, clinic,	81
ambulatory surgical treatment center, other center, medical	82
school, office of a physician, infirmary, dispensary, medical	83
training institution, or other institution or location in or at	84
which medical care, treatment, or diagnosis is provided to a	85
person.	86

(D) "Hospital" has the same meanings as in sections 3701.01,	87
3727.01, and 5122.01 of the Revised Code.	88

(E) "Live birth" has the same meaning as in division (A) of	89
section 3705.01 of the Revised Code.	90

(F) "Medical emergency" means a condition that a pregnant	91
woman's physician determines, in the physician's good faith and in	92
the exercise of reasonable medical judgment, based upon the facts	93
known to the physician at that time, so complicates the woman's	94
pregnancy as to necessitate the immediate performance or	95
inducement of an abortion in order to prevent the death of the	96
pregnant woman or to avoid a serious risk of the substantial and	97
irreversible impairment of a major bodily function of the pregnant	98
woman that delay in the performance or inducement of the abortion	99
would create.	100

(G) "Physician" has the same meaning as in section 2305.113	101
of the Revised Code.	102

(H) "Pregnant" means the human female reproductive condition,	103
that commences with fertilization, of having a developing fetus.	104

(I) "Pregnancy" means the condition of being pregnant.

105

(J) "Premature infant" means a human whose live birth occurs	106
prior to thirty-eight weeks of gestational age.	107

(J)(K) "Serious risk of the substantial and irreversible	108
impairment of a major bodily function" means any medically	109
diagnosed condition that so complicates the pregnancy of the woman	110
as to directly or indirectly cause the substantial and	111
irreversible impairment of a major bodily function, including, but	112
not limited to, the following conditions:	113

(1) Pre-eclampsia;

114

(2) Inevitable abortion;

115

(3) Prematurely ruptured membrane;

116

(4) Diabetes;

117

(5) Multiple sclerosis. A medically diagnosed condition that	118
constitutes a "serious risk of the substantial and irreversible	119
impairment of a major bodily function" includes pre-eclampsia,	120
inevitable abortion, and premature rupture of the membranes, may	121
include, but is not limited to, diabetes and multiple sclerosis,	122
and does not include a condition related to the woman's mental	123
health.	124

(K)(L) "Unborn humanchild" means an individual organism of	125
the species homo sapiens from fertilization until live birth.	126

(L)(M) "Viable" means the stage of development of a human	127
fetus at which in the determination of a physician, based on the	128
particular facts of a woman's pregnancy that are known to the	129
physician and in light of medical technology and information	130
reasonably available to the physician, there is a realistic	131
possibility of the maintaining and nourishing of a life outside of	132
the womb with or without temporary artificial life-sustaining	133
support.	134

Sec. 2919.17.  (A) No person shall purposely perform or	135
induce or attempt to perform or induce an abortion on a pregnant	136
woman when the unborn child is viable.	137

(B)(1) It is an affirmative defense to a charge under	138
division (A) of this section that the abortion was performed or	139
induced or attempted to be performed or induced by a physician and	140
that the physician determined, in the physician's good faith	141
medical judgment, based on the facts known to the physician at	142
that time, that either of the following applied:	143

(a) The unborn child was not viable.

144

(b) The abortion was necessary to prevent the death of the	145
pregnant woman or a serious risk of the substantial and	146
irreversible impairment of a major bodily function of the pregnant	147
woman.	148

(2) No abortion shall be considered necessary under division	149
(B)(1)(b) of this section on the basis of a claim or diagnosis	150
that the pregnant woman will engage in conduct that would result	151
in the pregnant woman's death or a substantial and irreversible	152
impairment of a major bodily function of the pregnant woman or	153
based on any reason related to the woman's mental health.	154

(C) Except when a medical emergency exists that prevents	155
compliance with section 2919.18 of the Revised Code, the	156
affirmative defense set forth in division (B)(1)(a) of this	157
section does not apply unless the physician who performs or	158
induces or attempts to perform or induce the abortion performs the	159
viability testing required by division (A) of section 2919.18 of	160
the Revised Code and certifies in writing, based on the results of	161
the tests performed, that in the physician's good faith medical	162
judgment the unborn child is not viable.	163

(D) Except when a medical emergency exists that prevents	164
compliance with one or more of the following conditions, the	165
affirmative defense set forth in division (B)(1)(b) of this	166
section does not apply unless the physician who performs or	167
induces or attempts to perform or induce the abortion complies	168
with all of the following conditions:	169

(1) The physician who performs or induces or attempts to	170
perform or induce the abortion certifies in writing that, in the	171
physician's good faith medical judgment, based on the facts known	172
to the physician at that time, the abortion is necessary to	173
prevent the death of the pregnant woman or a serious risk of the	174
substantial and irreversible impairment of a major bodily function	175
of the pregnant woman.	176

(2) Another physician who is not professionally related to	177
the physician who intends to perform or induce the abortion	178
certifies in writing that, in that physician's good faith medical	179
judgment, based on the facts known to that physician at that time,	180
the abortion is necessary to prevent the death of the pregnant	181
woman or a serious risk of the substantial and irreversible	182
impairment of a major bodily function of the pregnant woman.	183

(3) The physician performs or induces or attempts to perform	184
or induce the abortion in a hospital or other health care facility	185
that has appropriate neonatal services for premature infants.	186

(4) The physician who performs or induces or attempts to	187
perform or induce the abortion terminates or attempts to terminate	188
the pregnancy in the manner that provides the best opportunity for	189
the unborn child to survive, unless that physician determines, in	190
the physician's good faith medical judgment, based on the facts	191
known to the physician at that time, that the termination of the	192
pregnancy in that manner poses a greater risk of the death of the	193
pregnant woman or a greater risk of the substantial and	194
irreversible impairment of a major bodily function of the pregnant	195
woman than would other available methods of abortion.	196

(5) The physician certifies in writing the available method	197
or techniques considered and the reasons for choosing the method	198
or technique employed.	199

(6) The physician who performs or induces or attempts to	200
perform or induce the abortion has arranged for the attendance in	201
the same room in which the abortion is to be performed or induced	202
or attempted to be performed or induced at least one other	203
physician who is to take control of, provide immediate medical	204
care for, and take all reasonable steps necessary to preserve the	205
life and health of the unborn child immediately upon the child's	206
complete expulsion or extraction from the pregnant woman.	207

(E) For purposes of this section, there is a rebuttable	208
presumption that an unborn child of at least twenty-four weeks	209
gestational age is viable.	210

(F) Whoever violates this section is guilty of terminating or	211
attempting to terminate a human pregnancy after viability, a	212
felony of the fourth degree.	213

(G) The state medical board shall revoke a physician's	214
license to practice medicine in this state if the physician	215
violates this section.	216

(H) Any physician who performs or induces an abortion or	217
attempts to perform or induce an abortion with actual knowledge	218
that neither of the affirmative defenses set forth in division	219
(B)(1) of this section applies, or with a heedless indifference as	220
to whether either affirmative defense applies, is liable in a	221
civil action for compensatory and exemplary damages and reasonable	222
attorney's fees to any person, or the representative of the estate	223
of any person, who sustains injury, death, or loss to person or	224
property as the result of the performance or inducement or the	225
attempted performance or inducement of the abortion. In any action	226
under this division, the court also may award any injunctive or	227
other equitable relief that the court considers appropriate.	228

(I) A pregnant woman on whom an abortion is performed or	229
induced or attempted to be performed or induced in violation of	230
division (A) of this section is not guilty of violating division	231
(A) of this section or of attempting to commit, conspiring to	232
commit, or complicity in committing a violation of division (A) of	233
this section.	234

Sec. 2919.171. (A) A physician who performs or induces or	235
attempts to perform or induce an abortion on a pregnant woman	236
shall submit a report to the department of health in accordance	237
with the forms, rules, and regulations adopted by the department	238
that includes all of the information the physician is required to	239
certify in writing or determine under sections 2919.17 and 2919.18	240
of the Revised Code.	241

(B) By September 30 of each year, the department of health	242
shall issue a public report that provides statistics for the	243
previous calendar year compiled from all of the reports covering	244
that calendar year submitted to the department in accordance with	245
this section for each of the items listed in division (A) of this	246
section. The report shall also provide the statistics for each	247
previous calendar year in which a report was filed with the	248
department pursuant to this section, adjusted to reflect any	249
additional information that a physician provides to the department	250
in a late or corrected report. The department shall ensure that	251
none of the information included in the report could reasonably	252
lead to the identification of any pregnant woman upon whom an	253
abortion is performed.	254

(C)(1) The physician shall submit the report described in	255
division (A) of this section to the department of health within	256
fifteen days after the woman is discharged. If the physician fails	257
to submit the report more than thirty days after that fifteen-day	258
deadline, the physician shall be subject to a late fee of five	259
hundred dollars for each additional thirty-day period or portion	260
of a thirty-day period the report is overdue. A physician who is	261
required to submit to the department of health a report under	262
division (A) of this section and who has not submitted a report or	263
has submitted an incomplete report more than one year following	264
the fifteen-day deadline may, in an action brought by the	265
department of health, be directed by a court of competent	266
jurisdiction to submit a complete report to the department of	267
health within a period of time stated in a court order or be	268
subject to contempt of court.	269

(2) If a physician fails to comply with the requirements of	270
this section, other than filing a late report with the department	271
of health, or fails to submit a complete report to the department	272
of health in accordance with a court order, the physician is	273
subject to division (B)(41) of section 4731.22 of the Revised	274
Code.	275

(3) No person shall falsify any report required under this	276
section. Whoever violates this division is guilty of abortion	277
report falsification, a misdemeanor of the first degree.	278

(D) Within ninety days of the effective date of this section,	279
the department of health shall adopt rules pursuant to section	280
111.15 of the Revised Code to assist in compliance with this	281
section.	282

Sec. 2919.18.  (A) Except in a medical emergency that	283
prevents compliance with this division, no physician shall perform	284
or induce or attempt to perform or induce an abortion on a	285
pregnant woman after the beginning of the twentieth week of	286
gestation unless, prior to the performance or inducement of the	287
abortion or the attempt to perform or induce the abortion, the	288
physician determines, in the physician's good faith medical	289
judgment, that the unborn child is not viable, and the physician	290
makes that determination after performing a medical examination of	291
the pregnant woman and after performing or causing to be performed	292
those tests for assessing gestational age, weight, lung maturity,	293
or other tests that the physician, in that physician's good faith	294
medical judgment, believes are necessary to determine whether an	295
unborn child is viable.	296

(B) Except in a medical emergency that prevents compliance	297
with this division, no physician shall perform or induce or	298
attempt to perform or induce an abortion on a pregnant woman after	299
the beginning of the twentieth week of gestation without first	300
entering the determination made in division (A) of this section	301
and the associated findings of the medical examination and tests	302
in the medical record of the pregnant woman.	303

(C) Whoever violates this section is guilty of failure to	304
perform viability testing, a misdemeanor of the fourth degree.	305

(D) The state medical board shall suspend a physician's	306
license to practice medicine in this state for a period of not	307
less than six months if the physician violates this section.	308

Sec. 4731.22.  (A) The state medical board, by an affirmative	309
vote of not fewer than six of its members, may revoke or may	310
refuse to grant a certificate to a person found by the board to	311
have committed fraud during the administration of the examination	312
for a certificate to practice or to have committed fraud,	313
misrepresentation, or deception in applying for or securing any	314
certificate to practice or certificate of registration issued by	315
the board.	316

(B) The board, by an affirmative vote of not fewer than six	317
members, shall, to the extent permitted by law, limit, revoke, or	318
suspend an individual's certificate to practice, refuse to	319
register an individual, refuse to reinstate a certificate, or	320
reprimand or place on probation the holder of a certificate for	321
one or more of the following reasons:	322

(1) Permitting one's name or one's certificate to practice or	323
certificate of registration to be used by a person, group, or	324
corporation when the individual concerned is not actually	325
directing the treatment given;	326

(2) Failure to maintain minimal standards applicable to the	327
selection or administration of drugs, or failure to employ	328
acceptable scientific methods in the selection of drugs or other	329
modalities for treatment of disease;	330

(3) Selling, giving away, personally furnishing, prescribing,	331
or administering drugs for other than legal and legitimate	332
therapeutic purposes or a plea of guilty to, a judicial finding of	333
guilt of, or a judicial finding of eligibility for intervention in	334
lieu of conviction of, a violation of any federal or state law	335
regulating the possession, distribution, or use of any drug;	336

(4) Willfully betraying a professional confidence.

337

For purposes of this division, "willfully betraying a	338
professional confidence" does not include providing any	339
information, documents, or reports to a child fatality review	340
board under sections 307.621 to 307.629 of the Revised Code and	341
does not include the making of a report of an employee's use of a	342
drug of abuse, or a report of a condition of an employee other	343
than one involving the use of a drug of abuse, to the employer of	344
the employee as described in division (B) of section 2305.33 of	345
the Revised Code. Nothing in this division affects the immunity	346
from civil liability conferred by that section upon a physician	347
who makes either type of report in accordance with division (B) of	348
that section. As used in this division, "employee," "employer,"	349
and "physician" have the same meanings as in section 2305.33 of	350
the Revised Code.	351

(5) Making a false, fraudulent, deceptive, or misleading	352
statement in the solicitation of or advertising for patients; in	353
relation to the practice of medicine and surgery, osteopathic	354
medicine and surgery, podiatric medicine and surgery, or a limited	355
branch of medicine; or in securing or attempting to secure any	356
certificate to practice or certificate of registration issued by	357
the board.	358

As used in this division, "false, fraudulent, deceptive, or	359
misleading statement" means a statement that includes a	360
misrepresentation of fact, is likely to mislead or deceive because	361
of a failure to disclose material facts, is intended or is likely	362
to create false or unjustified expectations of favorable results,	363
or includes representations or implications that in reasonable	364
probability will cause an ordinarily prudent person to	365
misunderstand or be deceived.	366

(6) A departure from, or the failure to conform to, minimal	367
standards of care of similar practitioners under the same or	368
similar circumstances, whether or not actual injury to a patient	369
is established;	370

(7) Representing, with the purpose of obtaining compensation	371
or other advantage as personal gain or for any other person, that	372
an incurable disease or injury, or other incurable condition, can	373
be permanently cured;	374

(8) The obtaining of, or attempting to obtain, money or	375
anything of value by fraudulent misrepresentations in the course	376
of practice;	377

(9) A plea of guilty to, a judicial finding of guilt of, or a	378
judicial finding of eligibility for intervention in lieu of	379
conviction for, a felony;	380

(10) Commission of an act that constitutes a felony in this	381
state, regardless of the jurisdiction in which the act was	382
committed;	383

(11) A plea of guilty to, a judicial finding of guilt of, or	384
a judicial finding of eligibility for intervention in lieu of	385
conviction for, a misdemeanor committed in the course of practice;	386

(12) Commission of an act in the course of practice that	387
constitutes a misdemeanor in this state, regardless of the	388
jurisdiction in which the act was committed;	389

(13) A plea of guilty to, a judicial finding of guilt of, or	390
a judicial finding of eligibility for intervention in lieu of	391
conviction for, a misdemeanor involving moral turpitude;	392

(14) Commission of an act involving moral turpitude that	393
constitutes a misdemeanor in this state, regardless of the	394
jurisdiction in which the act was committed;	395

(15) Violation of the conditions of limitation placed by the	396
board upon a certificate to practice;	397

(16) Failure to pay license renewal fees specified in this	398
chapter;	399

(17) Except as authorized in section 4731.31 of the Revised	400
Code, engaging in the division of fees for referral of patients,	401
or the receiving of a thing of value in return for a specific	402
referral of a patient to utilize a particular service or business;	403

(18) Subject to section 4731.226 of the Revised Code,	404
violation of any provision of a code of ethics of the American	405
medical association, the American osteopathic association, the	406
American podiatric medical association, or any other national	407
professional organizations that the board specifies by rule. The	408
state medical board shall obtain and keep on file current copies	409
of the codes of ethics of the various national professional	410
organizations. The individual whose certificate is being suspended	411
or revoked shall not be found to have violated any provision of a	412
code of ethics of an organization not appropriate to the	413
individual's profession.	414

For purposes of this division, a "provision of a code of	415
ethics of a national professional organization" does not include	416
any provision that would preclude the making of a report by a	417
physician of an employee's use of a drug of abuse, or of a	418
condition of an employee other than one involving the use of a	419
drug of abuse, to the employer of the employee as described in	420
division (B) of section 2305.33 of the Revised Code. Nothing in	421
this division affects the immunity from civil liability conferred	422
by that section upon a physician who makes either type of report	423
in accordance with division (B) of that section. As used in this	424
division, "employee," "employer," and "physician" have the same	425
meanings as in section 2305.33 of the Revised Code.	426

(19) Inability to practice according to acceptable and	427
prevailing standards of care by reason of mental illness or	428
physical illness, including, but not limited to, physical	429
deterioration that adversely affects cognitive, motor, or	430
perceptive skills.	431

In enforcing this division, the board, upon a showing of a	432
possible violation, may compel any individual authorized to	433
practice by this chapter or who has submitted an application	434
pursuant to this chapter to submit to a mental examination,	435
physical examination, including an HIV test, or both a mental and	436
a physical examination. The expense of the examination is the	437
responsibility of the individual compelled to be examined. Failure	438
to submit to a mental or physical examination or consent to an HIV	439
test ordered by the board constitutes an admission of the	440
allegations against the individual unless the failure is due to	441
circumstances beyond the individual's control, and a default and	442
final order may be entered without the taking of testimony or	443
presentation of evidence. If the board finds an individual unable	444
to practice because of the reasons set forth in this division, the	445
board shall require the individual to submit to care, counseling,	446
or treatment by physicians approved or designated by the board, as	447
a condition for initial, continued, reinstated, or renewed	448
authority to practice. An individual affected under this division	449
shall be afforded an opportunity to demonstrate to the board the	450
ability to resume practice in compliance with acceptable and	451
prevailing standards under the provisions of the individual's	452
certificate. For the purpose of this division, any individual who	453
applies for or receives a certificate to practice under this	454
chapter accepts the privilege of practicing in this state and, by	455
so doing, shall be deemed to have given consent to submit to a	456
mental or physical examination when directed to do so in writing	457
by the board, and to have waived all objections to the	458
admissibility of testimony or examination reports that constitute	459
a privileged communication.	460

(20) Except when civil penalties are imposed under section	461
4731.225 or 4731.281 of the Revised Code, and subject to section	462
4731.226 of the Revised Code, violating or attempting to violate,	463
directly or indirectly, or assisting in or abetting the violation	464
of, or conspiring to violate, any provisions of this chapter or	465
any rule promulgated by the board.	466

This division does not apply to a violation or attempted	467
violation of, assisting in or abetting the violation of, or a	468
conspiracy to violate, any provision of this chapter or any rule	469
adopted by the board that would preclude the making of a report by	470
a physician of an employee's use of a drug of abuse, or of a	471
condition of an employee other than one involving the use of a	472
drug of abuse, to the employer of the employee as described in	473
division (B) of section 2305.33 of the Revised Code. Nothing in	474
this division affects the immunity from civil liability conferred	475
by that section upon a physician who makes either type of report	476
in accordance with division (B) of that section. As used in this	477
division, "employee," "employer," and "physician" have the same	478
meanings as in section 2305.33 of the Revised Code.	479

(21) The violation of section 3701.79 of the Revised Code or	480
of any abortion rule adopted by the public health council pursuant	481
to section 3701.341 of the Revised Code;	482

(22) Any of the following actions taken by the agency	483
responsible for regulating the practice of medicine and surgery,	484
osteopathic medicine and surgery, podiatric medicine and surgery,	485
or the limited branches of medicine in another jurisdiction, for	486
any reason other than the nonpayment of fees: the limitation,	487
revocation, or suspension of an individual's license to practice;	488
acceptance of an individual's license surrender; denial of a	489
license; refusal to renew or reinstate a license; imposition of	490
probation; or issuance of an order of censure or other reprimand;	491

(23) The violation of section 2919.12 of the Revised Code or	492
the performance or inducement of an abortion upon a pregnant woman	493
with actual knowledge that the conditions specified in division	494
(B) of section 2317.56 of the Revised Code have not been satisfied	495
or with a heedless indifference as to whether those conditions	496
have been satisfied, unless an affirmative defense as specified in	497
division (H)(2) of that section would apply in a civil action	498
authorized by division (H)(1) of that section;	499

(24) The revocation, suspension, restriction, reduction, or	500
termination of clinical privileges by the United States department	501
of defense or department of veterans affairs or the termination or	502
suspension of a certificate of registration to prescribe drugs by	503
the drug enforcement administration of the United States	504
department of justice;	505

(25) Termination or suspension from participation in the	506
medicare or medicaid programs by the department of health and	507
human services or other responsible agency for any act or acts	508
that also would constitute a violation of division (B)(2), (3),	509
(6), (8), or (19) of this section;	510

(26) Impairment of ability to practice according to	511
acceptable and prevailing standards of care because of habitual or	512
excessive use or abuse of drugs, alcohol, or other substances that	513
impair ability to practice.	514

For the purposes of this division, any individual authorized	515
to practice by this chapter accepts the privilege of practicing in	516
this state subject to supervision by the board. By filing an	517
application for or holding a certificate to practice under this	518
chapter, an individual shall be deemed to have given consent to	519
submit to a mental or physical examination when ordered to do so	520
by the board in writing, and to have waived all objections to the	521
admissibility of testimony or examination reports that constitute	522
privileged communications.	523

If it has reason to believe that any individual authorized to	524
practice by this chapter or any applicant for certification to	525
practice suffers such impairment, the board may compel the	526
individual to submit to a mental or physical examination, or both.	527
The expense of the examination is the responsibility of the	528
individual compelled to be examined. Any mental or physical	529
examination required under this division shall be undertaken by a	530
treatment provider or physician who is qualified to conduct the	531
examination and who is chosen by the board.	532

Failure to submit to a mental or physical examination ordered	533
by the board constitutes an admission of the allegations against	534
the individual unless the failure is due to circumstances beyond	535
the individual's control, and a default and final order may be	536
entered without the taking of testimony or presentation of	537
evidence. If the board determines that the individual's ability to	538
practice is impaired, the board shall suspend the individual's	539
certificate or deny the individual's application and shall require	540
the individual, as a condition for initial, continued, reinstated,	541
or renewed certification to practice, to submit to treatment.	542

Before being eligible to apply for reinstatement of a	543
certificate suspended under this division, the impaired	544
practitioner shall demonstrate to the board the ability to resume	545
practice in compliance with acceptable and prevailing standards of	546
care under the provisions of the practitioner's certificate. The	547
demonstration shall include, but shall not be limited to, the	548
following:	549

(a) Certification from a treatment provider approved under	550
section 4731.25 of the Revised Code that the individual has	551
successfully completed any required inpatient treatment;	552

(b) Evidence of continuing full compliance with an aftercare	553
contract or consent agreement;	554

(c) Two written reports indicating that the individual's	555
ability to practice has been assessed and that the individual has	556
been found capable of practicing according to acceptable and	557
prevailing standards of care. The reports shall be made by	558
individuals or providers approved by the board for making the	559
assessments and shall describe the basis for their determination.	560

The board may reinstate a certificate suspended under this	561
division after that demonstration and after the individual has	562
entered into a written consent agreement.	563

When the impaired practitioner resumes practice, the board	564
shall require continued monitoring of the individual. The	565
monitoring shall include, but not be limited to, compliance with	566
the written consent agreement entered into before reinstatement or	567
with conditions imposed by board order after a hearing, and, upon	568
termination of the consent agreement, submission to the board for	569
at least two years of annual written progress reports made under	570
penalty of perjury stating whether the individual has maintained	571
sobriety.	572

(27) A second or subsequent violation of section 4731.66 or	573
4731.69 of the Revised Code;	574

(28) Except as provided in division (N) of this section:

575

(a) Waiving the payment of all or any part of a deductible or	576
copayment that a patient, pursuant to a health insurance or health	577
care policy, contract, or plan that covers the individual's	578
services, otherwise would be required to pay if the waiver is used	579
as an enticement to a patient or group of patients to receive	580
health care services from that individual;	581

(b) Advertising that the individual will waive the payment of	582
all or any part of a deductible or copayment that a patient,	583
pursuant to a health insurance or health care policy, contract, or	584
plan that covers the individual's services, otherwise would be	585
required to pay.	586

(29) Failure to use universal blood and body fluid	587
precautions established by rules adopted under section 4731.051 of	588
the Revised Code;	589

(30) Failure to provide notice to, and receive acknowledgment	590
of the notice from, a patient when required by section 4731.143 of	591
the Revised Code prior to providing nonemergency professional	592
services, or failure to maintain that notice in the patient's	593
file;	594

(31) Failure of a physician supervising a physician assistant	595
to maintain supervision in accordance with the requirements of	596
Chapter 4730. of the Revised Code and the rules adopted under that	597
chapter;	598

(32) Failure of a physician or podiatrist to enter into a	599
standard care arrangement with a clinical nurse specialist,	600
certified nurse-midwife, or certified nurse practitioner with whom	601
the physician or podiatrist is in collaboration pursuant to	602
section 4731.27 of the Revised Code or failure to fulfill the	603
responsibilities of collaboration after entering into a standard	604
care arrangement;	605

(33) Failure to comply with the terms of a consult agreement	606
entered into with a pharmacist pursuant to section 4729.39 of the	607
Revised Code;	608

(34) Failure to cooperate in an investigation conducted by	609
the board under division (F) of this section, including failure to	610
comply with a subpoena or order issued by the board or failure to	611
answer truthfully a question presented by the board at a	612
deposition or in written interrogatories, except that failure to	613
cooperate with an investigation shall not constitute grounds for	614
discipline under this section if a court of competent jurisdiction	615
has issued an order that either quashes a subpoena or permits the	616
individual to withhold the testimony or evidence in issue;	617

(35) Failure to supervise an acupuncturist in accordance with	618
Chapter 4762. of the Revised Code and the board's rules for	619
supervision of an acupuncturist;	620

(36) Failure to supervise an anesthesiologist assistant in	621
accordance with Chapter 4760. of the Revised Code and the board's	622
rules for supervision of an anesthesiologist assistant;	623

(37) Assisting suicide as defined in section 3795.01 of the	624
Revised Code;	625

(38) Failure to comply with the requirements of section	626
2317.561 of the Revised Code;	627

(39) Failure to supervise a radiologist assistant in	628
accordance with Chapter 4774. of the Revised Code and the board's	629
rules for supervision of radiologist assistants;	630

(40) Performing or inducing an abortion at an office or	631
facility with knowledge that the office or facility fails to post	632
the notice required under section 3701.791 of the Revised Code;	633

(41) Failure to comply with the requirements of section	634
2919.171 of the Revised Code or failure to submit to the	635
department of health in accordance with a court order a complete	636
report as described in section 2919.171 of the Revised Code.	637

(C) Disciplinary actions taken by the board under divisions	638
(A) and (B) of this section shall be taken pursuant to an	639
adjudication under Chapter 119. of the Revised Code, except that	640
in lieu of an adjudication, the board may enter into a consent	641
agreement with an individual to resolve an allegation of a	642
violation of this chapter or any rule adopted under it. A consent	643
agreement, when ratified by an affirmative vote of not fewer than	644
six members of the board, shall constitute the findings and order	645
of the board with respect to the matter addressed in the	646
agreement. If the board refuses to ratify a consent agreement, the	647
admissions and findings contained in the consent agreement shall	648
be of no force or effect.	649

If the board takes disciplinary action against an individual	650
under division (B) of this section for a second or subsequent plea	651
of guilty to, or judicial finding of guilt of, a violation of	652
section 2919.123 of the Revised Code, the disciplinary action	653
shall consist of a suspension of the individual's certificate to	654
practice for a period of at least one year or, if determined	655
appropriate by the board, a more serious sanction involving the	656
individual's certificate to practice. Any consent agreement	657
entered into under this division with an individual that pertains	658
to a second or subsequent plea of guilty to, or judicial finding	659
of guilt of, a violation of that section shall provide for a	660
suspension of the individual's certificate to practice for a	661
period of at least one year or, if determined appropriate by the	662
board, a more serious sanction involving the individual's	663
certificate to practice.	664

(D) For purposes of divisions (B)(10), (12), and (14) of this	665
section, the commission of the act may be established by a finding	666
by the board, pursuant to an adjudication under Chapter 119. of	667
the Revised Code, that the individual committed the act. The board	668
does not have jurisdiction under those divisions if the trial	669
court renders a final judgment in the individual's favor and that	670
judgment is based upon an adjudication on the merits. The board	671
has jurisdiction under those divisions if the trial court issues	672
an order of dismissal upon technical or procedural grounds.	673

(E) The sealing of conviction records by any court shall have	674
no effect upon a prior board order entered under this section or	675
upon the board's jurisdiction to take action under this section	676
if, based upon a plea of guilty, a judicial finding of guilt, or a	677
judicial finding of eligibility for intervention in lieu of	678
conviction, the board issued a notice of opportunity for a hearing	679
prior to the court's order to seal the records. The board shall	680
not be required to seal, destroy, redact, or otherwise modify its	681
records to reflect the court's sealing of conviction records.	682

(F)(1) The board shall investigate evidence that appears to	683
show that a person has violated any provision of this chapter or	684
any rule adopted under it. Any person may report to the board in a	685
signed writing any information that the person may have that	686
appears to show a violation of any provision of this chapter or	687
any rule adopted under it. In the absence of bad faith, any person	688
who reports information of that nature or who testifies before the	689
board in any adjudication conducted under Chapter 119. of the	690
Revised Code shall not be liable in damages in a civil action as a	691
result of the report or testimony. Each complaint or allegation of	692
a violation received by the board shall be assigned a case number	693
and shall be recorded by the board.	694

(2) Investigations of alleged violations of this chapter or	695
any rule adopted under it shall be supervised by the supervising	696
member elected by the board in accordance with section 4731.02 of	697
the Revised Code and by the secretary as provided in section	698
4731.39 of the Revised Code. The president may designate another	699
member of the board to supervise the investigation in place of the	700
supervising member. No member of the board who supervises the	701
investigation of a case shall participate in further adjudication	702
of the case.	703

(3) In investigating a possible violation of this chapter or	704
any rule adopted under this chapter, the board may administer	705
oaths, order the taking of depositions, issue subpoenas, and	706
compel the attendance of witnesses and production of books,	707
accounts, papers, records, documents, and testimony, except that a	708
subpoena for patient record information shall not be issued	709
without consultation with the attorney general's office and	710
approval of the secretary and supervising member of the board.	711
Before issuance of a subpoena for patient record information, the	712
secretary and supervising member shall determine whether there is	713
probable cause to believe that the complaint filed alleges a	714
violation of this chapter or any rule adopted under it and that	715
the records sought are relevant to the alleged violation and	716
material to the investigation. The subpoena may apply only to	717
records that cover a reasonable period of time surrounding the	718
alleged violation.	719

On failure to comply with any subpoena issued by the board	720
and after reasonable notice to the person being subpoenaed, the	721
board may move for an order compelling the production of persons	722
or records pursuant to the Rules of Civil Procedure.	723

A subpoena issued by the board may be served by a sheriff,	724
the sheriff's deputy, or a board employee designated by the board.	725
Service of a subpoena issued by the board may be made by	726
delivering a copy of the subpoena to the person named therein,	727
reading it to the person, or leaving it at the person's usual	728
place of residence. When the person being served is a person whose	729
practice is authorized by this chapter, service of the subpoena	730
may be made by certified mail, restricted delivery, return receipt	731
requested, and the subpoena shall be deemed served on the date	732
delivery is made or the date the person refuses to accept	733
delivery.	734

A sheriff's deputy who serves a subpoena shall receive the	735
same fees as a sheriff. Each witness who appears before the board	736
in obedience to a subpoena shall receive the fees and mileage	737
provided for under section 119.094 of the Revised Code.	738

(4) All hearings and investigations of the board shall be	739
considered civil actions for the purposes of section 2305.252 of	740
the Revised Code.	741

(5) Information received by the board pursuant to an	742
investigation is confidential and not subject to discovery in any	743
civil action.	744

The board shall conduct all investigations and proceedings in	745
a manner that protects the confidentiality of patients and persons	746
who file complaints with the board. The board shall not make	747
public the names or any other identifying information about	748
patients or complainants unless proper consent is given or, in the	749
case of a patient, a waiver of the patient privilege exists under	750
division (B) of section 2317.02 of the Revised Code, except that	751
consent or a waiver of that nature is not required if the board	752
possesses reliable and substantial evidence that no bona fide	753
physician-patient relationship exists.	754

The board may share any information it receives pursuant to	755
an investigation, including patient records and patient record	756
information, with law enforcement agencies, other licensing	757
boards, and other governmental agencies that are prosecuting,	758
adjudicating, or investigating alleged violations of statutes or	759
administrative rules. An agency or board that receives the	760
information shall comply with the same requirements regarding	761
confidentiality as those with which the state medical board must	762
comply, notwithstanding any conflicting provision of the Revised	763
Code or procedure of the agency or board that applies when it is	764
dealing with other information in its possession. In a judicial	765
proceeding, the information may be admitted into evidence only in	766
accordance with the Rules of Evidence, but the court shall require	767
that appropriate measures are taken to ensure that confidentiality	768
is maintained with respect to any part of the information that	769
contains names or other identifying information about patients or	770
complainants whose confidentiality was protected by the state	771
medical board when the information was in the board's possession.	772
Measures to ensure confidentiality that may be taken by the court	773
include sealing its records or deleting specific information from	774
its records.	775

(6) On a quarterly basis, the board shall prepare a report	776
that documents the disposition of all cases during the preceding	777
three months. The report shall contain the following information	778
for each case with which the board has completed its activities:	779

(a) The case number assigned to the complaint or alleged	780
violation;	781

(b) The type of certificate to practice, if any, held by the	782
individual against whom the complaint is directed;	783

(c) A description of the allegations contained in the	784
complaint;	785

(d) The disposition of the case.

786

The report shall state how many cases are still pending and	787
shall be prepared in a manner that protects the identity of each	788
person involved in each case. The report shall be a public record	789
under section 149.43 of the Revised Code.	790

(G) If the secretary and supervising member determine that	791
there is clear and convincing evidence that an individual has	792
violated division (B) of this section and that the individual's	793
continued practice presents a danger of immediate and serious harm	794
to the public, they may recommend that the board suspend the	795
individual's certificate to practice without a prior hearing.	796
Written allegations shall be prepared for consideration by the	797
board.	798

The board, upon review of those allegations and by an	799
affirmative vote of not fewer than six of its members, excluding	800
the secretary and supervising member, may suspend a certificate	801
without a prior hearing. A telephone conference call may be	802
utilized for reviewing the allegations and taking the vote on the	803
summary suspension.	804

The board shall issue a written order of suspension by	805
certified mail or in person in accordance with section 119.07 of	806
the Revised Code. The order shall not be subject to suspension by	807
the court during pendency of any appeal filed under section 119.12	808
of the Revised Code. If the individual subject to the summary	809
suspension requests an adjudicatory hearing by the board, the date	810
set for the hearing shall be within fifteen days, but not earlier	811
than seven days, after the individual requests the hearing, unless	812
otherwise agreed to by both the board and the individual.	813

Any summary suspension imposed under this division shall	814
remain in effect, unless reversed on appeal, until a final	815
adjudicative order issued by the board pursuant to this section	816
and Chapter 119. of the Revised Code becomes effective. The board	817
shall issue its final adjudicative order within seventy-five days	818
after completion of its hearing. A failure to issue the order	819
within seventy-five days shall result in dissolution of the	820
summary suspension order but shall not invalidate any subsequent,	821
final adjudicative order.	822

(H) If the board takes action under division (B)(9), (11), or	823
(13) of this section and the judicial finding of guilt, guilty	824
plea, or judicial finding of eligibility for intervention in lieu	825
of conviction is overturned on appeal, upon exhaustion of the	826
criminal appeal, a petition for reconsideration of the order may	827
be filed with the board along with appropriate court documents.	828
Upon receipt of a petition of that nature and supporting court	829
documents, the board shall reinstate the individual's certificate	830
to practice. The board may then hold an adjudication under Chapter	831
119. of the Revised Code to determine whether the individual	832
committed the act in question. Notice of an opportunity for a	833
hearing shall be given in accordance with Chapter 119. of the	834
Revised Code. If the board finds, pursuant to an adjudication held	835
under this division, that the individual committed the act or if	836
no hearing is requested, the board may order any of the sanctions	837
identified under division (B) of this section.	838

(I) The certificate to practice issued to an individual under	839
this chapter and the individual's practice in this state are	840
automatically suspended as of the date of the individual's second	841
or subsequent plea of guilty to, or judicial finding of guilt of,	842
a violation of section 2919.123 of the Revised Code, or the date	843
the individual pleads guilty to, is found by a judge or jury to be	844
guilty of, or is subject to a judicial finding of eligibility for	845
intervention in lieu of conviction in this state or treatment or	846
intervention in lieu of conviction in another jurisdiction for any	847
of the following criminal offenses in this state or a	848
substantially equivalent criminal offense in another jurisdiction:	849
aggravated murder, murder, voluntary manslaughter, felonious	850
assault, kidnapping, rape, sexual battery, gross sexual	851
imposition, aggravated arson, aggravated robbery, or aggravated	852
burglary. Continued practice after suspension shall be considered	853
practicing without a certificate.	854

The board shall notify the individual subject to the	855
suspension by certified mail or in person in accordance with	856
section 119.07 of the Revised Code. If an individual whose	857
certificate is automatically suspended under this division fails	858
to make a timely request for an adjudication under Chapter 119. of	859
the Revised Code, the board shall do whichever of the following is	860
applicable:	861

(1) If the automatic suspension under this division is for a	862
second or subsequent plea of guilty to, or judicial finding of	863
guilt of, a violation of section 2919.123 of the Revised Code, the	864
board shall enter an order suspending the individual's certificate	865
to practice for a period of at least one year or, if determined	866
appropriate by the board, imposing a more serious sanction	867
involving the individual's certificate to practice.	868

(2) In all circumstances in which division (I)(1) of this	869
section does not apply, enter a final order permanently revoking	870
the individual's certificate to practice.	871

(J) If the board is required by Chapter 119. of the Revised	872
Code to give notice of an opportunity for a hearing and if the	873
individual subject to the notice does not timely request a hearing	874
in accordance with section 119.07 of the Revised Code, the board	875
is not required to hold a hearing, but may adopt, by an	876
affirmative vote of not fewer than six of its members, a final	877
order that contains the board's findings. In that final order, the	878
board may order any of the sanctions identified under division (A)	879
or (B) of this section.	880

(K) Any action taken by the board under division (B) of this	881
section resulting in a suspension from practice shall be	882
accompanied by a written statement of the conditions under which	883
the individual's certificate to practice may be reinstated. The	884
board shall adopt rules governing conditions to be imposed for	885
reinstatement. Reinstatement of a certificate suspended pursuant	886
to division (B) of this section requires an affirmative vote of	887
not fewer than six members of the board.	888

(L) When the board refuses to grant a certificate to an	889
applicant, revokes an individual's certificate to practice,	890
refuses to register an applicant, or refuses to reinstate an	891
individual's certificate to practice, the board may specify that	892
its action is permanent. An individual subject to a permanent	893
action taken by the board is forever thereafter ineligible to hold	894
a certificate to practice and the board shall not accept an	895
application for reinstatement of the certificate or for issuance	896
of a new certificate.	897

(M) Notwithstanding any other provision of the Revised Code,	898
all of the following apply:	899

(1) The surrender of a certificate issued under this chapter	900
shall not be effective unless or until accepted by the board.	901
Reinstatement of a certificate surrendered to the board requires	902
an affirmative vote of not fewer than six members of the board.	903

(2) An application for a certificate made under the	904
provisions of this chapter may not be withdrawn without approval	905
of the board.	906

(3) Failure by an individual to renew a certificate of	907
registration in accordance with this chapter shall not remove or	908
limit the board's jurisdiction to take any disciplinary action	909
under this section against the individual.	910

(N) Sanctions shall not be imposed under division (B)(28) of	911
this section against any person who waives deductibles and	912
copayments as follows:	913

(1) In compliance with the health benefit plan that expressly	914
allows such a practice. Waiver of the deductibles or copayments	915
shall be made only with the full knowledge and consent of the plan	916
purchaser, payer, and third-party administrator. Documentation of	917
the consent shall be made available to the board upon request.	918

(2) For professional services rendered to any other person	919
authorized to practice pursuant to this chapter, to the extent	920
allowed by this chapter and rules adopted by the board.	921

(O) Under the board's investigative duties described in this	922
section and subject to division (F) of this section, the board	923
shall develop and implement a quality intervention program	924
designed to improve through remedial education the clinical and	925
communication skills of individuals authorized under this chapter	926
to practice medicine and surgery, osteopathic medicine and	927
surgery, and podiatric medicine and surgery. In developing and	928
implementing the quality intervention program, the board may do	929
all of the following:	930

(1) Offer in appropriate cases as determined by the board an	931
educational and assessment program pursuant to an investigation	932
the board conducts under this section;	933

(2) Select providers of educational and assessment services,	934
including a quality intervention program panel of case reviewers;	935

(3) Make referrals to educational and assessment service	936
providers and approve individual educational programs recommended	937
by those providers. The board shall monitor the progress of each	938
individual undertaking a recommended individual educational	939
program.	940

(4) Determine what constitutes successful completion of an	941
individual educational program and require further monitoring of	942
the individual who completed the program or other action that the	943
board determines to be appropriate;	944

(5) Adopt rules in accordance with Chapter 119. of the	945
Revised Code to further implement the quality intervention	946
program.	947

An individual who participates in an individual educational	948
program pursuant to this division shall pay the financial	949
obligations arising from that educational program.	950

Section 2.  That existing sections 2305.11, 2307.52, 2919.16,	951
4731.22 and sections 2919.17 and 2919.18 of the Revised Code are	952
hereby repealed.	953

Section 3.  Section 4731.22 of the Revised Code is presented	954
in this act as a composite of the section as amended by Am. Sub.	955
H.B. 280, Sub. H.B. 525, and Sub. S.B. 229 of the 127th General	956
Assembly. The General Assembly, applying the principle stated in	957
division (B) of section 1.52 of the Revised Code that amendments	958
are to be harmonized if reasonably capable of simultaneous	959
operation, finds that the composite is the resulting version of	960
the section in effect prior to the effective date of the section	961
as presented in this act.	962