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The State Medical Board of Ohio Policy Committee is currently in the process of revising proposed rules designed to establish a confidential non-disciplinary track for licensees with mental or physical illness. The professional license defense attorneys at Graff & McGovern are pleased to see the Ohio Medical Board moving towards a system that will better protect the privacy of licensees dealing with mental or physical illnesses that may impact their ability to practice. If the Ohio Medical Board is successful in establishing this new system, it will be a tremendous step forward from the current system in which licensees with mental or physical illness are routinely dealt with through the Medical Board’s public disciplinary process under Ohio Revised Code (R.C.) 4731.22 (B)(19), which often results in the licensee’s mental or physical illness becoming part of the public record and all the resulting stigmas that then attach.

Under the proposed new system, Ohio Administrative Code (O.A.C.) 4731-28-01 would remain the same in providing:

“(A) “Mental illness” includes, but is not limited to, mental disorder; and

(B) “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”, includes inability to practice in accordance with such standards without appropriate treatment, monitoring, or supervision.”

However, for those determined to be eligible, there will be the opportunity to participate in a Confidential Monitoring Program. In particular, proposed O.A.C. 4731-28-02 (A) provides:

“Under the board’s investigative duties pursuant to Section 4731.22 of the Revised Code, and subject to Section 4731.22(F)(5) of the Revised Code, the secretary and supervising member of the board may determine that an individual who is the subject of an investigation by the board concerning a mental or physical illness, other than a substance use disorder or chemical abuse/dependency, is appropriate for ongoing investigative observation and monitoring rather than formal disciplinary action. Upon such determination, the board may conduct such observation and monitoring through the individual’s participation in a confidential monitoring program overseen by the secretary and supervising member of the board under the board’s investigative duties.”

Pursuant to proposed O.A.C. 4731-28-02 (B), the Board may conduct any investigation necessary to evaluate the totality of circumstances, including requiring the individual to submit to a physical or mental examination pursuant to Section 4731.22(B)(19) of the Revised Code. The individual must provide continuing authorization, through appropriate written consent forms, 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 that is necessary for them to fulfill their respective duties and obligation.

As outlined in proposed O.A.C. 4731-28-02 (B)(3) 12), the following 14 questions will be addressed and if the answer to any of them is no then the individual will not be eligible for the Confidential Monitoring Program and their matter will most likely be addressed through the public disciplinary process under R.C. 4731.22 (B)(19) and/or other applicable sub-sections:

1) Is the current basis for potential disciplinary action limited exclusively to a mental or physical illness (other than chemical dependency)?

2) Are there any sexual boundary issues?

3)  Is there any history of violence, threats of violence, or allegation of violence to people or property?

4)  Does the individual have any prior criminal convictions of any type, regardless whether misdemeanor or felony?

5) Are there any pending or expected criminal charges?

6) Is there any evidence of criminal conduct, regardless of whether formal charges are being pursued? (Note that OVI / Reckless Op charges or convictions are disqualifying for this program even if allowed under the Ohio Medical Board’s One Bite Rule regarding chemical dependency.)

7) Is there any allegation of criminal conduct, regardless of whether we can determine the ultimate credibility of the allegation?

8) Is a cite currently pending against the individual regardless of the legal basis of the citation; and/or did the individual ever fail to successfully complete our confidential monitoring program?

9) Is there a history of public action by us or a history of public/private action by another state for any reason?

10) Was the basis of the prior action limited exclusively to a mental/physical illness?

11) Did the prior action include any allegations involving sexual boundaries, violence or threats of violence, and/or criminal conduct (regardless of whether formally charged) or convictions?

12) Was the individual ever cited for noncompliance during probation?

13) If Ohio, has the individual been released from probation without restriction?

14) If monitored by another state, are they currently compliant?

Again, if the answer to any of these 14 questions is no, then the individual will not be eligible for the Confidential Monitoring Program. This underscores how difficult, under the proposed rules, for an individual to found illegible for the Confidential Monitoring Program.

As set forth in proposed O.A.C. 4731-28-03 (A), individuals determined to be eligible for participation in the Confidential Monitoring Program will be required to enter into a written Participation Agreement with the Board. The Participation Agreement is a non-disciplinary, voluntary, written contract between the individual and the board that shall remain confidential pursuant to Section 4731.22(F)(5) of the Revised Code provided that the individual remains in compliance with the Participation Agreement and that the board does not otherwise subsequently pursue formal disciplinary proceedings against the individual pursuant to any alleged violation of Chapter 4731.

As set forth in proposed O.A.C. 4731-28-03 (B), the Participation Agreement shall require the following:

1) Stipulation of the individual’s mental or physical illness.

2) Continuing authorization, through appropriate written consent forms, 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) A requirement that the individual will undertake and/or maintain continued treatment acceptable to the Secretary and Supervising Member pertaining to the individual’s mental or physical illness.

4) Agreement that if the Secretary and Supervising Member, based on information received by the board, determine that the individual has a current inability to practice in accordance with acceptable and prevailing standards of care, the individual will voluntarily cease practicing until approved to resume practice by the Secretary and Supervising Member of the board.

5) Agreement that the individual is responsible for all costs associated with participation in the Confidential Monitoring Program.

6) Obedience of all federal, state, and local laws, and all rules governing practice in Ohio.

7) Submission of quarterly declarations under penalty of perjury stating whether there has been compliance with all conditions of the participation agreement.

8)Periodic appearances before the Secretary or Supervising Member of the board or their designated board staff representatives.

9) Submission of witnessed blood, urine, breath, saliva and/or hair specimens for screening for analysis of therapeutic levels of medications that may be prescribed to the individual, drugs and alcohol, or for any other purpose.

10) Acknowledgement and consent of the individual that the confidentiality of the agreement is waived in the event the board subsequently pursues formal disciplinary proceedings against the individual.

11) A requirement that the individual agree to ongoing monitoring for a minimum period of time appropriate for the individual’s particular mental or physical illness. For any mental or physical illness associated with a significant degenerative/progressive condition, including but not limited to Parkinson’s disease, multiple sclerosis, primary dementia, schizophrenia, or mild cognitive impairment, ongoing monitoring shall be required for as long as the individual retains any current or possible future right to practice. For all other mental or physical illnesses, the appropriate length of monitoring shall be determined by the Secretary and Supervising Member but shall be for a period of not less than two years.

12) Agreement of the individual that the Participation Agreement shall remain in full force and effect until such time that the Secretary and Supervising Member determine that termination of the participation agreement is appropriate.

As set forth in proposed O.A.C. 4731-28-04, any alleged violation of the Participation Agreement, as determined in the sole discretion of the Secretary and Supervising Member of the board, shall constitute grounds for the board to pursue formal and public disciplinary action against the individual pursuant to Section 4731.22(B)(19) of the Revised Code, or any other applicable provision of Chapter 4731. In addition, if for any reasons the Secretary and Supervising Member of the board, in their sole discretion, determine that an individual’s participation in the confidential monitoring program is no longer appropriate, they may terminate the participation agreement by notifying the individual in writing.

Finally, as set forth in proposed O.A.C. 4731-28-05, an individual may, upon completion of the minimum monitoring terms, submit a request for termination of the Participation Agreement. The request must be accompanied by written documentation from the treating physician overseeing coordination of care for the individual’s mental or physical illness indicating that:

1) The individual’s condition is currently stable.

2) The individual’s condition is reasonably expected to remain stable contingent upon the individual maintaining compliance with the treatment plan.

3) The treating physician supports the individual’s request for termination of the Participation Agreement.

In making their determination whether to terminate a Participation Agreement, the Secretary and Supervising Member shall consider:

1) Whether the individual has demonstrated substantial compliance with the Participation Agreement during the monitoring period.

2) The documentation provided by the individual’s treating physician related to the termination request.

3)Whether additional investigation is necessary, including but not limited to requiring the individual submit to a board-ordered physical examination and/or mental examination.

4)Any other relevant investigative information concerning the individual.

An individual whose request for termination is declined shall continue to be monitored by the board pursuant to the Participation Agreement for at least an additional six months before being eligible to submit a subsequent request for termination.

The license defense attorneys at Graff & McGovern will closely follow and continue to report upon the progression of the State Medical Board of Ohio’s proposed rules designed to establish a confidential non-disciplinary track for licensees with mental or physical illness. In the meantime, if you have questions regarding the Ohio Medical Board’s handling of cases involving mental / physical illness or if you are in need of legal counsel to defend your interests in an Ohio Medical Board matter, please contact a Graff & McGovern professional license defense attorney. Jim McGovern can be reached by phone at 614-228-5800, x2 , or by email at jmcgovern@grafflaw.com