Read the full stored bill text
(136th General Assembly)
(House Bill
Number 440)
AN ACT
To amend sections 4723.091,
4723.092, and 4723.28 of the Revised Code to revise the law governing
the Board of Nursing and criminal records check results and to
declare an emergency.
Be
it enacted by the General Assembly of the State of Ohio:
Section
1.
That
sections 4723.091, 4723.092, and 4723.28 of the Revised Code be
amended to read as follows:
Sec.
4723.091.
(A)
An
(A)(1)
Each of the following shall submit a request to the bureau of
criminal identification and investigation for a criminal records
check of that individual:
(a)
An
individual
who applies for licensure under section 4723.09 of the Revised Code;
(b)
An individual who applies for
issuance
of a certificate under section 4723.651, 4723.75, 4723.85, or 4723.89
of the Revised Code;
(c)
An individual who applies for
reactivation
of a license, under division (D) of section 4723.24 of the Revised
Code, that has been inactive for at least five years;
or
(d)
An individual who applies for
reinstatement
of a license, under division (D) of section 4723.24 of the Revised
Code, that has lapsed for at least five years
shall submit a request to the bureau of criminal identification and
investigation for a criminal records check of the applicant
;
(e)
An individual who applies for a volunteer nursing certificate under
section 4723.26 of the Revised Code and has been retired from
practice for at least ten years;
(f)
An individual who, as part of an investigation by the board of
nursing, is subject to an order by the board under division (F) of
section 4723.28 of the Revised Code
.
The
request shall be made in accordance with section 109.572 of the
Revised Code.
(B)
An applicant
(2)
As part of the request for a criminal records check, the individual
requesting
a
criminal records
the
check
under
division (A) of this section
shall
also
ask
do
both of the following:
(a)
Under the form and methods described in division (C) of section
109.572 of the Revised Code, submit one complete set of fingerprint
impressions directly to
the
superintendent of the bureau of criminal identification and
investigation
for
the purpose of conducting the check;
(b)
Ask the superintendent
to
request that the federal bureau of investigation
send
provide
to
the superintendent any information the federal bureau of
investigation has with respect to the
applicant
individual
.
(C)
(B)
On receipt of all items required for
the
commencement
of a criminal records check
pursuant
to
requested
under
division
(A) of this section, the bureau of criminal identification and
investigation shall conduct
a
the
criminal
records check of the
applicant
individual
requesting the check. The superintendent of the bureau of criminal
identification and investigation also shall request that the federal
bureau of investigation provide to the superintendent any information
the federal bureau of investigation has with respect to the
individual
.
On the
On
completion
of the criminal records check, the bureau
of
criminal identification and investigation
shall
send
the results
report
to
the board of nursing
the results of the check and any information the federal bureau of
investigation provides the superintendent
.
(D)
(C)
The results of a criminal records check conducted
pursuant
to a request made
under
division
(A)
(B)
of this section,
any
information provided by the federal bureau of investigation as
described in that division,
and
any report containing those results
,
or information
are not public records for purposes of section 149.43 of the Revised
Code and shall not be made available to any person or
for
any purpose other than the following
government
entity except as follows
:
(1)
The
results may be made available to any person
To
the individual who is the subject of the check;
(2)
To the board of nursing
for
use in determining
under
section 4723.09, 4723.651, 4723.75, 4723.85, or 4723.89 of the
Revised Code whether
any
of the following about the individual who is the subject of the
check:
(a)
Whether
the
individual
who
is the subject of the check
should
be granted a license or certificate under
this
chapter or whether
section
4723.09, 4723.26, 4723.651, 4723.75, 4723.85, or 4723.89 of the
Revised Code;
(b)
Whether
any
temporary permit granted to the individual under section 4723.09 of
the Revised Code has terminated automatically
.
(2)
The results may be made available to any person for use in
determining under division (D) of section 4723.24 of the Revised Code
whether
;
(c)
Whether
the
individual
who
is the subject of the check
should
have the individual's license or certificate reactivated or
reinstated
.
(3)
The results may be made available to any person for use in
determining under section 4723.28 of the Revised Code whether
under
division (D) of section 4723.24 of the Revised Code;
(d)
Whether
the
individual
who
is the subject of the check
should
be subject to disciplinary action in accordance with
that
section
4723.28 of the Revised Code
.
(4)
The results may be made available to the individual who is the
subject of the check or that individual's representative.
Sec.
4723.092.
The
board of nursing shall not refuse to issue a license under section
4723.09 of the Revised Code or a certificate under section
4723.26,
4723.651,
4723.75, 4723.85, or 4723.89 of the Revised Code because of a
conviction of, plea of guilty to, a judicial finding of guilt of, a
judicial finding of guilt resulting from a plea of no contest to, or
a judicial finding of eligibility for a pretrial diversion or similar
program or for intervention in lieu of a conviction for a criminal
offense unless the refusal is in accordance with section 9.79 of the
Revised Code.
Sec.
4723.28.
(A)
The board of nursing, by a vote of a quorum, may impose one or more
of the following sanctions if it finds that a person committed fraud
in passing an examination required to obtain a
nursing
license
or dialysis technician certificate issued by the board or
to
have
committed
fraud, misrepresentation, or deception in applying for or securing
any
a
nursing
license or dialysis technician certificate issued by the board: deny,
revoke, suspend, or place restrictions on any nursing license or
dialysis technician certificate issued by the board; reprimand or
otherwise discipline a holder of a nursing license or dialysis
technician certificate; or impose a fine of not more than five
hundred dollars per violation.
(B)
Except as provided in section 4723.092 of the Revised Code, the board
of nursing, by a vote of a quorum, may impose one or more of the
following sanctions: deny, revoke, suspend, or place restrictions on
any nursing license or dialysis technician certificate issued by the
board; reprimand or otherwise discipline a holder of a nursing
license or dialysis technician certificate; or impose a fine of not
more than five hundred dollars per violation. The sanctions may be
imposed for any of the following:
(1)
Denial, revocation, suspension, or restriction of authority to engage
in a licensed profession or practice a health care occupation,
including nursing or practice as a dialysis technician, for any
reason other than a failure to renew, in Ohio or another state or
jurisdiction;
(2)
Engaging in the practice of nursing or engaging in practice as a
dialysis technician, having failed to renew a nursing license or
dialysis technician certificate issued under this chapter, or while a
nursing license or dialysis technician certificate is under
suspension;
(3)
Conviction of, a plea of guilty to, a judicial finding of guilt of, a
judicial finding of guilt resulting from a plea of no contest to, or
a judicial finding of eligibility for a pretrial diversion or similar
program or for intervention in lieu of conviction for, a misdemeanor
committed in the course of practice;
(4)
Conviction of, a plea of guilty to, a judicial finding of guilt of, a
judicial finding of guilt resulting from a plea of no contest to, or
a judicial finding of eligibility for a pretrial diversion or similar
program or for intervention in lieu of conviction for, any felony or
of any crime involving gross immorality or moral turpitude;
(5)
Selling, giving away, or administering drugs or therapeutic devices
for other than legal and legitimate therapeutic purposes; or
conviction of, a plea of guilty to, a judicial finding of guilt of, a
judicial finding of guilt resulting from a plea of no contest to, or
a judicial finding of eligibility for a pretrial diversion or similar
program or for intervention in lieu of conviction for, violating any
municipal, state, county, or federal drug law;
(6)
Conviction of, a plea of guilty to, a judicial finding of guilt of, a
judicial finding of guilt resulting from a plea of no contest to, or
a judicial finding of eligibility for a pretrial diversion or similar
program or for intervention in lieu of conviction for, an act in
another jurisdiction that would constitute a felony or a crime of
moral turpitude in Ohio;
(7)
Conviction of, a plea of guilty to, a judicial finding of guilt of, a
judicial finding of guilt resulting from a plea of no contest to, or
a judicial finding of eligibility for a pretrial diversion or similar
program or for intervention in lieu of conviction for, an act in the
course of practice in another jurisdiction that would constitute a
misdemeanor in Ohio;
(8)
Self-administering or otherwise taking into the body any dangerous
drug, as defined in section 4729.01 of the Revised Code, in any way
that is not in accordance with a legal, valid prescription issued for
that individual, or self-administering or otherwise taking into the
body any drug that is a schedule I controlled substance;
(9)
Habitual or excessive use of controlled substances, other
habit-forming drugs, or alcohol or other chemical substances to an
extent that impairs the individual's ability to provide safe nursing
care or safe dialysis care;
(10)
Impairment of the ability to practice according to acceptable and
prevailing standards of safe nursing care or safe dialysis care
because of the use of drugs, alcohol, or other chemical substances;
(11)
Impairment of the ability to practice according to acceptable and
prevailing standards of safe nursing care or safe dialysis care
because of a physical or mental disability;
(12)
Assaulting or causing harm to a patient or depriving a patient of the
means to summon assistance;
(13)
Misappropriation or attempted misappropriation of money or anything
of value in the course of practice;
(14)
Adjudication by a probate court of being mentally ill or mentally
incompetent. The board may reinstate the person's nursing license or
dialysis technician certificate upon adjudication by a probate court
of the person's restoration to competency or upon submission to the
board of other proof of competency.
(15)
The suspension or termination of employment by the United States
department of defense or department of veterans affairs for any act
that violates or would violate this chapter;
(16)
Violation of this chapter or any rules adopted under it;
(17)
Violation of any restrictions placed by the board on a nursing
license or dialysis technician certificate;
(18)
Failure to use universal and standard precautions established by
rules adopted under section 4723.07 of the Revised Code;
(19)
Failure to practice in accordance with acceptable and prevailing
standards of safe nursing care or safe dialysis care;
(20)
In the case of a registered nurse, engaging in activities that exceed
the practice of nursing as a registered nurse;
(21)
In the case of a licensed practical nurse, engaging in activities
that exceed the practice of nursing as a licensed practical nurse;
(22)
In the case of a dialysis technician, engaging in activities that
exceed those permitted under section 4723.72 of the Revised Code;
(23)
Aiding and abetting a person in that person's practice of nursing
without a license or practice as a dialysis technician without a
certificate issued under this chapter;
(24)
In the case of an advanced practice registered nurse, except as
provided in division (M) of this section, either of the following:
(a)
Waiving the payment of all or any part of a deductible or copayment
that a patient, pursuant to a health insurance or health care policy,
contract, or plan that covers such nursing services, would otherwise
be required to pay if the waiver is used as an enticement to a
patient or group of patients to receive health care services from
that provider;
(b)
Advertising that the nurse will waive the payment of all or any part
of a deductible or copayment that a patient, pursuant to a health
insurance or health care policy, contract, or plan that covers such
nursing services, would otherwise be required to pay.
(25)
Failure to comply with the terms and conditions of participation in
the safe haven program conducted under sections 4723.35 and 4723.351
of the Revised Code;
(26)
Failure to comply with the terms and conditions required under the
practice intervention and improvement program established under
section 4723.282 of the Revised Code;
(27)
In the case of an advanced practice registered nurse:
(a)
Engaging in activities that exceed those permitted for the nurse's
nursing specialty under section 4723.43 of the Revised Code;
(b)
Failure to meet the quality assurance standards established under
section 4723.07 of the Revised Code.
(28)
In the case of an advanced practice registered nurse other than a
certified registered nurse anesthetist, failure to maintain a
standard care arrangement in accordance with section 4723.431 of the
Revised Code or to practice in accordance with the standard care
arrangement;
(29)
In the case of an advanced practice registered nurse who is
designated as a clinical nurse specialist, certified nurse-midwife,
or certified nurse practitioner, failure to prescribe drugs and
therapeutic devices in accordance with section 4723.481 of the
Revised Code;
(30)
Prescribing any drug or device to perform or induce an abortion, or
otherwise performing or inducing an abortion;
(31)
Failure to establish and maintain professional boundaries with a
patient, as specified in rules adopted under section 4723.07 of the
Revised Code;
(32)
Regardless of whether the contact or verbal behavior is consensual,
engaging with a patient other than the spouse of the registered
nurse, licensed practical nurse, or dialysis technician in any of the
following:
(a)
Sexual contact, as defined in section 2907.01 of the Revised Code;
(b)
Verbal behavior that is sexually demeaning to the patient or may be
reasonably interpreted by the patient as sexually demeaning.
(33)
Assisting suicide, as defined in section 3795.01 of the Revised Code;
(34)
Failure to comply with the requirements in section 3719.061 of the
Revised Code before issuing for a minor a prescription for an opioid
analgesic, as defined in section 3719.01 of the Revised Code;
(35)
Failure to comply with section 4723.487 of the Revised Code, unless
the state board of pharmacy no longer maintains a drug database
pursuant to section 4729.75 of the Revised Code;
(36)
The revocation, suspension, restriction, reduction, or termination of
clinical privileges by the United States department of defense or
department of veterans affairs or the termination or suspension of a
certificate of registration to prescribe drugs by the drug
enforcement administration of the United States department of
justice;
(37)
In the case of an advanced practice registered nurse who is
designated as a clinical nurse specialist, certified nurse-midwife,
or certified nurse practitioner, failure to comply with the terms of
a consult agreement entered into with a pharmacist pursuant to
section 4729.39 of the Revised Code;
(38)
Violation of section 4723.93 of the Revised Code;
(39)
Failure to cooperate with an investigation conducted by the board
under this chapter, including failure to comply with a subpoena or
order issued by the board or failure to answer truthfully a question
presented by the board in an investigative interview, in an
investigative office conference, at a deposition, or in written
interrogatories, except that failure to cooperate with an
investigation does not constitute grounds for discipline if a court
of competent jurisdiction has issued an order that either quashes a
subpoena or permits the individual to withhold testimony or evidence
at issue.
(C)
Disciplinary actions taken by the board under divisions (A) and (B)
of this section shall be taken pursuant to an adjudication conducted
under Chapter 119. of the Revised Code, except that in lieu of a
hearing, the board may enter into a consent agreement with an
individual to resolve an allegation of a violation of this chapter or
any rule adopted under it. A consent agreement, when ratified by a
vote of a quorum, shall constitute the findings and order of the
board with respect to the matter addressed in the agreement. If the
board refuses to ratify a consent agreement, the admissions and
findings contained in the agreement shall be of no effect.
(D)
The hearings of the board shall be conducted in accordance with
Chapter 119. of the Revised Code, the board may appoint a hearing
examiner, as provided in section 119.09 of the Revised Code, to
conduct any hearing the board is authorized to hold under Chapter
119. of the Revised Code.
In
any instance in which the board is required under Chapter 119. of the
Revised Code to give notice of an opportunity for a hearing and the
applicant, licensee, or certificate holder does not make a timely
request for a hearing in accordance with section 119.07 of the
Revised Code, the board is not required to hold a hearing, but may
adopt, by a vote of a quorum, a final order that contains the board's
findings. In the final order, the board may order any of the
sanctions listed in division (A) or (B) of this section.
(E)
If a criminal action is brought against a registered nurse, licensed
practical nurse, or dialysis technician for an act or crime described
in divisions (B)(3) to (7) of this section and the action is
dismissed by the trial court other than on the merits, the board
shall conduct an adjudication to determine whether the registered
nurse, licensed practical nurse, or dialysis technician committed the
act on which the action was based. If the board determines on the
basis of the adjudication that the registered nurse, licensed
practical nurse, or dialysis technician committed the act, or if the
registered nurse, licensed practical nurse, or dialysis technician
fails to participate in the adjudication, the board may take action
as though the registered nurse, licensed practical nurse, or dialysis
technician had been convicted of the act.
If
the board takes action on the basis of a conviction, plea, or a
judicial finding as described in divisions (B)(3) to (7) of this
section that is overturned on appeal, the registered nurse, licensed
practical nurse, or dialysis technician may, on exhaustion of the
appeal process, petition the board for reconsideration of its action.
On receipt of the petition and supporting court documents, the board
shall temporarily rescind its action. If the board determines that
the decision on appeal was a decision on the merits, it shall
permanently rescind its action. If the board determines that the
decision on appeal was not a decision on the merits, it shall conduct
an adjudication to determine whether the registered nurse, licensed
practical nurse, or dialysis technician committed the act on which
the original conviction, plea, or judicial finding was based. If the
board determines on the basis of the adjudication that the registered
nurse, licensed practical nurse, or dialysis technician committed
such act, or if the registered nurse, licensed practical nurse, or
dialysis technician does not request an adjudication, the board shall
reinstate its action; otherwise, the board shall permanently rescind
its action.
Notwithstanding
the provision of division (D)(2) of section 2953.32 or division
(F)(1) of section 2953.39 of the Revised Code specifying that if
records pertaining to a criminal case are sealed or expunged under
that section the proceedings in the case shall be deemed not to have
occurred, sealing or expungement of the following records on which
the board has based an action under this section shall have no effect
on the board's action or any sanction imposed by the board under this
section: records of any conviction, guilty plea, judicial finding of
guilt resulting from a plea of no contest, or a judicial finding of
eligibility for a pretrial diversion program or intervention in lieu
of conviction.
The
board shall not be required to seal, destroy, redact, or otherwise
modify its records to reflect the court's sealing or expungement of
conviction records.
(F)
The board may investigate an individual's criminal background in
performing its duties under this section. As part of such
investigation, the board may order the individual to submit, at the
individual's expense, a request to the bureau of criminal
identification and investigation for a criminal records check and
check of federal bureau of investigation records
in
accordance with the procedure described in
pursuant
to
section
4723.091 of the Revised Code.
(G)
During the course of an investigation conducted under this section,
the board may compel any registered nurse, licensed practical nurse,
or dialysis technician or applicant under this chapter to submit to a
mental or physical examination, or both, as required by the board and
at the expense of the individual, if the board finds reason to
believe that the individual under investigation may have a physical
or mental impairment that may affect the individual's ability to
provide safe nursing
or
dialysis
care.
The
board shall not compel an individual who has been referred to the
safe haven program as described in sections 4723.35 and 4723.351 of
the Revised Code to submit to a mental or physical examination.
Failure
of any individual to submit to a mental or physical examination when
directed constitutes an admission of the allegations, 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.
If
the board finds that an individual is impaired, the board shall
require the individual to submit to care, counseling, or treatment
approved or designated by the board, as a condition for initial,
continued, reinstated, or renewed authority to practice. The
individual shall be afforded an opportunity to demonstrate to the
board that the individual can begin or resume the individual's
occupation in compliance with acceptable and prevailing standards of
care under the provisions of the individual's authority to practice.
For
purposes of this division, any registered nurse, licensed practical
nurse, or dialysis technician or applicant under this chapter 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.
(H)
The board shall investigate evidence that appears to show that any
person has violated any provision of this chapter or any rule of the
board. Any person may report to the board any information the person
may have that appears to show a violation of any provision of this
chapter or rule of the board. In the absence of bad faith, any person
who reports such information or who testifies before the board in any
adjudication conducted under Chapter 119. of the Revised Code shall
not be liable for civil damages as a result of the report or
testimony.
(I)
All of the following apply under this chapter with respect to the
confidentiality of information:
(1)
Information received by the board pursuant to a complaint or an
investigation is confidential and not subject to discovery in any
civil action, except that the board may disclose information to law
enforcement officers and government entities for purposes of an
investigation of either a licensed health care professional,
including a registered nurse, licensed practical nurse, or dialysis
technician, or a person who may have engaged in the unauthorized
practice of nursing or dialysis care. No law enforcement officer or
government entity with knowledge of any information disclosed by the
board pursuant to this division shall divulge the information to any
other person or government entity except for the purpose of a
government investigation, a prosecution, or an adjudication by a
court or government entity.
(2)
If an investigation requires a review of patient records, the
investigation and proceeding shall be conducted in such a manner as
to protect patient confidentiality.
(3)
All adjudications and investigations of the board shall be considered
civil actions for the purposes of section 2305.252 of the Revised
Code.
(4)
Any board activity that involves continued monitoring of an
individual as part of or following any disciplinary action taken
under this section shall be conducted in a manner that maintains the
individual's confidentiality. Information received or maintained by
the board with respect to the board's monitoring activities is not
subject to discovery in any civil action and is confidential, except
that the board may disclose information to law enforcement officers
and government entities for purposes of an investigation of a
licensee or certificate holder.
(J)
Any action taken by the board under this section resulting in a
suspension from practice shall be accompanied by a written statement
of the conditions under which the person may be reinstated to
practice.
(K)
When the board refuses to grant a license or certificate to an
applicant, revokes a license or certificate, or refuses to reinstate
a license or certificate, the board may specify that its action is
permanent. An individual subject to permanent action taken by the
board is forever ineligible to hold a license or certificate of the
type that was refused or revoked and the board shall not accept from
the individual an application for reinstatement of the license or
certificate or for a new license or certificate.
(L)
No unilateral surrender of a nursing license or dialysis technician
certificate issued under this chapter shall be effective unless
accepted by majority vote of the board. No application for a nursing
license or dialysis technician certificate issued under this chapter
may be withdrawn without a majority vote of the board. The board's
jurisdiction to take disciplinary action under this section is not
removed or limited when an individual has a license or certificate
classified as inactive or fails to renew a license or certificate.
(M)
Sanctions shall not be imposed under division (B)(24) of this section
against any licensee who waives deductibles and copayments as
follows:
(1)
In compliance with the health benefit plan that expressly allows such
a practice. Waiver of the deductibles or copayments shall be made
only with the full knowledge and consent of the plan purchaser,
payer, and third-party administrator. Documentation of the consent
shall be made available to the board upon request.
(2)
For professional services rendered to any other person licensed
pursuant to this chapter to the extent allowed by this chapter and
the rules of the board.
Section
2.
That
existing sections 4723.091, 4723.092, and 4723.28 of the Revised Code
are hereby repealed.
Section
3.
This
act is hereby declared to be an emergency measure necessary for the
immediate preservation of the public peace, health, and safety. The
reason for such necessity is that enactment into law at the earliest
possible time will preserve the confidentiality of Board of
Nursing-related criminal records check information and will restrict
access to such information only to individuals subject to such checks
and to the Board for the purpose of fulfilling specific statutory
duties. Therefore, this act shall go into immediate effect.
Speaker
___________________ of the House of Representatives.
President
___________________ of the Senate.
Passed
________________________, 20____
Approved
________________________, 20____
Governor.
The section numbering of law
of a general and permanent nature is complete and in conformity with
the Revised Code.
Director, Legislative
Service Commission.
Filed
in the office of the Secretary of State at Columbus, Ohio, on the
____ day of ___________, A. D. 20____.
Secretary of State.
File
No. _________ Effective Date ___________________