Professional Licensure Defense: The State Medical Board of Ohio & Impaired Physicians

Posted by Zukerman on Saturday, September 22, 2012

By Larry W. Zukerman, Esq., and Richard L. Fenbert, Esq.

Medical professionals who have been charged with a criminal offense face the collateral consequence that their professional license may be subject to suspension and/or revocation by the licensure board of their particular discipline. Physicians seeking legal counsel after being charged with a crime involving substance abuse and/or addiction must speak with a criminal defense attorney who has an acute understanding of the State Medical Board of Ohio’s policies and procedures.  A physician may be under the false impression that even misdemeanor-level conduct will not have a bearing on his or her license to practice medicine and surgery in the state of Ohio.  However, even acceptance into a diversion program for a misdemeanor offense involving substance abuse/possession or “moral turpitude” will likely result in an investigation by the Board and, ultimately, disciplinary action being taken upon the practitioner’s license.

This article focuses on the laws regulating physician licensure in the State of Ohio.  Specifically, the State Medical Board of Ohio’s policy known as the “One Bite Rule” may allow some impaired physicians practicing in the private sector to avoid intervention by the State Medical Board of Ohio (the Board).  The “One Bite Rule” is codified in Sections 4731.22, 4731.224 and 4731.25, Ohio Revised Code, and Rules 4731-15-01, 4731-16-04, 4731-16-07, and 4731-16-13, Ohio Administrative Code.

The law under which the practice of medicine is regulated in Ohio has two components: statutes codified in the Ohio Revised Code (ORC) and regulations set forth in the Ohio Administrative Code (OAC). The Ohio General Assembly enacts the statutes codified in the ORC, while the State Medical Board of Ohio develops and enacts the regulations contained within the OAC that apply to licensed physicians.  All rules of the Board can be found in OAC 4731 and these rules cannot change or exceed the scope of authorization set forth in the ORC.[1]  

The Board is a state agency established by the legislature in 1896 to regulate the more than 55,000 licensees in the State of Ohio.[2]  Licensees who are subject to regulation by the Board include medical doctors (MDs), doctors of osteopathic medicine (DOs), doctors of podiatric medicine and surgery (DPMs), physician assistants (PAs), massage therapists (MTs), cosmetic therapists (CTs), anesthesiology assistants (AAs) and acupuncturists. The mission of the Board is to “protect and enhance the health and welfare of Ohio citizens by regulating the practice of licensed medical and limited branch practitioners.”[3]  The Board itself consists of twelve members: seven Doctors of Medicine (MDs), one Doctor of Osteopathic Medicine (DO), one Doctor of Podiatric Medicine (DPM) and three members of the public.[4]  All members of the Board are appointed by the Governor for a term of five years.[5]  All final decisions are made by the full Board.[6]

The Board receives approximately 4,000 complaints a year from patients, law enforcement officers, and prosecutors about practicing physicians.[7] ORC 4731.223, entitled “Reporting convictions”, mandates that under certain circumstances, a prosecutor must report to the Board a plea of guilty, a judicial finding of guilt, a judicial finding of eligibility for intervention in lieu of conviction, or dismissals “upon technical or procedural grounds” [8] in cases involving licensees. The complaints received by the Board are confidential. The complaints undergo an investigatory process where the Board determines if the issue is within the Board’s jurisdiction, and if so, whether the complaint warrants disciplinary action.[9]

Since 2006, the two most common reasons for disciplinary action by the Board have been physician impairment and criminal actions.[10]  In 2011, the Board took action against the medical licenses of 90 impaired physicians and 24 physicians involved in criminal actions.[11] In these cases, the Board ordered suspensions ranging from a 30-day suspension to permanent revocation of a physician’s license to practice medicine and surgery in the State of Ohio.[12]

As can be seen from the statistics above, physician impairment, criminal charges, treatment in lieu of conviction, and/or participation in a diversion program can result in significant and long lasting consequences for a physician. The Ohio legislature has outlined the conduct that warrants disciplinary action by the Board in ORC 4731.22, entitled: “Disciplinary actions”. ORC 4731.22 provides that the Board, “by an affirmative vote of not fewer than six members” shall limit, revoke, or suspend an individual’s certificate to practice under certain circumstances, including:

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

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

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

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

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

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

Conduct related to criminal charges and/or criminal convictions carry a wide range of disciplinary actions. [13]  For example, an act involving moral turpitude that constitutes a misdemeanor in this state, without a guilty plea, judicial finding of guilt, or judicial finding of eligibility for intervention in lieu, carries a minimum thirty-day license suspension.[14]  On the other hand, in circumstances involving a licensee’s plea of guilty to, a judicial finding of guilt of, or a judicial finding of eligibility for intervention in lieu of conviction for, a felony committed in the course of practice (except where the underlying criminal conduct was directly related to a substance-related impairment of the licensee and was committed to obtain substance(s) solely for self-use) carries a permanent revocation of a certificate to practice or a permanent denial of an application to practice.[15]

The Ohio legislature has also outlined what substance abuse and addiction related conduct warrants disciplinary action in ORC 4731.22. ORC 4731.22 provides, in relevant part, that the Board shall limit, revoke, or suspend an individual’s certificate to practice when:  

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

Similar to criminal matters, in cases involving substance abuse and addiction, the Board can impose a wide range of penalties on a licensee’s certificate to practice depending on the type and severity of conduct. [16]  For example, if the Board determines that a physician is impaired and/or experienced less than one year of sobriety, the minimum penalty is an indefinite suspension with no minimum period of time.[17] On the other hand, if the Board determines that the physician is impaired and has experienced a relapse, the penalty is an indefinite suspension for a minimum of 90 days following the date of the license suspension. Therefore, it can be inferred that the Board is both concerned with the fact that a physician is impaired and the length of the physician’s sobriety.[18]

In addition to the Board Disciplinary Guidelines regarding criminal conduct and drug and/or alcohol abuse and/or addiction, the Board will also utilize aggravating and mitigating factors in reaching their final disciplinary determination.[19]  There are 12 aggravating factors and 11 mitigating factors that the Board may cite in departing from the Board Disciplinary Guidelines.[20]   

It is likely that among the physicians investigated by the Board for criminal conduct related to substance abuse and/or addiction in 2011 that some of the physicians avoided Board action on their licenses through the application of the “One Bite Rule.” Prior to 1987, a physician licensed by the Board suffering from impairment because of habitual or excessive use or abuse of drugs, alcohol, or other substances that impair ability to practice in violation of ORC 4731.22(B)(26) was subject to Board disciplinary action.[21]

In 1987, however, the Ohio General Assembly carved out a one time “One Bite” exception, whereby an impaired physician may escape formal Board action, and the physician’s colleagues may be excused from reporting the physician’s impairment, so long as the physician has completed treatment with a Board approved treatment provider, maintained uninterrupted sobriety, and violated no other provisions of the Ohio Medical Practice Act.  In addition, the physician must adhere to all other statutory requirements.[22]

Specifically, OAC 4731-15-01(B)(3), entitled “Licensee reporting requirement; exceptions”, provides in pertinent part, that a physician licensed in Ohio shall be relieved of the obligation to report his or her conduct to the Board if the following requirements are met:

 

(a)   The practitioner has been referred for examination to an approved treatment program;

(b)  The practitioner co-operates with the referral for examination and any

determination that he or she should enter treatment; and

(c)   There is no reason to believe that the practitioner has violated any provision of Chapter 4730, Chapter 4731, Chapter 4760, of Chapter 4762, or Chapter 4774 of the Revised Code, or any rule of the board, other than impairment of ability to practice according to acceptable and prevailing standards of care because of habitual or excessive use or abuse of drugs, alcohol or other substances that impair ability to practice, as provided in division (B)(5) of section 4730.25 of the Revised Code, division (B)(26) of section 4731.22 of the Revised Code, division (B)(6) of section 4760.13 of the Revised Code, of division (B)(6) of section 4762.13 of the Revised Code, or division (B)(6) of section 4774.13 of the Revised Code.

Furthermore, OAC 4731-15-01(C), provides in pertinent part:

(C) For purposes of paragraphs (B)(1)(b), (B)(2)(c), and (B)(3)(c) of this rule, violations of provisions of Chapter 4730, Chapter 4731, Chapter 4760, Chapter 4762, or Chapter 4774 of the Revised Code, or any rule of the board, other than impairment of ability to practice according to acceptable and prevailing standards of care because of habitual or excessive use or abuse of drugs, alcohol, or other substances that impair ability to practice, need not be reported if all of the following requirements are met, but if any or all of the following conditions are not met, the individual or organization shall report to the board all violations which are believed to have occurred:

 

(1) All acts or omissions by the practitioner which would otherwise have constituted violations occurred while the practitioner was impaired; and 

(2) The practitioner has not been criminally convicted based on any such

acts or omissions; and 

(3) There is no reason to believe that such acts or omissions might have an adverse impact on other individuals.

 

In summation, although the requirements are rather rigorous, an impaired physician can escape formal action by the Board if the above conditions are met.

The State Medical Board clearly seeks to ensure that persons practicing medicine meet sufficient standards of education, training, competence, and ethics. Further, an overarching goal of the Board is to rehabilitate, when possible, licensees who are impaired. At present, or at least since 1987, the Board has devised an approach for physicians that allows them to seek treatment and rehabilitation without formal Board action if certain criteria are met. It is critical for criminal defense attorneys to be aware of the collateral consequences of a licensee’s criminal conviction and/or entrance into a treatment in lieu of conviction and/or diversion program, as such consequences can include suspension and/or permanent revocation of a licensee’s ability to practice medicine. An acute knowledge of the statutes and regulations governing the Board and medical licensees in Ohio is critical in diligently representing the impaired and/or criminally charged licensee.

Larry W. Zukerman is the managing partner of Zukerman, Daiker & Lear Co., L.P.A. He is an Adjunct Professor of law at Case Western Reserve University School of Law where he has taught for 16 years. He is Past President of the Cuyahoga County Defense Lawyers Association (CCDLA) and past Vice President of the Ohio Association of Criminal Defense Lawyers (OACDL). His practice includes white-collar criminal defense, medical professional criminal defense and State Medical Board licensure representation, defense of allegations of crime from Internet Computer usage and sex crimes, as well as state and federal narcotics defense.

Richard L. Fenbert is an associate attorney at Zukerman, Daiker & Lear Co., L.P.A. where he focuses primarily on criminal defense. He is a 2011 graduate of Case Western Reserve School of Law where he was an articles editor for the Journal of International Law. Mr. Fenbert volunteers at the Zelma Watson George Community Center where he teaches inner-city students and adults the fundamentals of boxing and tennis.

This article appears in the September 2012 issue of the Bar Journal of the Cleveland Metropolitan Bar Associtation.

 



[1] The State Medical Board of Ohio, “Guide to Public Participation in the Rule-making Process,” Last Revision: Dec. 30, 2003.

[2] The State Medical Board of Ohio, “About the Board,” http://www.med.ohio.gov/bpard-about-the-board.htm.

[3] Id.

[4] The State Medical Board of Ohio Guide to Public Participation in the Rule-making Process; The State Medical Board of Ohio also licenses physicians assistants (ORC 4730) and registers anesthesiologist assistants (ORC 4760) and acupuncturists (ORC 4762).

[5] The State Medical Board of Ohio Guide to Public Participation in the Rule-making Process

[6] The State Medical Board of Ohio Guide to Public Participation in the Rule-making Process

[7] The State Medical Board of Ohio, Board Meeting Agenda Materials, May 11, 2011, Medical Board Complaints Outcome.

[8] See gen. ORC 4731.223, entitled Reporting convictions: (A) As used in this section, “prosecutor” has the same meaning as in section 2935.01 of the Revised Code. (B) Whenever any person holding a valid certificate issued pursuant to this chapter pleads guilty to, is subject to a judicial finding of guilt of, or is subject to a judicial finding of eligibility for intervention in lieu of conviction for a violation of Chapter 2907., 2925., or 3719. of the Revised Code or of any substantively comparable ordinance of a municipal corporation in connection with the person’s practice, or for a second or subsequent time pleads guilty to, or is subject to a judicial finding of guilt of, a violation of section 2919.123 of the Revised Code, the prosecutor in the case, on forms prescribed and provided by the state medical board, shall promptly notify the board of the conviction or guilty plea. Within thirty days of receipt of that information, the board shall initiate action in accordance with Chapter 119. of the Revised Code to determine whether to suspend or revoke the certificate under section 4731.22 of the Revised Code. (C) The prosecutor in any case against any person holding a valid certificate issued pursuant to this chapter, on forms prescribed and provided by the state medical board, shall notify the board of any of the following: (1) A plea of guilty to, a finding of guilt by a jury or court of, or judicial finding of eligibility for intervention in lieu of conviction for a felony, or a case in which the trial court issues an order of dismissal upon technical or procedural grounds of a felony charge; (2) A plea of guilty to, a finding of guilt by a jury or court of, or judicial finding of eligibility for intervention in lieu of conviction for a misdemeanor committed in the course of practice, or a case in which the trial court issues an order of dismissal upon technical or procedural grounds of a charge of a misdemeanor, if the alleged act was committed in the course of practice; (3) A plea of guilty to, a finding of guilt by a jury or court of, or judicial finding of eligibility for intervention in lieu of conviction for a misdemeanor involving moral turpitude, or a case in which the trial court issues an order of dismissal upon technical or procedural grounds of a charge of a misdemeanor involving moral turpitude. The report shall include the name and address of the certificate holder, the nature of the offense for which the action was taken, and the certified court documents recording the action.

[9] The State Medical Board of Ohio, Board Meeting Agenda Materials, May 11, 2011, Medical Board Complaints Outcome (Note: Although the Board receives over 4,000 Complaints a year only about ten (10) percent serve as the basis for disciplinary action).

[10] State Medical Board Summary of Disciplinary Actions 2006- 2011

[11] State Medical Board Summary of Disciplinary Actions 2006- 2011

[12] Beyond the Board’s ordered suspension, an action against a physician’s license may have implications on his liability insurance, provider agreements with insurance companies, provider agreement with state and federal agencies, and hospital privileges.  In regards to these organizations (insurance companies, government agencies and hospitals), most of them have their own individualized policies and procedures that must be navigated.

[13] See The State Medical Board of Ohio Disciplinary Guidelines (Revised December 2011), Category VIII: Criminal Acts or Convictions (Note: “The guidelines are primarily for the Board’s reference and guidance.  They are subject to revision at the Board’s discretion without notice to the public. Disciplinary Guidelines are intended to promote consistency in Board-imposed sanctions, but are not binding on the Board.  The Board recognizes that individual matters present unique sets of circumstances which merit individual consideration of the Board.”)  

[14] Id.

[15] Id.

[16] See The State Medical Board of Ohio Disciplinary Guidelines (Revised December 2011), Category IX: Impairment of Ability to Practice. 

[17] Id.

[18] Id.

[19] See The State Medical Board of Ohio Disciplinary Guidelines (Revised December 2011), Appendix B: Aggravating and Mitigating Factors. (Note: “After a violation has been established, the Board may consider aggravating and mitigating circumstances in deciding what penalty to impose.  If the Board deems such circumstances sufficient to justify a departure from disciplinary guidelines, they should be specified during the Board’s deliberations.”)

[20] Id.

[21] State Medical Board of Ohio, Policies and Positions, Licensure of Chemically Impaired Resident Physicians

[22]State Medical Board of Ohio, Policies and Positions, Licensure of Chemically Impaired Resident Physicians (“The State Medical Board recognizes that resident physicians practicing under training certificates are entitled to the protection of the One Bite Rule to the same extent as are fully licensed physicians. Both fully licensed physicians and residents practicing under training certificates are excused from reporting their impairment when renewing their certificates so long as they continue to adhere to the requirements of the statutes and rules.”)

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