Chapter 4731-19 Duty of Licensee to Report HIV or HBV Infection; Confidentiality

4731-19-01 Definitions.

As used in this chapter of the Administrative Code:

(A) "The board" means the state medical board of Ohio.

(B) "ODH" means the Ohio department of health.

(C) "HIV" means the human immunodeficiency virus.

(D) "HBV" means the hepatitis B virus with hepatitis E-antigen positive status.

(E) "Licensee" means any person holding or practicing pursuant to a certificate issued by the board under Chapter 4730., 4731., 4760., 4762., or 4774. of the Revised Code.

(F) "Invasive procedure" means any of the following:

(1) Any surgical or procedural entry into tissues, cavities, or organs or repair of major traumatic injuries associated with any of the following: an operating or delivery room, emergency department, or outpatient setting, including physicians' offices; cardiac catheterization and angiographic procedures; a vaginal or cesarean delivery or other invasive obstetric procedure during which bleeding may occur; or the manipulation, cutting, or removal of any oral or premolar tissues, including tooth structure, during which bleeding occurs or the potential for bleeding exists.

(2) Any entry into the hair follicle using an electric modality for the purpose of hair removal:

(3) The practice of acupuncture as defined in section 4762.01 of the Revised Code:

or

(4) The performance of fluoroscopic procedures pursuant to section 4774.08 of the Revised Code.

(G) "Exposure-prone invasive procedures" means an invasive procedure in which there is a significant risk of contact between the blood or body fluids of the licensee and the blood or body fluids of the patient.

(1) Some characteristics of exposure prone invasive procedures include digital palpation of a needle tip in a body cavity or the simultaneous presence of the licensee's fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site.

(2) An invasive procedure is exposure prone if it presents a recognized risk of percutaneous injury to the licensee, and, in the event such an injury occurs, the licensee's blood is likely to contact the patient's body cavity, subcutaneous tissues or mucous membranes.

Effective: 03/31/2010
R.C. 119.032 review dates: 11/16/2009 and 03/31/2015
Promulgated Under: 119.03
Statutory Authority: 4730.07 , 4731.05 , 4760.19 , 4762.19 , 4774.11
Rule Amplifies: 4730.25 , 4731.051 , 4731.22 , 4731.224 , 4760.13 , 4762.13 , 4774.13
Prior Effective Dates: 7/31/96, 9/22/97, 2/28/04

4731-19-02 Licensee's duty to report infection with HIV or HBV.

(A) A licensee who believes or has reason to believe that he or she is infected with HIV or HBV and who performs invasive procedures shall report that fact to the ODH or to an institutional review panel approved by ODH within forty eight hours or shall voluntarily refrain from performing invasive procedures until such time as a report has been made in compliance with this rule.

(B) A licensee who believes or has reason to believe that he or she is infected with HIV or HBV and who performs invasive procedures may report that fact to the board, consistent with paragraph (A) of this rule, in lieu of reporting to the ODH or to an institutional review panel approved by ODH. However, the board will require the infected licensee to submit to review and monitoring by the ODH or to an institutional review panel approved by ODH as provided in paragraph (B) of rule 4731-19-06 of the Administrative Code.

(C) A licensee who believes or has reason to believe that another licensee who performs invasive procedures is infected with HIV or HBV shall advise the infected licensee of the infected licensee's duty to report under either paragraph (A) or (B) of this rule, within forty eight hours of learning of the licensee's HIV or HBV infected status.

(D) A licensee who believes or has reason to believe that another licensee is infected with HIV but who is prohibited by section 3701.243 of the Revised Code or any other prevailing state or federal law from divulging the basis of the reporting licensee's belief shall nonetheless report to the board as required by division (B) of section 4731.224 of the Revised Code and rule 4731-15-01 of the Administrative Code if the reporting licensee believes the infected licensee is otherwise practicing below minimum standard of care or is unable to practice according to acceptable and prevailing standards of care by reason of mental illness or physical illness or has failed to comply with either paragraph (A) or (B) of this rule. The reporting licensee need not include in his or her report test results or other information which section 3701.243 of the Revised Code or any other prevailing state or federal law prohibits the reporting licensee from divulging.

(E) For purposes of section 4731.224 of the Revised Code and this rule, "believes" or "reason to believe" does not require absolute certainty or complete unquestioning acceptance; but only an opinion that a licensee is infected with HIV or HBV based upon firsthand knowledge or reliable information.

Eff 7-31-96; 9-22-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 4731.051 , 4731.22 , 4731.224
RC 119.032 rule review dates: 09/22/02, 11/17/03, 9/22/07

4731-19-03 Confidentiality; reporting by board.

Except as provided in paragraph(B) of rules 4731-19-02 and 4731-19-06 of the Administrative Code, the board shall hold in strict confidence all information in its possession relating to the HIV status and HBV status of a licensee who is or may be infected with HIV or HBV, provided that if the board initiates formal disciplinary proceedings pursuant to section 4730.25 , 4731.22 , 4760.13 or 4762.13 of the Revised Code it may disclose such information to the extent the board deems necessary to prove its allegations.

Eff 7-31-96; 9-22-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05 , 4760.19 , 4762.19
Rule amplifies: RC 4731.051 , 4731.22 , 4731.224 , 4730.25 , 4760.13 , 4762.13
RC 119.032 rule review dates: 09/22/02, 11/17/03, 9/22/07

4731-19-04 Voluntary compliance.

In any disciplinary proceeding brought by the board against a licensee alleging violations related to the practitioner's professional activities or mental or physical status while HIV or HBV infected, the licensee may offer evidence that he or she has voluntarily complied with an evaluation, monitoring, and any practice restrictions imposed by an odh review panel, an institutional review panel approved by ODH, or the board. That evidence shall be considered by the board in deciding whether the practitioner has violated a statute upon which discipline may be based and, if it finds a violation, in deciding what, if any, discipline is appropriate.

Eff 7-31-96; 9-22-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 4731.051 , 4731.22 , 4731.224
RC 119.032 rule review dates: 09/22/02, 11/17/03, 9/22/07

4731-19-05 Duty to refrain from certain procedures.

(A) A licensee who knows he or she is infected with HIV or HBV shall not perform or participate in an exposure-prone invasive procedure, as that term is defined in paragraph (G) of rule 4731-19-01 of the Administrative Code, until the infected licensee has obtained counsel from the ODH review panel or from an institutional review panel approved by ODH and then, only under the circumstances that the counseling panel decides are appropriate. Such circumstances shall include notifying prospective patients of the licensee's seropositivity before they undergo any exposure-prone invasive procedures identified as such by the infected licensee's ODH review panel or institutional review panel approved by the ODH, and adherence to all guidelines published by the centers for disease control, and the United States department of health and human services.

(B) A licensee who has reason to suspect that he or she may be infected with HIV or HBV shall obtain appropriate testing to reveal the licensee's HIV status and HBV status before the licensee performs or participates in an exposure-prone invasive procedure.

(C) A licensee who knows or should suspect that he or she is infected with HIV or HBV shall practice recommended surgical technique and shall adhere to universal precautions, as delineated in Chapter 4731-17 of the Administrative Code, when performing invasive procedures other than exposure-prone invasive procedures.

(D) A violation of any provision of this rule shall also constitute "a departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances whether or not actual injury to a patient is established," as that clause is used in division (B)(19) of section 4730.25 , division (B)(6) of section 4731.22 , division (B)(4) of section 4760.13 , and division (A)(4) of section 4762.13 , and division (B)(4) of section 4774.13 of the Revised Code.

Effective: 03/31/2010
R.C. 119.032 review dates: 11/16/2009 and 03/31/2015
Promulgated Under: 119.03
Statutory Authority: 4730.07 , 4731.05 , 4760.19 , 4762.19 , 4774.11
Rule Amplifies: 4730.25 , 4731.051 , 4731.22 , 4760.13 , 4762.13 , 4774.13
Prior Effective Dates: 7/31/96, 9/22/97, 2/28/04, 6/30/05

4731-19-06 Board procedures.

The following procedures shall be followed if the board receives information suggesting that a licensee is infected with HIV or HBV:

(A) The board shall record a complaint and investigate to determine whether the licensee is infected with HIV or HBV; whether the licensee is likely to perform or participate in an invasive procedure; and whether there is evidence that the licensee has violated any provision of section 4730.25 , 4731.22 , 4760.13 , 4762.13 , or 4774.13 of the Revised Code.

(B) If investigation confirms that the licensee is one who performs invasive procedures and is infected with HIV or HBV but produces insufficient evidence which would support formal discipline based on violations of section 4730.25 , 4731.22 , 4760.13 , 4762.13 , or 4774.13 of the Revised Code or any rule of the board, the board will refer the licensee to ODH for evaluation and monitoring as provided in paragraph (B) of rule 4731-19-02 of the Administrative Code.

(1) If the licensee who performs invasive procedures fails to verify to the board his or her compliance with the requirements of the monitoring program established by the ODH review panel or institutional review panel approved by ODH, the board will enter the licensee into its confidential monitoring program as provided in rule 4731-19-07 of the Administrative Code.

(2) The board will refrain from initiating disciplinary proceedings so long as the licensee complies with the requirements of the confidential monitoring program and so long as the board does not have evidence which support charges of violations of section 4730.25 . 4731.22 . 4760.13 . 4762.13 . or 4774.13 of the Revised Code.

(C) If investigation produces evidence which would support formal discipline and additionally confirms that the licensee is infected with HIV or HBV, the board shall initiate formal disciplinary proceedings based on the alleged violations of law, and may also enter the licensee into the confidential monitoring program. The board will treat all information relating to the licensee's infection with HIV or HBV as confidential, and will divulge the information only to the extent necessary to prove its allegations in the disciplinary proceedings.

(D) A licensee who has been entered into the confidential monitoring program who fails to comply with the requirements of the program will be subject to discipline for violations of division (B)(20) of section 4731.22 , division (B)(3) of section 4730.25 , division (B)(3) of section 4760.13 , division (B)(3) of section 4762.13 , or division (B)(3) of section 4774.13 of the Revised Code, as applicable to the licensee.

Effective: 03/31/2010
R.C. 119.032 review dates: 11/16/2009 and 03/31/2015
Promulgated Under: 119.03
Statutory Authority: 4730.07 , 4731.05 , 4760.19 , 4762.19 , 4774.11
Rule Amplifies: 4730.25 , 4731.051 , 4731.22 , 4731.224 , 4760.13 , 4762.13 , 4774.13
Prior Effective Dates: 7/31/96, 9/22/97, 2/28/04

4731-19-07 Confidential monitoring program.

(A) A licensee who the board's secretary and supervising member have confirmed is infected with HIV or HBV and who performs invasive procedures and who is not participating in the evaluation and monitoring program run by odh or by an institutional review panel approved by odh shall participate in the confidential monitoring program. Upon identification of the infected licensee, the secretary will notify the board's compliance officer, who will be responsible for verifying the licensee's identity, license number, license status, and specialties.

(B) The compliance officer will contact the licensee being monitored to:

(1) Provide copies of the board's rules in Chapter 4731-17 and 4731-19 of the Administrative Code and request the licensee's written agreement to comply with all requirements of those chapters;

(2) Request the licensee to identify in writing his or her treating physician, and to notify the board of any change of treating physician;

(3) Request the licensee to identify in writing the licensee's evaluation and monitoring panel, which shall be an institutional based review panel approved by odh or an odh review panel;

(4) Notify the licensee of the board's monitoring schedule, and request the licensee to contact the licensee's treating physician and evaluation and monitoring panel to authorize release of information to the board as requested; and

(5) Explain that confidentially will be maintained so long as the licensee participates in the program and is not subject to board disciplinary action of a nature requiring disclosure of program information.

(C) Three months after the board's initial notification, and every June and December thereafter, the compliance officer shall monitor compliance by contacting the licensee, the licensee's designated treating physician and the licensee's evaluation and monitoring panel. The method of monitoring will be determined by the board's secretary on a case-by-case basis in order to assure confidentiality.

(1) The compliance officer shall request a written report from the licensee verifying the licensee's compliance with the requirements of Chapters 4731-17 and 4731-19 of the Administrative Code, updating the licensee's professional activities, and identifying any malpractice cases filed or decided against the licensee, any privilege actions or peer review organization actions taken against the licensee, and any other problems the licensee has experienced. The licensee shall timely submit the report, providing the information requested.

(2) The compliance officer shall request a written report from the licensee's designated treating physician concerning the licensee's health status, mental health status, and the course of treatment being undertaken, including a list of the medications the licensee is on. The treating physician shall timely submit the report, providing all information requested.

(3) The compliance officer shall request a written report from the licensee's designated evaluation and monitoring panel concerning the licensee's professional performance, including the licensee's current ability to practice according to minimum standards of care and the licensee's compliance with all practice restrictions and monitoring requirements imposed by the panel and by the board.

(D) The board's secretary and supervising member will review all reports received to determine if any action is appropriate. If the secretary and supervising member determine that current monitoring and restrictions are inadequate to assure public protection, they may implement additional monitoring requirements or practice restrictions.

(E) The board's compliance officer shall maintain all records related to the confidential monitoring program in a locked, secure location. In order to ensure confidentiality of reporting, all reports, correspondence and memoranda shall use identification codes rather than names. The identification codes shall be provided by the board. Access to the key which identifies licensees to whom identification codes are assigned will be strictly limited to the board's secretary, supervising member, compliance officer, and other board staff as directed by the secretary and supervising member for action on a particular case.

Eff 7-31-96; 9-22-97; 2-28-04
Rule promulgated under: RC 119.03
Rule authorized by: RC 4731.05
Rule amplifies: RC 4731.051 , 4731.22 , 4731.224
RC 119.032 rule review dates: 09/22/02, 11/17/03, 9/22/07