Chapter 4731-28 Mental or Physical Impairment

4731-28-01 Mental or physical impairment.

For the purposes of division (B)(4) of section 4730.25 of the Revised Code, division (B)(19) of section 4731.22 of the Revised Code, division (B)(5) of section 4760.13 of the Revised Code, division (B)(5) of section 4762.13 of the Revised Code, division (B)(5) of section 4774.13 of the Revised Code, and division (B)(5) of section 4778.14 of the Revised Code, the following definitions apply:

(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.

Effective: 8/31/2017
Five Year Review (FYR) Dates: 05/23/2017 and 08/31/2022
Promulgated Under: 119.03
Statutory Authority: 4730.07, 4731.05, 4760.19, 4762.19, 4774.11, 4778.12
Rule Amplifies: 4730.25, 4731.22, 4760.13, 4762.13, 4774.13, 4778.14
Prior Effective Dates: 11/30/02, 6/30/07, 3/31/10

4731-28-02 Eligibility for confidential monitoring program.

There is hereby created a confidential monitoring program applicable to all individuals licensed under Chapter 4730., 4731., 4759., 4760., 4761., 4762., 4774., or 4778. of the Revised Code who are determined to be eligible for the program pursuant to this rule. For purposes of the confidential monitoring program, the term "confidentiality statute" refers to division (F) of section 4730.26 of the Revised Code, division (F)(5) of section 4731.22 of the Revised Code, division (B)(5) of section 4759.05 of the Revised Code, division (E) of section 4760.14 of the Revised Code, division (E) of section 4761.03 of the Revised Code, division (E) of section 4762.14 of the Revised Code, division (E) of section 4774.14 of the Revised Code, or division (E) of section 4778.18 of the Revised Code, as applicable to the individual.

(A) Under the board's investigative duties pursuant to section 4730.26, 4731.22, 4759.05, 4760.14, 4761.03, 4762.14, 4774. 14, or 4778.18 of the Revised Code, as applicable to the individual, and subject to the applicable confidentiality statute, 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 and subject to the applicable confidentiality statute.

(B) In making their determination of an individual's eligibility for participation in the confidential monitoring program, the secretary and supervising member of the board shall use the following criteria:

(1) 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 under the applicable chapter of the Revised Code;

(2) 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 obligations. This includes, but is not limited to, the exchange of information to and from employers, probation officers, law enforcement agencies, peer assistance programs, health care practitioners, mental health counsellors, social workers, or any other individuals or entities the board determines may have relevant information.

(3) If the individual has not yet undertaken appropriate treatment, monitoring, or supervision related to the mental or physical condition, the information received must demonstrate that the individual is willing to commence such appropriate treatment, monitoring, or supervision;

(4) If the individual has commenced treatment for the mental or physical illness, the information received must demonstrate that the individual has been significantly compliant with the treatment plan established, including taking all medications as prescribed;

(5) If the individual was previously a participant in the monitoring program, the individual must have demonstrated full compliance with all program requirements. Any individual who was previously disqualified from participation in the monitoring program shall be ineligible for future participation in the program;

(6) If the individual was previously the subject of formal public disciplinary action by this board, such action must have been based solely on a violation of division (B)(4) of section 4730.25 of the Revised Code, division (B)(19) of section 4731.22 of the Revised Code, division (A)(14) of section 4759.07 of the Revised Code, division (B)(5) of section 4760.13 of the Revised Code, division (A)(14) of section 4761.09 of the Revised Code, division (B)(5) of section 4762.13 of the Revised Code, division (B)(5) of section 4774.13 of the Revised Code, or division (B)(5) of section 4778.14 of the Revised Code, as applicable to the individual, for which the individual subsequently was released from probation without restriction. Any individual who has been issued a notice of opportunity for hearing that remains pending for final adjudication by the board is not eligible for participation in the monitoring program regardless of the basis of the violation alleged in the notice;

(7) If the individual was previously the subject of confidential monitoring, public monitoring, non-disciplinary monitoring, or formal disciplinary action by or in association with an agency responsible for authorizing, certifying, or regulating the individual to practice a health care occupation in this state or any other jurisdiction, such action must have been based solely on the individual's mental or physical illness;

(8) No information available to the board about the individual, either concerning past or current allegations or conduct, implicates a possible sexual boundary issue regardless of whether such issue involved patients or non-patients and regardless of whether such issue was caused by or related to the individual's mental or physical illness;

(9) No information available to the board about the individual, either concerning past or current allegations or conduct, implicates an act of violence against property or persons or threat of violence against property or persons, even if the board is unable to conclusively confirm the credibility of such allegations;

(10) No information available to the board about the individual, either concerning past or current allegations or conduct, and regardless of whether caused by or related to the individual's mental or physical illness:

(a) Demonstrates that the individual has been convicted of a felony or misdemeanor, including but not limited to operating a vehicle under the influence or reckless operation, at any time;

(b) Indicates that the individual has felony or misdemeanor charges, including but not limited to operating a vehicle under the influence or reckless operation, currently pending; and/or

(c) Implicates a possible criminal issue, regardless of whether formal misdemeanor or felony charges were pursued or are anticipated in the future;

(11) There is no information indicating that the individual is in violation of any provision of the chapter of the Revised Code under which the individual was licensed other than division (B)(4) of section 4730.25 of the Revised Code, division (B)(19) of section 4731.22 of the Revised Code, division (A)(14) of section 4759.07 of the Revised Code, division (B)(5) of section 4760.13 of the Revised Code, division (A)(14) of section 4761.09 of the Revised Code, division (B)(5) of section 4762.13 of the Revised Code, division (B)(5) of section 4774.13 of the Revised Code, or division (B)(5) of section 4778.14 of the Revised Code, as applicable to the individual; and

(12) There is no information indicating that allowing the individual to participate in confidential monitoring will create a significant risk of potential harm to patients.

Effective: 8/31/2018
Five Year Review (FYR) Dates: 08/31/2023
Promulgated Under: 119.03
Statutory Authority: 4778.12, 4774.11, 4762.19, 4760.19, 4731.05, 4730.07, 4759.05, 4761.03
Rule Amplifies: 4730.26, 4778.18, 4774.14, 4760.14, 4731.22, 4759.05, 4761.03, 4762.14

4731-28-03 Participation in the confidential monitoring program.

(A) Individuals determined to be eligible for participation in the confidential monitoring program established under rule 4731-28-02 of the Administrative Code shall enter into a written participation agreement with the board.

(1) The participation agreement is a non-disciplinary, voluntary, written contract between the individual and the board. The participation agreement shall remain confidential pursuant to the applicable confidentiality statute, as that term is defined in rule 4731-28-02 of the Administrative 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 4730., 4731., 4759., 4760., 4761., 4762., 4774., or 4778. of the Revised Code, as applicable to the individual.

(2) The participation agreement shall be negotiated under the direction of the secretary and supervising member of the board by an appropriate board staff attorney. The participation agreement shall be signed by the individual; the individual's attorney, if any; the secretary of the board; the supervising member of the board; and the appropriate board staff attorney.

(3) The individual's ongoing compliance with the participation agreement shall be monitored by appropriate board staff under the direction of the secretary and supervising member of the board.

(B) The participation agreement shall require, at a minimum, the following terms and conditions:

(1) Stipulation of the individual's mental or physical illness;

(2) 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 obligations. This includes, but is not limited to, the exchange of information to and from employers, probation officers, law enforcement agencies, peer assistance programs, health care practitioners, mental health counsellors, social workers, or any other individuals or entities the board determines may have relevant information;

(3) A requirement that the individual will undertake and/or maintain continued treatment acceptable to the secretary and supervising member of the board pertaining to the individual's mental or physical illness;

(4) Agreement that if the secretary and supervising member of the board, 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) A requirement that the individual is responsible for all costs associated with participation in the confidential monitoring plan;

(6) Obedience of all federal, state, and local laws, and all rules governing pratice 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, as requested, before the secretary or supervising member of the board or their designated board staff representative;

(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, at the individual's expense upon the board's request and without prior notice;

(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 pursuant to any alleged violation of Chapter 4730., 4731., 4759., 4760., 4761., 4762., 4774., or 4778. of the Revised Code, as applicable to 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, as follows:

(a) 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.

(b) For all other mental or physical illnesses, the appropriate length of monitoring shall be determined by the secretary and supervising member of the board but shall be for a period of not less than two years.

(c) Agreement of the individual that the participation agreement shall remain in full force and effect until such time that the secretary and supervising member of the board determine that termination of the participation agreement is appropriate.

(d) Acknowledgement pertaining to the applicable disclosure requirements.

(C) This rule shall neither apply to nor limit the authority granted the board under division (M) of section 4730.25 of the Revised Code, division (M) of section 4731.22 of the Revised Code, division (M) of section 4759.07 of the Revised Code, division (M) of section 4760.13 of the Revised Code, division (L) of section 4761.09 of the Revised Code, division (M) of section 4762.13 of the Revised Code, division (M) of section 4774.13 of the Revised Code, or division (M) of section 4778.14 of the Revised Code with regard to the surrender of a license or certificate or the withdrawal of an application for a license or certificate.

Effective: 8/31/2018
Five Year Review (FYR) Dates: 08/31/2023
Promulgated Under: 119.03
Statutory Authority: 4778.12, 4774.11, 4762.19, 4761.03, 4760.19, 4759.05, 4731.05, 4730.07
Rule Amplifies: 4730.26, 4778.18, 4774.14, 4762.14, 4761.03, 4760.14, 4759.05, 4731.22

4731-28-04 Disqualification from continued participation in the confidential monitoring program.

Disqualification from continued participation in the confidential monitoring program established under rule 4731-28-02 of the Administrative Code shall be determined as follows:

(A) 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 disciplinary action against the individual pursuant to section 4730.25, 4731.22, 4759.07, 4760.13, 4761.09, 4762.13, 4774.13, or 4778.14 of the Revised Code, as applicable to the individual. The disciplinary action shall be in accordance with Chapter 119. of the Revised Code.

(B) If for any reason 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. Such termination shall not limit the authority granted the board to take any other action with regard to the individual or the individual's certificate to practice.

Effective: 8/31/2018
Five Year Review (FYR) Dates: 08/31/2023
Promulgated Under: 119.03
Statutory Authority: 4778.12, 4774.11, 4762.19, 4761.03, 4760.19, 4759.05, 4731.05, 4730.07
Rule Amplifies: 4730.26, 4778.18, 4774.14, 4762.14, 4761.03, 4760.14, 4759.05, 4731.22

4731-28-05 Termination of the participation agreement for the confidential monitoring program.

(A) Upon completion of at least the minimum monitoring term specified in the participation agreement for the confidential monitoring program established in rule 4731-28-02 of the Administrative Code, the individual may submit a written request to the secretary and supervising member of the board requesting termination of the participation agreement. Such request must be accompanied by written documentation from the treating physician overseeing coordination of care for the individual's mental or physical illness indicating whether all of the following criteria are met:

(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; and

(3) The treating physician supports the individual's request for termination of the participation agreement.

(B) The secretary and supervising member of the board shall review the individual's request for termination of the participation agreement and reach a determination as to whether such termination is appropriate. In making such determination, they shall consider all of the following criteria:

(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 to submit to a board-ordered physical examination and/ or mental examination; and

(4) Any other relevant investigative information concerning the individual.

(C) The determination of the secretary and supervising member of the board shall be implemented as follows:

(1) If the secretary and supervising member of the board determine that termination of the participation agreement is appropriate, they shall direct appropriate staff to notify the individual in writing that the request for termination of the participation agreement has been granted. Such termination shall constitute successful completion of the monitoring program by the individual.

(2) If the secretary and supervising member determine that termination of the participation agreement is not appropriate, they shall direct appropriate staff to notify the individual in writing that the request for termination of the participation agreement has been declined. 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.

Effective: 8/31/2018
Five Year Review (FYR) Dates: 08/31/2023
Promulgated Under: 119.03
Statutory Authority: 4778.12, 4774.11, 4762.19, 4761.03, 4760.19, 4759.05, 4731.05, 4730.07
Rule Amplifies: 4730.26, 4778.18, 4774.14, 4762.14, 4761.03, 4760.14, 4759.05, 4731.22