742-1-02 Member minimum medical testing and diagnostic procedures.

(A) Requirements. Pursuant to section 742.38 of the Revised Code, all employers of prospective members of the Ohio police & fire pension fund (OP&F) are required to do the following:

(1) Physical examination for prospective OP&F members. The employer shall cause the prospective members of OP&F to submit to the minimum medical testing and diagnostic procedures set forth in paragraph (B) of this rule.

(2) Tests done before employee’s membership in OP&F. The minimum medical testing and diagnostic procedures prescribed by this rule must be done at least one minute prior to twelve p.m. on the date the employee becomes an OP&F member, but in no event can the tests and procedures be done earlier than nine months before that membership date, subject to the notice of deficiency and right to cure referenced in paragraph (D) of this rule.

(3) Physician’s report filed with OP&F. The employer must file a physician’s report with OP&F that meets the following criteria:

(a) The physician certification must be in the form prescribed by OP&F or a form substantially similar, as determined by OP&F in its sole and absolute discretion, which must include the physician’s diagnosis and evaluation of the existence of any heart disease, cardiovascular disease, or respiratory disease identified in the medical testing and diagnostic procedures established under this rule;

(b) The physician certification must be fully completed and signed by a licensed physician who is licensed to practice medicine in the state in which the examination was conducted;

(c) The physician certification must state the date of the examination and the report cannot be signed more than nine months before the potential employee’s membership with OP&F;

(d) The member’s medical questionnaire completed by the member must be in the form prescribed by OP&F or a form substantially similar, as determined by OP&F in its sole and absolute discretion, but this questionnaire cannot be signed more than nine months before the potential employee’s membership with OP&F; and

(e) From and after the effective date of this rule, copies of the medical tests and procedures and medical questionnaire outlined in this rule must be included as part of the physician’s report.

(4) The physician’s report, including copies of the required medical tests and diagnostic procedures, must be timely filed with OP&F. In order to be timely filed, a completed physician certification, medical questionnaire meeting the criteria of this rule, and copies of the required medical testing and diagnostic procedures outlined by this rule, must be received by OP&F no later than sixty days after the employee becomes an OP&F member, as required by division (A)(2) of section 742.38 of the Revised Code.

(B) Minimum medical testing/diagnostic procedures. The minimum medical testing and diagnostic procedures to be incorporated into a member’s physical examination administered by physicians to prospective members of the fund shall include the following:

(1) Spirometry that represents at least a valid and reproducible forced expiratory volume at one second (FEV1), forced vital capacity (FVC), and forced expiratory volume at one second/forced vital capacity (FEV1/FVC) that meets the criteria of the American thoracic society;

(2) A chest x-ray that is at least a P.A. 72” (i.e. front to back);

(3) Lipid profile that includes cholesterol (both LDL and HDL); and

(4) An electrocardiogram (EKG) and cardiac stress test performed consistent with standard bruce protocol.

(C) Determination of OP&F membership. For purposes of administering section 742.38 of the Revised Code and this rule, including from and after December 1, 1998, OP&F will use the occurrence of the following events for purposes of determining when a prospective employee becomes an OP&F member:

(1) The member’s appointment as a “member of the police department” or “member of the fire department,” as such terms are defined in divisions (A)(2) and (B)(2) of section 742.01 of the Revised Code respectively; and

(2) The date on which the prospective member became a “member of the fund,” as defined in division (E) of section 742.01 of the Revised Code; and

(3) The first date on which the employee is contributing or should have been contributing a percentage of his/her salary to OP&F. For purposes of this paragraph, OP&F shall consider the first date the employee is contributing a percentage of his/her salary to OP&F to be based on payroll submitted for a pay period six weeks prior to the filing of such payroll, until the actual date is determined by OP&F and at that time, an adjustment of the penalties shall thereafter be made based on the actual dates provided to OP&F from the employer. Notwithstanding the foregoing, in no event shall the required tests and procedures and physician’s report be done more than nine months prior to the date on which the employee became an OP&F member, as defined in this subsection, subject to the notice of deficiency and right to cure referenced in paragraph (D) of this rule.

(D) Determination when fines are to be imposed for the filing of reports due after June 1, 2002. For purposes of imposing fines and penalties, OP&F shall use the following criteria:

(1) If the employer filed with OP&F a copy of at least three of the required tests and diagnostic procedures outlined in this rule, which must include a properly completed physician certification in OP&F’s format or substantially similar format, as determined by OP&F in its sole and absolute discretion, but which cannot include the medical questionnaire that is completed by the prospective member, and such tests, procedures, and certification were done prior to the prospective member becoming a member of OP&F, but no more than nine months prior to the date on which the employee became a member of OP&F, then OP&F will provide the employer with notice of any deficiency in its filing along with an opportunity to cure these items within six months from the date of OP&F’s notice (referred to in this paragraph as the cure period).

(a) If the employer then causes the member to undergo the tests and procedures that are more than nine months prior to his/her membership date and these tests and procedures are completed within the cure period and OP&F receives a fully completed physician certification in proper format for the updated tests and procedures along with the copies of the updated tests and procedures on or before the expiration of the cure period, then no fines will be imposed; or

(b) If OP&F does not receive from the employer all of the items referenced in OP&F’s notice of deficiency within six months from OP&F’s notice, then OP&F will assess the statutory fine from the date that the report was originally due OP&F, as required by the terms of section 742.38 of the Revised Code, until the employer files the required documentation with OP&F, subject to the caps provided for in division (A) of section 742.353 of the Revised Code.

(2) If the employer does not meet the criteria referenced in paragraph (F)(1) of this rule, including the employer failing to cause the person to undergo a physical examination prior to the person becoming an OP&F member, then OP&F will assess the statutory fines and penalties, as required by section 742.38 of the Revised Code, until OP&F’s receipt of a properly completed physician’s report that meets the requirements of this rule and at least three of the required tests and procedures outlined in paragraph (B) of this rule, subject to the caps provided for in division (A) of section 742.353 of the Revised Code. Upon OP&F’s receipt of a properly completed physician’s report that meets the requirements of this rule and copies of at least three of the required tests and procedures, OP&F will stop assessing fines and if there are any noted deficiencies in such filing, OP&F will give written notice of such deficiencies to the employer along with the opportunity to cure those items on or before the expiration of the cure period.

(E) For purposes of determining any six-month cure period provide for in this rule, a six-month period will be used, rather than counting actual days.

(F) For purposes of this rule, if the physician certification is in proper format, as outlined in paragraph (A) of this rule, the medical questionnaire is complete, and copies of all of the tests and procedures outlined in paragraph (B) of this rule are filed with OP&F, but are not filed within sixty days from the date on which the employee became an OP&F member, as outlined in this rule, then OP&F must assess the fine prescribed by section 742.38 of the Revised Code.

(G) For purposes of this rule, OP&F will provide the employer with only one six month cure period during which the employer must file a properly completed physician’s report, which means the physician certification in the form approved by OP&F and copies of all tests and diagnostic procedures outlined in paragraph (B) of this rule, that must be filed with OP&F prior to the expiration of such cure period.

(H) If the employer cannot cure the deficiency due to the member terminating employment with the employer or transferring to another department, OP&F will assess the fine through the earlier of the date of termination or transfer or the date on which the employer complied with the terms of section 742.38 of the Revised Code, as more fully described in this rule, subject to the caps provided for in division (A) of section 742.353 of the Revised Code.

(I) For purposes of determining compliance with section 742.38 of the Revised Code and this rule for members who are retroactively reinstated to OP&F membership by agreement or by order of a court or arbitrator, the employer will be deemed to have met the requirements of division (A)(2) of section 742.38 of the Revised Code and this rule if the minimum medical testing and diagnostic procedures outlined in this rule were conducted and OP&F receives the reports required by division (A)(2) of section 742.38 of the Revised Code and paragraph (A)(4) of this rule no later than sixty days after the date of the agreement or arbitration award or the filing date of the court order, subject to the exceptions outlined in paragraph (R) of this rule.

(J) For those employers who are not eligible to correct issues through the cure period, OP&F will then give written notice of any fines due and payable.

(K) In cases where the person was laid off from an OP&F covered employer and the person already has a proper pre-employment physical on file with OP&F and returns to an OP&F covered position within two years of the effective date of his/her lay-off, no additional pre-employment physical will be required.

(L) For members who transfer from one employer to another without a loss in membership with OP&F, as outlined above, the new employer will not be required to cause such person to undergo the medical testing and diagnostic procedures referenced in this rule, unless OP&F does not have a pre-employment physical, which meets the definition set forth in rule 742-3-05 of the Administrative Code. In order to reach this determination, however, the new employer will need to obtain this information from OP&F. In the event the original employer did not cause an employee who became an OP&F member on or after September 16, 1998 to undergo all of the tests and procedures outlined in this rule, then OP&F will give notice to the new employer of any tests and procedures that need to be completed and a right to cure, as provided for in this rule.

(1) If the new employer then causes the member to undergo the tests and procedures and these tests and procedures are completed within the cure period and OP&F receives a fully completed physician certification in proper format for the updated tests and procedures along with the copies of the updated tests and procedures on or before the expiration of the cure period, then no fines will be imposed; or

(2) If OP&F does not receive from the new employer all of the items referenced in OP&F’s notice of deficiency within the cure period referenced in OP&F’s notice, then OP&F will assess the statutory fine beginning sixty days after the member’s hire date with the new employer until the employer files the required documentation with OP&F, subject to the caps provided for in division (A) of section 742.353 of the Revised Code.

(M) In no event shall the provisions of this rule be intended to supercede or eliminate any other legal requirement imposed on the employer under Ohio law, including, but not limited to, sections 124.41 and 124.42 of the Revised Code.

(N) In the event the employer’s fines imposed pursuant to section 742.353 of the Revised Code exceed the cap set forth therein and the employer still fails to comply with the provisions of section 742.38 of the Revised Code, OP&F will impose the penalties against the employer at the beginning of the new calendar year pursuant to section 742.353 of the Revised Code, which will be based upon the applicable penalty beginning as of January first of the applicable year.

(O) The provisions of this rule will not change the amount of the penalties set forth in section 742.353 of the Revised Code, except that the reference to three dollars and thirty-seven cents in division (A)(5) of section 742.353 of the Revised Code shall be reduced to three dollars.

(P) OP&F shall assess the employer for penalties due pursuant to section 742.353 of the Revised Code at such time as OP&F receives the reports required by section 742.38 of the Revised Code, as more fully outlined in this administrative rule.

(Q) If the employer is unable to obtain a test due to the member’s medical condition, the member’s religious beliefs or the member’s refusal to undergo a specific test, the employer shall provide supporting documentation to OP&F in support of such fact and may request a waiver of such test or report for such reason. If the waiver request is for medical reasons, the supporting documentation shall be in the form of a medical report signed by a licensed physician in the state in which the medical examination was conducted, if the waiver request is for religious reasons, the supporting documentation shall be in the form of an affidavit signed by the member before a notary public that certifies such fact, and if the waiver request is the result of the member’s refusal, the supporting documentation shall be in the form of a written document signed by the member before a notary public that certifies that fact and acknowledges that the member understands that his/her refusal shall result in his/her inability to use the presumptive disability provision outlined in section 742.38 of the Revised Code.

Within thirty days after OP&F’s receipt of such request, OP&F shall notify the employer if such waiver is granted. OP&F shall use the DEP medical advisor’s recommendation after his/her review of such medical documentation provided. If OP&F grants a waiver, the employer shall not be obligated to cause such person to undergo the specific tests specified in such waiver. If the request for waiver is denied by OP&F, the employer may request a review by the DEP committee and executive director.

Any waiver granted under the terms of this section shall not change the number of tests that are required to be filed with OP&F in order for such employer to be granted an opportunity to cure any other deficiencies in such filing or any penalty for late filings of the other reports related to such member.

The provisions of the prior rule shall apply to all fines and penalties incurred prior to June 1, 2002.

Effective: 10/13/2005

R.C. 119.032 review dates: 07/27/2005 and 10/13/2010

Promulgated Under: 111.15

Statutory Authority: 742.10

Rule Amplifies: 742.38

Prior Effective Dates: 9/6/1998 (Emer.), 12/10/98, 5/27/99, 2/11/02 (Emer.), 5/30/02 (Emer.), 8/22/02, 1/22/04, 11/29/2004