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In my recent post, I outlined the State Medical Board of Ohio’s plan to establish a confidential non-disciplinary track for licensees with mental or physical illness. That process has moved forward to the Medical Board posting its proposed rules (Ohio Administrative Code 4731-28-02 through 05) and seeking comment upon those proposed rules. The comment period ends May 1, 2017 and comments should be submitted to Sallie.Debolt@med.ohio.gov

The professional license defense attorneys at Graff & McGovern are pleased to see the Ohio Medical Board moving towards a system aimed at better protecting the privacy of licensees dealing with mental or physical illnesses that may impact their ability to practice. However, we have very serious concerns regarding the proposed rules and will share our concerns with Board. We encourage all interested parties to the same. Our basic concerns can be summarized as follows.

1. The Confidential Monitoring Program places too much discretion in the Board’s Secretary and Supervising and the Board’s staff. As a result, due process concerns arise. For example, the agreement that licensees enter into under the Confidential Monitoring Program will require treatment acceptable to the Secretary and Supervising Member, who are not required to be physicians, psychiatrists or any other form of provider equipped to understand the numerous physical or mental health condition(s) that will be at issue. Likewise, ongoing compliance with the agreement will be monitored by the Board’s staff, even though there is no requirement that the Board’s staff have the appropriate education, training or experience to oversee the applicable treatment plans. In addition, licensees can be disqualified for any alleged violation pursuant to the sole discretion of the Secretary and Supervising member, which would then result in public formal disciplinary proceedings being brought against the licensee.
2. The proposed rules deny entry to the Confidential Monitoring Program for conduct that would not constitute a violation of the Ohio Medical Practices Act (Ohio Revised Code Chapter4731). For example, a past traffic violation (which would not form the basis for a violation of the Ohio Medical Practices Act), could still serve to form the basis for a licensee’s denial into the Confidential Monitoring Program.
3. The minimum length of monitoring is currently described as 2 years. That blanket minimum would not be appropriate for a licensee participating in a 1 year fellowship program under a 1 year training certificate.
4. The proposed Confidential Monitoring Program may be in violation of the Americans with Disabilities Act (“ADA”) based upon similarities to what was found to be of concern during the investigation of the Louisiana Bar Attorney Licensing System by the United States Department of Justice in Case Numbers 204-32M-60, 204-32-88, 204-32-89, and the resulting Settlement Agreement between the United States and the Louisiana Supreme Court.
5. A primary concern under the ADA is punishing or acting solely upon a diagnosis / condition, as opposed to focusing upon conduct. The proposed Confidential Monitoring Program, upon entry by a licensee, would require monitoring for the period of the agreement (minimum 2 years) without requiring any evidence of conduct that would actually demonstrate or rise to the level of impairment of the licensee’s ability to practice.
6. Even though the name of the Confidential Monitoring Program suggests that it will be confidential, the Ohio Medical Board and its staff will have access to applying / participating licensee’s health records. That lack of confidentiality could dissuade licensees from seeking needed necessary treatment.
7. Because the confidential basis for the Confidential Monitoring Program arises under Ohio Revised Code 4731.22 (F), which governs investigations conducted by the State Medical Board of Ohio, situations may arise where a licensee is required to disclose the State Medical Board of Ohio “investigation” to other entities (such as the DEA or hospitals / third party payers that credential them). Those types of mandatory reports will defeat the intended confidential nature of the program and cause collateral damage for the licensees who have to make them.

If you share any of these concerns and/or if you have other concerns not referenced here regarding proposed Ohio Administrative Code 4731-28-02 through 05, please share them via email with Sallie.Debolt@med.ohio.gov no later than May 1, 2017.

The license defense attorneys at Graff & McGovern will closely follow and continue to report upon the progression of the State Medical Board of Ohios proposed rules designed to establish a confidential non-disciplinary track for licensees with mental or physical illness. In the meantime, if you have questions regarding the Ohio Medical Board’s handling of cases involving mental / physical illness or if you are in need of legal counsel to defend your interests in an Ohio Medical Board matter, please contact a Graff & McGovern professional license defense attorney. Jim McGovern can be reached by phone at 614-228-5800, x2 , or by email at jmcgovern@grafflaw.com