Bill Text: OH HB518 | 2011-2012 | 129th General Assembly | Introduced

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Bill Title: To statutorily allow the Bureau of Workers' Compensation to summarily suspend a provider's certification to participate in the Health Partnership Program, to specify procedures for that suspension, and to exempt documents, reports, and evidence pertaining to a workers' compensation fraud investigation from the Public Records Law.

Spectrum: Partisan Bill (Republican 15-0)

Status: (Introduced - Dead) 2012-04-17 - To Insurance [HB518 Detail]

Download: Ohio-2011-HB518-Introduced.html

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As Introduced

129th General Assembly Regular Session 2011-2012

H. B. No. 518

Representatives Sears, Landis 

Cosponsors: Representatives Henne, Hackett, Boose, Buchy, Amstutz, Grossman, Adams, J., Rosenberger, Thompson, Stebelton, Wachtmann, Sprague, McGregor 

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A BILL

To amend sections 119.12, 2305.25, and 2305.252 and

1

to enact sections 4121.132 and 4121.443 of the

2

Revised Code to statutorily allow the Bureau of

3

Workers' Compensation to summarily suspend a

4

provider's certification to participate in the

5

Health Partnership Program, to specify procedures

6

for that suspension, and to exempt documents,

7

reports, and evidence pertaining to a workers'

8

compensation fraud investigation from the Public

9

Records Law.

10

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1.  That sections 119.12, 2305.25, and 2305.252 be	11
amended and sections 4121.132 and 4121.443 of the Revised Code be	12
enacted to read as follows:	13

Sec. 119.12.  Any party adversely affected by any order of an	14
agency issued pursuant to an adjudication denying an applicant	15
admission to an examination, or denying the issuance or renewal of	16
a license or registration of a licensee, or revoking or suspending	17
a license, or allowing the payment of a forfeiture under section	18
4301.252 of the Revised Code may appeal from the order of the	19
agency to the court of common pleas of the county in which the	20
place of business of the licensee is located or the county in	21
which the licensee is a resident, except that appeals from	22
decisions of the liquor control commission, the state medical	23
board, state chiropractic board, and board of nursing, and	24
decisions of the bureau of workers' compensation regarding	25
participation in the health partnership program created in	26
sections 4121.44 and 4121.441 of the Revised Code shall be to the	27
court of common pleas of Franklin county. If any party appealing	28
from the order is not a resident of and has no place of business	29
in this state, the party may appeal to the court of common pleas	30
of Franklin county.	31

Any party adversely affected by any order of an agency issued	32
pursuant to any other adjudication may appeal to the court of	33
common pleas of Franklin county, except that appeals from orders	34
of the fire marshal issued under Chapter 3737. of the Revised Code	35
may be to the court of common pleas of the county in which the	36
building of the aggrieved person is located and except that	37
appeals under division (B) of section 124.34 of the Revised Code	38
from a decision of the state personnel board of review or a	39
municipal or civil service township civil service commission shall	40
be taken to the court of common pleas of the county in which the	41
appointing authority is located or, in the case of an appeal by	42
the department of rehabilitation and correction, to the court of	43
common pleas of Franklin county.	44

This section does not apply to appeals from the department of	45
taxation.	46

Any party desiring to appeal shall file a notice of appeal	47
with the agency setting forth the order appealed from and stating	48
that the agency's order is not supported by reliable, probative,	49
and substantial evidence and is not in accordance with law. The	50
notice of appeal may, but need not, set forth the specific grounds	51
of the party's appeal beyond the statement that the agency's order	52
is not supported by reliable, probative, and substantial evidence	53
and is not in accordance with law. The notice of appeal shall also	54
be filed by the appellant with the court. In filing a notice of	55
appeal with the agency or court, the notice that is filed may be	56
either the original notice or a copy of the original notice.	57
Unless otherwise provided by law relating to a particular agency,	58
notices of appeal shall be filed within fifteen days after the	59
mailing of the notice of the agency's order as provided in this	60
section. For purposes of this paragraph, an order includes a	61
determination appealed pursuant to division (C) of section 119.092	62
of the Revised Code. The amendments made to this paragraph by Sub.	63
H.B. 215 of the 128th general assembly are procedural, and this	64
paragraph as amended by those amendments shall be applied	65
retrospectively to all appeals pursuant to this paragraph filed	66
before the effective date of those amendmentsSeptember 13, 2010,	67
but not earlier than May 7, 2009, which was the date the supreme	68
court of Ohio released its opinion and judgment in Medcorp, Inc.	69
v. Ohio Dep't. of Job and Family Servs. (2009), 121 Ohio St.3d	70
622.	71

The filing of a notice of appeal shall not automatically	72
operate as a suspension of the order of an agency. If it appears	73
to the court that an unusual hardship to the appellant will result	74
from the execution of the agency's order pending determination of	75
the appeal, the court may grant a suspension and fix its terms. If	76
an appeal is taken from the judgment of the court and the court	77
has previously granted a suspension of the agency's order as	78
provided in this section, the suspension of the agency's order	79
shall not be vacated and shall be given full force and effect	80
until the matter is finally adjudicated. No renewal of a license	81
or permit shall be denied by reason of the suspended order during	82
the period of the appeal from the decision of the court of common	83
pleas. In the case of an appeal from the state medical board or	84
state chiropractic board, the court may grant a suspension and fix	85
its terms if it appears to the court that an unusual hardship to	86
the appellant will result from the execution of the agency's order	87
pending determination of the appeal and the health, safety, and	88
welfare of the public will not be threatened by suspension of the	89
order. This provision shall not be construed to limit the factors	90
the court may consider in determining whether to suspend an order	91
of any other agency pending determination of an appeal.	92

The final order of adjudication may apply to any renewal of a	93
license or permit which has been granted during the period of the	94
appeal.	95

Notwithstanding any other provision of this section, any	96
order issued by a court of common pleas or a court of appeals	97
suspending the effect of an order of the liquor control commission	98
issued pursuant to Chapter 4301. or 4303. of the Revised Code that	99
suspends, revokes, or cancels a permit issued under Chapter 4303.	100
of the Revised Code or that allows the payment of a forfeiture	101
under section 4301.252 of the Revised Code shall terminate not	102
more than six months after the date of the filing of the record of	103
the liquor control commission with the clerk of the court of	104
common pleas and shall not be extended. The court of common pleas,	105
or the court of appeals on appeal, shall render a judgment in that	106
matter within six months after the date of the filing of the	107
record of the liquor control commission with the clerk of the	108
court of common pleas. A court of appeals shall not issue an order	109
suspending the effect of an order of the liquor control commission	110
that extends beyond six months after the date on which the record	111
of the liquor control commission is filed with a court of common	112
pleas.	113

Notwithstanding any other provision of this section, any	114
order issued by a court of common pleas suspending the effect of	115
an order of the state medical board or state chiropractic board	116
that limits, revokes, suspends, places on probation, or refuses to	117
register or reinstate a certificate issued by the board or	118
reprimands the holder of the certificate shall terminate not more	119
than fifteen months after the date of the filing of a notice of	120
appeal in the court of common pleas, or upon the rendering of a	121
final decision or order in the appeal by the court of common	122
pleas, whichever occurs first.	123

Within thirty days after receipt of a notice of appeal from	124
an order in any case in which a hearing is required by sections	125
119.01 to 119.13 of the Revised Code, the agency shall prepare and	126
certify to the court a complete record of the proceedings in the	127
case. Failure of the agency to comply within the time allowed,	128
upon motion, shall cause the court to enter a finding in favor of	129
the party adversely affected. Additional time, however, may be	130
granted by the court, not to exceed thirty days, when it is shown	131
that the agency has made substantial effort to comply. The record	132
shall be prepared and transcribed, and the expense of it shall be	133
taxed as a part of the costs on the appeal. The appellant shall	134
provide security for costs satisfactory to the court of common	135
pleas. Upon demand by any interested party, the agency shall	136
furnish at the cost of the party requesting it a copy of the	137
stenographic report of testimony offered and evidence submitted at	138
any hearing and a copy of the complete record.	139

Notwithstanding any other provision of this section, any	140
party desiring to appeal an order or decision of the state	141
personnel board of review shall, at the time of filing a notice of	142
appeal with the board, provide a security deposit in an amount and	143
manner prescribed in rules that the board shall adopt in	144
accordance with this chapter. In addition, the board is not	145
required to prepare or transcribe the record of any of its	146
proceedings unless the appellant has provided the deposit	147
described above. The failure of the board to prepare or transcribe	148
a record for an appellant who has not provided a security deposit	149
shall not cause a court to enter a finding adverse to the board.	150

Unless otherwise provided by law, in the hearing of the	151
appeal, the court is confined to the record as certified to it by	152
the agency. Unless otherwise provided by law, the court may grant	153
a request for the admission of additional evidence when satisfied	154
that the additional evidence is newly discovered and could not	155
with reasonable diligence have been ascertained prior to the	156
hearing before the agency.	157

The court shall conduct a hearing on the appeal and shall	158
give preference to all proceedings under sections 119.01 to 119.13	159
of the Revised Code, over all other civil cases, irrespective of	160
the position of the proceedings on the calendar of the court. An	161
appeal from an order of the state medical board issued pursuant to	162
division (G) of either section 4730.25 or 4731.22 of the Revised	163
Code, or the state chiropractic board issued pursuant to section	164
4734.37 of the Revised Code, or the liquor control commission	165
issued pursuant to Chapter 4301. or 4303. of the Revised Code	166
shall be set down for hearing at the earliest possible time and	167
takes precedence over all other actions. The hearing in the court	168
of common pleas shall proceed as in the trial of a civil action,	169
and the court shall determine the rights of the parties in	170
accordance with the laws applicable to a civil action. At the	171
hearing, counsel may be heard on oral argument, briefs may be	172
submitted, and evidence may be introduced if the court has granted	173
a request for the presentation of additional evidence.	174

The court may affirm the order of the agency complained of in	175
the appeal if it finds, upon consideration of the entire record	176
and any additional evidence the court has admitted, that the order	177
is supported by reliable, probative, and substantial evidence and	178
is in accordance with law. In the absence of this finding, it may	179
reverse, vacate, or modify the order or make such other ruling as	180
is supported by reliable, probative, and substantial evidence and	181
is in accordance with law. The court shall award compensation for	182
fees in accordance with section 2335.39 of the Revised Code to a	183
prevailing party, other than an agency, in an appeal filed	184
pursuant to this section.	185

The judgment of the court shall be final and conclusive	186
unless reversed, vacated, or modified on appeal. These appeals may	187
be taken either by the party or the agency, shall proceed as in	188
the case of appeals in civil actions, and shall be pursuant to the	189
Rules of Appellate Procedure and, to the extent not in conflict	190
with those rules, Chapter 2505. of the Revised Code. An appeal by	191
the agency shall be taken on questions of law relating to the	192
constitutionality, construction, or interpretation of statutes and	193
rules of the agency, and, in the appeal, the court may also review	194
and determine the correctness of the judgment of the court of	195
common pleas that the order of the agency is not supported by any	196
reliable, probative, and substantial evidence in the entire	197
record.	198

The court shall certify its judgment to the agency or take	199
any other action necessary to give its judgment effect.	200

Sec. 2305.25. As used in this section and sections 2305.251	201
to 2305.253 of the Revised Code:	202

(A)(1) "Health care entity" means an entity, whether acting	203
on its own behalf or on behalf of or in affiliation with other	204
health care entities, that conducts as part of its regular	205
business activities professional credentialing or quality review	206
activities involving the competence of, professional conduct of,	207
or quality of care provided by health care providers, including	208
both individuals who provide health care and entities that provide	209
health care.	210

(2) "Health care entity" includes any entity described in	211
division (A)(1) of this section, regardless of whether it is a	212
government entity; for-profit or nonprofit corporation; limited	213
liability company; partnership; professional corporation; state or	214
local society composed of physicians, dentists, optometrists,	215
psychologists, or pharmacists; or other health care organization.	216

(B) "Health insuring corporation" means an entity that holds	217
a certificate of authority under Chapter 1751. of the Revised	218
Code. "Health insuring corporation" includes wholly owned	219
subsidiaries of a health insuring corporation.	220

(C) "Hospital" means either of the following:

221

(1) An institution that has been registered or licensed by	222
the department of health as a hospital;	223

(2) An entity, other than an insurance company authorized to	224
do business in this state, that owns, controls, or is affiliated	225
with an institution that has been registered or licensed by the	226
department of health as a hospital.	227

(D) "Incident report or risk management report" means a	228
report of an incident involving injury or potential injury to a	229
patient as a result of patient care provided by health care	230
providers, including both individuals who provide health care and	231
entities that provide health care, that is prepared by or for the	232
use of a peer review committee of a health care entity and is	233
within the scope of the functions of that committee.	234

(E)(1) "Peer review committee" means a utilization review	235
committee, quality assessment committee, performance improvement	236
committee, tissue committee, credentialing committee, or other	237
committee that does either of the following:	238

(a) Conducts professional credentialing or quality review	239
activities involving the competence of, professional conduct of,	240
or quality of care provided by health care providers, including	241
both individuals who provide health care and entities that provide	242
health care;	243

(b) Conducts any other attendant hearing process initiated as	244
a result of a peer review committee's recommendations or actions.	245

(2) "Peer review committee" includes all of the following:

246

(a) A peer review committee of a hospital or long-term care	247
facility or a peer review committee of a nonprofit health care	248
corporation that is a member of the hospital or long-term care	249
facility or of which the hospital or facility is a member;	250

(b) A peer review committee of a community mental health	251
center;	252

(c) A board or committee of a hospital, a long-term care	253
facility, or other health care entity when reviewing professional	254
qualifications or activities of health care providers, including	255
both individuals who provide health care and entities that provide	256
health care;	257

(d) A peer review committee, professional standards review	258
committee, or arbitration committee of a state or local society	259
composed of members who are in active practice as physicians,	260
dentists, optometrists, psychologists, or pharmacists;	261

(e) A peer review committee of a health insuring corporation	262
that has at least a two-thirds majority of member physicians in	263
active practice and that conducts professional credentialing and	264
quality review activities involving the competence or professional	265
conduct of health care providers that adversely affects or could	266
adversely affect the health or welfare of any patient;	267

(f) A peer review committee of a health insuring corporation	268
that has at least a two-thirds majority of member physicians in	269
active practice and that conducts professional credentialing and	270
quality review activities involving the competence or professional	271
conduct of a health care facility that has contracted with the	272
health insuring corporation to provide health care services to	273
enrollees, which conduct adversely affects, or could adversely	274
affect, the health or welfare of any patient;	275

(g) A peer review committee of a sickness and accident	276
insurer that has at least a two-thirds majority of physicians in	277
active practice and that conducts professional credentialing and	278
quality review activities involving the competence or professional	279
conduct of health care providers that adversely affects or could	280
adversely affect the health or welfare of any patient;	281

(h) A peer review committee of a sickness and accident	282
insurer that has at least a two-thirds majority of physicians in	283
active practice and that conducts professional credentialing and	284
quality review activities involving the competence or professional	285
conduct of a health care facility that has contracted with the	286
insurer to provide health care services to insureds, which conduct	287
adversely affects, or could adversely affect, the health or	288
welfare of any patient;	289

(i) A peer review committee of any insurer authorized under	290
Title XXXIX of the Revised Code to do the business of medical	291
professional liability insurance in this state that conducts	292
professional quality review activities involving the competence or	293
professional conduct of health care providers that adversely	294
affects or could affect the health or welfare of any patient;	295

(j) A peer review committee of the bureau of workers'	296
compensation or the industrial commission that is responsible for	297
reviewing the professional qualifications and the performance of	298
providers certified by the bureau to participate in the health	299
partnership program or for conducting medical examinations or file	300
reviews for the bureau or the commission;	301

(k) Any other peer review committee of a health care entity.

302

(F) "Physician" means an individual authorized to practice	303
medicine and surgery, osteopathic medicine and surgery, or	304
podiatric medicine and surgery.	305

(G) "Sickness and accident insurer" means an entity	306
authorized under Title XXXIX of the Revised Code to do the	307
business of sickness and accident insurance in this state.	308

(H) "Tort action" means a civil action for damages for	309
injury, death, or loss to a patient of a health care entity. "Tort	310
action" includes a product liability claim, as defined in section	311
2307.71 of the Revised Code, and an asbestos claim, as defined in	312
section 2307.91 of the Revised Code, but does not include a civil	313
action for a breach of contract or another agreement between	314
persons.	315

Sec. 2305.252. (A) Proceedings and records within the scope	316
of a peer review committee of a health care entity shall be held	317
in confidence and shall not be subject to discovery or	318
introduction in evidence in any civil action against a health care	319
entity or health care provider, including both individuals who	320
provide health care and entities that provide health care, arising	321
out of matters that are the subject of evaluation and review by	322
the peer review committee. No individual who attends a meeting of	323
a peer review committee, serves as a member of a peer review	324
committee, works for or on behalf of a peer review committee, or	325
provides information to a peer review committee shall be permitted	326
or required to testify in any civil action as to any evidence or	327
other matters produced or presented during the proceedings of the	328
peer review committee or as to any finding, recommendation,	329
evaluation, opinion, or other action of the committee or a member	330
thereof. Information, documents, or records otherwise available	331
from original sources are not to be construed as being unavailable	332
for discovery or for use in any civil action merely because they	333
were produced or presented during proceedings of a peer review	334
committee, but the information, documents, or records are	335
available only from the original sources and cannot be obtained	336
from the peer review committee's proceedings or records. An	337
individual who testifies before a peer review committee, serves as	338
a representative of a peer review committee, serves as a member of	339
a peer review committee, works for or on behalf of a peer review	340
committee, or provides information to a peer review committee	341
shall not be prevented from testifying as to matters within the	342
individual's knowledge, but the individual cannot be asked about	343
the individual's testimony before the peer review committee,	344
information the individual provided to the peer review committee,	345
or any opinion the individual formed as a result of the peer	346
review committee's activities. An order by a court to produce for	347
discovery or for use at trial the proceedings or records described	348
in this section is a final order.	349

(B) Division (A) of this section applies to a peer review	350
committee of the bureau of workers' compensation that is	351
responsible for reviewing the professional qualifications and the	352
performance of providers certified by the bureau to participate in	353
the health partnership program created under sections 4121.44 and	354
4121.441 of the Revised Code, except that the proceedings and	355
records within the scope of the peer review committee are subject	356
to discovery or court subpoena and may be admitted into evidence	357
in any criminal action or administrative or civil action	358
initiated, prosecuted, or adjudicated by the bureau involving an	359
alleged violation of applicable law or administrative rule. The	360
bureau may share proceedings and records within the scope of the	361
peer review committee, including claimant records and claim file	362
information, with law enforcement agencies, licensing boards, and	363
other governmental agencies that are prosecuting, adjudicating, or	364
investigating alleged violations of applicable law or	365
administrative rule. Recipients of claimant records and claim file	366
information provided by the bureau pursuant to this division shall	367
take appropriate measures to maintain the confidentiality of the	368
information.	369

Sec. 4121.132.  (A) As used in this section, "workers'	370
compensation fraud investigation" means any investigation	371
conducted by the administrator of workers' compensation or a	372
designee of the administrator under the authority of division (F)	373
of section 4121.13 of the Revised Code that relates to a	374
fraudulent workers' compensation act.	375

(B) All documents, reports, and evidence in the possession of	376
the administrator or the administrator's designee that pertain to	377
a workers' compensation fraud investigation are confidential law	378
enforcement investigatory records under section 149.43 of the	379
Revised Code. Notwithstanding the requirements of that section,	380
the administrator shall not prohibit public inspection of the	381
records that pertain to a workers' compensation fraud	382
investigation for a period longer than two years after the date	383
the investigation is closed.	384

(C) Except when made confidential or otherwise exempt from	385
section 149.43 of the Revised Code, all documents, reports, and	386
evidence in the possession of the administrator or the	387
administrator's designee that do not pertain to a workers'	388
compensation fraud investigation are public records under section	389
149.43 of the Revised Code, and are not by that possession alone	390
confidential law enforcement investigatory records.	391

(D) All documents, reports, and evidence in the possession of	392
the bureau of workers' compensation special investigation	393
department or the administrator's designee that pertain to a	394
workers' compensation fraud investigation are not subject to	395
subpoena in civil actions or administrative proceeding by any	396
court or tribunal of this state until opened for public inspection	397
by the administrator in accordance with division (B) of this	398
section or with section 149.43 of the Revised Code, unless the	399
administrator or the administrator's designee consents.	400

(E) Notwithstanding divisions (B), (C), and (D) of this	401
section, the administrator may do either of the following:	402

(1) Share documents, reports, and evidence that are the	403
subject of this section with any of the following persons or	404
entities, provided that the recipient agrees to maintain the	405
confidential or privileged status of the confidential or	406
privileged document, report, or evidence and has authority to do	407
so:	408

(a) Any person employed by, or acting on behalf of, the	409
administrator;	410

(b) Local, state, federal, and international regulatory and	411
law enforcement agencies;	412

(c) Local, state, and federal prosecutors.

413

(2) Disclose documents, reports, and evidence that are the	414
subject of this section in the furtherance of any regulatory or	415
legal action brought by or on behalf of the administrator or the	416
state, resulting from the exercise of the administrator's official	417
duties.	418

(F) The administrator may enter into agreements with the	419
persons or entities listed in division (E) of this section	420
governing the sharing and use of documents, reports, and evidence	421
consistent with the requirements of this section.	422

(G) No waiver of any applicable privilege or claim of	423
confidentiality in the documents, reports, and evidence described	424
in this section shall occur as a result of sharing or receiving	425
documents, reports, and evidence as authorized in divisions (E) or	426
(F) of this section.	427

(H) The administrator and the administrator's designee are	428
not subject to subpoena in civil actions by any court of this	429
state to testify concerning any matter of which they have	430
knowledge pursuant to a pending workers' compensation fraud	431
investigation by the administrator.	432

Sec. 4121.443.  (A) The bureau of workers' compensation may	433
summarily suspend the certification of a provider to participate	434
in the health partnership program created under sections 4121.44	435
and 4121.441 of the Revised Code without a prior hearing if the	436
bureau determines any of the following apply to the provider:	437

(1) The professional license, certification, or registration	438
held by the provider has been revoked or suspended.	439

(2) The provider has been convicted of or has pleaded guilty	440
to a violation of section 2913.48 or sections 2923.31 to 2923.36	441
of the Revised Code or any other criminal offense related to the	442
delivery of or billing for health care benefits.	443

(3) The continued participation by the provider in the health	444
partnership program presents a danger to the health and safety of	445
claimants.	446

(B) The bureau shall issue a written order of summary	447
suspension by certified mail or in person in accordance with	448
section 119.07 of the Revised Code. The order shall not be subject	449
to suspension by the court during pendency of any appeal filed	450
under section 119.12 of the Revised Code. If the provider subject	451
to the summary suspension requests an adjudicatory hearing by the	452
bureau, the date set for the hearing shall be not later than	453
fifteen days, but not earlier than seven days, after the provider	454
requests the hearing, unless otherwise agreed to by both the	455
bureau and the provider.	456

(C) Any summary suspension imposed under this section shall	457
remain in effect, unless reversed on appeal, until a final	458
adjudication order issued by the bureau pursuant to this section	459
and Chapter 119. of the Revised Code takes effect. The bureau	460
shall issue its final adjudication order within seventy-five days	461
after completion of its hearing. A failure to issue the order	462
within the seventy-five-day time period shall result in	463
dissolution of the summary suspension order but shall not	464
invalidate any subsequent, final adjudication order.	465

Section 2.  That existing sections 119.12, 2305.25, and	466
2305.252 of the Revised Code are hereby repealed.	467