Bill Text: OH SB80 | 2009-2010 | 128th General Assembly | Comm Sub
Bill Title: To create an accountant-client testimonial privilege.
Spectrum: Moderate Partisan Bill (Republican 10-3)
Status: (Introduced - Dead) 2009-05-07 - Committee Report [SB80 Detail]
Download: Ohio-2009-SB80-Comm_Sub.html
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Senator Seitz
Cosponsors:
Senators Wagoner, Gibbs, Coughlin, Miller, D., Stewart, Hughes, Schuring, Patton, Widener, Schaffer, Turner, Kearney
To amend section 2317.02 of the Revised Code to | 1 |
create an accountant-client testimonial privilege. | 2 |
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That section 2317.02 of the Revised Code be | 3 |
amended to read as follows: | 4 |
Sec. 2317.02. The following persons shall not testify in | 5 |
certain respects: | 6 |
(A)(1) An attorney, concerning a communication made to the | 7 |
attorney by a client in that relation or the attorney's advice to | 8 |
a client, except that the attorney may testify by express consent | 9 |
of the client or, if the client is deceased, by the express | 10 |
consent of the surviving spouse or the executor or administrator | 11 |
of the estate of the deceased client. However, if the client | 12 |
voluntarily testifies or is deemed by section 2151.421 of the | 13 |
Revised Code to have waived any testimonial privilege under this | 14 |
division, the attorney may be compelled to testify on the same | 15 |
subject. | 16 |
The testimonial privilege established under this division | 17 |
does not apply concerning a communication between a client who has | 18 |
since died and the deceased client's attorney if the communication | 19 |
is relevant to a dispute between parties who claim through that | 20 |
deceased client, regardless of whether the claims are by testate | 21 |
or intestate succession or by inter vivos transaction, and the | 22 |
dispute addresses the competency of the deceased client when the | 23 |
deceased client executed a document that is the basis of the | 24 |
dispute or whether the deceased client was a victim of fraud, | 25 |
undue influence, or duress when the deceased client executed a | 26 |
document that is the basis of the dispute. | 27 |
(2) An attorney, concerning a communication made to the | 28 |
attorney by a client in that relationship or the attorney's advice | 29 |
to a client, except that if the client is an insurance company, | 30 |
the attorney may be compelled to testify, subject to an in camera | 31 |
inspection by a court, about communications made by the client to | 32 |
the attorney or by the attorney to the client that are related to | 33 |
the attorney's aiding or furthering an ongoing or future | 34 |
commission of bad faith by the client, if the party seeking | 35 |
disclosure of the communications has made a prima facie showing of | 36 |
bad faith, fraud, or criminal misconduct by the client. | 37 |
(B)(1) A physician or a dentist concerning a communication | 38 |
made to the physician or dentist by a patient in that relation or | 39 |
the physician's or dentist's advice to a patient, except as | 40 |
otherwise provided in this division, division (B)(2), and division | 41 |
(B)(3) of this section, and except that, if the patient is deemed | 42 |
by section 2151.421 of the Revised Code to have waived any | 43 |
testimonial privilege under this division, the physician may be | 44 |
compelled to testify on the same subject. | 45 |
The testimonial privilege established under this division | 46 |
does not apply, and a physician or dentist may testify or may be | 47 |
compelled to testify, in any of the following circumstances: | 48 |
(a) In any civil action, in accordance with the discovery | 49 |
provisions of the Rules of Civil Procedure in connection with a | 50 |
civil action, or in connection with a claim under Chapter 4123. of | 51 |
the Revised Code, under any of the following circumstances: | 52 |
(i) If the patient or the guardian or other legal | 53 |
representative of the patient gives express consent; | 54 |
(ii) If the patient is deceased, the spouse of the patient or | 55 |
the executor or administrator of the patient's estate gives | 56 |
express consent; | 57 |
(iii) If a medical claim, dental claim, chiropractic claim, | 58 |
or optometric claim, as defined in section 2305.113 of the Revised | 59 |
Code, an action for wrongful death, any other type of civil | 60 |
action, or a claim under Chapter 4123. of the Revised Code is | 61 |
filed by the patient, the personal representative of the estate of | 62 |
the patient if deceased, or the patient's guardian or other legal | 63 |
representative. | 64 |
(b) In any civil action concerning court-ordered treatment or | 65 |
services received by a patient, if the court-ordered treatment or | 66 |
services were ordered as part of a case plan journalized under | 67 |
section 2151.412 of the Revised Code or the court-ordered | 68 |
treatment or services are necessary or relevant to dependency, | 69 |
neglect, or abuse or temporary or permanent custody proceedings | 70 |
under Chapter 2151. of the Revised Code. | 71 |
(c) In any criminal action concerning any test or the results | 72 |
of any test that determines the presence or concentration of | 73 |
alcohol, a drug of abuse, a combination of them, a controlled | 74 |
substance, or a metabolite of a controlled substance in the | 75 |
patient's whole blood, blood serum or plasma, breath, urine, or | 76 |
other bodily substance at any time relevant to the criminal | 77 |
offense in question. | 78 |
(d) In any criminal action against a physician or dentist. In | 79 |
such an action, the testimonial privilege established under this | 80 |
division does not prohibit the admission into evidence, in | 81 |
accordance with the Rules of Evidence, of a patient's medical or | 82 |
dental records or other communications between a patient and the | 83 |
physician or dentist that are related to the action and obtained | 84 |
by subpoena, search warrant, or other lawful means. A court that | 85 |
permits or compels a physician or dentist to testify in such an | 86 |
action or permits the introduction into evidence of patient | 87 |
records or other communications in such an action shall require | 88 |
that appropriate measures be taken to ensure that the | 89 |
confidentiality of any patient named or otherwise identified in | 90 |
the records is maintained. Measures to ensure confidentiality that | 91 |
may be taken by the court include sealing its records or deleting | 92 |
specific information from its records. | 93 |
(e)(i) If the communication was between a patient who has | 94 |
since died and the deceased patient's physician or dentist, the | 95 |
communication is relevant to a dispute between parties who claim | 96 |
through that deceased patient, regardless of whether the claims | 97 |
are by testate or intestate succession or by inter vivos | 98 |
transaction, and the dispute addresses the competency of the | 99 |
deceased patient when the deceased patient executed a document | 100 |
that is the basis of the dispute or whether the deceased patient | 101 |
was a victim of fraud, undue influence, or duress when the | 102 |
deceased patient executed a document that is the basis of the | 103 |
dispute. | 104 |
(ii) If neither the spouse of a patient nor the executor or | 105 |
administrator of that patient's estate gives consent under | 106 |
division (B)(1)(a)(ii) of this section, testimony or the | 107 |
disclosure of the patient's medical records by a physician, | 108 |
dentist, or other health care provider under division (B)(1)(e)(i) | 109 |
of this section is a permitted use or disclosure of protected | 110 |
health information, as defined in 45 C.F.R. 160.103, and an | 111 |
authorization or opportunity to be heard shall not be required. | 112 |
(iii) Division (B)(1)(e)(i) of this section does not require | 113 |
a mental health professional to disclose psychotherapy notes, as | 114 |
defined in 45 C.F.R. 164.501. | 115 |
(iv) An interested person who objects to testimony or | 116 |
disclosure under division (B)(1)(e)(i) of this section may seek a | 117 |
protective order pursuant to Civil Rule 26. | 118 |
(v) A person to whom protected health information is | 119 |
disclosed under division (B)(1)(e)(i) of this section shall not | 120 |
use or disclose the protected health information for any purpose | 121 |
other than the litigation or proceeding for which the information | 122 |
was requested and shall return the protected health information to | 123 |
the covered entity or destroy the protected health information, | 124 |
including all copies made, at the conclusion of the litigation or | 125 |
proceeding. | 126 |
(2)(a) If any law enforcement officer submits a written | 127 |
statement to a health care provider that states that an official | 128 |
criminal investigation has begun regarding a specified person or | 129 |
that a criminal action or proceeding has been commenced against a | 130 |
specified person, that requests the provider to supply to the | 131 |
officer copies of any records the provider possesses that pertain | 132 |
to any test or the results of any test administered to the | 133 |
specified person to determine the presence or concentration of | 134 |
alcohol, a drug of abuse, a combination of them, a controlled | 135 |
substance, or a metabolite of a controlled substance in the | 136 |
person's whole blood, blood serum or plasma, breath, or urine at | 137 |
any time relevant to the criminal offense in question, and that | 138 |
conforms to section 2317.022 of the Revised Code, the provider, | 139 |
except to the extent specifically prohibited by any law of this | 140 |
state or of the United States, shall supply to the officer a copy | 141 |
of any of the requested records the provider possesses. If the | 142 |
health care provider does not possess any of the requested | 143 |
records, the provider shall give the officer a written statement | 144 |
that indicates that the provider does not possess any of the | 145 |
requested records. | 146 |
(b) If a health care provider possesses any records of the | 147 |
type described in division (B)(2)(a) of this section regarding the | 148 |
person in question at any time relevant to the criminal offense in | 149 |
question, in lieu of personally testifying as to the results of | 150 |
the test in question, the custodian of the records may submit a | 151 |
certified copy of the records, and, upon its submission, the | 152 |
certified copy is qualified as authentic evidence and may be | 153 |
admitted as evidence in accordance with the Rules of Evidence. | 154 |
Division (A) of section 2317.422 of the Revised Code does not | 155 |
apply to any certified copy of records submitted in accordance | 156 |
with this division. Nothing in this division shall be construed to | 157 |
limit the right of any party to call as a witness the person who | 158 |
administered the test to which the records pertain, the person | 159 |
under whose supervision the test was administered, the custodian | 160 |
of the records, the person who made the records, or the person | 161 |
under whose supervision the records were made. | 162 |
(3)(a) If the testimonial privilege described in division | 163 |
(B)(1) of this section does not apply as provided in division | 164 |
(B)(1)(a)(iii) of this section, a physician or dentist may be | 165 |
compelled to testify or to submit to discovery under the Rules of | 166 |
Civil Procedure only as to a communication made to the physician | 167 |
or dentist by the patient in question in that relation, or the | 168 |
physician's or dentist's advice to the patient in question, that | 169 |
related causally or historically to physical or mental injuries | 170 |
that are relevant to issues in the medical claim, dental claim, | 171 |
chiropractic claim, or optometric claim, action for wrongful | 172 |
death, other civil action, or claim under Chapter 4123. of the | 173 |
Revised Code. | 174 |
(b) If the testimonial privilege described in division (B)(1) | 175 |
of this section does not apply to a physician or dentist as | 176 |
provided in division (B)(1)(c) of this section, the physician or | 177 |
dentist, in lieu of personally testifying as to the results of the | 178 |
test in question, may submit a certified copy of those results, | 179 |
and, upon its submission, the certified copy is qualified as | 180 |
authentic evidence and may be admitted as evidence in accordance | 181 |
with the Rules of Evidence. Division (A) of section 2317.422 of | 182 |
the Revised Code does not apply to any certified copy of results | 183 |
submitted in accordance with this division. Nothing in this | 184 |
division shall be construed to limit the right of any party to | 185 |
call as a witness the person who administered the test in | 186 |
question, the person under whose supervision the test was | 187 |
administered, the custodian of the results of the test, the person | 188 |
who compiled the results, or the person under whose supervision | 189 |
the results were compiled. | 190 |
(4) The testimonial privilege described in division (B)(1) of | 191 |
this section is not waived when a communication is made by a | 192 |
physician to a pharmacist or when there is communication between a | 193 |
patient and a pharmacist in furtherance of the physician-patient | 194 |
relation. | 195 |
(5)(a) As used in divisions (B)(1) to (4) of this section, | 196 |
"communication" means acquiring, recording, or transmitting any | 197 |
information, in any manner, concerning any facts, opinions, or | 198 |
statements necessary to enable a physician or dentist to diagnose, | 199 |
treat, prescribe, or act for a patient. A "communication" may | 200 |
include, but is not limited to, any medical or dental, office, or | 201 |
hospital communication such as a record, chart, letter, | 202 |
memorandum, laboratory test and results, x-ray, photograph, | 203 |
financial statement, diagnosis, or prognosis. | 204 |
(b) As used in division (B)(2) of this section, "health care | 205 |
provider" means a hospital, ambulatory care facility, long-term | 206 |
care facility, pharmacy, emergency facility, or health care | 207 |
practitioner. | 208 |
(c) As used in division (B)(5)(b) of this section: | 209 |
(i) "Ambulatory care facility" means a facility that provides | 210 |
medical, diagnostic, or surgical treatment to patients who do not | 211 |
require hospitalization, including a dialysis center, ambulatory | 212 |
surgical facility, cardiac catheterization facility, diagnostic | 213 |
imaging center, extracorporeal shock wave lithotripsy center, home | 214 |
health agency, inpatient hospice, birthing center, radiation | 215 |
therapy center, emergency facility, and an urgent care center. | 216 |
"Ambulatory health care facility" does not include the private | 217 |
office of a physician or dentist, whether the office is for an | 218 |
individual or group practice. | 219 |
(ii) "Emergency facility" means a hospital emergency | 220 |
department or any other facility that provides emergency medical | 221 |
services. | 222 |
(iii) "Health care practitioner" has the same meaning as in | 223 |
section 4769.01 of the Revised Code. | 224 |
(iv) "Hospital" has the same meaning as in section 3727.01 of | 225 |
the Revised Code. | 226 |
(v) "Long-term care facility" means a nursing home, | 227 |
residential care facility, or home for the aging, as those terms | 228 |
are defined in section 3721.01 of the Revised Code; an adult care | 229 |
facility, as defined in section 3722.01 of the Revised Code; a | 230 |
nursing facility or intermediate care facility for the mentally | 231 |
retarded, as those terms are defined in section 5111.20 of the | 232 |
Revised Code; a facility or portion of a facility certified as a | 233 |
skilled nursing facility under Title XVIII of the "Social Security | 234 |
Act," 49 Stat. 286 (1965), 42 U.S.C.A. 1395, as amended. | 235 |
(vi) "Pharmacy" has the same meaning as in section 4729.01 of | 236 |
the Revised Code. | 237 |
(d) As used in divisions (B)(1) and (2) of this section, | 238 |
"drug of abuse" has the same meaning as in section 4506.01 of the | 239 |
Revised Code. | 240 |
(6) Divisions (B)(1), (2), (3), (4), and (5) of this section | 241 |
apply to doctors of medicine, doctors of osteopathic medicine, | 242 |
doctors of podiatry, and dentists. | 243 |
(7) Nothing in divisions (B)(1) to (6) of this section | 244 |
affects, or shall be construed as affecting, the immunity from | 245 |
civil liability conferred by section 307.628 of the Revised Code | 246 |
or the immunity from civil liability conferred by section 2305.33 | 247 |
of the Revised Code upon physicians who report an employee's use | 248 |
of a drug of abuse, or a condition of an employee other than one | 249 |
involving the use of a drug of abuse, to the employer of the | 250 |
employee in accordance with division (B) of that section. As used | 251 |
in division (B)(7) of this section, "employee," "employer," and | 252 |
"physician" have the same meanings as in section 2305.33 of the | 253 |
Revised Code. | 254 |
(C)(1) A cleric, when the cleric remains accountable to the | 255 |
authority of that cleric's church, denomination, or sect, | 256 |
concerning a confession made, or any information confidentially | 257 |
communicated, to the cleric for a religious counseling purpose in | 258 |
the cleric's professional character. The cleric may testify by | 259 |
express consent of the person making the communication, except | 260 |
when the disclosure of the information is in violation of a sacred | 261 |
trust and except that, if the person voluntarily testifies or is | 262 |
deemed by division (A)(4)(c) of section 2151.421 of the Revised | 263 |
Code to have waived any testimonial privilege under this division, | 264 |
the cleric may be compelled to testify on the same subject except | 265 |
when disclosure of the information is in violation of a sacred | 266 |
trust. | 267 |
(2) As used in division (C) of this section: | 268 |
(a) "Cleric" means a member of the clergy, rabbi, priest, | 269 |
Christian Science practitioner, or regularly ordained, accredited, | 270 |
or licensed minister of an established and legally cognizable | 271 |
church, denomination, or sect. | 272 |
(b) "Sacred trust" means a confession or confidential | 273 |
communication made to a cleric in the cleric's ecclesiastical | 274 |
capacity in the course of discipline enjoined by the church to | 275 |
which the cleric belongs, including, but not limited to, the | 276 |
Catholic Church, if both of the following apply: | 277 |
(i) The confession or confidential communication was made | 278 |
directly to the cleric. | 279 |
(ii) The confession or confidential communication was made in | 280 |
the manner and context that places the cleric specifically and | 281 |
strictly under a level of confidentiality that is considered | 282 |
inviolate by canon law or church doctrine. | 283 |
(D) Husband or wife, concerning any communication made by one | 284 |
to the other, or an act done by either in the presence of the | 285 |
other, during coverture, unless the communication was made, or act | 286 |
done, in the known presence or hearing of a third person competent | 287 |
to be a witness; and such rule is the same if the marital relation | 288 |
has ceased to exist; | 289 |
(E) A person who assigns a claim or interest, concerning any | 290 |
matter in respect to which the person would not, if a party, be | 291 |
permitted to testify; | 292 |
(F) A person who, if a party, would be restricted under | 293 |
section 2317.03 of the Revised Code, when the property or thing is | 294 |
sold or transferred by an executor, administrator, guardian, | 295 |
trustee, heir, devisee, or legatee, shall be restricted in the | 296 |
same manner in any action or proceeding concerning the property or | 297 |
thing. | 298 |
(G)(1) A school guidance counselor who holds a valid educator | 299 |
license from the state board of education as provided for in | 300 |
section 3319.22 of the Revised Code, a person licensed under | 301 |
Chapter 4757. of the Revised Code as a professional clinical | 302 |
counselor, professional counselor, social worker, independent | 303 |
social worker, marriage and family therapist or independent | 304 |
marriage and family therapist, or registered under Chapter 4757. | 305 |
of the Revised Code as a social work assistant concerning a | 306 |
confidential communication received from a client in that relation | 307 |
or the person's advice to a client unless any of the following | 308 |
applies: | 309 |
(a) The communication or advice indicates clear and present | 310 |
danger to the client or other persons. For the purposes of this | 311 |
division, cases in which there are indications of present or past | 312 |
child abuse or neglect of the client constitute a clear and | 313 |
present danger. | 314 |
(b) The client gives express consent to the testimony. | 315 |
(c) If the client is deceased, the surviving spouse or the | 316 |
executor or administrator of the estate of the deceased client | 317 |
gives express consent. | 318 |
(d) The client voluntarily testifies, in which case the | 319 |
school guidance counselor or person licensed or registered under | 320 |
Chapter 4757. of the Revised Code may be compelled to testify on | 321 |
the same subject. | 322 |
(e) The court in camera determines that the information | 323 |
communicated by the client is not germane to the counselor-client, | 324 |
marriage and family therapist-client, or social worker-client | 325 |
relationship. | 326 |
(f) A court, in an action brought against a school, its | 327 |
administration, or any of its personnel by the client, rules after | 328 |
an in-camera inspection that the testimony of the school guidance | 329 |
counselor is relevant to that action. | 330 |
(g) The testimony is sought in a civil action and concerns | 331 |
court-ordered treatment or services received by a patient as part | 332 |
of a case plan journalized under section 2151.412 of the Revised | 333 |
Code or the court-ordered treatment or services are necessary or | 334 |
relevant to dependency, neglect, or abuse or temporary or | 335 |
permanent custody proceedings under Chapter 2151. of the Revised | 336 |
Code. | 337 |
(2) Nothing in division (G)(1) of this section shall relieve | 338 |
a school guidance counselor or a person licensed or registered | 339 |
under Chapter 4757. of the Revised Code from the requirement to | 340 |
report information concerning child abuse or neglect under section | 341 |
2151.421 of the Revised Code. | 342 |
(H) A mediator acting under a mediation order issued under | 343 |
division (A) of section 3109.052 of the Revised Code or otherwise | 344 |
issued in any proceeding for divorce, dissolution, legal | 345 |
separation, annulment, or the allocation of parental rights and | 346 |
responsibilities for the care of children, in any action or | 347 |
proceeding, other than a criminal, delinquency, child abuse, child | 348 |
neglect, or dependent child action or proceeding, that is brought | 349 |
by or against either parent who takes part in mediation in | 350 |
accordance with the order and that pertains to the mediation | 351 |
process, to any information discussed or presented in the | 352 |
mediation process, to the allocation of parental rights and | 353 |
responsibilities for the care of the parents' children, or to the | 354 |
awarding of parenting time rights in relation to their children; | 355 |
(I) A communications assistant, acting within the scope of | 356 |
the communication assistant's authority, when providing | 357 |
telecommunications relay service pursuant to section 4931.35 of | 358 |
the Revised Code or Title II of the "Communications Act of 1934," | 359 |
104 Stat. 366 (1990), 47 U.S.C. 225, concerning a communication | 360 |
made through a telecommunications relay service. Nothing in this | 361 |
section shall limit the obligation of a communications assistant | 362 |
to divulge information or testify when mandated by federal law or | 363 |
regulation or pursuant to subpoena in a criminal proceeding. | 364 |
Nothing in this section shall limit any immunity or privilege | 365 |
granted under federal law or regulation. | 366 |
(J)(1) A chiropractor in a civil proceeding concerning a | 367 |
communication made to the chiropractor by a patient in that | 368 |
relation or the chiropractor's advice to a patient, except as | 369 |
otherwise provided in this division. The testimonial privilege | 370 |
established under this division does not apply, and a chiropractor | 371 |
may testify or may be compelled to testify, in any civil action, | 372 |
in accordance with the discovery provisions of the Rules of Civil | 373 |
Procedure in connection with a civil action, or in connection with | 374 |
a claim under Chapter 4123. of the Revised Code, under any of the | 375 |
following circumstances: | 376 |
(a) If the patient or the guardian or other legal | 377 |
representative of the patient gives express consent. | 378 |
(b) If the patient is deceased, the spouse of the patient or | 379 |
the executor or administrator of the patient's estate gives | 380 |
express consent. | 381 |
(c) If a medical claim, dental claim, chiropractic claim, or | 382 |
optometric claim, as defined in section 2305.113 of the Revised | 383 |
Code, an action for wrongful death, any other type of civil | 384 |
action, or a claim under Chapter 4123. of the Revised Code is | 385 |
filed by the patient, the personal representative of the estate of | 386 |
the patient if deceased, or the patient's guardian or other legal | 387 |
representative. | 388 |
(2) If the testimonial privilege described in division (J)(1) | 389 |
of this section does not apply as provided in division (J)(1)(c) | 390 |
of this section, a chiropractor may be compelled to testify or to | 391 |
submit to discovery under the Rules of Civil Procedure only as to | 392 |
a communication made to the chiropractor by the patient in | 393 |
question in that relation, or the chiropractor's advice to the | 394 |
patient in question, that related causally or historically to | 395 |
physical or mental injuries that are relevant to issues in the | 396 |
medical claim, dental claim, chiropractic claim, or optometric | 397 |
claim, action for wrongful death, other civil action, or claim | 398 |
under Chapter 4123. of the Revised Code. | 399 |
(3) The testimonial privilege established under this division | 400 |
does not apply, and a chiropractor may testify or be compelled to | 401 |
testify, in any criminal action or administrative proceeding. | 402 |
(4) As used in this division, "communication" means | 403 |
acquiring, recording, or transmitting any information, in any | 404 |
manner, concerning any facts, opinions, or statements necessary to | 405 |
enable a chiropractor to diagnose, treat, or act for a patient. A | 406 |
communication may include, but is not limited to, any | 407 |
chiropractic, office, or hospital communication such as a record, | 408 |
chart, letter, memorandum, laboratory test and results, x-ray, | 409 |
photograph, financial statement, diagnosis, or prognosis. | 410 |
(K)(1) Except as provided under division (K)(2) of this | 411 |
section, a critical incident stress management team member | 412 |
concerning a communication received from an individual who | 413 |
receives crisis response services from the team member, or the | 414 |
team member's advice to the individual, during a debriefing | 415 |
session. | 416 |
(2) The testimonial privilege established under division | 417 |
(K)(1) of this section does not apply if any of the following are | 418 |
true: | 419 |
(a) The communication or advice indicates clear and present | 420 |
danger to the individual who receives crisis response services or | 421 |
to other persons. For purposes of this division, cases in which | 422 |
there are indications of present or past child abuse or neglect of | 423 |
the individual constitute a clear and present danger. | 424 |
(b) The individual who received crisis response services | 425 |
gives express consent to the testimony. | 426 |
(c) If the individual who received crisis response services | 427 |
is deceased, the surviving spouse or the executor or administrator | 428 |
of the estate of the deceased individual gives express consent. | 429 |
(d) The individual who received crisis response services | 430 |
voluntarily testifies, in which case the team member may be | 431 |
compelled to testify on the same subject. | 432 |
(e) The court in camera determines that the information | 433 |
communicated by the individual who received crisis response | 434 |
services is not germane to the relationship between the individual | 435 |
and the team member. | 436 |
(f) The communication or advice pertains or is related to any | 437 |
criminal act. | 438 |
(3) As used in division (K) of this section: | 439 |
(a) "Crisis response services" means consultation, risk | 440 |
assessment, referral, and on-site crisis intervention services | 441 |
provided by a critical incident stress management team to | 442 |
individuals affected by crisis or disaster. | 443 |
(b) "Critical incident stress management team member" or | 444 |
"team member" means an individual specially trained to provide | 445 |
crisis response services as a member of an organized community or | 446 |
local crisis response team that holds membership in the Ohio | 447 |
critical incident stress management network. | 448 |
(c) "Debriefing session" means a session at which crisis | 449 |
response services are rendered by a critical incident stress | 450 |
management team member during or after a crisis or disaster. | 451 |
(L)(1) Subject to division (L)(2) of this section and except | 452 |
as provided in division (L)(3) of this section, an employee | 453 |
assistance professional, concerning a communication made to the | 454 |
employee assistance professional by a client in the employee | 455 |
assistance professional's official capacity as an employee | 456 |
assistance professional. | 457 |
(2) Division (L)(1) of this section applies to an employee | 458 |
assistance professional who meets either or both of the following | 459 |
requirements: | 460 |
(a) Is certified by the employee assistance certification | 461 |
commission to engage in the employee assistance profession; | 462 |
(b) Has education, training, and experience in all of the | 463 |
following: | 464 |
(i) Providing workplace-based services designed to address | 465 |
employer and employee productivity issues; | 466 |
(ii) Providing assistance to employees and employees' | 467 |
dependents in identifying and finding the means to resolve | 468 |
personal problems that affect the employees or the employees' | 469 |
performance; | 470 |
(iii) Identifying and resolving productivity problems | 471 |
associated with an employee's concerns about any of the following | 472 |
matters: health, marriage, family, finances, substance abuse or | 473 |
other addiction, workplace, law, and emotional issues; | 474 |
(iv) Selecting and evaluating available community resources; | 475 |
(v) Making appropriate referrals; | 476 |
(vi) Local and national employee assistance agreements; | 477 |
(vii) Client confidentiality. | 478 |
(3) Division (L)(1) of this section does not apply to any of | 479 |
the following: | 480 |
(a) A criminal action or proceeding involving an offense | 481 |
under sections 2903.01 to 2903.06 of the Revised Code if the | 482 |
employee assistance professional's disclosure or testimony relates | 483 |
directly to the facts or immediate circumstances of the offense; | 484 |
(b) A communication made by a client to an employee | 485 |
assistance professional that reveals the contemplation or | 486 |
commission of a crime or serious, harmful act; | 487 |
(c) A communication that is made by a client who is an | 488 |
unemancipated minor or an adult adjudicated to be incompetent and | 489 |
indicates that the client was the victim of a crime or abuse; | 490 |
(d) A civil proceeding to determine an individual's mental | 491 |
competency or a criminal action in which a plea of not guilty by | 492 |
reason of insanity is entered; | 493 |
(e) A civil or criminal malpractice action brought against | 494 |
the employee assistance professional; | 495 |
(f) When the employee assistance professional has the express | 496 |
consent of the client or, if the client is deceased or disabled, | 497 |
the client's legal representative; | 498 |
(g) When the testimonial privilege otherwise provided by | 499 |
division (L)(1) of this section is abrogated under law. | 500 |
(M)(1) Except as provided in divisions (M)(2) to (6) of this | 501 |
section, an accountant, concerning a communication made to the | 502 |
accountant by a client in that relation or the accountant's advice | 503 |
to the client. | 504 |
(2) Division (M)(1) of this section does not apply, and an | 505 |
accountant may testify or may be compelled to testify concerning a | 506 |
communication or advice described in that division, if the client | 507 |
expressly consents to the accountant's testifying or if the client | 508 |
is deceased and the client's surviving spouse or the executor or | 509 |
administrator of the client's estate expressly consents to the | 510 |
accountant's testifying. | 511 |
(3) If the client voluntarily testifies or if the client is | 512 |
deemed to have waived the accountant-client testimonial privilege | 513 |
created by division (M)(1) of this section, that division does not | 514 |
apply, and the accountant may testify or may be compelled to | 515 |
testify on the same subject upon which the client voluntarily | 516 |
testifies or on the same subject with respect to which the client | 517 |
is deemed to have waived the accountant-client testimonial | 518 |
privilege. | 519 |
(4) Division (M)(1) of this section does not apply to work | 520 |
papers or other work product of an accountant. | 521 |
(5) The accountant-client testimonial privilege created by | 522 |
division (M)(1) of this section does not apply if the client | 523 |
sought or obtained the services of the accountant to enable or aid | 524 |
any person to commit or plan to commit what the client knew or | 525 |
reasonably should have known to be fraud or a crime. | 526 |
(6) The accountant-client testimonial privilege created by | 527 |
division (M)(1) of this section is not applicable to a client | 528 |
receiving an audit pursuant to sections 117.10 and 117.11 of the | 529 |
Revised Code. | 530 |
(7) The accountant-client testimonial privilege created by | 531 |
division (M)(1) of this section is not affected by an accountant's | 532 |
participation in a peer review conducted in accordance with | 533 |
section 4701.04 of the Revised Code. | 534 |
(8) The general assembly hereby declares its intent that, | 535 |
insofar as the provisions of division (M) of this section are | 536 |
similar to the provisions of division (A) of this section, the | 537 |
accountant-client testimonial privilege created by division (M)(1) | 538 |
of this section be construed, interpreted, and applied in a manner | 539 |
consistent with the attorney-client testimonial privilege created | 540 |
under division (A) of this section. | 541 |
(9) As used in division (M) of this section: | 542 |
(a) "Public record" has the same meaning as in section 149.43 | 543 |
of the Revised Code. | 544 |
(b) "Work papers or other work product" means any of the | 545 |
following: | 546 |
(i) Federal, state, or local tax returns; | 547 |
(ii) Audit, review, compilation, or other similar reports; | 548 |
(iii) Financial reports that have been disclosed to third | 549 |
parties, that are public records or otherwise are required by the | 550 |
law of this state or the United States to be made public, or that | 551 |
are mere data compilations; | 552 |
(iv) Financial information that does not include deliberative | 553 |
communications made to an accountant by a client in that relation | 554 |
or the accountant's advice to the client in connection with those | 555 |
deliberative communications and that is not covered by division | 556 |
(M)(9)(b)(i), (ii), or (iii) of this section. | 557 |
(c) "Accountant" means a person who holds a valid permit to | 558 |
practice public accounting under Chapter 4701. of the Revised | 559 |
Code. | 560 |
Section 2. That existing section 2317.02 of the Revised Code | 561 |
is hereby repealed. | 562 |