The Medical Board’s
Evolving Approach to
Impairment Cases and the
“One Bite” Rule
Glenbeigh Hospital
The Medical Board’s
Evolving Approach to
Impairment Cases and the
“One Bite” Rule
Glenbeigh Hospital
Daniel S. Zinsmaster, Esq.
Columbus, Ohio
E: daniel.zinsmaster@dinsmore.com
P: (614) 628-6949
F: (614) 628-6890
State Medical Board of Ohio – General
 12 Board Members (7 MDs, 1 DO, 1 DPM, 3 consumer
members)
 Staff of 80
 Executive; Licensure; Enforcement / Investigations /
Compliance
State Medical Board of Ohio – General
 Board licenses 55,000 health care professionals
 MDs, DOs, DPMs, PAs, MTs, CTs, AAs, RAs,
Acupuncturists, and Genetic Counselors
Investigations
 4500-5000 complaints per year
 Immunity to complainants
 No statute of limitations
 Confidential pursuant to R.C. 4731.22(F)(5)
Investigations
 Board’s Secretary (Mark Bechtel, MD) and Supervising
Member (Bruce Saferin, DPM) oversee entire
investigative process
Investigations
 Approximately 20 field Investigators
 8 enforcement attorneys plus Chief Enforcement
Attorney (Rebecca Marshall)
 Quality Intervention Panel
Discipline
 R.C. 4731.22 – basis for disciplinary action
 Over 45 different grounds for action
 Ohio Administrative Code (“OAC”) – rules promulgated
by Board
 Code of Ethics (AMA, AOA, ABPM)
Discipline
 Sanctions include: no further action; reprimand; denial;
limitation; probation; suspension; revocation (permanent
and non-permanent)
 R.C. 4731.22(G) – summary suspension (clear and
convincing evidence of violation + danger of immediate
and serious harm)
Impairment
 R.C. 4731.22(B)(26) – “Impairment of ability to practice
according to acceptable and prevailing standards of care
because of habitual or excessive use or abuse of drugs,
alcohol, or other substances that impair ability to
practice.”
 Definition includes an inability to practice without
appropriate treatment, monitoring or supervision
Impairment
 OAC Chapter 4731-16, Impaired Practitioners
 OAC 4731-16-02 – general procedures in impairment
cases
Impairment
 Primary source of Board disciplinary actions
 40% of total actions for FY 2014
Impairment Evaluation
 Evaluation at Board-approved treatment provider
 Legal standard to compel – “reason to believe”
 Internal criteria to assist S/SM’s determination
 Failure to attend amounts to an admission unless
circumstances beyond control
Impairment Evaluation
 OAC 4731-16-05 – 72-hour evaluation (except for MTs)
 Urine screening, blood alcohol testing, or both
 Complete medical history and physical examination
 Psychiatric evaluation and mental status examination
 Comprehensive chemical use history
Impairment Evaluation
 Costs borne by applicant or licensee
 Generally $2000 to $6000
 Board chooses date, time, and location
 Generally, no duty to reschedule
Impairment Evaluation
 Legal definition different from medical definition
 DSM vs. R.C. 4731.22(B)(26)
 Does chemical misuse warrant treatment, monitoring or
supervision?
Treatment
 28 days minimum of inpatient treatment
 2 year aftercare contract (compliant with OAC 4731-1610)
Impairment Actions
 If disciplinary action sought, indefinite suspension
forthcoming
 Pre-2013, Step I and II Consent Agreements
 Current approach, summary suspension pursuant to
R.C. 4731.22(G)
Impairment Actions
 Minimum suspension period for criminal conduct
associated with impairment
 Minimum of two assessments to be reinstated
 5 year probationary term following license reinstatement
“One Bite”
 Affords impaired licensee opportunity to avoid public
action if he or she seeks evaluation and treatment
before and/or without Board intervention
 Must meet stringent and often unclear criteria
“One Bite”
 Many common misconceptions (e.g. not a rule, but a
policy)
 Exemption from the mandatory reporting requirements
(R.C. 4731.224, R.C. 4731.25, OAC 4731-15, OAC
4731-16-07)
“One Bite”– disqualifying conduct
 Criminal conviction related to use or abuse of a
controlled substance, or criminal conviction of any type
(other than DUI) at or near the time that the Board is
determining whether the licensee qualifies for One Bite
 Treatment in lieu
 Relapse
“One Bite”– disqualifying conduct continued
 Failure to complete appropriate treatment and aftercare
with a Board-approved provider
 Criminal acts that involve the use of another’s name or
involve patients, the use of another physician’s name as
the issuing/authorizing physician, and/or lying to other
physicians to obtain drugs
 Patient care known to have been compromised
“One Bite”– disqualifying conduct continued
 Out of state action
 License applicants (except those who previously were
granted one bite status while holding a training
certificate, apply for full licensure, and otherwise qualify
for continuing one bite status)
“One Bite”– qualifying conduct
 Illegal drug use
 DUI conviction
 Taking drugs from source that does not involve patients
(office supply/other stock)
 Issuing prescriptions for drugs for one’s own use in one’s
own name or a fake name
“One Bite”– Out-of-State Licensees
 OAC 4731-16-12(C) – a certificate holder who neither
resides nor practices in Ohio who is diagnosed or treated
for chemical abuse or chemical dependency outside
Ohio must report that diagnosis or treatment in renewing
his or her certificate
 But…
“One Bite”– Out-of-State Licensees
 OAC 4731-16-02(D) – the board may forgo action if:
1. Not subject to discipline in any other jurisdiction
2. Is receiving or has completed treatment with a provider
acceptable to the medical licensing agency in which he /
she resides
3. No relapse
4. Is participating in or has completed monitoring or
diversion program acceptable to the medical licensing
agency in which he / she resides
Mental or Physical Illness
 R.C. 4731.22(B)(19) – “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.”
 Definition includes an inability to practice without
appropriate treatment, monitoring or supervision
“One Bite” – Mental or Physical Illness
 Does not exist in Ohio
 Deters mental health treatment and self-reporting to
Board
 Dual diagnoses can oftentimes preclude (B)(26) One
Bite
“One Bite” – Proposed Changes
 All persons diagnosed with chemical dependency or
abuse would be required to send notice to the Board
 Board’s Compliance Officer and S/SM would review to
determine if person qualifies for One Bite
 If yes, gets One Bite approval letter
 If not, complaint filed and disciplinary action likely
“One Bite” – Proposed Changes continued
 Board’s proposed changes would require not just new
administrative rules, but legislative action to alter
statutes
 Push back from medical community and other interested
parties
“One Bite” – Proposed Changes continued
 Chilling effect to self-referred evaluations and voluntary
treatment
 One Bite review would be entirely internal with no
recourse or right to appeal adverse conclusion
“One Bite” – Proposed Changes continued
 (B)(19) One Bite?
Suboxone
 Suspended licensees taking Suboxone for opioid
withdrawal and maintenance will not be reinstated by the
Board
 Suspended licensees with a history of opioid
dependency or abuse and taking Suboxone for pain
management will be reinstated by the Board
Interesting non-Ohio Developments
 California Proposition 46
 Would require hospitals to randomly drug test physicians
as follows:
 Within 24 hours of adverse event, or
 When hospital receives report of possible impairment while
on duty or failure to follow appropriate standard of care
 Positive results reported to California Medical Board
Interesting non-Ohio Developments continued
 Supported by Daniel Levinson, Inspector General,
United States Department of Health and Human
Services
 Also supported by Sen. Barbara Boxer and Rep. Nancy
Pelosi
 Polling and focus group show early approval of proposal
from electorate
Daniel S. Zinsmaster, Esq.
Questions?
Dinsmore & Shohl LLP
191 West Nationwide Blvd, Suite 300
Columbus, Ohio 43215
Direct: (614) 628-6949
Fax: (614) 628-6890
daniel.zinsmaster@dinsmore.com