Ohio Expands Protections for Impaired Physicians and Other Providers

October 3, 2023Legal Alerts

Tucked away in the recent Ohio Budget Bill, House Bill 33, were statutory changes that expand and modernize the statutes related to physicians and other health care professionals licensed by the State Medical Board of Ohio (Board). Perhaps most important, these changes will facilitate a pathway for confidential, non-disciplinary monitoring by a designated monitoring program for not only substance use disorders, but also for mental health conditions as well as physical illnesses and disabilities. The Board’s new Confidential Monitoring Program went into effect on October 3, 2023, and the Board is already working to promulgate new administrative rules that are expected to become effective in mid-November 2023, and will further implement the new system.

Under the Confidential Monitoring Program, which will be available to both license holders and applicants, any practitioner suffering from impairment due a substance use disorder as well as mental and physical health issues, will be eligible as long as the practitioner is not currently under a Board Order or Consent Agreement for impairment. The Ohio Professionals Health Program (OhioPHP) will oversee and coordinate the Confidential Monitoring Program, and will approve treatment centers and providers for impaired practitioners. Additionally, the details and parameters of any evaluation and/or treatment will be set by clinical providers, working with OhioPHP, rather than having specified minimums and other rigid requirements. Finally, while practitioners currently under a Board action for impairment are ineligible for the Confidential Monitoring Program, the Board will have the option to refer disciplinary monitoring to OhioPHP under the new statutes.

The Board’s new Confidential Monitoring Program will replace and expand the two prior pathways for non-disciplinary monitoring – the One Bite Program and the Alternative Program. The One Bite Program allowed an impaired physician to avoid Board discipline, and the physician’s colleagues would be excused from mandatory reporting obligations, so long as the physician completed treatment with a Board-approved treatment provider, entered into a monitoring agreement with the OhioPHP, maintained uninterrupted sobriety and violated no other provisions of the Ohio Medical Practices Act. While the One Bite Program motivated many physicians to self-refer for treatment, the One Bite Program had some flaws, including the prospect of public discipline and a mandatory license suspension if the person suffered a relapse. Considering that alcohol and substance use disorders are chronic conditions, many members of the medical community felt it was misguided to penalize a provider for a recurrence of their health condition.  Under the Confidential Monitoring Program, practitioners who relapse will be allowed to remain under confidential monitoring instead of it being a one-time opportunity. 

The Board’s previous Alternative Program allowed for confidential monitoring and avoidance of disciplinary action for mental health conditions or physical illnesses, but unlike the One Bite Program, participants in the Alternative Program were not monitored by a private organization like OhioPHP; rather, they health care provider had to reveal themselves and apply for admittance directly with the Board. Many individuals were reluctant to seek admission and disclosure their conditions and situations to the Board, and the Alternative Program never had the type of participation that should have been expected considering the amount of physicians and other professionals monitored by the Board.[i]

The Board has published further information about the Confidential Monitoring Program, which is linked here. A hearing to discuss the proposed administrative rules for the Confidential Monitoring Program is scheduled for October 4, 2023. Should you have any questions about the Confidential Monitoring Program or the forthcoming rules hearing, please contact your Dinsmore health care attorney.