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Ohio's "One Bite" Program Changes

The Ohio Medical Board has for some years had a “One Bite” program where a physician with a substance problem could undergo treatment. The treatment was private and not disclosed to the Medical Board. If the problem was later disclosed, the physician obtaining treatment would avoid sanctions from the Medical Board.

The Medical Board has significantly rewritten the program with new terms to go into effect in January of 2019 with some of the details still being developed. In short, the new program now includes a mandatory suspension, more detailed program requirements for both treatment, ongoing monitoring, as well as five (5) year commitment from the practitioner. While the Board has not stated the reasons for the change, the rumor was that there were differing treatment approaches from various approved treatment providers and this rule imposes a uniform five (5) year program.

We first start with what types of conditions may be covered as “One Bite”. The rules have clarified that only practitioners who are suffering drug or alcohol substance abuse are eligible to participate in the program. Physician who may have mental or physical conditions are not eligible for the program as currently written. The prior version of the rules provided that a physician who voluntarily underwent treatment, would not have to disclose he or she has undergone treatment and so long as an additional violation was not reported, the process would not appear in the Medical Board records. In short, a physician could privately obtain treatment without having the matter reported to the Medical Board and being subject to further Medical Board inquiry. The new rules provide that anyone participating the program will automatically result in a reporting to the Board for any deviations during the five (5) year program.

If a provider believes they may be suffering from drug or alcohol abuse, the physician is directed contact the entity identified by the Medical Board as the “monitoring organization”. That organization has not yet been selected by the Medical Board but until that is done, physicians are directed to contact Ohio Physicians Health Program which was the prior voluntary program to aid physicians with abuse issues. After being assessed by the “monitoring organization”, should the physician deemed “impaired”, the physician is required to report to a Board approved treatment provider within three (3) days and that provider will develop an individualized treatment plan that may include both inpatient residence and other outpatient treatment options. Only providers that have been pre-approved by the “monitoring organization” are approved for use by a physician under the program. In the past, physicians could select licensed treatment facilities some of which where outside of Ohio to undergo treatment.

The physician is required to suspend the practice of medicine for a minimum of thirty (30) days. The rule is unclear whether the physician is required to report such suspension to the Medical Board or that they can simply close their practice for thirty (30) days and that will remain an open issue. The thirty (30) days is a minimum period and the physician may not reopen their office without the consent by both the treatment provider as well as the medical director of the “monitoring organization”. Again, the rules are not clear, and a provider could potential be suspended for much longer periods. If a physician elects to reopen their practice without the consent of both, the “monitoring organization” is required to report that event to the Medical Board which will likely result in an automatic suspension. 

Outside of the “One Bite” program, if the Medical Board found a physician who was potentially abusing drugs of alcohol, the Medical Board had adopted disciplinary guidelines in 2018. Under the guidelines, the first offense minimum penalty provides for an immediate indefinite suspension with a minimum of ninety (90) days or a potential maximum penalty of permanent revocation. The penalties substantially increase should there be a second or third relapse. If we only look at the disciplinary guidelines in the “One Bite” rule, it appears that the physician could have a minimum thirty (30) day suspension versus a minimum ninety (90) day suspension but the thirty (30) days could be longer if decided by the treatment provider and the “monitoring organization” itself.

Once the physician has entered the program, the physician is required to complete all the steps of treatment as determined by the treating organization. The physician must agree to at least weekly sessions for a minimum period of six (6) months following release from treatment and is to continue weekly sessions until ultimately released by the care provider as well as the medical director of the “monitoring organization”. In addition, the physician has to agree to a five (5) year monitoring program which includes random drug testing, AA or NA attendance of at least ten (10) meetings per month and confirmation at the end of the five (5) year period that the physician has fully complied with the program. The failure of the physician to fully comply with the program will result in the treatment provider automatically reporting the violation to the Medical Board where upon additional sanctions may be imposed.

It is important to know that “One Bite” really only means “One Bite” and does not mean “multiple bites” that might relate to the same event. A physician for example who might suffer from drug abuse can self-report and participate under the “One Bite” program for the abuse. If however the same physician were to have self-prescribed medication or issued a false prescription to obtain the drugs which the physician used, the Medical Board believes that is not just “One Bite” and is “multiple bites” and such a physician would not qualify for the “One Bite” rule and would be subject to sanctions for the impairment as well as the violation regarding the inappropriate issuance of the prescription. Similarly, a physician who might have an alcohol issue and has an at fault accident, the Medical Board could also find that it does not qualify for the “One Bite” rule as the criminal conduct of driving while impaired, is a separate violation which can result in additional sanctions. In a recent case, a physician was involved in an at fault accident where another party had died. While only charged with a misdemeanor and not actually charged for potentially being impaired at the accident, the Board concluded that the circumstances suggested alcohol issues and issued a twelve (12) month suspension. While the accidental death certainly was regrettable, and the physician faced both criminal penalties as well civil liability for the event, the Medical Board imposed its own “bad citizen” penalty on the physician.

We believe we can all agree that professionals should avoid inappropriate use of drugs or alcohol and if need be, seek treatment and support from other professionals to deal with problems as well as make positive changes. Physicians however should be careful in applying for the Medical Board’s “One Bite” Program to make certain that they do not inadvertently self-report multiple potential violations which could lead to license suspension or revocation. We would encourage physicians to confer with experienced healthcare counsel as well as other colleagues as they look to deal with these issues.

If you would like copies of new rules or have questions concerning these matters, please contact Scott P. Sandrock at spsandrock@bmdllc.com or (330) 253-4367.  

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