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** DRAFT - NOT YET FILED ***4731-6-16 Eligibility for medical or osteopathic licensure by endorsement

of licenses granted by other states.

(A) An applicant for a certificate to practice medicine or surgery, or osteopathic medicineand surgery, who holds a license from another state, is eligible for considerationwithout further examination under section 4731.29 of the Revised Code if therequirements of paragraphs (B) to (D) of this rule are met, and the applicant meetsthe eligibility requirements as set forth in sections 4731.09, 4731.091, 4731.14 and4731.142 of the Revised Code for licensure by Ohio examination.

(B) The license from another state being endorsed into Ohio must be current and in goodstanding and must be a full and unlimited license to practice all branches of medicine or surgery, or osteopathic medicine and surgery. An exception can bemade by the board in those cases where an applicant cannot renew his or her licensein the other jurisdiction for purposes of endorsement due to residency or similar

requirements, or in those cases where an applicant is on probation in the other jurisdiction and the board determines that it is able to impose sufficient conditionsto ensure public safety.

(C) The applicant for endorsement must have passed one of the following examinations:

(1) A written state medical board of the United States licensing examination other than the FLEX, USMLE or COMLEX-USA administered prior to June 1982without previous or subsequent FLEX, USMLE or COMLEX-USA failure; or

(2) A single three day FLEX administered prior to June 1985. The FLEX-weightedaverage must be seventy-five or above for the entire examination as reported

by the federation, or must be seventy-two or above if the examination wastaken during the first two years of a state's administration of the FLEX andsuch score was accepted by that state as a passing score; or

(3) Component 1 and component 2 of the FLEX administered after June 1985. Ascore of seventy-five or above must have been achieved on each componentas reported by the federation. Both components must have been passed withina seven year period; or

(4) Part I of the national board of medical examiners examination or step 1 of theUSMLE, part II of the national board of medical examiners examination or step 2 of the USMLE, and part III of the national board of medical examinersexamination or step 3 of the USMLE or component 2 of the FLEX. All steps,

parts or components must have been administered prior to January 2000. Thescore achieved on each step, part or component must have been recognized

by the USMLE program, the national board of medical examiners or thefederation as a passing score for that step, part or component, respectively; or

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(5) Component 1 of the FLEX and step 3 of the USMLE. The component and stepmust have been administered prior to January 2000. A score of seventy-fiveor above must have been achieved on component 1. The score achieved onstep 3 must have been recognized by the USMLE program as a recommended

passing score; or

(6) USMLE steps 1, 2 and 3. All three steps must have been passed in accordancewith paragraph (C)(3) of rule 4731-6-14 of the Administrative Code and thescore achieved on each step must have been recognized by the USMLE program as a recommended passing score; or

(7) A written examination provided by the national board of osteopathic medical

examiners for the administering state; or

(8) COMLEX-USA levels 1, 2 and 3. All three levels must have been passed inaccordance with paragraph (C)(43) of rule 4731-6-14 of the AdministrativeCode and the score achieved on each level must have been recognized by theCOMLEX-USA program as a recommended passing score.

(D) Notwithstanding paragraphs (A) to (C) of this rule, and in addition to groundsotherwise contained in Chapter 4731. of the Revised Code and Chapter 4731-6 of the Administrative Code, the board may refuse an applicant for endorsement whohas not been engaged in any of the following activities during the two years

immediately prior to the date of application;

(1) The active clinical practice of medicine or surgery, or osteopathic medicine andsurgery;

(2) The taking of graduate medical education as defined in section 4731.091 of theRevised Code;

(3) The attendance as a student at a medical or osteopathic school.

(E) For purposes of division (E) of section 4731.29 of the Revised Code the term"actively practicing ... in the United States" includes the taking of graduate medicaleducation as defined in section 4731.091 of the Revised Code.

(F) An applicant will be excused from the requirement to demonstrate proficiency inspoken English under the terms of division (E)(1) of section 4731.29 of the RevisedCode if the applicant's license or licenses from another state have been unrestrictedand he or she was actively practicing medicine and surgery or osteopathic medicine

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and surgery in the United States for at least nine full months during each of the fiveyears immediately preceding the date of his or her application. In this rule,"license" includes a training certificate or its equivalent issued to those applicantswho have been actively practicing medicine and surgery or osteopathic medicineand surgery in the United States as part of graduate medical education as defined insection 4731.091 of the Revised Code.

(G) Notwithstanding the requirements of paragraph (C) of this rule, an applicant for endorsement who has not completed an acceptable examination sequence, but hastaken and passed the clinical competency portion of the sequence without failure of any other portion within that same examination sequence; has been appointed toserve in this state in a full-time position on the academic staff of an LCME or AOAaccredited school; has obtained specialty board certification in the applicant's

practice specialty and that certification is recognized by the American board of medical specialties or the American osteopathic association, or its equivalent asdetermined by the board; and has held a full and unlimited license to practicemedicine and surgery or osteopathic medicine and surgery in another state for atleast ten years and has actively clinically practiced in that state or another statewherein licensed for that same period, is eligible for consideration for medicallicensure under section 4731.29 of the Revised Code without requiring further examination. All steps, parts or components must have been administered prior toJanuary 2000.

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Business Impact Analysis

Agency Name: State Medical Board of Ohio

Regulation/Package Title: Physician Licensure Examination Rule

Rule Number(s): 4731-6-14 and 4731-6-16

Date:

Rule Type:

X New

X Amended

X 5-Year Review

X Rescinded

The Common Sense Initiative was established by Executive Order 2011-01K and placed

within the Office of the Lieutenant Governor. Under the CSI Initiative, agencies should

balance the critical objectives of all regulations with the costs of compliance by the

regulated parties. Agencies should promote transparency, consistency, predictability, and

flexibility in regulatory activities. Agencies should prioritize compliance over punishment,

and to that end, should utilize plain language in the development of regulations.

Regulatory Intent

1. Please briefly describe the draft regulation in plain language.

Please include the key provisions of the regulation as well as any proposed amendments.

The draft rule package consists of two rules: 4731-6-14, which sets forth the licensure

examination sequences acceptable to the Medical Board for doctors of allopathic medicine

(M.D.) and doctors of osteopathic medicine (D.O.), and 4731-6-16, which sets forth the

requirements for eligibility of endorsement of another state’s license. Current rule 4731-6-

14 is so significantly amended that it is being proposed as a new rule. The changes include

the allowance of a greater number of attempts to pass all of the steps or levels of the

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examination sequence and more discretion for the Medical Board in granting licensure when

the applicant has taken more attempts than specified and/or more years than specified to

complete the entire sequence. The only proposed amendment to current rule 4731-6-16 is at

paragraph (C)(8), where the reference to a paragraph in rule 4731-6-14 is corrected to refer to

the appropriate paragraph.

2. Please list the Ohio statute authorizing the Agency to adopt this regulation.

The rules are authorized under Sections 4731.05 and 4731.13, ORC.

3. Does the regulation implement a federal requirement? Is the proposed regulation

being adopted or amended to enable the state to obtain or maintain approval to

administer and enforce a federal law or to participate in a federal program?

If yes, please briefly explain the source and substance of the federal requirement.

The answer is no to both questions for rules 4731-6-14 and 4731-6-16.

4. If the regulation includes provisions not specifically required by the federal

government, please explain the rationale for exceeding the federal requirement.

N/A

5. What is the public purpose for this regulation (i.e., why does the Agency feel that

there needs to be any regulation in this area at all)?

Section 4731.13, ORC, authorizes the Medical Board to use as the licensing examination for

allopathic and osteopathic physicians a standard medical licensing examination established

for the purposes of determining the competence of individuals to practice medicine and

surgery or osteopathic medicine and surgery in the United States. Rule 4731-6-14 specifies

the standard medical licensing examinations acceptable for Ohio licensure. Section 4731.29,

ORC, authorizes the Medical Board to, in its discretion, issue a license to an allopathic or osteopathic physician currently licensed in another state and who meets requirements. The

Medical Board promulgated Rule 4731-6-16 to ensure consistent application of its discretion.

6. How will the Agency measure the success of this regulation in terms of outputs

and/or outcomes?

Success will be measured by a reduction in the number of proposed licensure denials based

on the applicant having failed to meet licensure examination standards. The number of

Chapter 119 administrative hearings on the question of whether a license should be granted

to an applicant should be reduced. Feedback will also be received from employers of

physicians, state associations, and attorneys representing physicians in licensure applicationmatters.

Development of the Regulation

7. Please list the stakeholders included by the Agency in the development or initial

review of the draft regulation.

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If applicable, please include the date and medium by which the stakeholders were initially

contacted.

On January 23, 2013 an invitation to provide comments on the rule was sent via e-mail to

interested parties including: state physician associations, medical societies, attorneys

representing respondents in administrative licensure matters before the Medical Board, and

organizations and individuals who have requested notice of Medical Board rules activities.

The recipients included, but are not limited to the following: Academy of Medicine of

Cincinnati, Ohio State Medical Association, Ohio Osteopathic Association, Ohio Hospital

Association, Academy of Medicine of Cleveland and Northern Ohio, Ohio State University

Medical School, Ohio Academy of Family Physicians, and the Ohio Dermatology

Association. In addition, the draft rule was shared with the Ohio Board of Nursing to illicit

comments concerning language applicable to certified nurse practitioners, clinical nurse

specialists, and registered nurses.

8. What input was provided by the stakeholders, and how did that input affect the

draft regulation being proposed by the Agency?

Only two written comments were received in response to the January 2013 invitation to

comment. An attorney who represented an applicant who was denied licensure under the

attempt limits specified in current Rule 4731-6-14 proposed that either the attempt limits be

increased or a good cause exception be added for consideration for physicians who do not

meet the attempt limit. This is the same comment received over time from other attorneys

representing applicants in licensure matters. The Ohio Osteopathic Association submitted a

letter on behalf of the American Osteopathic Association that asked that the rule more

specifically recognize the various examinations offered by it.

9. What scientific data was used to develop the rule or the measurable outcomes of the

rule? How does this data support the regulation being proposed?

The examination time limit and attempts limit is based upon research conducted by Brian

Clauser and Ronald Nungester of the National Board of Medical Examiners, the non-profit

organization that provides the United States Medical License Examination (“USMLE”), the

standard licensing examination for allopathic physicians. The October 2001 paper suggests

that by limiting the number of test retakes you can control for the number of non-competent

applicants passing the USMLE and that beyond four attempts the number of non-competent

applicants successfully passing the USMLE will increase. The paper emphasizes the level of

errors related to individuals being misclassified as competent, when in fact they are not, that

may potentially occur when individuals are permitted to retake a test and providesrecommendations for controlling these errors. The paper suggests that if a competent

individual fails a licensure exam as the result of a measurement error the individual should be

provided an opportunity to retake the exam. They go on to note that these additional

opportunities, while providing a benefit to competent individuals, would also favor non-

competent individuals and potentially enhance risk to the public by allowing unqualified

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individuals to become licensed. The paper states that the largest increases in error rates,

regarding non-competent individuals, occurs within the initial retakes of an exam and that

after four retakes the rate of competent individuals being misclassified is effectively 0%,

while the rate of non-competent individuals continues to rise with a nearly 2% increase after

seven retakes.

The ten-year time limit proposed is not changed from the current rule. It is based upon the

USMLE’s recommendation that all steps be passed within a seven-year period, while

acknowledging that the seven-year limit poses problems for individuals who have pursued an

MD/PhD program. Information from the Federation of State Medical Boards indicates that

15 medical boards have a seven-year limit, 16 have a seven-year limit with exceptions, and

10 boards have a ten-year time limit for completion of all three steps of the USMLE.

Proposed Rule 4731-6-14 would also allow a waiver of the time limit and/or attempt limit

based upon the applicant holding national specialty board certification. National specialty

board certification is an industry standard for competency in the medical profession.

10. What alternative regulations (or specific provisions within the regulation) did the

Agency consider, and why did it determine that these alternatives were not

appropriate? If none, why didn’t the Agency consider regulatory alternatives?

No other alternatives were considered. The proposal is based upon Medical Board concerns

that applicant cases coming before the Medical Board demonstrated that good physicians

were being denied a license because they did not meet the current attempt limit, despite the

fact they had met the time limit and held national specialty board certification.

11. Did the Agency specifically consider a performance-based regulation? Please

explain.

Performance-based regulations define the required outcome, but don’t dictate the process

the regulated stakeholders must use to achieve compliance.

The Board views the proposed rules as performance-based because the outcome and

performance standard is that competent physician applicants will receive Ohio licensure.

The rules are also performance based because they allow poor test taking at the beginning of

the physician’s career to be over ridden by passage of a national specialty board certification

examination, the industry standard for physician competency.

12. What measures did the Agency take to ensure that this regulation does not duplicate

an existing Ohio regulation?

There are no duplicate regulations as the Medical Board is the only agency that regulates physicians.

13. Please describe the Agency’s plan for implementation of the regulation, including

any measures to ensure that the regulation is applied consistently and predictably for

the regulated community.

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The agency will notify the National Board of Medical Examiners, which offers the USMLE,

the National Board of Osteopathic Medical Examiners, which offers the COMLEX-USA,

publish the information in the newsletter, include it in the physician application instructions,

post it on the agency website, request that the Ohio Hospital Association provide the

information to its member hospitals, and notify all state medical associations. The Medical

Board’s decisions concerning requests for waivers of the attempt and time limits will be

public record.

Adverse Impact to Business

14. Provide a summary of the estimated cost of compliance with the rule. Specifically,

please do the following:

a. Identify the scope of the impacted business community;

The impacted business community includes hospitals, medical practices of all sizes,

and health centers.

b. Identify the nature of the adverse impact (e.g., license fees, fines, employer time

for compliance);

The overall impact to business should be positive in that the pool of physicians eligible for Ohio licensure will be expanded. The adverse impact is that a hospital, medical practice, or

health center may not be able to hire a particular physician who does not meet the attempt

and/or time limit or does not have national specialty board certification or an appropriate

good cause for not completing the exam sequence within ten years. Again, any adverse

impact associated with these rules will be lessened by the expanded opportunities to obtain

licensure.

and

c. Quantify the expected adverse impact from the regulation.

The adverse impact can be quantified in terms of dollars, hours to comply, or other

factors; and may be estimated for the entire regulated population or for a

“representative business.” Please include the source for your information/estimated

impact.

The requirements must be met by individuals who wish to obtain a license to practice

allopathic or osteopathic medicine in Ohio. The cost to business is that a specific applicant

may not meet the licensure requirements despite the proposed rule’s increase in attempt

limits and the allowance for a waiver of attempt and/or time limits if the applicant has

specialty board certification. The cost to each business depends on, among other things, the

size of the recruitment budget and recruitment policies and procedures. The Medical Board

must defer to individual employers of physicians for estimates of the staff time required to

develop recruitment policies and procedures that, at the least, minimize the number of

physicians recruited who will not meet the examination attempt and/or time limit and who

are also not eligible for the waiver of the attempt and/or time limit.

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15. Why did the Agency determine that the regulatory intent justifies the adverse

impact to the regulated business community?

Proposed Rule 4731-6-14 provides a mechanism to ensure a minimum level of competency

in physicians licensed by the Medical Board by setting limits on the number of attempts for

passage of each step or level of the licensure examination sequence within a ten-year time

limit, while also providing a means for a physician who was not a strong performer at the

beginning of the medical career to overcome that deficiency by demonstrating competency

through having achieved specialty board certification. The rule also provides a waiver for

good cause for not having passed all steps or levels within a ten-year time period. Hospitals,

medical practices, and medical centers review multiple indicators of competence, not just

examination scores. The rule reflects that health care entities rely on national specialty board

certification to predict current medical competency despite poor performance early in the

career. The amendment to Rule 4731-6-16 is justified because it provides consistency

between allopathic and osteopathic physicians in licensure examination requirements.

Regulatory Flexibility

16. Does the regulation provide any exemptions or alternative means of compliance for

small businesses? Please explain.

The proposed rules provide an alternative means of compliance built into the regulation

through the opportunity to obtain a “good cause” waiver of the licensure examination attempt

limit or ten-year time limit. “Good cause” may be established by way of holding national

specialty board certification or via explanation of why the applicant took longer than ten

years to complete all three steps or levels of the examination sequence.

17. How will the agency apply Ohio Revised Code section 119.14 (waiver of fines and

penalties for paperwork violations and first-time offenders) into implementation of the

regulation?

Failure to meet the requirements of the rules is not a paperwork violation.

18. What resources are available to assist small businesses with compliance of the

regulation? The Medical Board staff will provide customer service.

Documents

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