BILL ANALYSIS
SB 231
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Date of Hearing: August 17, 2005
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Judy Chu, Chair
SB 231 (Figueroa) - As Amended: July 11, 2005
Policy Committee: Business and
Professions Vote: 7-1
Judiciary 6-3
Urgency: No State Mandated Local Program:
Yes Reimbursable: No
SUMMARY
This bill extends the sunset date of the Medical Board of
California (MBC) by four years, increases physicians' biennial
licensing fees by $224, requires reporting of malpractice
judgments, sunsets the MBC's drug and alcohol diversion program,
requires a State Auditor performance audit of the MBC's
diversion program, and includes investigation as a primary
responsibility of the Health Quality Enforcement Section of the
Department of Justice. Specifically, this bill:
1)Requires the Health Quality Enforcement Section in the
Department of Justice (DOJ) to investigate, in addition to
prosecuting, proceedings against physicians, podiatrists,
psychologists, and physician assistants. Requires the Senior
Assistant Attorney General of the HQES to assign attorneys to
work on location at the intake unit to assist in evaluating
and screening complaints and to assist in developing uniform
standards and procedures for processing complaints. Sunsets
this provision July 1, 2008.
2)Repeals the requirement for a written and oral examination
fee, and increases the initial license fee and biennial
license renewal fee from a maximum of $610 (it is currently
$600) and instead establishes the fee at $824 (a biennial
increase of $224 over the current fee or 37%) and repeals the
requirement MBC report to the Legislature whenever the MBC
proposes or approves a fee increase.
FISCAL EFFECT
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1)One-time special fund costs (Medical Board Contingent Fund) to
the BSA, in excess of $150,000 for a performance audit of the
MBC's diversion program. This bill requires MBC to reimburse
BSA for all costs it incurs as a result of this requirement.
2)One-time GF costs to the Little Hoover Commission of $150,000
to conduct the study on the role of public disclosure in the
public protection mandate of the MBC.
3)Increased special fund revenue (Medical Board Contingent Fund)
from the $214 biennial fee increase of $12.4 million annually.
4)Increased expenditures from the Medical Board Contingent Fund
of $320,000 in 2005-06, $4 million in 2006-07, $3.1 million in
2007-08 and $1 million in 2008-09, assuming the Board's
diversion program sunsets in 2008-09. The Medical Board
indicates it has been spending its reserves since 2001-02.
The Board indicates the level of the fee in this bill is
intended to bring resources in line with expenditures, to
restore its reserve, to support the activities required by
this bill, and to implement the activities recommended by the
MBC's Enforcement Monitor.
SUMMARY CONTINUED .
1)Requires health care providers and their attorneys to report
to their health care regulator (e.g., the MBC for physicians)
of judgments for damages involving death or personal injury
caused by negligence, error or omission (malpractice) in
practice. Current law requires the reporting of settlement
and arbitration awards but not judgments.
2)Requires physicians to report to MBC in writing any
misdemeanor conviction, or plea of guilty or no consent.
Current law requires reporting of felonies and felony
indictments but not misdemeanors.
3)Requires that completion of a peer review study be among the
highest priorities of MBC, and requires MBC to ensure that
this study is complete and reported to the MBC and the
Legislature by July 31, 2007. Requires the MBC to contract
with an independent entity to conduct this study, instead of
the Institute for Medical Quality under existing law.
4)Extends the sunset date of existing law provisions
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establishing the MBC, the authority of MBC to hire an
executive director, the requirement that MBC investigators be
provided special training in investigating medical practice
activities, and the requirement that the Attorney General (AG)
act as legal counsel for MBC by four years, from July 1, 2006
until July 1, 2010.
5)Revises the venue-related provisions relating to legal
proceedings against the MBC by requiring legal proceedings
against MBC to be instituted in Sacramento, Los Angeles, San
Diego, or San Francisco. Requires, for mandate actions filed
against MBC under specified provisions of the Code of Civil
Procedure, venue to be in the city designated above that is
closest to the city in which the administrative hearing has
been held, or if a hearing has not yet commenced, the city
closest to the city in which the administrative hearing is
scheduled to be held.
6)Requires the Little Hoover Commission to study and make
recommendations on the role of public disclosure in the public
protection mandate of MBC, including whether the public is
adequately informed about physician misconduct by the current
laws and regulations providing for disclosure. Requires the
study to be commenced as soon as possible and completed no
later than December 31, 2007.
7)Permits MBC to post all accusations filed by the AG that are
not dismissed or withdrawn, and requires MBC to post whether
or not the physician has been subject to discipline by the
MBC. Requires the MBC to post any misdemeanor conviction that
is substantially related to the qualifications, functions, or
duties of a physician. Prohibits this disclosure requirement
from becoming operative unless and until the Legislature
enacts legislation that defines or identifies those
misdemeanor convictions that are substantially related to the
qualifications, functions, or duties of a physician. Requires
MBC to develop a proposal, in consultation with consumer
groups, patient advocacy groups, the Attorney General, and the
medical profession, for that legislation and submit it to the
Legislature.
8)Exempts new complaints relating to a physician who is the
subject of a pending accusation or investigation, or who is on
probation from the requirement in existing law that complaints
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involving quality of care be reviewed by one or more medical
experts before being referred to a MBC field office for
further investigation.
9)Authorizes MBC to cite and fine physicians who fail to provide
requested documents to MBC investigators or the AG, in
addition to any authority of the MBC to sanction a physician
for a delay in producing requested records.
10)Prohibits, with respect to the use of expert testimony in
matters brought by MBC, expert testimony from any party unless
it is reduced to writing by the expert witness, including
findings and conclusions of the expert witness, and it is
exchanged by the parties in advance of the hearing. Requires
the Office of Administrative Hearings to adopt regulations in
consultation with MBC governing the required exchange of
expert testimony in these proceedings.
11)Requires the Bureau of State Audits to conduct a thorough
performance audit of the MBC's diversion program to evaluate
the effectiveness and efficiency of the program, and make
recommendations regarding the continuation of the program and
any changes or reforms required to assure that physicians
participating in the program are appropriately monitored, and
the public is protected from physicians and surgeons who are
impaired due to alcohol or drug abuse or mental or physical
illness. Requires the audit to be completed by June 30, 2007.
12)Sunsets on July 1, 2008 the MBC's diversion program.
13)Repeals the prohibition against a malpractice action against
a physician or podiatrist being commenced unless the 90-day
prior notice requirement is also sent to MBC or the Board of
Podiatric Medicine at the same time it is sent to the
defendant.
14)Repeals the requirement that the decisions of administrative
law judges of the Office of Administrative Hearings Medical
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Quality Hearing Panel, together with any court decisions
reviewing those decisions, be published in a quarterly
"Medical Discipline Report."
15)Revises the process for assessing costs to prepare the record
of administrative hearings for judicial review.
COMMENTS
1)Purpose . This bill implements most of the key recommendations
from the Medical Board's Enforcement Program Monitor
(Enforcement Monitor) which the Legislature established to
study MBC's enforcement and diversion programs. The
Enforcement Monitor examined in depth a number of problem
areas faced by the MBC, chief among them being a funding
crisis that affects virtually all aspects of the MBC's ability
to function adequately, and made numerous recommendations to
improve the functioning of the MBC and the protection of the
public. These recommendations, which this bill implements,
include increasing physician licensing fees, studying the
MBC's diversion program for physicians with substance abuse
problems, instituting, for a limited period, vertical
prosecution.
The MBC and the Federation of State Medical Boards of the United
States, support the bill, contending that these reforms are
necessary to protect consumers of health care through proper
licensing and regulation of physicians.
2)Background . Existing law establishes the MBC to license and
regulate physicians within the Department of Consumer Affairs
(DCA). Under current law, in the event any board becomes
inoperative or is repealed, the Department of Consumer Affairs
(DCA) is vested with all the duties, powers, purposes,
responsibilities and jurisdiction of that board and its
executive officer.
The six-member Joint Committee is a statutorily required
legislative committee required to review licensing boards. All
boards under the Joint Committee's jurisdiction are required,
with the assistance of DCA, to prepare an analysis and submit
a report to the Joint Committee no later than 22 months before
that board sunsets. Prior to the termination, continuation, or
reestablishment of any board, the Joint Committee is required
to hold a public hearing during the interim recess preceding
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the date upon which a board becomes inoperative to receive
testimony from the Director of DCA, the board involved, and
the public and regulated industry. In that hearing, each
board is required to have the burden of demonstrating a
compelling public need for the continued existence of the
board or regulatory program, and that its licensing function
is the least restrictive regulation consistent with the public
health, safety, and welfare.
3)Opposition . The California Medical Association (CMA) is
opposed to this bill, arguing the fee increase is excessive
and not justified, and the diversion program should not be
sunset because it encourages physicians to seek help. CMA is
also opposed to the provisions requiring the DOJ to perform
investigations, arguing that this provision creates a
prosecutorial mind set in a process that should be searching
for truth and that most cases do not lead to an accusation and
therefore don't require AG trial preparation experience.
The Department of Consumer Affairs is opposed to this bill
unless it is amended to reduce the size of MBC from 21 to 11,
and to require a public member majority. DCA argues having a
21-member board makes it difficult to achieve consensus on
issues affecting the Board and increases costs (primarily
travel). DCA argues that decreasing the size of the board and
requiring a public member majority would increase consumer
protection, decrease expenditures and improve the
decision-making process.
Analysis Prepared by : Scott Bain / APPR. / (916) 319-2081