BILL NUMBER: AB 2398 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 22, 2008
AMENDED IN ASSEMBLY APRIL 10, 2008
AMENDED IN ASSEMBLY APRIL 1, 2008
INTRODUCED BY Assembly Member Nakanishi
FEBRUARY 21, 2008
An act to amend Section 2417 of, and to add Section 2259.6 to, the
Business and Professions Code, relating to the practice of medicine.
LEGISLATIVE COUNSEL'S DIGEST
AB 2398, as amended, Nakanishi. Practice of medicine:
cosmetic surgery: employment of physicians and surgeons.
Existing law, the Medical Practice Act, establishes the Medical
Board of California under the Department of Consumer Affairs, which
licenses physicians and surgeons and regulates their practice.
Existing law, the Medical Practice Act, requires specified
disclosures to patients undergoing procedures involving collagen
injections, defined as any substance derived from, or combined with,
animal protein. Existing law also requires the board to adopt
extraction and postoperative care standards in regard to body
liposuction procedures performed by a physician and surgeon outside
of a general acute care hospital. Existing law makes a violation of
these provisions a misdemeanor.
This bill would require a physician and surgeon who delegates to a
registered nurse the performance or administration of any elective
cosmetic medical procedure or treatment, as defined, to perform an
initial, good faith, and appropriate prior examination of the patient
for whom treatment has been delegated and to provide direct
supervision of that procedure or treatment under certain conditions.
The bill would prohibit a physician and surgeon from delegating the
performance or administration of elective cosmetic medical procedures
or treatments to more than 4 separately addressed locations under
his or her supervision, which must be located as specified. The bill
would provide that a violation of that provision may subject the
person or entity that has committed the violation to either a fine of
up to $25,000 per occurrence pursuant to a citation issued by the
board or a civil penalty of $25,000 per occurrence. The bill would
also provide that multiple acts by any person or entity in violation
of that provision shall be punishable by a fine not to exceed $25,000
or by imprisonment in a county jail not exceeding 6 months, or by
both that fine and imprisonment. The bill would authorize the
Attorney General to bring an action to enforce those provisions.
Because multiple violations of those provisions would be a crime,
this bill would impose a state-mandated local program.
The Medical Practice Act restricts the employment of licensed
physicians and surgeons and podiatrists by a corporation or other
artificial legal entity, subject to specified exemptions. Existing
law makes it unlawful to knowingly make, or cause to be made, any
false or fraudulent claim for payment of a health care benefit, or to
aid, abet, solicit, or conspire with any person to do so, and makes
a violation of this prohibition a public offense.
This bill would authorize the revocation of the license of a
physician and surgeon who practices medicine with , or serves or
is employed as the medical director of, a business
organization that provides elective cosmetic medical procedures
or treatments, as defined, knowing that it is owned or operated
in violation of the prohibition against employment of licensed
physicians and surgeons and podiatrists. The bill would also make a
business organization that provides elective cosmetic medical
procedures or treatments, that is owned and operated in
violation of the prohibition, and that contracts with or employs a
physician and surgeon to facilitate the offer or provision of
professional services those pro
cedures or treatments that may only be provided by a licensed
physician and surgeon, guilty of a violation of the prohibition
against knowingly making or causing to be made any false or
fraudulent claim for payment of a health care benefit. Because the
bill would expand a public offense, it would impose a state-mandated
local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2259.6 is added to the Business and Professions
Code, to read:
2259.6. (a) Any physician and surgeon who delegates the
performance or administration of any elective cosmetic medical
procedure or treatment to a registered nurse shall, pursuant to the
requirements of this article, perform an initial, good faith, and
appropriate prior examination of the patient for whom treatment has
been delegated. Subject to the provisions of subdivision (d), in a
physician and surgeon-owned and operated treatment setting, direct
supervision is not required upon delegation to a nurse practitioner,
physician assistant, or registered nurse. In all circumstances, upon
request of the patient, the delegating physician and surgeon shall
afford the patient direct supervision of the procedure or treatment.
(b) Direct supervision shall mean that the physician and surgeon
must be onsite and available for immediate consultation at the time
of performance or administration of the procedure or treatment.
(c) As used in this section, "elective cosmetic medical procedure
or treatment" means a medical procedure or treatment that is
performed to alter or reshape normal structures of the body solely in
order to improve appearance.
(d) In no event may a physician and surgeon delegate the
performance or administration of elective cosmetic medical procedures
or treatments to more than four separately addressed locations under
his or her supervision, one of which shall be his or her primary
practice location. These sites shall be located within a radius no
greater than that which may be reached within 60 minutes from the
physician and surgeon's primary practice location. A delegating
physician and surgeon shall be available to attend to emergent
patient circumstances within a reasonable time, not to exceed 24
hours from the onset of those circumstances.
(e) Notwithstanding any other provision of law, a violation of
this section may subject the person or entity that has committed the
violation to either a fine of up to twenty-five thousand dollars
($25,000) per occurrence pursuant to a citation issued by the board
or a civil penalty of twenty-five thousand dollars ($25,000) per
occurrence. Section 125.9 shall govern the issuance of this citation
and fine except that the fine limitations prescribed in paragraph (3)
of subdivision (b) of Section 125.9 shall not apply to a fine under
this subdivision.
(f) Multiple acts by any person or entity in violation of this
section shall be punishable by a fine not to exceed twenty-five
thousand dollars ($25,000) or by imprisonment in a county jail not
exceeding six months, or by both that fine and imprisonment.
(g) The Attorney General may bring an action to enforce this
section and to collect the fines or civil penalties authorized by
subdivision (d) or (e).
SEC. 2. Section 2417 of the Business and Professions Code is
amended to read:
2417. (a) If the Department of Insurance has evidence that a
business is being operated in violation of this chapter, Part 4
(commencing with Section 13400) of Division 3 of the Corporations
Code, or Chapter 1 (commencing with Section 1200) of Division 2 of
the Health and Safety Code, and that the business may be in violation
of Section 1871.4 of the Insurance Code or Section 549 or 550 of the
Penal Code, then the department shall report the business, and any
physician and surgeon suspected of knowingly providing medical
services for that business relative to a violation of Section 1871.4
of the Insurance Code or Section 549 or 550 of the Penal Code, to the
appropriate regulatory agency. Upon receiving a report from the
Department of Insurance of a suspected violation, the regulatory
agency shall conduct an investigation. The requirement in subdivision
(a) of Section 1872.95 of the Insurance Code for investigations to
be conducted within existing resources does not apply to
investigations required by this section. The Department of Insurance
may consult with the appropriate regulatory department or agency
prior to making its report to that department or agency, and this
consultation shall not be deemed to require the department or agency
to conduct an investigation.
(b) A physician and surgeon who practices medicine with a business
organization knowing that it is owned or operated in violation of
Section 1871.4 of the Insurance Code, Section 14107 or 14107.2 of the
Welfare and Institutions Code, or Section 549 or 550 of the Penal
Code shall have his or her license to practice permanently revoked.
(c) A physician and surgeon who practices medicine with a business
organization that offers to provide, or provides, elective
cosmetic medical procedures or treatments , knowing that it is
owned or operated in violation of Section 2400, may have his or her
license to practice revoked. A physician and surgeon who contracts to
serve as, or otherwise allows himself or herself to be employed as,
the medical director of a business organization that he or she does
not own and that offers to provide or provides professional
services elective cosmetic medical proc
edures or treatments that may only be provided by the holder of
a valid physician's and surgeon's certificate under this chapter
shall be deemed to have knowledge that the business organization is
in violation of Section 2400.
(d) A business organization that offers to provide, or
provides, elective cosmetic medical procedures or treatments,
that is owned or operated in violation of Section 2400 ,
and that contracts with, or otherwise employs, a physician and
surgeon to facilitate its offers to provide, or the provision of,
professional services elective cosmetic
medical procedures or treatments that may only be provided by
the holder of a valid physician's and surgeon's certificate is guilty
of violating paragraph (6) of subdivision (a) of Section 550 of the
Penal Code.
(e) For purposes of this section, "elective cosmetic medical
procedures or treatments" has the same meaning as defined in Section
2259.6.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.