BILL NUMBER: AB 253 CHAPTERED 10/14/07 CHAPTER 678 FILED WITH SECRETARY OF STATE OCTOBER 14, 2007 APPROVED BY GOVERNOR OCTOBER 14, 2007 PASSED THE SENATE SEPTEMBER 7, 2007 PASSED THE ASSEMBLY SEPTEMBER 11, 2007 AMENDED IN SENATE AUGUST 30, 2007 AMENDED IN SENATE JUNE 20, 2007 AMENDED IN ASSEMBLY MARCH 8, 2007 INTRODUCED BY Assembly Member Eng FEBRUARY 5, 2007 An act to amend Sections 2001, 2002, 2004, 2012, 2013, 2014, 2015, 2017, 2018, 2041, 2224, 2228, 2230, 2311, 2317, 2335, 2506, 2529, 2529.5, 2546.2, and 2550.1 of, to add Section 2540.1 to, to repeal Sections 2003, 2005, 2009, 2035, and 2223 of, and to repeal and add Section 2008 of, the Business and Professions Code, relating to medicine. LEGISLATIVE COUNSEL'S DIGEST AB 253, Eng. Medical Board of California. The Medical Practice Act provides for the licensure and regulation of physicians and surgeons by the Medical Board of California that consists of 21 members. Existing law establishes a Division of Licensing and a Division of Medical Quality, each consisting of specified members of the board, with each division having certain responsibilities. Under existing law, the Division of Medical Quality is responsible for implementing the disciplinary provisions of the act and is prohibited from delegating its authority to take final disciplinary action against a licensee. This bill would reduce the board's membership to 15 and would abolish the 2 divisions of the board. The bill would instead provide for the board as a whole to handle the responsibilities of the divisions. The bill would require the board to delegate to its executive director the authority to adopt default decisions and certain stipulations in disciplinary proceedings. The bill would make other related changes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 2001 of the Business and Professions Code is amended to read: 2001. (a) There is in the Department of Consumer Affairs a Medical Board of California that consists of 15 members, seven of whom shall be public members. (b) The Governor shall appoint 13 members to the board, subject to confirmation by the Senate, five of whom shall be public members. The Senate Committee on Rules and the Speaker of the Assembly shall each appoint a public member. (c) Notwithstanding any other provision of law, to reduce the membership of the board to 15, the following shall occur: (1) Two positions on the board that are public members having a term that expires on June 1, 2010, shall terminate instead on January 1, 2008. (2) Two positions on the board that are not public members having a term that expires on June 1, 2008, shall terminate instead on August 1, 2008. (3) Two positions on the board that are not public members having a term that expires on June 1, 2011, shall terminate instead on January 1, 2008. (d) This section shall become inoperative on July 1, 2010, and, as of January 1, 2011, is repealed, unless a later enacted statute, which becomes effective on or before January 1, 2011, deletes or extends the dates on which it becomes inoperative and is repealed. The repeal of this section renders the board subject to the review required by Division 1.2 (commencing with Section 473). SEC. 2. Section 2002 of the Business and Professions Code is amended to read: 2002. Unless otherwise expressly provided, the term "board" as used in this chapter means the Medical Board of California. As used in this chapter or any other provision of law, "Division of Medical Quality" and "Division of Licensing" shall be deemed to refer to the board. SEC. 3. Section 2003 of the Business and Professions Code is repealed. SEC. 4. Section 2004 of the Business and Professions Code is amended to read: 2004. The board shall have the responsibility for the following: (a) The enforcement of the disciplinary and criminal provisions of the Medical Practice Act. (b) The administration and hearing of disciplinary actions. (c) Carrying out disciplinary actions appropriate to findings made by a panel or an administrative law judge. (d) Suspending, revoking, or otherwise limiting certificates after the conclusion of disciplinary actions. (e) Reviewing the quality of medical practice carried out by physician and surgeon certificate holders under the jurisdiction of the board. (f) Approving undergraduate and graduate medical education programs. (g) Approving clinical clerkship and special programs and hospitals for the programs in subdivision (f). (h) Issuing licenses and certificates under the board's jurisdiction. (i) Administering the board's continuing medical education program. SEC. 5. Section 2005 of the Business and Professions Code is repealed. SEC. 6. Section 2008 of the Business and Professions Code is repealed. SEC. 7. Section 2008 is added to the Business and Professions Code, to read: 2008. The board may appoint panels from its members for the purpose of fulfilling the obligations established in subdivision (c) of Section 2004. Any panel appointed under this section shall at no time be comprised of less than four members and the number of public members assigned to the panel shall not exceed the number of licensed physician and surgeon members assigned to the panel. The president of the board shall not be a member of any panel. Each panel shall annually elect a chair and a vice chair. SEC. 8. Section 2009 of the Business and Professions Code is repealed. SEC. 9. Section 2012 of the Business and Professions Code is amended to read: 2012. The board shall elect a president, a vice president, and a secretary from its members. SEC. 10. Section 2013 of the Business and Professions Code is amended to read: 2013. (a) The board and a panel appointed under this chapter may convene from time to time as deemed necessary by the board. (b) Four members of a panel of the board shall constitute a quorum for the transaction of business at any meeting of the panel. Eight members shall constitute a quorum for the transaction of business at any board meeting. (c) It shall require the affirmative vote of a majority of those members present at a board or panel meeting, those members constituting at least a quorum, to pass any motion, resolution, or measure. A decision by a panel to discipline a physician and surgeon shall require an affirmative vote, at a meeting or by mail, of a majority of the members of that panel; except that a decision to revoke the certificate of a physician and surgeon shall require the affirmative vote of four members of that panel. SEC. 11. Section 2014 of the Business and Professions Code is amended to read: 2014. Notice of each meeting of the board shall be given in accordance with the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code). SEC. 12. Section 2015 of the Business and Professions Code is amended to read: 2015. The president of the board may call meetings of any duly appointed and created committee or panel of the board at a specified time and place. SEC. 13. Section 2017 of the Business and Professions Code is amended to read: 2017. The board and each committee or panel shall keep an official record of all their proceedings. SEC. 14. Section 2018 of the Business and Professions Code is amended to read: 2018. The board may adopt, amend, or repeal, in accordance with the provisions of the Administrative Procedure Act, those regulations as may be necessary to enable it to carry into effect the provisions of law relating to the practice of medicine. SEC. 15. Section 2035 of the Business and Professions Code is repealed. SEC. 16. Section 2041 of the Business and Professions Code is amended to read: 2041. The term "licensee" as used in this chapter means the holder of a physician's and surgeon's certificate or doctor of podiatric medicine's certificate, as the case may be, who is engaged in the professional practice authorized by the certificate under the jurisdiction of the appropriate board. SEC. 17. Section 2223 of the Business and Professions Code is repealed. SEC. 18. Section 2224 of the Business and Professions Code is amended to read: 2224. (a) The board may delegate the authority under this chapter to conduct investigations and inspections and to institute proceedings to the executive director of the board or to other personnel as set forth in Section 2020. The board shall not delegate its authority to take final disciplinary action against a licensee as provided in Section 2227 and other provisions of this chapter. The board shall not delegate any authority of the Senior Assistant Attorney General of the Health Quality Enforcement Section or any powers vested in the administrative law judges of the Office of Administrative Hearings, as designated in Section 11371 of the Government Code. (b) Notwithstanding subdivision (a), the board shall delegate to its executive director the authority to adopt a decision entered by default and a stipulation for surrender of a license. SEC. 19. Section 2228 of the Business and Professions Code is amended to read: 2228. The authority of the board or the California Board of Podiatric Medicine to discipline a licensee by placing him or her on probation includes, but is not limited to, the following: (a) Requiring the licensee to obtain additional professional training and to pass an examination upon the completion of the training. The examination may be written or oral, or both, and may be a practical or clinical examination, or both, at the option of the board or the administrative law judge. (b) Requiring the licensee to submit to a complete diagnostic examination by one or more physicians and surgeons appointed by the board. If an examination is ordered, the board shall receive and consider any other report of a complete diagnostic examination given by one or more physicians and surgeons of the licensee's choice. (c) Restricting or limiting the extent, scope, or type of practice of the licensee, including requiring notice to applicable patients that the licensee is unable to perform the indicated treatment, where appropriate. (d) Providing the option of alternative community service in cases other than violations relating to quality of care. SEC. 20. Section 2230 of the Business and Professions Code is amended to read: 2230. (a) All proceedings against a licensee for unprofessional conduct, or against an applicant for licensure for unprofessional conduct or cause, shall be conducted in accordance with the Administrative Procedure Act (Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code) except as provided in this chapter, and shall be prosecuted by the Senior Assistant Attorney General of the Health Quality Enforcement Section. (b) For purposes of this article, "agency itself," as used in the Administrative Procedure Act, means any panel appointed by the board pursuant to Section 2008. The decision or order of a panel imposing any disciplinary action pursuant to this chapter and the Administrative Procedure Act shall be final. SEC. 21. Section 2311 of the Business and Professions Code is amended to read: 2311. Whenever any person has engaged in or is about to engage in any acts or practices that constitute or will constitute an offense against this chapter, the superior court of any county, on application of the board or of 10 or more persons licensed as physicians and surgeons or as podiatrists in this state, may issue an injunction or other appropriate order restraining the conduct. Proceedings under this section shall be governed by Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure. SEC. 22. Section 2317 of the Business and Professions Code is amended to read: 2317. If a person, not a regular employee of the board, is hired, under contract, or retained under any other arrangement, paid or unpaid, to provide expertise or nonexpert testimony to the Medical Board of California or to the California Board of Podiatric Medicine, including, but not limited to, the evaluation of the conduct of an applicant or a licensee, and that person is named as a defendant in an action for defamation, malicious prosecution, or any other civil cause of action directly resulting from opinions rendered, statements made, or testimony given to, or on behalf of, the committee or its representatives, the board shall provide for representation required to defend the defendant in that civil action. The board shall be liable for any judgment rendered against that person, except that the board shall not be liable for any punitive damages award. If the plaintiff prevails in a claim for punitive damages, the defendant shall be liable to the board for the full costs incurred in providing representation to the defendant. The Attorney General shall be utilized in those actions as provided in Section 2020. SEC. 23. Section 2335 of the Business and Professions Code is amended to read: 2335. (a) All proposed decisions and interim orders of the Medical Quality Hearing Panel designated in Section 11371 of the Government Code shall be transmitted to the executive director of the board, or the executive director of the California Board of Podiatric Medicine as to the licensees of that board, within 48 hours of filing. (b) All interim orders shall be final when filed. (c) A proposed decision shall be acted upon by the board or by any panel appointed pursuant to Section 2008 or by the California Board of Podiatric Medicine, as the case may be, in accordance with Section 11517 of the Government Code, except that all of the following shall apply to proceedings against licensees under this chapter: (1) When considering a proposed decision, the board or panel and the California Board of Podiatric Medicine shall give great weight to the findings of fact of the administrative law judge, except to the extent those findings of fact are controverted by new evidence. (2) The board's staff or the staff of the California Board of Podiatric Medicine shall poll the members of the board or panel or of the California Board of Podiatric Medicine by written mail ballot concerning the proposed decision. The mail ballot shall be sent within 10 calendar days of receipt of the proposed decision, and shall poll each member on whether the member votes to approve the decision, to approve the decision with an altered penalty, to refer the case back to the administrative law judge for the taking of additional evidence, to defer final decision pending discussion of the case by the panel or board as a whole, or to nonadopt the decision. No party to the proceeding, including employees of the agency that filed the accusation, and no person who has a direct or indirect interest in the outcome of the proceeding or who presided at a previous stage of the decision, may communicate directly or indirectly, upon the merits of a contested matter while the proceeding is pending, with any member of the panel or board, without notice and opportunity for all parties to participate in the communication. The votes of a majority of the board or of the panel, and a majority of the California Board of Podiatric Medicine, are required to approve the decision with an altered penalty, to refer the case back to the administrative law judge for the taking of further evidence, or to nonadopt the decision. The votes of two members of the panel or board are required to defer final decision pending discussion of the case by the panel or board as a whole. If there is a vote by the specified number to defer final decision pending discussion of the case by the panel or board as a whole, provision shall be made for that discussion before the 90-day period specified in paragraph (3) expires, but in no event shall that 90-day period be extended. (3) If a majority of the board or of the panel, or a majority of the California Board of Podiatric Medicine vote to do so, the board or the panel or the California Board of Podiatric Medicine shall issue an order of nonadoption of a proposed decision within 90 calendar days of the date it is received by the board. If the board or the panel or the California Board of Podiatric Medicine does not refer the case back to the administrative law judge for the taking of additional evidence or issue an order of nonadoption within 90 days, the decision shall be final and subject to review under Section 2337. Members of the board or of any panel or of the California Board of Podiatric Medicine who review a proposed decision or other matter and vote by mail as provided in paragraph (2) shall return their votes by mail to the board within 30 days from receipt of the proposed decision or other matter. (4) The board or the panel or the California Board of Podiatric Medicine shall afford the parties the opportunity to present oral argument before deciding a case after nonadoption of the administrative law judge's decision. (5) A vote of a majority of the board or of a panel, or a majority of the California Board of Podiatric Medicine, are required to increase the penalty from that contained in the proposed administrative law judge's decision. No member of the board or panel or of the California Board of Podiatric Medicine may vote to increase the penalty except after reading the entire record and personally hearing any additional oral argument and evidence presented to the panel or board. SEC. 24. Section 2506 of the Business and Professions Code is amended to read: 2506. As used in this article the following definitions shall apply: (a) "Board" means the Medical Board of California. (b) "Licensed midwife" means an individual to whom a license to practice midwifery has been issued pursuant to this article. (c) "Certified nurse-midwife" means a person to whom a certificate has been issued pursuant to Article 2.5 (commencing with Section 2746) of Chapter 6. (d) "Accrediting organization" means an organization approved by the board. SEC. 25. Section 2529 of the Business and Professions Code is amended to read: 2529. Graduates of the Southern California Psychoanalytic Institute, the Los Angeles Psychoanalytic Society and Institute, the San Francisco Psychoanalytic Institute, the San Diego Psychoanalytic Institute, or institutes deemed equivalent by the Medical Board of California who have completed clinical training in psychoanalysis may engage in psychoanalysis as an adjunct to teaching, training, or research and hold themselves out to the public as psychoanalysts, and students in those institutes may engage in psychoanalysis under supervision, if the students and graduates do not hold themselves out to the public by any title or description of services incorporating the words "psychological," "psychologist," "psychology," "psychometrists," "psychometrics," or "psychometry," or that they do not state or imply that they are licensed to practice psychology. Those students and graduates seeking to engage in psychoanalysis under this chapter shall register with the Medical Board of California, presenting evidence of their student or graduate status. The board may suspend or revoke the exemption of such persons for unprofessional conduct as defined in Sections 725, 2234, and 2235. SEC. 26. Section 2529.5 of the Business and Professions Code is amended to read: 2529.5. Each person to whom registration is granted under the provisions of this chapter shall pay into the Contingent Fund of the Medical Board of California a fee to be fixed by the Medical Board of California at a sum not in excess of one hundred dollars ($100). The registration shall expire after two years. The registration may be renewed biennially at a fee to be fixed by the board at a sum not in excess of fifty dollars ($50). Students seeking to renew their registration shall present to the board evidence of their continuing student status. The money in the Contingent Fund of the Medical Board of California shall be used for the administration of this chapter. SEC. 27. Section 2540.1 is added to the Business and Professions Code, to read: 2540.1. Any reference to the "Division of Medical Quality" or to the "Division of Licensing" in this chapter shall be deemed to refer to the Medical Board of California. SEC. 28. Section 2546.2 of the Business and Professions Code is amended to read: 2546.2. All references in this chapter to the division shall mean the Medical Board of California. SEC. 29. Section 2550.1 of the Business and Professions Code is amended to read: 2550.1. All references in this chapter to the board or the Board of Medical Examiners or division shall mean the Medical Board of California.