BILL ANALYSIS
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|Hearing Date:June 29, 2009 |Bill No:AB |
| |1070 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND
ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: AB 1070Author:Hill
As Amended:June 23, 2009 Fiscal: Yes
SUBJECT: Healing Arts
SUMMARY: Makes changes to the reporting by licensees of the Medical
Board of California (MBC), the Osteopathic Medical Board of California
(OMBC), or the California Board of Podiatric Medicine (CBPM) of
settlements over $30,000 or any arbitration or civil judgment of any
amount; requires a state or governmental agency that self-insures
licensees, to perform specific actions with respect to each licensee
who will be identified in a report; requires that medical records of
patients requested by MBC to be produced be certified; extends the
sunset date of the vertical enforcement and prosecution model and the
Health Quality Enforcement Section (HQES) within the Department of
Justice (DAG) to July 1, 2012.
Existing law, the Business and Professions Code:
1)Establishes MBC to license, regulate and discipline physicians and
surgeons in California and states that the protection of the public
is the highest priority of MBC in exercising its functions.
2)Requires a complete report to be sent to MBC, OMBC or CBPM with
respect to its licensees on the following: a settlement offer over
$30,000 or arbitration award of any amount or a civil judgment of
any amount, as specified; a settlement over $30,000 if based on the
licensee's negligence, error, or omission in practice, or by the
licensee's rendering of authorized professional services, as
specified.
3)Requires the report specified in item #2) above to come from the
insurer providing professional liability insurance to the licensee,
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the licensee or his or her counsel, if the licensee does not possess
professional liability insurers, and state or local government
agency that self-insures the licensee.
4)Requires the report to be sent to MBC, OMBC, and CBPM within 30 days
after the written settlement agreement has been reduced to writing
and signed by all parties, within 30 days after service of the
arbitration award on the parties, or within 30 days after the date
of entry of the civil judgment.
5)Requires MBC, OMBC, and CBPM to develop a prescribed form for the
report, and specifies the information that must be included in the
form, including the name and address of the claimant or plaintiff
involved in the matter, the name and address of every licensee, the
name and address of the insurer providing professional liability
insurance to any person, and a summary of the facts of each claim,
charge or allegation.
6)States that failure of the licensee or claimant, or counsel
representing the licensee or claimant to report is a public offense
punishable by a fine of not less than $50 and not more than $500.
Indicates that a knowing and intentional failure to comply, as
specified, is a public offense punishable by a fine of not less than
$5,000 and not more than $50,000.
7)Allows MBC to appoint panels for its members, and specifies the
number of public members assigned to panels.
8)States that a licensee who fails or refuses to comply with a request
for the medical records of a patient, that is accompanied by a
patient's written authorization for release of records to the board,
within 15 days of receiving the request and authorization, and may
be assessed a civil penalty of $1,000 for each day that the
documents have not been produced, unless there is good cause.
9)Provides that a licensee whose matter has been heard by an
administrative law judge, as specified, or whose default has been
entered, and who is found guilty, or who has entered into a
stipulation for disciplinary action with MBC, may have his or her
license revoked upon order of MBC, have his or her right to practice
suspended for a period not to exceed one year upon order of the
division, be placed on probation and be required to pay the costs of
probation monitoring upon order of the division, be publicly
reprimanded by MBC, or have any other action taken in relation to
discipline as part of an order of probation, as MBC or the
administrative law judge may deem proper.
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10)Requires a licensed physician to report to MBC at the time of
license renewal any specialty board certification, practice status,
and informational on cultural background and foreign language
proficiency.
Existing law, the Government Code:
1)Establishes in the DOJ the HQES to investigate and prosecute
proceedings against licensees and applicants within the jurisdiction
of MBC, CBPM, the Board of Psychology, or any committee under the
jurisdiction of MBC or a division of MBC.
2)Requires the Attorney General (AG) to ensure that HQES is properly
staffed with a sufficient number of experienced and able employees
who are capable of handling the most complex and varied types of
disciplinary actions against licensees.
3)States that funding for the HQES is budgeted from the special funds
of MBC.
4)Sunsets the above provisions on January 1, 2010 and will be repealed
on or before January 1, 2011, if no statute extends the sunset date.
5)Requires that all complaints or relevant information concerning
licensees that are within the jurisdiction of MBC be made available
to the HQES. Requires the AG to assist the board, division or
committees in designing and providing initial and in-service
training programs for staff of the division, boards, or committees,
including, but not limited to, information collection and
investigation.
6)Requires the Senior Assistant AG to assign attorneys to assist MBC
in intake and investigations and to direct discipline-related
prosecutions. Requires attorneys to work closely with each major
intake and investigatory unit of the boards, to assist in developing
uniform standards and procedures for the handling of complaints and
investigations.
7)Finds and declares that MBC, by ensuring the quality and safety of
medical care, performs one of the most critical functions of state
government. Because of the critical importance of the board's
public health and safety function, the complexity of cases involving
alleged misconduct by physicians and surgeons, and the evidentiary
burden in the board's disciplinary cases, the Legislature finds and
declares that using a vertical enforcement and prosecution model for
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those investigations is in the best interests of the people of
California.
8)States that as of January 1, 2006, each complaint that is referred
to a district office of the board for investigation shall be
simultaneously and jointly assigned to an investigator and to the
deputy AG in the HQES responsible for prosecuting the case if the
investigation results in the filing of an accusation. States that
the joint assignment of the investigator and the deputy AG exist for
the duration of the disciplinary matter. States that during the
assignment, the investigator assigned shall, under the direction but
not the supervision of the deputy attorney general, be responsible
for obtaining the evidence required to permit the Attorney General,
to advise the board on legal matters such as whether the board
should file a formal accusation, dismiss the complaint for a lack of
evidence required to meet the applicable burden of proof or take
other appropriate legal action.
9)Requires MBC by July 1, 2009, in consultation with the Department of
Justice, the Department of Consumer Affairs, the Department of
Finance, and the Department of Personnel Administration to report
and make recommendations to the Governor and the Legislature on the
vertical enforcement and prosecution model.
This bill, within the Business and Professions Code:
1)Finds and declares that existing law provisions requiring the
reporting of settlements over $30,000, arbitration or civil judgment
of any amount, with MBC, OMBC or CBPM is essential to the protection
of the public. States further that it is the intent of the
Legislature that the reporting requirements be interpreted broadly
in order to expand reporting obligations.
2)States that the definition of a state governmental agency that
self-insures is required to make a report includes, but is not
limited to, the University of California.
3)Deletes the existing law requirement that an insurer that is
required to send a report to notify the claimant or the claimant's
counsel that the insurer has sent a report to the applicable state
agency, as specified.
4)States that a copy of a judgment must be included in the information
that is reported to MBC, OMBC, and CBPM. Makes other clarifying
changes to the information that must be reported.
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5)Revises the penalty for failure to comply with the reporting
requirements by deleting references to knowing and intentional
failure to comply, and instead provides that failure to
comply is a public offense punishable by a fine of not less than $500
and not more than $5,000.
6)Requires a state or local governmental agency that self-insures
licensee, prior to sending a report, to do all of the following with
respect to each licensee who will be identified in the report:
6) Provide written notice to the licensee that the agency intends
to submit a report in which the licensee will be identified.
Requires the notice to describe the specific reasons for
identifying the licensee and the specific reasons for the amount
of the settlement the agency apportioned to the licensee.
Requires the agency to include with this notice a copy of all
records used by the agency in deciding the licensee in the
report.
6) Advise the licensee that he or she may, within 10 days of
receiving the notice specified above, provide written response to
the agency and written materials in support of the licensee's
position. Requires the agency to include this response and
materials in the report submitted to MBC.
6) Provide the licensee, after giving at least five days prior to
written notice, with the opportunity to present his or her
arguments to the body that will make the final decision on behalf
of the agency regarding identification of the licensee in the
report.
7)States that the provisions relating to self-insurers must not be
construed to modify either the content of the report or the
timeframe for filing the report.
8)States that the Legislature recognizes that various types of
entities are creating, implementing, and maintaining patient safety
and risk management programs that encourage early intervention in
order to address known complications and other unanticipated events
requiring medical care. Provides further that the Legislature
recognizes that some entities even provide financial assistance to
individual patients to help them address these unforeseen health
care concerns. States that it is the intent of the Legislature that
financial assistance does not limit a patient's interaction with or
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his or her rights before MBC.
9)Indicates that any entities that provides early intervention,
patient safety, or risk management programs to patients, or
contracts for those programs for patients, shall not include, as
part of any of those programs or contracts, any of the following:
9) A provision that prohibits a patient or patients from
contacting or cooperating with MBC.
9) A provision that prohibits a patient or patients from filing a
complaint with MBC.
9) A provision that requires a patient or patients to withdraw a
complaint that has been filed with MBC.
10)States that any reference to an investigation by MBC shall be
deemed to refer to a joint investigation by the employees of the DOJ
and MBC under the vertical enforcement prosecution model.
11)Clarifies that the president of MBC is not a member of any panel
unless there is a vacancy in the membership of MBC.
12)Requires that medical records of patients requested by MBC to be
produced by licensees or health care facilities be certified, as
specified. Defines certified medical records as a copy of the
patient's medical records authenticated by the licensee or health
care facility, as appropriate, on a form prescribed by MBC. Caps
the civil penalty that MBC can assess on licensees for failure to
produce requested documents or for failure to comply with a court
order for the production of documents at $10,000.
13)States that a public reprimand may include a requirement that a
licensee completes relevant educational courses approved by MBC.
14)Requires a licensed physician and surgeon to report to MBC
immediately upon issuance of an initial license any specialty board
certification practice status, and cultural background, as
specified.
This bill, within the Government Code:
1)Extends the sunset date of the HQES within DOJ which has the primary
responsibility of investigating and prosecuting proceedings against
licensees and applicants within the jurisdiction of MBC, CBPM, the
Board of Psychology and any committee under the jurisdiction of MBC
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to July 1, 2012.
2)Requires MBC to establish and implement a plan to assist in team
building between its enforcement staff and the staff of the HQES to
ensure a common and consistent knowledge base.
3)Extends the sunset date of the vertical enforcement and prosecution
model to July 1, 2012. Requires MBC, in consultation with DOJ and
the Department of Consumer Affairs to report and make
recommendations to the Governor and the Legislature on the vertical
enforcement and prosecution model by March 1, 2011.
4)Makes other technical, nonsubstantive changes.
FISCAL EFFECT: According to the Assembly Appropriations Committee,
absorbable workload to MBC to continue oversight of settlements,
awards, and judgments, and to comply with the reporting requirements
pursuant to this bill.
COMMENTS:
1.Purpose. According to the Medical Board of California , the Sponsor
of this measure, the provisions contained in this bill seek to
ensure that MBC continues to protect the health care of consumers.
Specifically, MBC points out that current law leaves room for
interpretation of laws governing reporting requirements for MBC.
MBC argues that it cannot effectively protect consumers if reporting
is not consistent and enforced. Furthermore, in certain settings
when a person sustains injury resulting from services rendered by
professional staff, a hospital, or an insurance group, they may
choose to offer a patient an amount of money to cover the cost of
future treatments in order to eliminate the need for a malpractice
claim. When such action is taken, the matter is not reported to MBC
because it does not fit into the reporting requirements as a civil
case that has not been filed. MBC argues that this does not negate
the need for MBC to investigate the matter if the injury allegedly
occurred due to the actions of a physician and surgeon. The intent
of the reporting malpractice settlements, judgments, or arbitration
awards to MBC is to ensure consumer protection by reviewing the care
and treatment of the physician and surgeon involved in the care
provided to the patient. In addition, this bill would allow an
administrative judge to recommend that a licensee be issued a public
reprimand that includes additional requirements for education and
training. MBC points out that this would prevent the Board from
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having to go through the process of modifying a recommendation made
by an administrative judge. In addition, MBC points out that when
it requests medical records upon initial patient compliant,
certified records are requested but not always provided. The
initial review can be performed without certified records; however,
if the complaint goes into investigation, MBC will need certified
medical records. Under the current system where MBC has to request
records more than once, investigations are prolonged.
2.Background.
2) Reporting Requirements. Existing law provides that licensees,
insurers providing professional liability insurance to licensees,
and governmental agencies that self-insures licensees to report
settlements over $30,000 , arbitration awards or civil judgments
in any amount to MBC in a form prescribed by the Board. The
report must be submitted within 30 days after the written
settlement agreement has been reduced in writing or within 30
days after service of the arbitration award or the entry of the
civil judgment. The report must also include specified
information including name and address of the licensee and the
insurer providing professional liability insurance, a brief
description or summary of the facts of each claim, charge, or
allegation, the amount of the judgment. This bill clarifies the
definition of state governmental entity that self-insures and is
required to make a report to include the University of
California. In addition, there are certain requirements that
governmental agencies that self-insures must fulfill prior to
sending a report to MBC, including providing written notice to
the licensee that the governmental agency intends to submit a
report to MBC in which the licensee will be identified.
According to MBC, these provisions put the responsibility for any
failure to comply with the reporting requirements on all parties,
not just the physicians.
2) Production of Patient Medical Records. A licensee who fails
or refuses to comply with a request for medical records of a
patient, that is accompanied by a patient's written authorization
for release of records to MBC, within 15 days of receiving the
request and authorization, must pay MBC a civil penalty of $1,000
for each day that the documents have not been produced after the
15th day, unless there is good cause for the failure. A health
care facility who fails to produce patient medical records within
30 days of receipt of the request could be levied a civil penalty
of up to $1,000 per day that documents have not been produced
after the 30th day, up to $10,000. If a request to produce
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records is made pursuant to a court order, issued in the
enforcement of a subpoena, the offense is a misdemeanor and the
same monetary penalties apply. This bill requires that the
medical records produced be certified and defines certified
medical records.
2) Vertical Enforcement and Prosecution Model. SB 1950 , Chapter
1085, Statutes of 2002, among other provisions, required the
appointment of an independent enforcement monitor to evaluate
MBC's enforcement system and establish a priority system for the
investigation of complaints against physicians. The Monitor's
report, released on 2004, entitled Initial Report of the Medical
Board Enforcement Program, made numerous findings and 65 specific
recommendations for reform. One of the Monitor's recommendations
was the utilization of a vertical prosecution model for
physicians' disciplinary cases. Vertical prosecution allows
lawyers and investigators to view each case as a whole, rather
than as two, separate and independent sequential steps: the
investigation and then the prosecution. According to the
Monitor, the vertical prosecution model would improve efficiency
and reduce case cycle time, ensuring the quality and safety of
medical care to Californians.
SB 231 (Figueroa), Chapter 674, Statutes of 2005 codified many of
the Monitor's recommendations, including the use of the vertical
prosecution model effective January 1, 2006. SB 231 also
required MBC to report and make recommendations to the Governor
and the Legislature on the vertical prosecution model by July 1,
2007. This report indicated that there was an overall decrease
of 10 days in the average time to complete an investigation,
excluding all cases pending prior to the implementation of the
model. The other findings of the report include: the number of
cases closed without prosecution was reduced from 145 days to 139
days; obtaining medical records was decreased from 74 days to 36
days; and conducting physician interviews reduced from 70 days to
40 days.
SB 797 (Ridley-Thomas), Chapter 33, Statutes of 2008, extended the
sunset date of the vertical enforcement model to July 1, 2010,
and requires another report to be submitted by MBC on the
effectiveness of the vertical enforcement model by July 1, 2009.
NOTE : Double-referral to Judiciary Committee (second.). This bill is
double-referred. Should it pass out of this Committee, it will be
referred to the Senate Judiciary Committee.
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SUPPORT AND OPPOSITION:
Support:
Medical Board of California (Sponsor)
Opposition:
None on file as of June 23, 2009
Consultant:Rosielyn Pulmano