BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1070|
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THIRD READING
Bill No: AB 1070
Author: Hill (D)
Amended: 8/24/09 in Senate
Vote: 21
SENATE BUS., PROF. & ECON. DEVEL. COMMITTEE : 7-3, 6/29/09
AYES: Negrete McLeod, Corbett, Correa, Florez, Oropeza,
Romero, Yee
NOES: Wyland, Aanestad, Walters
SENATE JUDICIARY COMMITTEE : 3-2, 7/14/09
AYES: Corbett, Florez, Leno
NOES: Harman, Walters
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 48-30, 5/28/09 - See last page for vote
SUBJECT : Healing arts
SOURCE : Medical Board of California
DIGEST : This bill makes changes to the reporting by
licensees of the Medical Board of California (MBC), the
Osteopathic Medical Board of California, or the California
Board of Podiatric Medicine of settlements over $30,000 or
any arbitration or civil judgment of any amount. In
addition, 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
CONTINUED
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report, requires that medical records of patients requested
by MBC to be produced be certified, and extends the sunset
date of the vertical enforcement and prosecution model and
the Health Quality Enforcement Section within the
Department of Justice to January 1, 2013.
Senate Floor Amendments of 8/24/09 changes the sunset date,
which the bill proposes extending, for vertical enforcement
and prosecution model and the Health quality Enforcement
Section within the Department of Justice from July 1, 29012
to January 1, 2013.
ANALYSIS :
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,
Osteopathic Medical Board of California (OMBC) or the
California Board of Podiatric Medicine (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, 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
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of the civil judgment.
Existing law, the Government Code:
1. Establishes in the Department of Justice (DOJ) the
Health Quality Enforcement Section (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.
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.
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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.
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 substantially 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:
A. Before deciding a licensee will be identified,
provide written notice to the licensee that the
agency intends to submit a report in which the
licensee may be identified, based on his or her
role in the care or professional services provided
to the patient that were at issue in the claim or
action. This notice shall describe the reasons for
notifying the licensee. The agency shall include
with this notice a reasonable opportunity for the
licensee to review a copy of records to be used by
the agency in deciding whether to identify the
licensee in the report.
B. Provide the licensee with a reasonable
opportunity to provide a written response to the
agency and written materials in support of the
licensee's position. If the licensee is identified
in the report, requires the agency to include this
response and materials in the report submitted to
MBC.
C. At least 10 days prior to the expiration of the
30-day reporting requirement, provide the licensee
with the opportunity to present arguments to the
body that will make the final decision or to that
body's designee. The body shall review the care or
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professional services provided to the patient with
respect to those services at issue in the claim or
action and determine the licensee or licensees to
be identified in the report and the amount of the
settlement to be apportioned to the licensee.
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 his or her rights before MBC.
9. Indicates that any entities that provide 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:
A. A provision that prohibits a patient or patients
from contacting or cooperating with MBC.
B. A provision that prohibits a patient or patients
from filing a complaint with MBC.
C. 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.
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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. Requires the board
to provide and option for a licensed physician and
surgeon to decline to state his/her cultural background
and foreign language proficiency.
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 to January 1, 2013.
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 January 1, 2013. Requires
MBC, in consultation with DOJ and the Department of
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Consumer Affairs to report and make recommendations to
the Governor and the Legislature on the vertical
enforcement and prosecution model by March 1, 2012.
4. Makes other technical, nonsubstantive changes.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/17/09)
Medical Board of California (source)
ARGUMENTS IN SUPPORT : 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 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
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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.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Beall, Block, Blumenfield,
Brownley, Caballero, Charles Calderon, Carter, Chesbro,
Coto, Davis, De La Torre, De Leon, Eng, Evans, Feuer,
Fong, Fuentes, Furutani, Galgiani, Hall, Hayashi,
Hernandez, Hill, Huffman, Jones, Krekorian, Lieu, Bonnie
Lowenthal, Ma, Mendoza, Monning, Nava, John A. Perez, V.
Manuel Perez, Portantino, Price, Ruskin, Salas, Saldana,
Skinner, Solorio, Swanson, Torlakson, Torrico, Yamada,
Bass
NOES: Adams, Anderson, Bill Berryhill, Tom Berryhill,
Blakeslee, Conway, Cook, DeVore, Duvall, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Huber, Jeffries, Knight, Logue, Miller, Nestande,
Niello, Nielsen, Silva, Smyth, Audra Strickland, Tran,
Villines
NO VOTE RECORDED: Buchanan, Torres
JJA:do 8/26/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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