BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1730
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          Date of Hearing:  March 23, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                   AB 1730 (Emmerson) - As Amended:  March 17, 2010

                                  PROPOSED CONSENT
           
          SUBJECT  :  PERSONAL RIGHTS: MONETARY LIABILITY: MARRIAGE AND  
          FAMILY THERAPIST PEER REVIEW

           KEY ISSUE  :  SHOULD THE LAW AFFORDING QUALIFIED IMMUNITY TO  
          MEMBERS OF PEER REVIEW COMMITTEES IN VARIOUS PROFESSIONAL FIELDS  
          BE REVISED TO CLARIFY THAT THE IMMUNITY EXTENDS TO MEMBERS OF  
          PEER REVIEW COMMITTEES IN THE FIELDS OF PSYCHOLOGY AND MARRIAGE  
          AND FAMILY THERAPY, FOR ACTS UNDERTAKEN OR PERFORMED IN  
          REVIEWING THE QUALITY OF PROFESSIONAL SERVICES RENDERED BY  
          PSYCHOLOGISTS AND MARRIAGE AND FAMILY THERAPISTS?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal.

                                      SYNOPSIS

          Since 1986, Civil Code Section 43.7 has provided immunity from  
          liability to members of a marriage and family therapy  
          "professional society" (as defined) generally, but not  
          specifically to members of a peer review committee in the field  
          whose purpose is to review the quality of services rendered by  
          marriage and family therapists.  The reason for this apparent  
          oversight is unknown.  Existing law already provides immunity to  
          peer review committees for physicians, dentists, dental  
          hygienists, podiatrists, chiropractors, optometrists, and  
          psychologists, among others.  This bill, sponsored by the  
          California Association of Marriage and Family Therapists  
          (CAMFT), simply adds marriage and family therapists to the list  
          of health-related professions for which qualified immunity from  
          liability is provided to peer review committee members for any  
          act or proceeding undertaken or performed in reviewing the  
          quality of professional services rendered by marriage and family  
          therapists.  The immunity is qualified, not absolute, because it  
          is only available if the member:  (1) acts without malice; (2)  
          has made a reasonable effort to obtain the facts of the matter  
          as to which he or she acts; and (3) acts in reasonable belief  
          that the action he or she takes is warranted by the facts known  








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          to him or her after the reasonable effort to obtain the facts.   
          The sponsor has provided key information to the Committee about  
          current peer review practices within the marriage and family  
          therapy field that appears to support its contention that its  
          peer review committee appears to continue to responsibly carry  
          out its mission to identify and discipline ethical violators,  
          and therefore immunity from liability appears to be merited  in  
          this case.  The Consumer Attorneys are neutral on the bill and  
          there is no known opposition.

           SUMMARY  :  Extends the qualified immunity granted under current  
          law to members of peer review committees in numerous  
          health-related professional fields for any act or proceeding  
          undertaken or performed in reviewing the quality of professional  
          services rendered by members of those professionals.   
          Specifically, this bill  would provide that there shall be no  
          monetary liability on the part of, and no cause of action for  
          damages shall arise against, any member of a peer review  
          committee, composed chiefly of marriage and family therapists or  
          psychologists, whose purpose it is to review the quality of  
          services, including medical and mental health services, rendered  
          by marriage and family therapists or psychologists if the  
          committee member acts without malice, has made a reasonable  
          effort to obtain the facts of the matter as to which he or she  
          acts, and acts in reasonable belief that the action taken is  
          warranted by the facts known to him or her.  In order to  
          increase logical clarity within Civil Code Section 43.7(b), this  
          bill also adds two references to "psychotherapy" to properly  
          identify the type of services rendered by psychologists who  
          already possess the qualified immunity.

           EXISTING LAW  :  

          1)Provides, generally, that there shall be no monetary liability  
            on the part of, and no cause of action for damages against,  
            any member of a mental health professional quality assurance  
            committee for actions taken pursuant to a review or evaluation  
            of mental health care or treatment.  (Civil Code Section  
            43.7(a).)

          2)Defines "peer review body" to include, among other things, a  
            marriage and family therapy professional society that: (1) has  
            as members at least 25 percent of the eligible licentiates in  
            the area in which it functions; (2) is not organized for  
            profit; and (3) has been determined to be tax-exempt pursuant  








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            to Section 23701 of the Revenue and Taxation Code.  (Bus. &  
            Prof. Code Section 805(a)(1)(C).)

          3)Defines "professional society" to include legal, medical,  
            psychological, dental, dental hygiene, dietetic, accounting,  
            optometric, acupuncture, podiatric, pharmaceutic,  
            chiropractic, physical therapist, veterinary, licensed  
            marriage and family therapy, licensed clinical social work,  
            and engineering organizations having as members at least 25  
            percent of the eligible persons or licentiates in the  
            geographic area served by the particular society.  (Civil Code  
            Section 43.7(b).)

          4)Provides, generally, that there shall be no monetary liability  
            on the part of, and no cause of action for damages against, a  
            professional or medical society, or member of any committee  
            thereof, for any action taken to maintain the professional  
            standards of the society.  (Civil Code Section 43.7(b).)

          5)Provides that nothing in this section affects the official  
            immunity of an officer or employee of a public corporation.   
            (Civil Code Section 43.7(c).)

          6)Provides, generally, that there shall be no monetary liability  
            on the part of, and no cause of action for damages against,  
            any physician and surgeon, podiatrist, or chiropractor who is  
            a member of an insurance underwriting committee, for actions  
            performed for the purpose of evaluating physicians and  
            surgeons, podiatrists, or chiropractors for the writing of a  
            professional liability insurance contract.  (Civil Code  
            Section 43.7(d).)

          7)Requires the Board of Behavioral Sciences to create and  
            maintain a central file of the names of all persons who hold a  
            license, certificate, or similar authority from the Board in  
            order to provide an individual historical record for each  
            licensee with respect to any: (1) criminal conviction that  
            constitutes unprofessional conduct; (2) judgment or settlement  
            for damages in excess of $3,000 for any claim that injury or  
            death was proximately caused by the licensee's negligence,  
            error or omission in practice, or by rendering unauthorized  
            professional services; (3) public complaints; (4) disciplinary  
            information reported pursuant to B&P Section 805.  (Bus. &  
            Prof. Code Section 800.)









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          8)Requires the administrator of a peer review body to file an  
            "805 report" with the relevant state licensing agency within  
            15 days after the effective date of any of the following that  
            occur as a result of an action of the peer review body:

             a)   A licentiate's application for staff privileges or  
               membership is denied or rejected for a medical disciplinary  
               cause or reason.
             b)   A licentiate's membership, staff privileges, or  
               employment is terminated or revoked for a medical  
               disciplinary cause or reason.
             c)   Restrictions are imposed, or voluntarily accepted, on  
               staff privileges, membership, or employment for a  
               cumulative total of 30 days or more for any 12-month  
               period, for a medical disciplinary cause or reason. 
             (Bus. & Prof. Section 805(b).)

          9)Contains findings of the Legislature stating that:

             a)   Peer review, fairly conducted, is essential to  
               preserving the highest standards of medical practice.
             b)   Peer review, fairly conducted, will aid the appropriate  
               state licensing boards in their responsibility to regulate  
               and discipline errant healing arts practitioners.
             c)   To protect the health and welfare of the people of  
               California, it is the policy of the State of California to  
               exclude, through the peer review mechanism as provided for  
               by California law, those healing arts practitioners who  
               provide substandard care or who engage in professional  
               misconduct, regardless of the effect of that exclusion on  
               competition.  (Bus. & Prof. Section 809(a).)
           
          COMMENTS  :  This bill, sponsored by the California Association of  
          Marriage and Family Therapists (CAMFT), simply adds marriage and  
          family therapists to the list of health-related professions for  
          which members of a peer review committee in that field are  
          granted qualified immunity for peer review-related activities  
          under Civil Code Section 43.7.  This section grants qualified  
          immunity from liability for any act or proceeding undertaken or  
          performed in reviewing the quality of professional services  
          rendered by various practitioners of the healing arts.  The  
          immunity is qualified, not absolute, because it is only  
          available if the member: (1) acts without malice; (2) has made a  
          reasonable effort to obtain the facts of the matter as to which  
          he or she acts; and (3) acts in reasonable belief that the  








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          action he or she takes is warranted by the facts known to him or  
          her after the reasonable effort to obtain the facts.

          In order to increase logical clarity within Section 43.7(b),  
          this bill also adds two references to "psychotherapy" to  
          properly identify the type of services rendered by psychologists  
          who have already enjoyed qualified immunity under the statute  
          since 1982.

           Legislative History of this Section:   Such immunity has existed  
          for over 30 years when it was first extended to members of peer  
          review committees composed of physicians and surgeons.  Since  
          then, the section has been amended several times to immunize  
          peer review committees composed of dentists, dental hygienists,  
          podiatrists, registered dieticians, chiropractors, optometrists,  
          and psychologists, among others.  The most recent group of  
          professionals to be added to the section was acupuncturists, as  
          the result of SB 1279 (Chapter 815, Stats. of 1994), which  
          passed out of this Committee on a 9-1 vote.  

          The history of licensed marriage and family therapists with  
          respect to this section actually dates back to 1986, when  
          "licensed marriage, family, and child counseling" was included  
          in the list of professional societies in subdivision (b), but  
          was omitted from the list of professions afforded immunity from  
          liability for peer review committee activities.  (Chapter 669,  
          Stats. of 1986.)  The Committee's research of the legislative  
          history does not reveal the reason for this apparent  
          discrepancy, leaving open the question of whether the omission  
          was an oversight.  As a result, the section provides immunity  
          from liability to members of a marriage and family therapy  
          professional society generally, but not for members of a peer  
          review committee whose purpose is to review the quality of  
          services rendered by marriage and family therapists.

          Finally, SB 2026 (Chapter 1013, Stats. of 2002) substituted the  
          term "marriage and family therapy" for "marriage, family, and  
          child counseling" without broadening immunity from liability,  
          giving the statute the wording it retains to this day.  Section  
          43.7 has not been amended since.
           
          Rationale for Extending Immunity:   The rationale for extending  
          immunity to marriage and family therapists appears to be  
          identical to that for extending it to members of other  
          health-related professions: namely, that it protects the public  








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          by ensuring candid evaluation and critique by members of peer  
          review committees who have voluntarily assumed responsibility  
          for evaluating the skills and job performance of fellow  
          practitioners, including identifying those who should be  
          reprimanded or reported for ethical or legal violations.  The  
          benefits that arise from the grant of such immunity from  
          liability come at a certain social cost because the ability of a  
          patient to file a lawsuit against a practitioner for purported  
          malpractice is compromised.

          In response to the Committee's request, the sponsor of the bill,  
          California Association of Marriage and Family Therapists, has  
          provided key information about current peer review practices  
          within the marriage and family therapy field that support its  
          contention that immunity from liability is appropriate in this  
          case because the benefits outweigh the social cost.  
          This information includes the following:

           The CAMFT Ethics Committee (i.e. the peer review committee for  
            licensed marriage and family therapists) has been receiving  
            and acting on complaints for over 25 years, and is composed of  
            between 5 and 7 volunteer members who are all clinical members  
            of the Association.

           The role of the Committee is to evaluate complaints against  
            the Ethical Standards and Code of Ethics that applied at the  
            time the service was provided, and to conduct an  
            investigation, following prescribed procedures, to determine  
            whether the Ethical Standards/Code of Ethics for the  
            profession have been violated.

           In the event that the Committee concludes ethical violations  
            have occurred, it may negotiate settlements with the violator  
            to impose terms and conditions on future conduct.  Following  
            the signing of such a settlement, the Committee monitors the  
            member's performance through written reports generally  
            submitted by supervisors, practice monitors, and therapists.

           Pursuant to its duty under B&P Section 805, since 2001 the  
            Committee has filed approximately ten "Section 805" reports  
            against members who have committed certain violations.  This  
            is important because the licensing board for MFTs, the Board  
            of Behavioral Sciences, cannot fulfill its duty to take  
            disciplinary action against licensees who have engaged in  
            unprofessional conduct without necessary reporting.








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           Upon request of a member of the public, the Board of  
            Behavioral Sciences must disclose specified information about  
            disciplinary actions taken against a licensee, including MFTs.

           The CAMFT peer review framework allows a MFT more than one  
            opportunity to present facts in his defense and appeal an  
            adverse decision before a permanent "mark" is left on his or  
            her professional record.  Specifically:

               o      The MFT may submit a written response to the  
                 allegations made against him or her during the  
                 investigation by the Ethics Committee.
               o      If the Committee decides to refer the case to the  
                 full CAMFT Board of Directors, then the MFT has the right  
                 to a hearing before the Board and may be represented by  
                 counsel.
               o      If the Board concludes a violation has occurred, the  
                 MFT may not formally appeal the decision, but may request  
                 the Board to reconsider its decision.

           Consumer Attorneys Do Not Oppose the Proposed Immunity.   The  
          Consumer Attorneys of California (CAOC) have long held the  
          position that specific professional groups should only be added  
          to the existing peer review immunity statutes under three  
          conditions: (1) the peer review committee is required to file a  
          "section 805" report to enable the licensing authority to  
          evaluate and track misconduct; (2) the peer review committee is  
          comprised of volunteer rather than paid reviewers; and (3) the  
          licensing entity appears to have a basic record of public  
          protection.  CAOC writes that they are satisfied that the peer  
          review framework for marriage and family therapists appears to  
          meet these criteria, and thus have taken an official "Neutral"  
          position on this bill.
           
          ARGUMENTS IN SUPPORT  :  According to the sponsor, this bill will  
          clear up an ambiguity in the existing immunity statute for  
          activities of peer review committees, and instead assure the  
          members of these committees reviewing ethical complaints against  
          marriage and family therapists that the specified immunity does  
          apply to the important and deserving work they engage in.  They  
          write in support:

               With respect to professional society peer review  
               committees that are addressed in Section 43.7(b)  








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               of the Civil Code, marriage and family therapists  
               are omitted from the listing of professions  
               afforded immunity from liability, even though this  
               section of law covers marriage and family therapy  
               professional societies.  It is important for  
               members of marriage and family therapist ethics  
               committees to be assured that the specified  
               immunity from liability is applicable to them and  
               the actions they take.  This change in law will  
               assure that there is no ambiguity with respect to  
               this protection for those who volunteer to perform  
               this important function that helps to protect the  
               public and assure that members adhere to  
               established codes of ethics.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Association of Marriage and Family Therapists (CAMFT)  
          (sponsor)
          California Hospital Association

           Opposition 
           
          None on file
           
          Analysis Prepared by  :    Anthony Lew / JUD. / (916) 319-2334