BILL ANALYSIS
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|Hearing Date:June 14, 2010 |Bill No:AB |
| |1767 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: AB 1767Author:Hill
As Amended: June 7, 2010 Fiscal:Yes
SUBJECT: Healing arts.
SUMMARY: Requires the Office of the Attorney General (AG), with
approval by the Medical Board of California (MBC), to provide
representation to any licensed physician and surgeon who provides
expertise to the MBC in the evaluation of the conduct of an applicant
or a licensee when, as a result of providing that expertise, the
physician and surgeon is the subject of a disciplinary proceeding
undertaken by a specialty board of which the physician and surgeon is
a member. Also, extends the term of appointments of two members of
the Health Professions Education Foundation appointed by the MBC to
January 1, 2016.
Existing law:
1) Establishes the MBC to license, regulate, and discipline physicians
and surgeons, and specifies that the protection of the public is
the highest priority of the MBC.
2) Provides that the AG has charge, as attorney, of all legal matters
in which the State is interested, including the regulatory boards
and bureaus within the Department of Consumer Affairs.
3) Requires the MBC to provide for representation in a civil action to
defend a person, who is not a regular employee of the board who is
hired, under contract, or retained under any other arrangement,
paid or unpaid, to provide expertise or nonexpert testimony to the
MBC 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
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action directly resulting from opinions rendered, statements made,
or testimony given to, or on behalf of, the committee or its
representatives. Requires the MBC to be liable for any judgment
rendered against that person, except that the MBC shall not be
liable for any punitive damages award. States that if the
plaintiff prevails in a claim for punitive damages, the defendant
shall be liable to the MBC for the full costs incurred in providing
representation to the defendant.
4) Provides immunity to specified persons, including a physician and
surgeon, or other healing arts licensee who provides information to
the MBC, to the California Board of Podiatric Medicine, or to the
Department of Justice indicating that a licensed physician and
surgeon may be guilty of unprofessional conduct or may be impaired
because of drug or alcohol abuse or mental illness.
5) Requires a licensed physician and surgeon to report to the MBC upon
issuance of an initial license and upon renewal any specialty board
certification, as specified.
6) Establishes the Health Professions Education Foundation (HPEF),
administered by the Office of Statewide Health Planning and
Development (OSHPD), to solicit and receive funds from various
entities for the purpose of providing financial assistance through
scholarships or loans to students who agree to practice in
medically underserved areas.
This bill:
1) Provides that if a licensed physician and surgeon who provides
expertise to the board in the evaluation of an applicant or a
licensee is, as a result of providing that expertise, the subject
of a disciplinary proceeding undertaken by a specialty board of
which the physician and surgeon is a member, the Office of the
Attorney General, with MBC approval, shall represent the physician
and surgeon in that disciplinary proceeding regarding any
allegation brought against the physician and surgeon as a direct
result of providing that expertise to the board.
2) Extends the term of appointments of the two members of the HPEF
that are appointed by the MBC to January 1, 2016.
FISCAL EFFECT: According to the Assembly Appropriations Committee,
unknown, likely minor fee-supported special fund costs to MBC to
provide legal expertise if a medical expert faced disciplinary action
as the result of investigative work conducted on behalf of MBC.
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COMMENTS:
1.Purpose. According to the MBC, the sponsor of this measure,
existing law requires the MBC to provide legal representation to
physicians and surgeons hired or under contract who provide
expertise to the MBC, if they are named as a defendant in a civil
action arising out of the evaluation or any opinions rendered, or
statements made or testimony given to the MBC. However, when a
professional grievance is filed with a specialty board of which the
physician and surgeon is a member, the MBC cannot protect the
physician and surgeon, creating a disincentive for these reviewers
who provide a critical consumer protection function.
The MBC indicated that recently a situation arose where an expert
reviewer provided the MBC with external reviews of care provided by
another licensed physician in two matters that were being
investigated. The expert reviewer opined that certain aspects of
the care and documentation by the physician and surgeon being
investigated did not meet the applicable standard of care. An
accusation was filed and the expert reviewer testified before an
administrative law judge who found that one of the two issues was
justified, and the MBC issued a public letter of reprimand against
the physician being investigated. The physician for which a public
letter of reprimand was issued subsequently filed a grievance with a
medical specialty board, of which they are both members, asking that
the expert reviewer be expelled from the specialty board for giving
biased and false testimony before the administrative law judge. The
expert reviewer was notified and directed to respond to the
allegations, only to find out that the MBC could not provide
assistance since the grievance did not create a risk of civil
liability. Fortunately, the medical group that employs the expert
reviewer agreed to provide assistance, but the MBC argues that the
state should protect expert reviewers who provide such a critical
consumer protection function in highly specialized and complex
cases. This bill fixes this problem so that expert reviewers can
continue to provide expert reviews and opinions that protect medical
consumers in California.
Additionally, the MBC points out that the two members of the HPEF,
appointed by the MBC, continue to play a strong leadership role at
HPEF. MBC provides that these members have served on the selection
committee and offered representation for the 125,000 California
physician licensees who help support the program with their $25
contribution to the HPEF.
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2.Background.
a) Expert Reviewer Program. In July 1994, the MBC established
the Expert Reviewer Program (program) as an impartial and
professional means by which to support the investigation and
enforcement functions of the MBC. Specifically, medical experts
assist the MBC by providing expert reviews and opinions on MBC
cases and conducting professional competency exams, physical
exams and psychiatric examinations. Physicians who participate
in the program are reimbursed $150 per hour for conducting case
reviews and oral competency exams, $200 an hour for providing
expert testimony, and usual and customary fees for physical or
psychiatric exams. To qualify, a physician must have the
following:
i) Possess a current California medical license in good
standing, no prior discipline, no accusations pending, and no
complaint history within the last three years.
ii) Board certification in one of 24 specified specialties,
including the American Board of Facial Plastic & Reconstructive
Surgery, the American Board of Pain Medicine, the American
Board of Sleep Medicine and the American Board of Spine
Surgery, with a minimum of three years of practice in the
specialty area after obtaining MBC certification.
iii) Have an active practice (defined as at least 80 hours a
month in direct patient care, clinical activity, or teaching,
at least 40 hours of which is in direct patient care) or have
been non-active or retired from practice no more than two
years.
b) Health Professions Education Foundation. According to the
MBC, the history of the HPEF can be traced back to the California
Physician Corps Loan Repayment Program (Loan Repayment Program),
later renamed the Steven M. Thompson Physician Corps Loan
Repayment Program, established by AB 982 (Firebaugh) Chapter
1131, Statutes of 2002. AB 982 was co-sponsored by the MBC, the
California Medical Association, the California Primary Care
Association, and the Latino Coalition for a Healthy California.
The purpose of AB 982 was to further the MBC's charge of consumer
protection and to undertake innovative and proactive steps to
tackle the significant issue of increased access to health care
for underserved areas.
In 2005, two bills were signed into law that significantly impacted
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the Loan Repayment Program. First, AB 327 (De La Torre) Chapter
293, Statutes of 2005, authorized the MBC to charge a voluntary
$50 fee for the issuance and renewal of a physician's license to
provide support for the Loan Repayment Program. Subsequent
legislation eliminated the $50 voluntary fee, and instead charged
physicians and surgeons a $25 mandatory fee to support the Loan
Repayment Program. Second, AB 920 (Aghazarian) Chapter 317,
Statutes of 2005, moved the Loan Repayment Program from the MBC
to the HPEF. Because of the leadership role the MBC undertook in
implementing and administering the Program, AB 920 provided for
two appointees by the MBC to serve on HPEF while being funded by
the Board. These appointed positions are set to expire on
January 1, 2011.
The HPEF, administered by OSHPD, provides scholarships and loan
repayments to aspiring and practicing health professionals who
agree to practice in a medically underserved area. Scholarships
are offered to health professional students attending one of
California's accredited colleges or universities. Loan repayment
programs are offered to graduates pursuing a health professional
career to assist in the repayment of educational debt.
Scholarships and loan repayments are offered to students and
graduates from the following professions: allied health, nursing,
mental health, medical and dental. Service obligations are
typically one to four years and vary depending on the program.
According to OSHPD's website, the HPEF awards scholarships and loan
repayments through five special funds: The Health Professions
Education Fund, the Registered Nurse Education Fund, the
Vocational Nurse Education Fund, the Mental Health Practitioner
Education Fund, and the Medically Underserved Account for
Physicians. The Health Professions Education Fund is funded
entirely through philanthropic contributions from hospitals,
health plans, foundations, corporations & individuals. The
Registered Nurse Education Fund is funded by a $10.00 surcharge
on Registered Nurse licensure renewal. The Vocational Education
Fund is funded through a $5.00 surcharge on the biennial
licensure renewal for vocational nurses. The Mental Health
Services Provider Education Program is supported through a $10.00
surcharge for renewal of psychologist, marriage and family
therapist, and licensed clinical social worker licenses. The
Medically Underserved Account for Physicians is funded by
voluntary physician and osteopathic physician contributions and
private donations. According to OSHPD, since 1990, the
Foundation has awarded scholarships and loan repayments totaling
over $17 million. These awards have helped over 2,400
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economically disadvantaged and/or underrepresented students and
graduates fulfill their dream of pursuing a career in the health
professions while serving in an underserved area.
The HPEF, until January 1, 2011, is governed by a board consisting
of 13 members, 9 members are appointed by the Governor, 1 member
each appointed by the Speaker of the Assembly, and the Senate
Committee on Rules, and 2 members of the MBC, appointed by the
MBC. Effective January 1, 2011, the 2 appointess of the MBC to
the HPEF will be eliminated. This bill would extend the term of
the appointees of the MBC to the HPEF.
3.Related Legislation. SB 1031 (Corbett), pending in the Assembly,
creates a "Volunteer Insured Physicians Program," administered by
the MBC to provide specified medical malpractice insurance coverage
to physicians providing volunteer uncompensated care to low-income
patients pursuant to a contract with a qualified health care entity,
as defined.
4.Previous Legislation.
a) AB 2439 (De La Torre), Chapter 640, Statutes of 2008, required
the MBC to charge physicians and surgeons an additional $25 as
part of their initial license fee or renewal fee to support the
Steven Thompson Physician Corps Loan Repayment Program.
b) SB 606 (Ducheny), Chapter 600, Statutes of 2009, required the
Osteopathic Medical Board of California (OMBC) to assess an
additional $25 fee from an osteopathic physician and surgeon
(D.O.) applying for initial or reciprocity licensure, or for a
biennial renewal license. Requires the funds collected by the
OMBC to be transferred to the Medically Underserved Account for
Physicians for the Steven M. Thompson Physician Corps Loan
Repayment Program. Allows osteopathic physicians and surgeons to
be eligible to apply for the STLRP.
SUPPORT AND OPPOSITION:
Support: Medical Board of California (Sponsor)
Opposition: None on file as of June 8, 2010
Consultant:Rosielyn Pulmano
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