BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 1767| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 1767 Author: Hill (D) Amended: 6/7/10 in Senate Vote: 21 SENATE BUS., PROF. & ECON. DEVEL. COMMITTEE : 7-0, 6/14/10 AYES: Negrete McLeod, Aanestad, Calderon, Correa, Florez, Walters, Yee NO VOTE RECORDED: Wyland, Oropeza SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 ASSEMBLY FLOOR : 71-0, 4/22/10 - See last page for vote SUBJECT : Healing arts SOURCE : Author DIGEST : This bill requires the Office of the Attorney General, 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. In addition, this bill extends the term of appointments of two members of the Health Professions Education Foundation appointed by the MBC to January 1, 2016. CONTINUED AB 1767 Page 2 ANALYSIS : 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 Attorney General (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 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 AB 1767 Page 3 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 AG, 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. Background 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: (1) possess a current California medical license in good standing, no prior discipline, no accusations pending, and no complaint history within the AB 1767 Page 4 last three years, (2) 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, and (3) 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. 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 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 AB 1767 Page 5 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 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, nine members are appointed by the Governor, one member each appointed by the Speaker of the Assembly, and the Senate Committee on Rules, and two members of the MBC, appointed by the MBC. Effective January 1, 2011, the 2 appointess of the MBC to the HPEF AB 1767 Page 6 will be eliminated. This bill extends the term of the appointees of the MBC to the HPEF. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 6/29/10) Medical Board of California (source) American Congress of Obstetricians and Gynecologists ARGUMENTS IN SUPPORT : According to the MBC, the sponsor of this bill, 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 whom 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 AB 1767 Page 7 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. ASSEMBLY FLOOR : AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall, Bill Berryhill, Tom Berryhill, Blakeslee, Block, Bradford, Brownley, Buchanan, Charles Calderon, Carter, Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon, Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes, Fuller, Furutani, Galgiani, Garrick, Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Jeffries, Jones, Knight, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava, Nestande, Niello, Nielsen, V. Manuel Perez, Portantino, Ruskin, Salas, Saldana, Silva, Skinner, Solorio, Audra Strickland, Swanson, Torlakson, Torres, Torrico, Tran, Villines, Yamada, John A. Perez NO VOTE RECORDED: Blumenfield, Caballero, DeVore, Gaines, Huber, Huffman, Norby, Smyth, Vacancy JJA:do 6/29/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****