BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                                 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





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           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  







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             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  







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          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  







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          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  







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          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  







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          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

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