BILL NUMBER: SB 58 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 1, 2009
INTRODUCED BY Senator Aanestad
JANUARY 20, 2009
An act to add Section 805.3 to amend
Sections 800, 803.1, 805.5, 809, 809.1, 809.2, 809.3, and 2027 of,
and to add Sections 805.3, 809.04, 809.07, 809.08, 809.09, 809.15,
and 2191.5 to, the Business and Professions Code, relating to
physicians and surgeons healing arts .
LEGISLATIVE COUNSEL'S DIGEST
SB 58, as amended, Aanestad. Physicians and surgeons:
peer review. Peer review: reporting.
Existing
(1) Existing law provides for the
professional review of specified healing arts licentiates through a
peer review process conducted by peer review bodies, as defined
. Existing law, the Medical Practice Act, provides for
the licensure and regulation of physicians and surgeons by the
Medical Board of California.
This bill would require peer review bodies to annually report to
the Medical Board of California on their peer review activities
involving licensees of that board and to comply with any requests
from the board for more detailed information.
The bill would require peer review bodies of health care
facilities or clinics to obtain external peer review from an external
peer review organization for the evaluation or investigation of an
applicant, privilege holder, or member of the medical staff of the
facility or clinic in specified circumstances and would encourage
those peer review bodies to obtain that external review in certain
other circumstances. The bill would require the external peer review
organization to meet certain requirements, as specified, and would
authorize the organization to establish and collect reasonable fees
for its services.
The bill would require a peer review body to respond to the
request of another peer review body and produce the records requested
concerning a licentiate under review. The bill would specify that
the records produced pursuant to this provision are not subject to
discovery, a subpoena, or a subpoena duces tecum, and are not
admissible as evidence in a court of law in this state.
Existing law prohibits the exclusion of relevant evidence in a
criminal proceeding except as provided by a statute enacted by a 2/3
vote of the Legislature.
Because this bill would provide that certain information is not
admissible in a court proceeding, it requires a 2/3 vote of the
membership of each house of the Legislature.
(2) Existing law requires the governing body of acute care
hospitals to give great weight to the actions of peer review bodies
and authorizes the governing body to direct the peer review body to
investigate in specified instances. Where the peer review body fails
to take action in response to that direction, existing law authorizes
the governing body to take action against a licentiate.
This bill would prohibit a member of a medical or professional
staff from being required to alter or surrender staff privileges,
status, or membership solely due to the termination of a contract
between that member and a health care facility. The bill would
specify that a peer review body is entitled to review and make
recommendations to the governing body of a health care facility
regarding the quality implications of the selection, performance
evaluation, and any change in the retention or replacement of
licensees with whom the facility has a contract and would prohibit
the governing body from unreasonably withholding approval of those
recommendations, as specified.
(3) Under existing law, specified persons are required to file a
report, designated as an "805 report," with a licensing board if a
peer review body takes one of several specified actions against a
person licensed by that board. Existing law provides various due
process rights for licentiates who are the subject of a final
proposed disciplinary action of a peer review body, including
authorizing a licensee to request a hearing concerning that action.
With respect to physicians and surgeons, this bill would require
peer review bodies to administer an early detection and resolution
program (EDR) in which a peer review body would, where it deems
appropriate, allow a physician and surgeon to complete certain
training, observation, or consultation requirements instead of being
subject to disciplinary action and an 805 report. The bill would
delay the physician and surgeon's right to a hearing concerning a
final proposed action pending his or her completion of EDR. The bill
would make the proceedings or records of an EDR assessment or
training program inadmissible in a court of law in this state.
Existing law prohibits the exclusion of relevant evidence in a
criminal proceeding except as provided by a statute enacted by a 2/3
vote of the Legislature.
Because this bill would provide that certain information is not
admissible in a court proceeding, it requires a 2/3 vote of the
membership of each house of the Legislature.
Under existing law, a hearing concerning a final proposed
disciplinary action must be held before either an arbitrator mutually
acceptable to the licensee and the peer review body or a panel of
unbiased individuals, as specified. Existing law prohibits a hearing
officer presiding at a hearing held before a panel from, among other
things, gaining direct financial benefit from the outcome.
This bill would give the licensee the choice of having the hearing
before a mutually acceptable arbitrator or a panel of unbiased
individuals. The bill would require the hearing officer presiding at
a hearing before a panel to meet certain requirements and to disclose
all actual and potential conflicts. The bill would specify that the
hearing officer is entitled to determine the procedure for presenting
evidence and argument and would give the hearing officer authority
to make all rulings pertaining to law, procedure, or the
admissibility of evidence.
Existing law gives parties at the hearing certain rights,
including the right to present and rebut evidence. Existing law
requires the peer review body to adopt written provisions governing
whether a licensee may be represented by an attorney.
This bill would give both parties the right to be represented by
an attorney, except as specified.
(4) Existing law requires the Medical Board of California to
maintain a central file of its licensees containing, among other
things, disciplinary information reported through 805 reports and
authorizes licensees to submit additional exculpatory or explanatory
statements, as specified. Existing law requires the board to disclose
an 805 report to specified health care entities and requires the
board to post on the Internet, and to disclose to inquiring members
of the public, certain hospital disciplinary actions.
The bill would require the board to include the exculpatory or
explanatory statement submitted by licensees regarding 805 reports in
disclosures or postings of those reports or of hospital disciplinary
actions. The bill would prohibit the board from including certain
summary suspension information reported through an 805 report in a
licensee's central file, except as specified. The bill would also
prohibit the board from reporting or posting, and would require the
board to remove from a licensee's central file, certain disciplinary
information if a court reverses a disciplinary action reported
pursuant to Section 805 or if the board's independent investigation
exonerates the licensee from the charges forming the basis of the
disciplinary action.
(5) Existing law requires the Medical Board of California to adopt
and administer standards for the continuing education of licensed
physicians and surgeons.
This bill would require the board to adopt and administer
standards allowing a physician and surgeon to receive credit for up
to 10 hours of continuing education each year for participating in a
peer review body without compensation.
This bill require the board to conduct a pilot program to redesign
the peer review process applicable to physicians and surgeons based
on recommendations made in a specified report. The bill would state
the intent of the Legislature to enact legislation that would
establish guidelines for the board to follow in conducting that pilot
program.
Vote: majority 2/3 . Appropriation:
no. Fiscal committee: yes. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature hereby finds and
declares all of the following:
(a) The process that physicians and hospitals, among other
entities, use to monitor the standard of care for medical practice is
known as "peer review."
(b) Peer review is described in Section 805 of the Business and
Professions Code. It requires a peer review body to report an adverse
action taken against a health care provider for medical disciplinary
cause or reason to the provider's licensing entity. This report can
lead to disciplinary action by the licensing entity and may impact
future credentialing.
(c) Peer review performed at hospitals works well in most cases,
but is sometimes dysfunctional and occasionally dangerous. It is
frequently expensive and time-consuming. It can be damaging to the
professional careers of the health care providers involved, even
those who are cleared of any wrongdoing.
(d) In light of the occasional failures of the peer review process
in its purpose to ensure the quality and safety of medical care in
California, reform of the peer review process is necessary.
SEC. 2. Section 800 of the Business and
Professions Code is amended to read:
800. (a) The Medical Board of California, the Board of
Psychology, the Dental Board of California, the Osteopathic Medical
Board of California, the State Board of Chiropractic Examiners, the
Board of Registered Nursing, the Board of Vocational Nursing and
Psychiatric Technicians, the State Board of Optometry, the Veterinary
Medical Board, the Board of Behavioral Sciences, the Physical
Therapy Board of California, the California State Board of Pharmacy,
and the Speech-Language Pathology and Audiology Board shall each
separately create and maintain a central file of the names of all
persons who hold a license, certificate, or similar authority from
that board. Each central file shall be created and maintained to
provide an individual historical record for each licensee with
respect to the following information:
(1) Any conviction of a crime in this or any other state that
constitutes unprofessional conduct pursuant to the reporting
requirements of Section 803.
(2) Any judgment or settlement requiring the licensee or his or
her insurer to pay any amount of damages in excess of three thousand
dollars ($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, pursuant to the
reporting requirements of Section 801 or 802.
(3) Any public complaints for which provision is made pursuant to
subdivision (b).
(4) (A) Disciplinary information reported
pursuant to Section 805.
(B) Notwithstanding subparagraph (A), with respect to a physician
and surgeon licensed by the Medical Board of California, all of the
following shall apply:
(i) If a court reverses a disciplinary action reported pursuant to
Section 805 or if the board's independent investigation exonerates
the licensee from the charges forming the basis of the reported
disciplinary action, the board shall remove the corresponding
disciplinary information described in subparagraph (A) from the
licensee's central file.
(ii) The board shall not include a summary suspension of staff
privileges, employment, or membership reported pursuant to Section
805 in the licensee's central file unless the board confirms, by
independent investigation, that the suspension is supported by
substantial evidence of risk to patients.
(b) Each board shall prescribe and promulgate forms on which
members of the public and other licensees or certificate holders may
file written complaints to the board alleging any act of misconduct
in, or connected with, the performance of professional services by
the licensee.
If a board, or division thereof, a committee, or a panel has
failed to act upon a complaint or report within five years, or has
found that the complaint or report is without merit, the central file
shall be purged of information relating to the complaint or report.
Notwithstanding this subdivision, the Board of Psychology, the
Board of Behavioral Sciences, and the Respiratory Care Board of
California shall maintain complaints or reports as long as each board
deems necessary.
(c) The contents of any central file that are not public records
under any other provision of law shall be confidential except that
the licensee involved, or his or her counsel or representative, shall
have the right to inspect and have copies made of his or her
complete file except for the provision that may disclose the identity
of an information source. For the purposes of this section, a board
may protect an information source by providing a copy of the material
with only those deletions necessary to protect the identity of the
source or by providing a comprehensive summary of the substance of
the material. Whichever method is used, the board shall ensure that
full disclosure is made to the subject of any personal information
that could reasonably in any way reflect or convey anything
detrimental, disparaging, or threatening to a licensee's reputation,
rights, benefits, privileges, or qualifications, or be used by a
board to make a determination that would affect a licensee's rights,
benefits, privileges, or qualifications. The information required to
be disclosed pursuant to Section 803.1 shall not be considered among
the contents of a central file for the purposes of this subdivision.
The
(d) The licensee may, but is not
required to, submit any additional exculpatory or explanatory
statement or other information that the board shall include in the
central file.
Each
(e) Each board may permit any law
enforcement or regulatory agency when required for an investigation
of unlawful activity or for licensing, certification, or regulatory
purposes to inspect and have copies made of that licensee's file,
unless the disclosure is otherwise prohibited by law.
These disclosures shall effect no change in the confidential
status of these records.
SEC. 3. Section 803.1 of the Business
and Professions Code is amended to read:
803.1. (a) Notwithstanding any other provision of law, the
Medical Board of California, the Osteopathic Medical Board of
California, and the California Board of Podiatric Medicine shall
disclose to an inquiring member of the public information regarding
any enforcement actions taken against a licensee by either board or
by another state or jurisdiction, including all of the following:
(1) Temporary restraining orders issued.
(2) Interim suspension orders issued.
(3) Revocations, suspensions, probations, or limitations on
practice ordered by the board, including those made part of a
probationary order or stipulated agreement.
(4) Public letters of reprimand issued.
(5) Infractions, citations, or fines imposed.
(b) Notwithstanding any other provision of law, in addition to the
information provided in subdivision (a), the Medical Board of
California, the Osteopathic Medical Board of California, and the
California Board of Podiatric Medicine shall disclose to an inquiring
member of the public all of the following:
(1) Civil judgments in any amount, whether or not vacated by a
settlement after entry of the judgment, that were not reversed on
appeal and arbitration awards in any amount of a claim or action for
damages for death or personal injury caused by the physician and
surgeon's negligence, error, or omission in practice, or by his or
her rendering of unauthorized professional services.
(2) (A) All settlements in the possession, custody, or control of
the board shall be disclosed for a licensee in the low-risk category
if there are three or more settlements for that licensee within the
last 10 years, except for settlements by a licensee regardless of the
amount paid where (i) the settlement is made as a part of the
settlement of a class claim, (ii) the licensee paid in settlement of
the class claim the same amount as the other licensees in the same
class or similarly situated licensees in the same class, and (iii)
the settlement was paid in the context of a case where the complaint
that alleged class liability on behalf of the licensee also alleged a
products liability class action cause of action. All settlements in
the possession, custody, or control of the board shall be disclosed
for a licensee in the high-risk category if there are four or more
settlements for that licensee within the last 10 years except for
settlements by a licensee regardless of the amount paid where (i) the
settlement is made as a part of the settlement of a class claim,
(ii) the licensee paid in settlement of the class claim the same
amount as the other licensees in the same class or similarly situated
licensees in the same class, and (iii) the settlement was paid in
the context of a case where the complaint that alleged class
liability on behalf of the licensee also alleged a products liability
class action cause of action. Classification of a licensee in either
a "high-risk category" or a "low-risk category" depends upon the
specialty or subspecialty practiced by the licensee and the
designation assigned to that specialty or subspecialty by the Medical
Board of California, as described in subdivision (f). For the
purposes of this paragraph, "settlement" means a settlement of an
action described in paragraph (1) entered into by the licensee on or
after January 1, 2003, in an amount of thirty thousand dollars
($30,000) or more.
(B) The board shall not disclose the actual dollar amount of a
settlement but shall put the number and amount of the settlement in
context by doing the following:
(i) Comparing the settlement amount to the experience of other
licensees within the same specialty or subspecialty, indicating if it
is below average, average, or above average for the most recent
10-year period.
(ii) Reporting the number of years the licensee has been in
practice.
(iii) Reporting the total number of licensees in that specialty or
subspecialty, the number of those who have entered into a settlement
agreement, and the percentage that number represents of the total
number of licensees in the specialty or subspecialty.
(3) Current American Board of Medical Specialty certification or
board equivalent as certified by the Medical Board of California, the
Osteopathic Medical Board of California, or the California Board of
Podiatric Medicine.
(4) Approved postgraduate training.
(5) Status of the license of a licensee. By January 1, 2004, the
Medical Board of California, the Osteopathic Medical Board of
California, and the California Board of Podiatric Medicine shall
adopt regulations defining the status of a licensee. The board shall
employ this definition when disclosing the status of a licensee
pursuant to Section 2027.
(6) (A) Any summaries of hospital
disciplinary actions that result in the termination or revocation of
a licensee's staff privileges for medical disciplinary cause or
reason.
(B) The Medical Board of California shall include in the
information disclosed pursuant to subparagraph (A) any exculpatory or
explanatory statement regarding the hospital disciplinary action
provided by a licensed physician and surgeon pursuant to subdivision
(d) of Section 800.
(C) The Medical Board of California shall not disclose the
information described in subparagraph (A) with respect to a licensed
physician and surgeon if a court reverses the hospital disciplinary
action or if the board's independent investigation exonerates the
licensee from the charges forming the basis of the hospital
disciplinary action.
(c) Notwithstanding any other provision of law, the Medical Board
of California, the Osteopathic Medical Board of California, and the
California Board of Podiatric Medicine shall disclose to an inquiring
member of the public information received regarding felony
convictions of a physician and surgeon or doctor of podiatric
medicine.
(d) The Medical Board of California, the Osteopathic Medical Board
of California, and the California Board of Podiatric Medicine may
formulate appropriate disclaimers or explanatory statements to be
included with any information released, and may by regulation
establish categories of information that need not be disclosed to an
inquiring member of the public because that information is unreliable
or not sufficiently related to the licensee's professional practice.
The Medical Board of California, the Osteopathic Medical Board of
California, and the California Board of Podiatric Medicine shall
include the following statement when disclosing information
concerning a settlement:
"Some studies have shown that there is no significant correlation
between malpractice history and a doctor's competence. At the same
time, the State of California believes that consumers should have
access to malpractice information. In these profiles, the State of
California has given you information about both the malpractice
settlement history for the doctor's specialty and the doctor's
history of settlement payments only if in the last 10 years, the
doctor, if in a low-risk specialty, has three or more settlements or
the doctor, if in a high-risk specialty, has four or more
settlements. The State of California has excluded some class action
lawsuits because those cases are commonly related to systems issues
such as product liability, rather than questions of individual
professional competence and because they are brought on a class basis
where the economic incentive for settlement is great. The State of
California has placed payment amounts into three statistical
categories: below average, average, and above average compared to
others in the doctor's specialty. To make the best health care
decisions, you should view this information in perspective. You could
miss an opportunity for high-quality care by selecting a doctor
based solely on malpractice history.
When considering malpractice data, please keep in mind:
Malpractice histories tend to vary by specialty. Some specialties
are more likely than others to be the subject of litigation. This
report compares doctors only to the members of their specialty, not
to all doctors, in order to make an individual doctor's history more
meaningful.
This report reflects data only for settlements made on or after
January 1, 2003. Moreover, it includes information concerning those
settlements for a 10-year period only. Therefore, you should know
that a doctor may have made settlements in the 10 years immediately
preceding January 1, 2003, that are not included in this report.
After January 1, 2013, for doctors practicing less than 10 years, the
data covers their total years of practice. You should take into
account the effective date of settlement disclosure as well as how
long the doctor has been in practice when considering malpractice
averages.
The incident causing the malpractice claim may have happened years
before a payment is finally made. Sometimes, it takes a long time
for a malpractice lawsuit to settle. Some doctors work primarily with
high-risk patients. These doctors may have malpractice settlement
histories that are higher than average because they specialize in
cases or patients who are at very high risk for problems.
Settlement of a claim may occur for a variety of reasons that do
not necessarily reflect negatively on the professional competence or
conduct of the doctor. A payment in settlement of a medical
malpractice action or claim should not be construed as creating a
presumption that medical malpractice has occurred.
You may wish to discuss information in this report and the general
issue of malpractice with your doctor."
(e) The Medical Board of California, the Osteopathic Medical Board
of California, and the California Board of Podiatric Medicine shall,
by regulation, develop standard terminology that accurately
describes the different types of disciplinary filings and actions to
take against a licensee as described in paragraphs (1) to (5),
inclusive, of subdivision (a). In providing the public with
information about a licensee via the Internet pursuant to Section
2027, the Medical Board of California, the Osteopathic Medical Board
of California, and the California Board of Podiatric Medicine shall
not use the terms "enforcement," "discipline," or similar language
implying a sanction unless the physician and surgeon has been the
subject of one of the actions described in paragraphs (1) to (5),
inclusive, of subdivision (a).
(f) The Medical Board of California shall adopt regulations no
later than July 1, 2003, designating each specialty and subspecialty
practice area as either high risk or low risk. In promulgating these
regulations, the board shall consult with commercial underwriters of
medical malpractice insurance companies, health care systems that
self-insure physicians and surgeons, and representatives of the
California medical specialty societies. The board shall utilize the
carriers' statewide data to establish the two risk categories and the
averages required by subparagraph (B) of paragraph (2) of
subdivision (b). Prior to issuing regulations, the board shall
convene public meetings with the medical malpractice carriers,
self-insurers, and specialty representatives.
(g) The Medical Board of California, the Osteopathic Medical Board
of California, and the California Board of Podiatric Medicine shall
provide each licensee with a copy of the text of any proposed public
disclosure authorized by this section prior to release of the
disclosure to the public. The licensee shall have 10 working days
from the date the board provides the copy of the proposed public
disclosure to propose corrections of factual inaccuracies. Nothing in
this section shall prevent the board from disclosing information to
the public prior to the expiration of the 10-day period.
(h) Pursuant to subparagraph (A) of paragraph (2) of subdivision
(b), the specialty or subspecialty information required by this
section shall group physicians by specialty board recognized pursuant
to paragraph (5) of subdivision (h) of Section 651 unless a
different grouping would be more valid and the board, in its
statement of reasons for its regulations, explains why the validity
of the grouping would be more valid.
SEC. 4. Section 805.3 is added to the
Business and Professions Code , to read:
805.3. A peer review body shall annually report to the Medical
Board of California on its peer review activities involving licensees
of that board and shall comply with any requests from that board for
more detailed information. The information reported pursuant to this
section shall be kept confidential.
SEC. 5. Section 805.5 of the Business
and Professions Code is amended to read:
805.5. (a) Prior to granting or renewing staff privileges for any
physician and surgeon, psychologist, podiatrist, or dentist, any
health facility licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code, or any health care
service plan or medical care foundation, or the medical staff of the
institution shall request a report from the Medical Board of
California, the Board of Psychology, the Osteopathic Medical Board of
California, or the Dental Board of California to determine if any
report has been made pursuant to Section 805 indicating that the
applying physician and surgeon, psychologist, podiatrist, or dentist
has been denied staff privileges, been removed from a medical staff,
or had his or her staff privileges restricted as provided in Section
805. The request shall include the name and California license number
of the physician and surgeon, psychologist, podiatrist, or dentist.
Furnishing of a copy of the 805 report shall not cause the 805 report
to be a public record.
(b) Upon a request made by, or on behalf of, an institution
described in subdivision (a) or its medical staff, which is received
on or after January 1, 1980, the board shall furnish a copy of any
report made pursuant to Section 805. However, the board shall not
send a copy of a report (1) if the denial, removal, or restriction
was imposed solely because of the failure to complete medical
records, (2) if the board has found the information reported is
without merit, or (3) if a period of three years has elapsed since
the report was submitted. This three-year period shall be tolled
during any period the licentiate has obtained a judicial order
precluding disclosure of the report, unless the board is finally and
permanently precluded by judicial order from disclosing the report.
In the event a request is received by the board while the board is
subject to a judicial order limiting or precluding disclosure, the
board shall provide a disclosure to any qualified requesting party as
soon as practicable after the judicial order is no longer in force.
In the event that the board fails to advise the institution within
30 working days following its request for a report required by this
section, the institution may grant or renew staff privileges for the
physician and surgeon, psychologist, podiatrist, or dentist.
(c) With respect to the Medical Board of California, both of the
following shall apply:
(1) In addition to the circumstances identified in subdivision
(b), the board shall not send a copy of a report made pursuant to
Section 805 if a court reverses the denial, removal, or restriction.
(2) The board shall include with the copy of the 805 report
furnished under this section any exculpatory or explanatory statement
made regarding the report pursuant to subdivision (d) of Section
800.
(c)
(d) Any institution described in subdivision (a) or its
medical staff that violates subdivision (a) is guilty of a
misdemeanor and shall be punished by a fine of not less than two
hundred dollars ($200) nor more than one thousand two hundred dollars
($1,200).
SEC. 6. Section 809 of the Business and
Professions Code is amended to read:
809. (a) The Legislature hereby finds and declares the following:
(1) In 1986, Congress enacted the Health Care Quality Improvement
Act of 1986 (Chapter 117 (commencing with Section 11101) Title 42,
United States Code), to encourage physicians to engage in effective
professional peer review, but giving each state the opportunity to
"opt-out" of some of the provisions of the federal act.
(2) Because of deficiencies in the federal act and the possible
adverse interpretations by the courts of the federal act, it is
preferable for California to "opt-out" of the federal act and design
its own peer review system.
(3) Peer review, fairly conducted, is essential to preserving the
highest standards of medical practice.
(4) It is essential that California's peer review system generate
a culture of trust and safety so that health care practitioners will
participate robustly in the process by engaging in critically
important patient safety activities, such as reporting incidents they
believe to reflect substandard care or unprofessional conduct and
serving on peer review, quality assurance, and other committees
necessary to protect patients.
(5) It is the policy of the state that evaluation, corrective
action, or other forms of peer review only be conducted for patient
safety and the improvement of quality patient care.
(4)
(6) Peer review that is not conducted fairly results in
harm both to patients and healing arts practitioners by
wrongfully depriving patients of their ability to obtain care from
their chosen practitioner and by dep riving practitioners
of their ability to care for their patients, thereby limiting
much needed access to care.
(5)
(7) Peer review, fairly conducted, will aid the
appropriate state licensing boards in their responsibility to
regulate and discipline errant healing arts practitioners.
(6)
(8) 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.
(7)
(9) It is the intent of the Legislature that peer
review of professional health care services be done efficiently, on
an ongoing basis, and with an emphasis on early detection of
potential quality problems and resolutions through informal
educational interventions. It is further the intent of the
Legislature that peer review bodies be actively involved in the
measurement, assessment, and improvement of quality and that there be
appropriate oversight by the peer review bodies to ensure
the timely resolution of issues.
(8)
(10) Sections 809 to 809.8, inclusive, shall not affect
the respective responsibilities of the organized medical staff or
the governing body of an acute care hospital with respect to peer
review in the acute care hospital setting. It is the intent of the
Legislature that written provisions implementing Sections 809 to
809.8, inclusive, in the acute care hospital setting shall be
included in medical staff bylaws that shall be adopted by a vote of
the members of the organized medical staff and shall be subject to
governing body approval, which approval shall not be withheld
unreasonably.
(9)
(11) (A) The Legislature thus finds and declares that
the laws of this state pertaining to the peer review of healing arts
practitioners shall apply in lieu of Chapter 117 (commencing with
Section 11101) of Title 42 of the United States Code, because the
laws of this state provide a more careful articulation of the
protections for both those undertaking peer review activity and those
subject to review, and better integrate public and private systems
of peer review. Therefore, California exercises its right to opt out
of specified provisions of the Health Care Quality
Improvement Act relating to professional
review actions, pursuant to Section 11111(c)(2)(B) of Title 42 of the
United States Code. This election shall not affect the availability
of any immunity under California law.
(B) The Legislature further declares that it is not the intent or
purposes of Sections 809 to 809.8, inclusive, to opt out of any
mandatory national data bank established pursuant to Subchapter II
(commencing with Section 11131) of Chapter 117 of Title 42 of the
United States Code.
(b) For the purpose of this section and Sections 809.1 to 809.8,
inclusive, "healing arts practitioner" or "licentiate" means a
physician and surgeon, podiatrist, clinical psychologist, marriage
and family therapist, clinical social worker, or dentist; and "peer
review body" means a peer review body as specified in paragraph (1)
of subdivision (a) of Section 805, and includes any designee of the
peer review body.
SEC. 7. Section 809.04 is added to the
Business and Professions Code , to read:
809.04. (a) It is the public policy of the state that licentiates
who may be providing substandard care be subject to the peer review
hearing and reporting process set forth in this article.
(b) To ensure that the peer review process is not circumvented, a
member of a medical or professional staff, by contract or otherwise,
shall not be required to alter or surrender staff privileges, status,
or membership solely due to the termination of a contract between
that member and a health care facility.
(c) The peer review body of a health care facility shall be
entitled to review and make recommendations to the governing body of
the facility regarding the quality implications of the selection,
performance evaluation, and any change in the retention or
replacement of licentiates with whom the health care facility has a
contract. The governing body shall not unreasonably withhold approval
of those recommendations.
(d) This section shall not impair a governing body's ability to
take action against a licentiate pursuant to Section 809.05.
SEC. 8. Section 809.07 is added to the
Business and Professions Code , to read:
809.07. (a) It is the policy of the state that in certain
circumstances, external peer review may be necessary to promote and
protect patient care in order to eliminate perceived bias, obtain
needed medical expertise, or respond to other particular
circumstances.
(b) A peer review body is encouraged to obtain external peer
review for the evaluation or investigation of an applicant, privilege
holder, or member of the medical staff in the following
circumstances:
(1) Committee or department reviews that could affect a licentiate'
s membership or privileges do not provide a sufficiently clear basis
for action or inaction.
(2) No current medical staff member can provide the necessary
expertise in the clinical procedure or area under review.
(3) Patient death.
(4) Wrong site procedure.
(5) Wrong patient procedure.
(6) To promote impartial peer review.
(7) Upon the reasonable request of the licentiate.
(c) A peer review body shall obtain external peer review for the
evaluation or investigation of an applicant, privilege holder, or
member of the medical staff in the following circumstances:
(1) Three patient complaints regarding patient safety or standard
of care against a single licentiate in a 24-month period.
(2) Three nursing complaints regarding patient safety or standard
of care against a single licentiate in a 24-month period.
(3) Three colleague complaints regarding patient safety or
standard of care against a single licentiate in a 24-month period.
(4) Annual billing of a single licentiate or medical group in
excess of the 90th percentile for Medicare or Medi-Cal.
(5) Number of procedures or hospital admissions done by a single
licentiate or medical group per capita in excess of the 90th
percentile for the same specialty.
(d) For purposes of this section, the following definitions apply:
(1) "Peer review body" has the meaning provided in subparagraph
(A) of paragraph (1) of subdivision (a) of Section 805.
(2) "External peer review" means peer review provided by an
external peer review organization pursuant to Section 809.08.
SEC. 9. Section 809.08 is added to the
Business and Professions Code , to read:
809.08. (a) An external peer review organization shall be a
nonprofit organization that is approved by the Medical Board of
California and that meets all of the following criteria:
(1) Has no ownership interest in and is not involved in the
operation of a health facility, clinic, or peer review body, as
defined in Section 805, or in the delivery of health care services to
patients.
(2) Has provided review of and consultation to hospital medical
staffs with respect to quality improvement and peer review activities
for at least three years.
(3) Maintains an available panel of California-licensed healing
arts practitioners to perform peer review in at least one licensure
category who are credentialed by the external peer review
organization and who participate at least annually in a formal
educational training program provided by the external peer review
organization.
(4) Maintains internal quality management programs to evaluate the
performance of its credentialed healing arts practitioners and
engages in continuing quality improvement activities, as appropriate.
(b) Within 10 calendar days of receiving a request from a peer
review body to provide external peer review pursuant to Section
809.07, the external peer review organization shall designate a fair
and impartial panel of healing arts practitioners qualified to
evaluate the clinical procedure or area at issue and shall provide
the peer review body a copy of each designated healing arts
practitioner's curriculum vitae.
(c) After performing external peer review, the panel designated
pursuant to subdivision (b) shall recommend a course of action to the
peer review body. This recommended course of action may include a
recommendation that the licentiate, if a physician and surgeon,
participate in an early detection and resolution program pursuant to
Section 809.15.
(d) Notwithstanding the recommendations made pursuant to
subdivision (c), the peer review body shall have the final decision
regarding whether to take disciplinary action against a licentiate.
(e) The external peer review organization shall have the right to
establish and collect reasonable fees for its services. It is the
intent of the Legislature that these fees be payable by both the peer
review body and the licentiate subject to external peer review.
(f) Except as provided in paragraph (1) of subdivision (a), "peer
review body," as used in this section, has the meaning provided in
subparagraph (A) of paragraph (1) of subdivision (a) of Section 805.
SEC. 10. Section 809.09 is added to the
Business and Professions Code , to read:
809.09. (a) The Legislature hereby finds and declares that the
sharing of information between peer review bodies is essential to
protect the public health.
(b) A peer review body shall respond to the request of another
peer review body and produce the records requested concerning a
licentiate under review to the extent not otherwise prohibited by
state or federal law. The records produced pursuant to this section
shall not be subject to discovery, a subpoena, or a subpoena duces
tecum, and shall not be admissible as evidence in a court of law in
this state. The peer review body responding to the request shall be
entitled to all other confidentiality protections and privileges
otherwise provided by law as to the information and records disclosed
pursuant to this section.
SEC. 11. Section 809.1 of the Business
and Professions Code is amended to read:
809.1. (a) A licentiate who is the subject of a final proposed
action of a peer review body for which a report is required to be
filed under Section 805 shall be entitled to written notice as set
forth in subdivisions (b) and (c). For the purposes of this section,
the "final proposed action" shall be the final decision or
recommendation of the peer review body after informal investigatory
activity or prehearing meetings, if any , including external
peer review pursuant to Sections 809.07 and 809.08 .
(b) The peer review body shall give the licentiate written notice
of the final proposed action. This notice shall include all the
following information:
(1) That an action against the licentiate has been proposed by the
peer review body which, if adopted, shall be taken and reported
pursuant to Section 805.
(2) The final proposed action.
(3) That the licentiate has the right to request a hearing on the
final proposed action , except while he or she participates in
or after he or she completes an early detection and resolution
program pursuant to Section 809.15 .
(4) The time limit, within which to request such a hearing ,
and an explanation that this time limit will be tolled pending
completion of an early detection and resolution program pursuant to
Section 809.15 .
(5) Whether the licentiate has the option of participating in an
early detection and resolution program pursuant to Section 809.15.
(c) If a hearing is requested on a timely basis, the peer review
body shall give the licentiate a written notice stating all of the
following:
(1) The reasons for the final proposed action taken or
recommended, including the acts or omissions with which the
licentiate is charged.
(2) The place, time, and date of the hearing.
SEC. 12. Section 809.15 is added to the
Business and Professions Code , to read:
809.15. (a) A peer review body shall administer an early
detection and resolution program (EDR) in which all of the following
occur:
(1) The peer review body, where it deems appropriate, gives a
physician and surgeon, who is the subject of a final proposed action
for which an 805 report is required to be filed, the option of
completing EDR.
(2) The peer review body requires the physician and surgeon
participating in EDR to do any of the following for a period of time
designated by the peer review body as a condition of completion of
EDR:
(A) Be observed during patient care interventions by another
physician and surgeon.
(B) Consult another physician and surgeon prior to implementing a
course of care.
(C) Complete education or training designated by the peer review
body.
(b) The peer review body acting pursuant to subdivision (a) shall
not file an 805 report for any action that resulted in referral to
EDR while a physician and surgeon participates in EDR or after the
physician and surgeon successfully completes EDR.
(c) A physician and surgeon who successfully completes EDR shall
not be subject to any disciplinary action by the peer review body
acting pursuant to subdivision (a) or the board, as defined in
subdivision (j), for any action that resulted in referral to EDR.
However, participation in EDR shall not preclude the peer review body
or the board from investigating or continuing to investigate, or
from taking or continuing to take disciplinary action against, a
physician and surgeon for any unprofessional conduct that does not
serve as a basis for referral to EDR.
(d) The time limit for filing an accusation under Section 2230.5
shall be tolled from the date on which a peer review body notifies
the board of the physician and surgeon's participation in EDR under
subdivision (f) until the date that the board receives notice from
the peer review body that the physician and surgeon failed to
successfully complete EDR under subdivision (f).
(e) A physician and surgeon participating in EDR shall not
establish staff privileges at any new facility while participating in
EDR.
(f) A peer review body shall notify the board of a physician and
surgeon's participation in EDR. A peer review body shall also provide
that notification to health care facilities at which the physician
and surgeon has staff privileges. The peer review body shall also
notify the board and those health care facilities when that
participation has ceased, including whether or not the physician and
surgeon successfully completed EDR.
(g) A physician and surgeon may refuse to participate in EDR and
request a hearing concerning the final proposed action under Section
809.2.
(h) Costs incurred in connection with EDR shall be the sole
responsibility of the participating physician and surgeon.
(i) (1) Except for disclosures to the board and health care
facilities required under subdivision (f), a peer review body shall
not disclose information obtained in administering EDR that
individually identifies patients, participants in EDR, individual
health care professionals, peer review bodies, or their committees or
members, or individual health care facilities. The proceedings or
records of an assessment or training program pertaining to a
physician and surgeon's participation in EDR shall not be subject to
discovery, nor shall those records or proceedings be admissible in a
court of law in this state.
(2) The prohibition on the discovery and admissibility of records
and proceedings in paragraph (1) shall not apply to a physician and
surgeon participating in EDR who contests a peer review body's
determination that he or she failed to successfully complete EDR.
(j) For purposes of this section, the following definitions apply:
(1) "Board" means the Medical Board of California.
(2) "Physician and surgeon" means a physician and surgeon licensed
by the board.
SEC. 13. Section 809.2 of the Business
and Professions Code is amended to read:
809.2. If a licentiate timely requests a hearing concerning a
final proposed action for which a report is required to be filed
under Section 805, the following shall apply:
(a) The hearing shall be held , as determined by the peer
review body, before a trier of fact, which shall
be an and the licentiate shall have the choice of
hearing by either of the following:
(1) An arbitrator or arbitrators
selected by a process mutually acceptable to the licentiate and the
peer review body, or before a body.
(2) A panel of unbiased
individuals who shall gain no direct financial benefit from the
outcome, who have not acted as an accuser, investigator, factfinder,
or initial decisionmaker in the same matter, and which shall include,
where feasible, an individual practicing the same specialty as the
licentiate.
(b) (1) If a hearing officer is selected to
preside at a hearing held before a panel, the hearing officer shall
gain no direct financial benefit from the outcome, shall
disclose all actual and potential conflicts of interest, shall
not act as a prosecuting officer or advocate, and shall not be
entitled to vote. The hearing officer shall also meet both of
the follow ing requirements:
(A) Be mutually acceptable to the licentiate and the peer review
body. If the licentiate and peer review body are unable to agree,
they shall utilize the services of the American Arbitration
Association or other mutually agreed upon dispute resolution
organization.
(B) Be an attorney licensed to practice law in the State of
California and qualified to preside over a quasi-judicial hearing. An
attorney or a law firm utilized by the hospital, the medical staff,
or the involved licentiate within the preceding two years shall not
be eligible.
(2) The hearing officer shall endeavor to ensure that all parties
maintain proper decorum and have a reasonable opportunity to be heard
and present all relevant oral and documentary evidence. The hearing
officer shall be entitled to determine the order of, or procedure
for, presenting evidence and argument during the hearing and shall
have the authority and discretion to make all rulings on questions
pertaining to matters of law, procedure, or the admissibility of
evidence. The hearing officer shall also take all appropriate steps
to ensure a timely resolution of the hearing, but may not terminate
the hearing process.
(c) The licentiate shall have the right to a reasonable
opportunity to voir dire the panel members and any hearing officer,
and the right to challenge the impartiality of any member or hearing
officer. Challenges to the impartiality of any member or hearing
officer shall be ruled on by the presiding officer, who shall be the
hearing officer if one has been selected.
(d) The licentiate shall have the right to inspect and copy at the
licentiate's expense any documentary information relevant to the
charges which the peer review body has in its possession or under its
control, as soon as practicable after the receipt of the licentiate'
s request for a hearing. The peer review body shall have the right to
inspect and copy at the peer review body's expense any documentary
information relevant to the charges which the licentiate has in his
or her possession or control as soon as practicable after receipt of
the peer review body's request. The failure by either party to
provide access to this information at least 30 days before the
hearing shall constitute good cause for a continuance. The right to
inspect and copy by either party does not extend to confidential
information referring solely to individually identifiable
licentiates, other than the licentiate under review. The arbitrator
or presiding officer shall consider and rule upon any request for
access to information, and may impose any safeguards the protection
of the peer review process and justice requires.
(e) When ruling upon requests for access to information and
determining the relevancy thereof, the arbitrator or presiding
officer shall, among other factors, consider the following:
(1) Whether the information sought may be introduced to support or
defend the charges.
(2) The exculpatory or inculpatory nature of the information
sought, if any.
(3) The burden imposed on the party in possession of the
information sought, if access is granted.
(4) Any previous requests for access to information submitted or
resisted by the parties to the same proceeding.
(f) At the request of either side, the parties shall exchange
lists of witnesses expected to testify and copies of all documents
expected to be introduced at the hearing. Failure to disclose the
identity of a witness or produce copies of all documents expected to
be produced at least 10 days before the commencement of the hearing
shall constitute good cause for a continuance.
(g) Continuances shall be granted upon agreement of the parties or
by the arbitrator or presiding officer on a showing of good cause.
(h) A hearing under this section shall be commenced within 60 days
after receipt of the request for hearing, and the peer review
process shall be completed within a reasonable time, after a
licentiate receives notice of a final proposed action or an immediate
suspension or restriction of clinical privileges, unless the
arbitrator or presiding officer issues a written decision finding
that the licentiate failed to comply with subdivisions (d) and (e) in
a timely manner, or consented to the delay.
SEC. 14. Section 809.3 of the Business
and Professions Code is amended to read:
809.3. (a) During a hearing concerning a final proposed action
for which reporting is required to be filed under Section 805, both
parties shall have all of the following rights:
(1) To be provided with all of the information made available to
the trier of fact.
(2) To have a record made of the proceedings, copies of which may
be obtained by the licentiate upon payment of any reasonable charges
associated with the preparation thereof.
(3) To call, examine, and cross-examine witnesses.
(4) To present and rebut evidence determined by the arbitrator or
presiding officer to be relevant.
(5) To submit a written statement at the close of the hearing.
(6) To be represented by an attorney of the party's choice at the
party's expense, subject to subdivision (c).
(b) The burden of presenting evidence and proof during the hearing
shall be as follows:
(1) The peer review body shall have the initial duty to present
evidence which supports the charge or recommended action.
(2) Initial applicants shall bear the burden of persuading the
trier of fact by a preponderance of the evidence of their
qualifications by producing information which allows for adequate
evaluation and resolution of reasonable doubts concerning their
current qualifications for staff privileges, membership, or
employment. Initial applicants shall not be permitted to introduce
information not produced upon request of the peer review body during
the application process, unless the initial applicant establishes
that the information could not have been produced previously in the
exercise of reasonable diligence.
(3) Except as provided above for initial applicants, the peer
review body shall bear the burden of persuading the trier of fact by
a preponderance of the evidence that the action or recommendation is
reasonable and warranted.
(c) The peer review body shall adopt written provisions
governing whether a licentiate shall have the option of being
represented by an attorney at the licentiate's expense. No
peer review body shall be represented by an attorney if the
licentiate is not so represented, except dental professional society
peer review bodies may be represented by an attorney
provided that the peer review body grants each licentiate the option
of being represented by an attorney at the licentiate's expense
, even if the licentiate declines to be represented by an
attorney.
SEC. 15. Section 2027 of the Business
and Professions Code is amended to read:
2027. (a) On or after July 1, 2001, the
The board shall post on the Internet the following information
in its possession, custody, or control regarding licensed physicians
and surgeons:
(1) With regard to the status of the license, whether or not the
licensee is in good standing, subject to a temporary restraining
order (TRO), subject to an interim suspension order (ISO), or subject
to any of the enforcement actions set forth in Section 803.1.
(2) With regard to prior discipline, whether or not the licensee
has been subject to discipline by the board or by the board of
another state or jurisdiction, as described in Section 803.1.
(3) Any felony convictions reported to the board after January 3,
1991.
(4) All current accusations filed by the Attorney General,
including those accusations that are on appeal. For purposes of this
paragraph, "current accusation" shall mean an accusation that has not
been dismissed, withdrawn, or settled, and has not been finally
decided upon by an administrative law judge and the Medical Board of
California unless an appeal of that decision is pending.
(5) Any malpractice judgment or arbitration award reported to the
board after January 1, 1993.
(6) Any hospital disciplinary actions that resulted in the
termination or revocation of a licensee's hospital staff privileges
for a medical disciplinary cause or reason. The board shall also
post any exculpatory or explanatory statement regarding
those hospital disciplinary actions provided by the licensee pursuant
to subdivision (d ) of Section 800.
(7) Any misdemeanor conviction that results in a disciplinary
action or an accusation that is not subsequently withdrawn or
dismissed.
(8) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of what
types of information are not disclosed. These disclaimers and
statements shall be developed by the board and shall be adopted by
regulation.
(9) Any information required to be disclosed pursuant to Section
803.1.
(b) (1) From January 1, 2003, the information described in
paragraphs (1) (other than whether or not the licensee is in good
standing), (2), (4), (5), (7), and (9) of subdivision (a) shall
remain posted for a period of 10 years from the date the board
obtains possession, custody, or control of the information, and after
the end of that period shall be removed from being posted on the
board's Internet Web site. Information in the possession, custody, or
control of the board prior to January 1, 2003, shall be posted for a
period of 10 years from January 1, 2003. Settlement information
shall be posted as described in paragraph (2) of subdivision (b) of
Section 803.1.
(2) The
information described in paragraphs (3) and (6) of subdivision (a)
shall not be removed from being posted on the board's Internet Web
site. Notwithstanding the provisions of this paragraph, if a licensee'
s hospital staff privileges are restored and the licensee notifies
the board of the restoration, the information pertaining to the
termination or revocation of those privileges, as described in
paragraph (6) of subdivision (a), shall remain posted for a period of
10 years from the restoration date of the privileges, and at the end
of that period shall be removed from being posted on the board's
Internet Web site.
(c) Notwithstanding paragraph (2) of subdivision (b), the board
shall remove and shall not post the information described in
paragraph (6) of subdivision (a) if a court reverses the hospital
disciplinary action or if the board's independent investigation
exonerates the licensee from the charges forming the basis of the
hospital disciplinary action.
(c)
(d) The board shall provide links to other Web sites on
the Internet that provide information on board certifications that
meet the requirements of subdivision (b) of Section 651. The board
may provide links to other Web sites on the Internet that provide
information on health care service plans, health insurers, hospitals,
or other facilities. The board may also provide links to any other
sites that would provide information on the affiliations of licensed
physicians and surgeons.
SEC. 16. Section 2191.5 is added to the
Business and Professions Code , to read:
2191.5. The board shall adopt and administer standards allowing a
physician and surgeon to receive credit for up to 10 hours of
continuing education each year for participating in a peer review
body without compensation. For purposes of this section, "peer review
body" has the same meaning as that term is defined in Section 805.
SECTION 1. Section 805.3 is added to the
Business and Professions Code, to read:
805.3. (a) The Legislature finds and declares all of the
following:
(1) A legislatively mandated report released in July 2008,
"Comprehensive Study of Peer Review in California: Final Report,"
highlighted variations among health care entities in conducting,
selecting, and applying criteria for peer review of physicians and
surgeons.
(2) The report indicated that the peer review process fails in its
purpose to ensure the quality and safety of medical care in
California.
(3) In light of these serious patient safety concerns, an overhaul
of the peer review process applicable to physicians and surgeons is
necessary.
(b) The Medical Board of California shall conduct a pilot program
to redesign the peer review process, as it applies to physicians and
surgeons, based on the recommendations made in the report identified
in subdivision (a).
(c) It is the intent of the Legislature to enact legislation that
would establish guidelines for the Medical Board of California to
follow in conducting the pilot program described in subdivision (b).