BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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                                 THIRD READING


          Bill No:  SB 700
          Author:   Negrete McLeod (D)
          Amended:  1/26/10
          Vote:     21

           
           SENATE BUS., PROF. & ECON. DEVEL. COMMITTEE :  7-2, 4/20/09
          AYES:  Negrete McLeod, Corbett, Correa, Florez, Oropeza,  
            Romero, Yee
          NOES:  Aanestad, Walters
          NO VOTE RECORDED:  Wyland

           SENATE APPROPRIATIONS COMMITTEE  :  Senate Rule 28.8

           SENATE FLOOR  :  19-15, 5/14/09 (FAIL)
          AYES:  Alquist, Calderon, Corbett, DeSaulnier, Florez,  
            Hancock, Kehoe, Leno, Lowenthal, Negrete McLeod, Oropeza,  
            Padilla, Pavley, Romero, Simitian, Steinberg, Wiggins,  
            Wolk, Yee
          NOES:  Aanestad, Ashburn, Benoit, Cogdill, Cox, Denham,  
            Ducheny, Dutton, Harman, Hollingsworth, Huff, Maldonado,  
            Strickland, Walters, Wyland
          NO VOTE RECORDED:  Cedillo, Correa, Liu, Runner, Wright,  
            Vacancy

           SENATE FLOOR  :  17-16, 6/3/09 (FAIL)
          AYES:  Alquist, Calderon, Cedillo, Corbett, DeSaulnier,  
            Kehoe, Leno, Negrete McLeod, Oropeza, Padilla, Pavley,  
            Romero, Simitian, Steinberg, Wiggins, Wolk, Yee
          NOES:  Aanestad, Ashburn, Benoit, Cogdill, Correa, Cox,  
            Denham, Dutton, Harman, Hollingsworth, Huff, Maldonado,  
            Runner, Strickland, Walters, Wyland
          NO VOTE RECORDED:  Ducheny, Florez, Hancock, Liu,  
                                                           CONTINUED





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            Lowenthal, Wright, Vacancy


           SUBJECT  :    Healing arts:  peer review

           SOURCE  :     Author


           DIGEST  :    This bill makes various changes relating to the  
          peer review process in which a final proposed action may be  
          imposed on a licentiate, if certain conditions are met, for  
          which a report (commonly referred to as 805 report pursuant  
          to Section 805 of the Business and Professions Code) is  
          required to be filed to the appropriate health care  
          regulatory body.  In addition this bill requires specified  
          licensing agencies include in a licensee's central file a  
          final judgment by a court that a peer review resulting in  
          an 805 report was conducted in bad faith and any  
          explanatory or exculpatory information submitted by a  
          licensee.  

           Senate Floor Amendments  of 1/2610 clarify the standard that  
          must be used for purposes of reporting, require that a peer  
          review body file a report with the relevant agency within  
          15 days after a peer review body makes a final decision or  
          recommendation regarding the disciplinary action, as  
          specified, and require specified licensing agencies include  
          in a licensee's central file include any explanatory or  
          exculpatory information submitted by the licensee.

           Senate Floor Amendments  of 5/20/09 delete the requirement  
          that an 805 report must be submitted regardless of whether  
          a hearing on a final proposed action has occurred.  Clarify  
          the documents which a health board may obtain during an  
          investigation of report, and clarify report  
          confidentiality.

           Senate Floor Amendments  of 5/11/09 clarify when a report  
          pursuant to a determination by a peer review body shall be  
          made to the relevant agency.

           ANALYSIS  :    

          Existing Law:







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           1.Provides for the professional review of specified  
             healing arts licentiates through a peer review process.   
             Existing law defines the term "peer review body" as  
             including a medical or professional staff of any health  
             care facility or clinic licensed by the State Department  
             of Public Health.

           2.Requires specified persons are to file a report,  
             designates as an "805 report," with a licensing board  
             within 15 days after a specified action is taken 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 licentiate to  
             request a hearing concerning that action.

           3.Requires the Medical Board of California to maintain an  
             805 report for a period of three years after receipt.

           4.Authorizes the Medical Board of California, the  
             Osteopathic Medical Board of California, and the Dental  
             Board of California to inspect and copy certain  
             documents in the record of any disciplinary proceeding  
             resulting in action that is required to be reported in  
             an 805 report.

           5.Requires specified healing arts boards to maintain a  
             central file of their licensees containing, among other  
             things, disciplinary information reported through 805  
             reports.

           6.Requires the Medical Board of California, the  
             Osteopathic Medical Board of California, and the  
             California Board of Podiatric Medicine to disclose an  
             805 report to specified health care entities and to  
             disclose certain hospital disciplinary actions to  
             inquiring members of the public.  Existing law also  
             requires the Medical Board of California to post  
             hospital disciplinary actions regarding its licensees on  
             the Internet.

          This bill:








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           1.Requires specified licensing agencies include in a  
             licensee's central file the following:

             A.    Any additional exculpatory or explanatory  
                statements submitted by the licentiate.

             B.    A finding by a court, in final judgment, that a  
                peer review resulting in an 805 report was  
                conducted in bad faith, provided the licensee  
                notifies the agency.

           2.Prohibits the Medical Board of California, the  
             Osteopathic Medical Board of California, and the  
             California Board of Podiatric Medicine from disclosing  
             to an inquiring member of the public 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 if a  
             court finds, in final judgment, that the peer review  
             resulting in the disciplinary action was conducted in  
             bad faith and the licensee notifies the board of the  
             finding.

           3.Defines peer review as a process in which a peer review  
             body reviews the basic qualifications, staff privileges,  
             employment, medical outcomes, or professional conduct of  
             licentiates to make recommendations for quality  
             improvement and education in order to do either or both  
             of the following:

             A.    Determine whether a licentiate may practice or  
                continue to practice in a health care facility,  
                clinic, or other setting providing medical  
                services, and, if so, to determine the parameters  
                of that practice.

             B.    Assess and improve the quality of care rendered  
                in a health care facility, clinic, or other setting  
                providing medical services.

           4.Clarifies that the definition of peer review body  
             includes any clinic specified in the Health and Safety  
             Code, and deletes reference to licensed clinics.








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           5.Clarifies that if a licentiate undertakes any of the  
             following actions after receiving a notice or a pending  
             investigation initiated for a medical disciplinary cause  
             or reason or after receiving notice that his/her  
             application for membership or staff privileges is denied  
             or will be denied for a medical disciplinary cause or  
             reason, the chief of staff or whoever is authorized  
             under existing law must file an 805 report within 15  
             days after the licentiate takes the action:

             A.    Resigns or takes a leave of absence from  
                membership, staff privileges, or employment.

             B.    Withdraws or abandons his/her application for  
                membership or staff privileges.

             C.    Withdraws or abandons his or her request for  
                renewal of membership or staff privileges.

           6.Specifies that the notice advising a licentiate that  
             they may submit additional statements or other  
             information shall notify the licentiate that information  
             submitted electronically will be publicly disclosed to  
             those who request the information pursuant to current  
             law.

           7.Requires an 805 report to be maintained electronically  
             for dissemination purposes for a period of three years  
             after receipt.

           8.Requires the chief of staff of a medical or professional  
             staff or other chief executive officer, medical  
             director, or administrator of any peer review body and  
             the chief executive officer or administrator of any  
             licensed health care facility or clinic to file a report  
             with the relevant agency within 15 days after a peer  
             review body makes a final decision or recommendation  
             regarding the disciplinary action resulting in a final  
             proposed action to be taken against a licentiate based  
             on the peer review body's determination, following  
             formal investigation of the licentiate, which any of the  
             following may have occurred, regardless of whether a  
             hearing is held regarding the final proposed action  
             pursuant to current B&P Code 809.2:







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             A.    Incompetence or gross or repeated deviation from  
                the standard of care involving death or serious  
                bodily injury to one or more patients, such that  
                the physician and surgeon poses a risk to patient  
                safety.

             B.    Drug or alcohol abuse by a physician and surgeon  
                involving death or serious bodily injury to a  
                patient.

             C.    Repeated acts of clearly excessive prescribing,  
                furnishing, or administering of controlled  
                substances or repeated acts of prescribing,  
                dispensing, or furnishing of controlled substances  
                without a good faith effort prior examination of  
                the patient and medical reason therefore.  However,  
                in no event shall a physician and surgeon  
                prescribing, furnishing, or administering  
                controlled substances for intractable pain,  
                consistent with lawful prescribing, be reported for  
                excessive prescribing and prompt review of the  
                applicability of these provisions shall be made in  
                any complaint that may implicate these provisions.

             D.    Sexual misconduct with one or more patients  
                during a course of treatment or an examination.

           9.Requires the notice the licentiate receives regarding  
             the proposed final action include a notice advising the  
             licentiate of the right to submit additional explanatory  
             or exculpatory statements electronically or otherwise.

          10.Entitles the relevant agency to inspect and copy the  
             following documents in the record of any formal  
             investigation required to be reported pursuant to item  
             #8) above:

             A.    Any statement of charges.

             B.    Any document, medical chart, or exhibit.

             C.    Any opinions, findings, or conclusions.








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             D.    Any certified copy of medical records, as  
                permitted by other applicable law.

          11.States a peer review body is not required to make a  
             report if that body does not make a final decision or  
             recommendation regarding the disciplinary action to be  
             taken against a licentiate based on the body's  
             determination that any of the acts listed in #8) above  
             may have occurred.

          12.States that the information reported pursuant to item  
             #8) above shall be kept confidential and not subject to  
             discovery, but the information may be reviewed, as  
             specified, and may be disclosed in any subsequent  
             disciplinary hearing, as specified.

          13.Specifies that the report required by item #8) above is  
             in addition to any other report currently required to be  
             reported under Section 805.

          14.Defines formal investigation for purposes of item #8)  
             above as an investigation performed by a peer review  
             body based on an allegation that any of the acts listed  
             in #8) above occurred..

          15.Requires that a licensee's central file of individual  
             historical record that is maintained by specified  
             agencies include information reported pursuant to item  
             #8) above.

          16.Entitles the Medical Board of California, the  
             Osteopathic Medical Board of California, and the Dental  
             Board of California to inspect and copy any certified  
             copy of medical records, as permitted by other  
             applicable law relating to any disciplinary proceeding  
             resulting in an action that is required to be reported  
             pursuant to Section 805.

          17.Prohibits the disclosure of an 805 report to specified  
             health care entities if a court finds that the peer  
             review resulting in the 805 report was conducted in bad  
             faith and the licensee who is the subject of the report  
             notifies the board of the court's finding. 








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          18.Requires a peer review body that reviews physicians and  
             surgeons, within 15 days of initiating a formal  
             investigation based upon information indicating a  
             licentiate may be suffering from a disabling mental or  
             physical condition which poses a threat to patient care,  
             report to the executive director of the Medical Board of  
             California the name of the licentiate and the general  
             nature of the investigation.  The executive director,  
             upon receipt of a report, shall contact the peer review  
             body that made the report within 60 days in order to  
             determine the status of the peer review body's  
             investigation, and periodically thereafter to monitor  
             the progress of the investigation.  If the executive  
             director determines that the progress of the  
             investigation is not adequate to protect the public, the  
             executive director shall notify its chief of  
             enforcement, who shall promptly conduct an investigation  
             of the matter.  Concurrently with notifying the chief of  
             enforcement, the executive director shall notify the  
             reporting peer review body and the chief executive  
             officer or an equivalent officer of the hospital of its  
             decision to refer the case for investigation by the  
             chief of enforcement.  Upon receipt of notice from a  
             peer review body that an investigation has been closed  
             and that the peer review body has determined that there  
             is no need for further action to protect the public, the  
             executive director shall purge and destroy all records  
             in his or her possession pertaining to the investigation  
             unless the executive director has referred the matter to  
             the chief of enforcement. 

          19.Requires the Medical Board of California to remove from  
             its Internet website any information concerning a  
             hospital disciplinary action that is posted on the  
             Internet website if a court in final judgment finds that  
             peer review resulting in a hospital disciplinary action  
             was conducted in bad faith and the licensee notifies the  
             Medical Board of California of the court finding.

          20.Requires the Medical Board of California to post on the  
             Internet a fact sheet that explains and provides  
             information on the reporting requirements under Section  
             805.








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           Background

          What is Peer Review  ?  In peer review, physicians evaluate  
          their colleagues' work to determine compliance with the  
          standard of care.  Peer reviews are intended to detect  
          incompetent or unprofessional physicians early and  
          terminate, suspend, or limit their practice if necessary.   
          Peer review is triggered by a wide variety of events  
          including patient injury, disruptive conduct, substance  
          abuse, or other medical staff complaints.  A peer review  
          committee investigates the allegation, comes to a decision  
          regarding the physician's conduct, and takes appropriate  
          remedial actions.  However, there is reluctance among  
          physicians to serve on peer review committees due to the  
          risk of involvement in related future litigation, including  
          medical malpractice lawsuits against a physician under  
          review.  In addition, there has been rising concern  
          relating to "sham peer review."  Sham peer review is the  
          use of the peer review system to discredit, harass,  
          discipline, or otherwise negatively affect a physician's  
          ability to practice medicine or exercise professional  
          judgment for a non-medical or patient safety related  
          reason.  Other criticisms of peer review include over  
          legalization of the process, lack of transparency in the  
          system, and burdensome human and financial toll peer review  
          brings not only to the hospital but also to a physician  
          under review.  

          Medical Board of California and 805 Peer Review Reporting  
          Requirements.  The MBC is responsible for regulating and  
          licensing physicians in California.  The MBC revokes,  
          suspends, or limits the practice of any physicians and  
          surgeons.  In exercising regulatory authority over  
          physicians and surgeons the MBC has as its highest priority  
          the protection of the public.  Currently, the MBC regulates  
          125,612 physicians and surgeons, of which 97,878 reside in  
          California.  The MBC investigates complaints against  
          physicians and adopts final decisions in disciplinary  
          matters against physicians and surgeons.

          According to the Medical Board of California, it received  
          one hundred thirty-eight 805 reports in 2007-2008 from  
          hospitals/clinics (74), health care service plans (17), and  
          medical group/employers (47).  Out of all of these reports,  







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          one accusation was filed, 92 cases are pending disposition  
          and 45 cases were closed.  The number of 805 reports varies  
          from year to year but it appears that when adjusted to the  
          number of physicians and surgeons licensed and living in  
          California, or the number of people living in California,  
          the trend shows a downward direction.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          JJA:do  1/27/10   Senate Floor Analyses 

                       SUPPORT/OPPOSITION:  NONE RECEIVED

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