BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 700|
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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.
This bill is substantially similar to SB 820 (Negrete
McLeod), of 2009, which was vetoed the Governor.
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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