BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                   SB 700|
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                              UNFINISHED BUSINESS


          Bill No:  SB 700
          Author:   Negrete McLeod (D)
          Amended:  8/20/10
          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,  
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            Lowenthal, Wright, Vacancy

           SENATE FLOOR  :  35-0, 1/28/10
          AYES:  Aanestad, Ashburn, Calderon, Cedillo, Cogdill,  
            Corbett, Correa, Cox, Denham, DeSaulnier, Ducheny,  
            Dutton, Florez, Hancock, Harman, Hollingsworth, Kehoe,  
            Leno, Liu, Lowenthal, Maldonado, Negrete McLeod, Oropeza,  
            Padilla, Pavley, Price, Romero, Simitian, Steinberg,  
            Strickland, Wiggins, Wolk, Wright, Wyland, Yee
          NO VOTE RECORDED:  Alquist, Huff, Runner, Walters, Vacancy

           ASSEMBLY FLOOR  :  76-0, 8/23/10 - See last page for vote


           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.  

           Assembly Amendments  clarify the causes for which a  
          licentiate may be subject to an 805.01 report, delete  
          requirements related to peer review investigations of a  
          physician and surgeon who may be suffering from a disabling  
          mental or physical condition that pose a threat to patient  
          care, and make technical and conforming changes.

           ANALYSIS  :    

          Existing Law:

           1.Provides for the professional review of specified  

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             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 (MBC) to  
             maintain an 805 report for a period of three years after  
             receipt.

           4.Authorizes the MBC, 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 MBC, 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 MBC to post hospital  
             disciplinary actions regarding its licensees on the  
             Internet.

          This bill:

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


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             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 MBC, 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.

           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  

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             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:

             A.    Incompetence or gross or repeated deviation from  
                the standard of care involving death or serious  
                bodily injury to one or more patients, to the  

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                extent or in such a manner as to be dangerous or  
                injurious to any person or the public.

             B.    The use of, or prescribing for, or administering  
                to, himself/ herself, any controlled substance; or  
                the use of any dangerous drug, or of alcoholic  
                beverages, to the extent or in such a manner as to  
                be dangerous or injurious to the licentiate, any  
                other person, or the public, or to the extent that  
                such use impairs the ability of the licentiate to  
                practice safely.

             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 MBC, 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 the MBC to remove from its Internet Web site  
             any information concerning a hospital disciplinary  
             action that is posted on the Internet Web site 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 MBC of the court  
             finding.

          19.Requires the MBC to post on the Internet a fact sheet  
             that explains and provides information on the reporting  
             requirements under Section 805.

           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.  

           MBC 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  

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          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 MBC, it received 138 805 reports in  
          2007-2008 from hospitals/clinics (74), health care service  
          plans (17), and medical group/employers (47).  Out of all  
          of these reports, 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), 2009-10 Session, which was vetoed by the Governor.

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

           SUPPORT  :   (Verified  8/23/10)

          California Medical Association
          Center for Public Interest Law
          Medical Board of California


           ASSEMBLY FLOOR 
          AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall, Bill  
            Berryhill, Tom Berryhill, Block, Blumenfield, Bradford,  
            Brownley, Buchanan, Caballero, Charles Calderon, Carter,  
            Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,  
            DeVore, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,  
            Fuller, Gaines, Galgiani, Garrick, Gatto, Gilmore,  
            Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber,  
            Huffman, Jeffries, Jones, Knight, Lieu, Logue, Bonnie  
            Lowenthal, Ma, Mendoza, Miller, Monning, Nava, Nestande,  
            Niello, Nielsen, V. Manuel Perez, Portantino, Ruskin,  
            Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra  
            Strickland, Swanson, Torlakson, Torres, Torrico, Tran,  

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            Villines, Yamada, John A. Perez
          NO VOTE RECORDED: Furutani, Norby, Vacancy, Vacancy


          JJA:do  8/24/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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