BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                   SB 726|
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                                 THIRD READING


          Bill No:  SB 726
          Author:   Ashburn (R)
          Amended:  5/6/09
          Vote:     21

           
           SENATE BUS., PROF. & ECON. DEVEL. COMMITTEE  :  6-2, 4/27/09
          AYES:  Negrete McLeod, Corbett, Correa, Florez, Oropeza,  
            Yee
          NOES:  Aanestad, Walters
          NO VOTE RECORDED:  Wyland, Romero

           SENATE HEALTH COMMITTEE  :  10-0, 4/29/09
          AYES: Alquist, Strickland, Cedillo, Cox, DeSaulnier, Leno,  
            Maldonado, Negrete McLeod, Pavley, Wolk
          NO VOTE RECORDED:  Aanestad

           SENATE APPROPRIATIONS COMMITTEE  :  11-1, 5/26/09
          AYES:  Kehoe, Cox, Corbett, Denham, DeSaulnier, Hancock,  
            Leno, Oropeza, Runner, Wolk, Yee
          NOES:  Walters
          NO VOTE RECORDED:  Wyland


           SUBJECT  :    Hospitals:  employment of physicians and  
          surgeons

           SOURCE  :     Author


           DIGEST  :    This bill modifies an existing pilot project  
          under which a hospital that is owned and operated by a  
          health care district may directly employ physicians.  This  
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          bill allows any hospital located in a medically underserved  
          area that has been unsuccessful in recruiting a core  
          physician, as defined, to participate in the pilot project,  
          eliminates the existing cap on the number of physicians  
          that may be employed in total under the pilot project and  
          allows an individual qualified hospital to expand the  
          number it employs, as specified, requires the Medical Board  
          of California (MBC) to provide reports to the Legislature  
          on its evaluation of the revised pilot project, and extends  
          the sunset date for the pilot project from January 1, 2011  
          to January 1, 2018.

           ANALYSIS  :    Existing law prohibits corporations and other  
          artificial legal entities from having professional rights,  
          privileges, or powers in relation to the practice of  
          medicine. Under the Corporate Practice of Medicine (CPM)  
          doctrine, the state prohibits hospitals and other entities  
          from employing physicians to provide professional services.

          Existing law establishes exemptions from the CPM  
          restriction for:

          1. Certain nonprofit clinics organized and operated  
             exclusively for scientific and charitable purposes, that  
             have been conducting research since before 1982, and  
             that meet other specified requirements.

          2. Clinics operated primarily for the purpose of medical  
             education by a public or private nonprofit university  
             medical school.

          3. Narcotic treatment programs operated under, and  
             regulated by, the State Department of Alcohol and Drug  
             Programs.

          4. Medical or podiatry professional corporations organized  
             and practicing pursuant to the Moscone-Knox Professional  
             Corporations Act, that require a majority of  
             shareholders of the corporation to be licensed  
             physicians, surgeons, or podiatrists.

          Existing law establishes, until 2011, a pilot program that  
          establishes an exemption from the CPM prohibition for  
          qualified district hospitals, enabling them to directly  

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          employ physicians and surgeons, if they meet several  
          requirements.  To be eligible to participate in the pilot  
          project, the district hospital must provide at least 50  
          percent of its patient days to Medicare, Medi-Cal, and  
          uninsured patients, must be located in a county with a  
          total population of less than 750,000 persons, and must  
          have reported net losses from operations in fiscal year  
          2000-01, as specified.

          Existing law limits the total number of physicians that may  
          be employed under the pilot project to 20 statewide, and  
          limits the total number that may be employed at any given  
          hospital to two.  In addition, under the pilot an  
          employment contract may not exceed four years.  

          Existing law requires the Medical Board of California (MBC)  
          to report to the Legislature no later than October 1, 2008,  
          on the effectiveness of the pilot project.

          Existing state law defines rural hospitals as those that  
          fall within certain peer groupings, based on their  
          characteristics and size.

          This bill:

          1. Modifies the pilot project under which qualified  
             district hospitals may employ a limited number of  
             physicians as follows:

             A.    Defines a qualified hospital as any hospital  
                located within an area that is designated as a  
                medically underserved area or population, or is a  
                small and rural hospital as defined, is operated by  
                the district itself and not another entity, whose  
                chief executive officer of the hospital has  
                provided certification, as specified, to the MBC  
                and medical staff that the hospital has been  
                unsuccessful, using commercially reasonable  
                efforts, in recruiting a core physician and surgeon  
                for 12 consecutive months during the period of July  
                1, 2008 to July 1, 2009.

             B.    Defines a "core physician-surgeon" as a  
                physician and surgeon specializing in family  

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                practice, internal medicine, general surgery, or  
                obstetrics and gynecology.

             C.    Eliminates the 20 physician cap on the total  
                number of physicians that may be employed under the  
                pilot project, and allows an individual hospital to  
                employ no more than three additional licensees if  
                the hospital makes a showing of clear-need  
                following a public hearing duly noticed to all  
                interested parties, and upon an affirmative vote of  
                the medical staff and elected trustees of the  
                hospital.

             D.    Allows a hospital to request permission from MBC  
                to hire and physician and surgeon in a specialized  
                field other than those listed if certain  
                requirements are met, including the hospital can  
                demonstrate a pervasive inability to meet the needs  
                of the health care district in that specialized  
                field.

             E.    Extends the date by which a physician must enter  
                into an employment contract with a qualified  
                hospital under the pilot project from December 31,  
                2006 to December 31, 2017, and extends the maximum  
                time period for a contract from four to ten years.

          2. Requires the MBC to provide a preliminary report to the  
             Legislature that evaluates the revised pilot project by  
             July 1, 2013, and a final report by July 1, 2016.

          3. Extends the overall sunset date for the pilot project  
             from January 1, 2011 to January 1, 2018.

          4. Modifies the current exception to the corporate practice  
             of medicine law to include the pilot project, as revised  
             by the bill.

           Background
           
           Health Care District Hospital Pilot Project  .  The district  
          hospital pilot project was established to address the  
          problem of recruiting and retaining physicians in rural and  
          underserved communities.  The premise behind the pilot  

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          project was that many district hospitals lack viable  
          alternatives to attract physicians to their staff, and that  
          direct employment may offer a better incentive to encourage  
          physicians to relocate to or remain in rural and  
          underserved areas.

          While it was expected that the maximum allowed number of 20  
          physicians would end up being employed under the pilot  
          project, according to the MBCs report to the Legislature in  
          October 2008, due to a number of constraints, only six  
          physicians have been employed (by five qualifying  
          hospitals) under the pilot.  Of the six, only one  
          represented a physician who came from outside of the area  
          of the hospital; the remaining five were in practice in the  
          areas served by the hospital prior to their employment.  In  
          the report, the MBC notes that due to the limited  
          participation in the pilot, and the limited responses from  
          hospitals that elected and decided not to participate in  
          the pilot, it is difficult to draw conclusions regarding  
          the effectiveness of the pilot.  However, the MBC states  
          that it believes there may be justification to extend the  
          pilot so that a better evaluation of direct employment of  
          physicians can be made, and recommends broadening the pilot  
          to include more hospitals, while maintaining limits on the  
          number of physicians employed under the pilot and while  
          maintaining the general prohibition on the corporate  
          practice of medicine.

           Health Care Districts  .  Health care districts operate  
          roughly two-thirds of the public hospitals in California.   
          The vast majority of facilities are located in rural parts  
          of California.  Most of these facilities are quite small,  
          and tend to serve a disproportionate percentage of  
          uninsured and Medi-Cal patients.  In many cases, 50 percent  
          or more of the patients served by the health care districts  
          and their health facilities are insured by Medi-Cal and  
          Medicare.  

           Medically underserved areas and populations and health  
          professions shortage areas  .  Several types of medically  
          underserved areas are designated by the federal Health  
          Resources and Services Administration, including the four  
          types that are targeted by this bill:  (1) a primary care  
          health professional shortage area generally must have a  

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          population to physician ratio 3,500 to 1 or greater (an  
          area with a ratio of 3,000 to 1 that has "unusually high  
          need" may also qualify) and have a lack of access to health  
          care in surrounding areas because of excessive distance,  
          over-utilization, or access barriers; (2) a mental health  
          professional shortage area must have a population to mental  
          health professional ratio of 6,000 to 1 or greater and a  
          population to psychiatrist ratio of 20,000 to 1 or greater,  
          or a 9,000 to 1 ratio for mental health professionals  
          solely, or a 30,000 to 1 ratio for psychiatrists solely;  
          (3) a dental health professional shortage area must have a  
          population to dentist ratio of 5,000 to 1, or have a ratio  
          of 4,000 to 1 and be an area of "unusually high need" and  
          have a lack of access to dental care in surrounding areas  
          because of distance, overutilization, or access barriers;  
          and (4) medically underserved areas and populations must  
          meet an index that takes into account four criteria of  
          medical need:  (1) percentage of population below 100  
          percent of the federal poverty level (FPL); (2) percentage  
          of population age 65 and over; (3) infant mortality rate;  
          and 4) primary care physicians per 1,000 population.   

          Health care providers providing services in health  
          professional shortage areas qualify for student loan  
          repayment programs and placement through the National  
          Health Service Corps, and in some cases enhanced Medicare  
          reimbursement.  

           Prior legislation
           
           SB 1294 (Ducheny), of 2007  , which died in the Assembly  
          Appropriations Committee revised the pilot project to allow  
          the employment of more than 20 physicians and surgeons, at  
          the discretion of the MBC, and allowed the total number of  
          physicians employed by a qualified district hospital to  
          exceed two, if deemed appropriate by the MBC on a  
          case-by-case basis, revised the definition of a qualified  
          hospital to a district hospital that is located in a  
          medically underserved area that had net losses in the most  
          recent fiscal year, extended the pilot project until  
          January 1, 2017 and made other conforming changes.
          
           SB 1640 (Ashburn), of 2007  , would have revised the district  
          hospital pilot project to allow general acute care  

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          hospitals that meet specified requirements to directly  
          employ up to five physicians each and collectively to  
          employ an unlimited number of physicians statewide. Would  
          have extended the pilot project until January 1, 2016, and  
          required MBC to report to the Legislature no later than  
          October 1, 2013, on the evaluation of the effectiveness of  
          the pilot project.  Failed passage in the Senate Business,  
          Professions, and Economic Development Committee.  

           AB 1944 (Swanson), of 2007 , would have eliminated the  
          district hospital pilot project and instead authorized such  
          hospitals to directly employ physicians to primarily treat  
          Medi-Cal patients without limits, if specified requirements  
          are met.  Failed passage in the Senate Health Committee.

           SB 376 (Chesbro), Chapter 411, Statutes of 2003  ,establishes  
          a pilot project in which qualified healthcare district  
          hospitals may employ physicians, and charge for  
          professional services rendered by the physician.  Limits  
          the number of physicians employed by all qualified district  
          hospitals in the state to 20, and also limits each district  
          hospital to two employed physicians or surgeons.  Sunsets  
          the pilot project in 2011, and requires submitting report  
          to the Legislature by October 2008 on the effectiveness of  
          the pilot project.

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

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

           Major Provisions                2009-10     2010-11     
           2011-12   Fund  

          Pilot project expansion                           Up to  
          $100 one time by 10/1/12 and                      Special*
            and extension     by 10/1/16

          *Contingent Fund of the Medical Board of California

           SUPPORT  :   (Verified  5/27/09)


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          Regional Council of Rural Counties

           OPPOSITION  :    (Verified  5/27/09)

          Children's Specialty Care Coalition
          California Radiological Society
          California Society of Pathologists
          San Bernardino County Medical Society

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          California is one of a small number of states that do not  
          allow hospitals to directly hire permanent staff doctors.   
          The author's office points out that at a time when  
          increasing access to health care has been a top priority of  
          the state's leadership, the Legislature needs to revisit  
          the exclusion against the corporate practice of medicine.   
          The author's office states that small and rural hospitals  
          have asked repeatedly for authority to recruit and hire  
          physicians directly.  According to the author's office,  
          this bill will address the shortage of physicians who  
          practice in medically underserved areas.  Specifically, the  
          author's office states that there will be advantages for  
          physicians who enter into employment contracts under the  
          bill, including lower overhead costs and employment  
          benefits that attract doctors to areas where they are not  
          normally be inclined to practice, but where the need is  
          great.


          JJA:do  5/27/09   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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