BILL ANALYSIS SB 820 Page 1 Date of Hearing: July 7, 2009 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Mary Hayashi, Chair SB 820 (Negrete McLeod) - As Amended: July 6, 2009 SENATE VOTE : (Vote not relevant) SUBJECT : Healing arts. SUMMARY : Makes various changes related to disciplinary reporting by specified healing arts boards, including adding to the central file if a court finds that a peer review was held in bad faith and the filing of an additional report under certain circumstances, as specified. Specifically, this bill : 1)Requires a licensee's respective regulatory board (Board), as specified, to include in a central file: a) A finding from a court if the court determines that the peer review resulting in the disciplinary report (805 report) was conducted in bad faith and the licensee who is the subject of the report notifies the Board of that finding; b) Any additional exculpatory or explanatory statements regarding an 805 report submitted by a licensee; and, c) Information reported pursuant to an 805.01 report, as specified. 2)Requires the Medical Board of California (MBC), the Osteopathic Medical Board of California (OMBC), and the California Board of Podiatric Medicine (CBPM), to disclose to an inquiring member of the public information regarding any enforcement actions taken against a former or current licensee, and requires MBC, OMBC, and CBPM to provide to each current and former licensee a copy of the text of any proposed public disclosure prior to its release, as specified. 3)Requires the MBC, OMBC, and CBPM to disclose to an inquiring member of the public summaries of any hospital disciplinary actions resulting in the termination or revocation of a former or current licensee's staff privileges for medical disciplinary cause or reason, unless a court finds that the SB 820 Page 2 peer review resulting in the disciplinary action was conducted in bad faith and the licensee notifies the Board of that finding. 4)Requires a chief of staff of a medical or professional staff or other chief executive officer (CEO), medical director, or administrator of any peer review body and the CEO or administrator of any licensed health care facility or clinic [all, respectively, "Director"] to file an 805 report with the relevant agency within 15 days after the effective date on which certain events, as specified, are imposed on a licentiate as a result of an action of a peer review body. 5)Requires the Director of a facility in which a licentiate is employed, has staff privileges, or membership or where the licentiate applied for staff privileges, membership, or employment, or sought the renewal thereof, to file an 805 report with the relevant agency within 15 days if the licentiate does any of the following after receiving notice of a pending investigation initiated for a medical disciplinary cause or reason or after receiving notice that his or her application for membership, staff privileges, or employment is denied or will be denied for a medical disciplinary cause or reason: a) Resigns or takes a leave of absence from membership, staff privileges, or employment; b) Withdraws or abandons his or her application for membership, staff privileges, or employment; or, c) Withdraws or abandons his or her request for renewal of membership, staff privileges, or employment. 6)Requires 805 reports be maintained, submitted, and distributed electronically, but permits an 805 report and the notice advising the licentiate of his or her right to submit additional statements or other information to be sent electronically or otherwise. 7)Defines the following terms: a) "Formal investigation" means an investigation performed by a peer review body based on an allegation that an act, as specified has occurred; and, SB 820 Page 3 b) "Peer review" means 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, if necessary, to determine whether the 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. 8)Requires the chief of staff of a medical or professional staff or other CEO, medical director, or administrator of any peer review body and the CEO or administrator of any licensed health care facility or clinic to file a report (801.01 report), following formal investigation of the licentiate, with the relevant agency within 15 days after a peer review body makes a final decision or recommendation regarding a disciplinary action, that any of the following acts may have occurred, regardless of whether a specified hearing is held: a) Gross negligence, incompetence, or repeated negligent acts that involve death or serious bodily injury to one or more patients, such that the physician and surgeon represents a danger to the public; 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 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; or, d) Sexual misconduct with one or more patients during a course of treatment or an examination. SB 820 Page 4 9)Requires the licentiate to receive a notice of the proposed action, as specified, which also must include a notice advising the licentiate of the right to submit additional explanatory or exculpatory statements. 10)Authorizes the relevant agency to inspect and copy the following documents in the record of any formal investigation pursuant to the 801.01 report: a) Any statement of charges; b) Any document, medical chart, or exhibit; c) Any opinions, findings, or conclusions; and, d) Certified medical records. 11)Requires that the 801.01 report and any related information, as specified, be kept confidential and not subject to discovery, except as specified. 12)States that the 801.01 report shall be filed in addition to any other report required by law. 13)Authorizes MBC, OMBC, and the Dental Board of California (DBC) to inspect and copy certified copies of medical records in the record of any disciplinary proceedings resulting in action that is required to be reported, as specified. 14)Requires, upon a request made by, or on behalf of, specified institutions seeking information related to granting or renewing staff privileges for any physician and surgeon, psychologist, podiatrist, or dentist, the Board to provide a copy of an 805 report and any additional information submitted to the Board by a licensee unless a court finds that the peer review resulting in the report was conducted in bad faith and the licensee who is the subject of the report notifies the Board of that finding. 15)Requires the MBC to post on its Internet Web site a link to any additional explanatory or exculpatory information submitted electronically by the licentiate. 16)States that if a licensee's hospital staff privileges are restored and the licensee notifies MBC, the information SB 820 Page 5 pertaining to the termination or revocation of those privileges shall remain posted on MBC's Internet Web Site for 10 years from the date of restoration of those privileges, except for information relating to: a) A felony conviction; or, b) A hospital disciplinary action resulting in termination or revocation of a licensee's staff privileges for a medical disciplinary cause or reason which must remain posted, unless a court finds that the peer review resulting in the disciplinary action was conducted in bad faith and the licensee notifies MBC of that fact, in which case the information shall be removed immediately. 17)Requires MBC to post on its Internet Web site a fact sheet explaining and providing information on 805 reporting requirements. EXISTING LAW : 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 to file a 805 report with a 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 MBC to maintain an 805 report for a period of three years after receipt. 4)Authorizes MBC, OMBC, and DBC 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, SB 820 Page 6 disciplinary information reported through 805 reports. 6)Requires MBC, OMBC, and CBPM 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 its Internet Web site. FISCAL EFFECT : Unknown COMMENTS : Purpose of this bill . According to the author's office, "SB 820 attempts to improve the physician peer review process by providing the Medical Board of California needed critical information for regulatory oversight of physicians to further enhance its public protection mandate. "This bill is necessary to ensure that the current peer review process continues to protect the public from incompetent physicians. Given the indispensable nature of health care, high quality patient care is vital. Patients expect their treating physicians or other medical professionals to be competent and qualified, and physicians who fail to meet established professional standards must be discovered, reviewed and disciplined if necessary in a timely manner. Physician peer review is one of the regimes used to ensure that quality of care is delivered while minimizing medical errors and managing patient risks." Background . 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, some suspect that 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 SB 820 Page 7 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. 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's highest priority is 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 surgeons and adopts final decisions in disciplinary matters. REGISTERED SUPPORT / OPPOSITION : Support None on file. Opposition None on file. Analysis Prepared by : Sarah Huchel / B. & P. / (916) 319-3301