BILL ANALYSIS
SB 820
Page 1
SENATE THIRD READING
SB 820 (Negrete McLeod)
As Amended September 4, 2009
Majority vote
SENATE VOTE :Vote not relevant
BUSINESS & PROFESSIONS 11-0 APPROPRIATIONS 13-1
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|Ayes:|Hayashi, Emmerson, |Ayes:|De Leon, Conway, Ammiano, |
| |Conway, Eng, Hernandez, | | |
| |Nava, Niello, | |Coto, Davis, Duvall, |
| |John A. Perez, Ruskin, | |Fuentes, Hall, John A. |
| |Smyth, Monning | |Perez, Skinner, Solorio, |
| | | |Torlakson, Hill |
| | | | |
|-----+--------------------------+-----+--------------------------|
| | |Nays:|Charles Calderon |
| | | | |
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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 in a
final judgment 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
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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 in a final
judgment that the 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, occur 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 or membership, 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 or staff privileges; or,
c) Withdraws or abandons his or her request for renewal of
membership or staff privileges.
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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,
b) "Peer review" means both of the following:
i) 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 do either or both of the
following:
(1) 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; and/or,
(2) Assess and improve the quality of care
rendered in a health care facility, clinic, or other
setting providing medical services; and,
ii) Any other activities of a peer review body, as
specified.
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 (805.01
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) Demonstrated incompetence or gross or repeated deviation
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from the standard of care that involves 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 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.
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 805.01 report:
a) Any statement of charges;
b) Any document, medical chart, or exhibit;
c) Any opinions, findings, or conclusions; and,
d) Any certified medical records.
11)Requires that the 805.01 report and any related information,
as specified, be kept confidential and not subject to
discovery, except as specified.
12)States that the 805.01 report shall be filed in addition to
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any other report required by law.
13)States that a peer review body shall not be required to make
an 805.01 report if that peer review body does not make a
final decision or recommendation regarding the disciplinary
action to be taken against a licentiate based on its
determination that any of the specified acts may have
occurred.
14)Authorizes MBC, OMBC, and the Dental Board of California
(DBC) to inspect and copy any certified copies of medical
records in the record of any disciplinary proceedings
resulting in action that is required to be reported, as
specified.
15)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 exculpatory or
explanatory information submitted to the Board by a licensee,
as specified, unless a court finds, in a final judgment, 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.
16)Requires the MBC to post on its Internet Web site a link to
any additional explanatory or exculpatory information
submitted electronically by the licensee, as specified.
17)States that if a licensee's hospital staff privileges are
restored and the licensee notifies MBC, the information
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, in a final judgment, that the
peer review resulting in the disciplinary action was
conducted in bad faith and the licensee notifies MBC of
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that fact, in which case the information shall be removed
immediately.
18)Requires MBC to post on its Internet Web site a fact sheet
explaining and providing information on 805 reporting
requirements.
19)Requires a peer review body to, within 15 days of initiating
a formal investigation of a physician and surgeon's ability to
practice medicine safely based upon information indicating
that the physician and surgeon may be suffering from a
disabling mental or physical condition that poses a threat to
patient care, report to Executive Officer (EO) of the Medical
Board of California (MBC) the name of the physician and
surgeon under investigation and the general nature of the
investigation. A peer review body that has made a report to
the EO shall also notify the MBC EO when it has completed or
closed an investigation.
20)Requires the MBC EO to, upon receipt of such a report,
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. Requires the EO to contact the peer
review body periodically thereafter to monitor the progress of
the investigation.
21)Requires the EO to notify the MBC's chief of enforcement if
at any time the EO determines that the progress of the peer
review's investigation is not adequate to protect the public,
and the chief of enforcement shall conduct an investigation of
the matter. Concurrently with notifying the chief of
enforcement, the EO 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.
22)Requires that information received by the EO be governed by,
and shall be deemed confidential, as specified. Prohibits the
records from being further disclosed by the EO, except as
specified.
23)Requires the EO to purge and destroy all records in its
possession pertaining to the investigation 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
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is no need for further action to protect the public, unless
the EO has referred the matter to the chief of enforcement.
24)Provides legal cover for peer review bodies making reports
related to a physician and surgeon's disabling mental or
physical condition.
25)Requires reports related to a physician and surgeon's
disabling mental or physical condition be submitted on a short
form developed by MBC, and states that this report does not
exempt a peer review body from submitting a 805 or 805.01
report.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, no direct fiscal impact to the healing arts boards
addressed by this bill to continue oversight of medical
professionals in California.
COMMENTS : 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
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
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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.
Analysis Prepared by : Sarah Huchel / B. & P. / (916) 319-3301
FN: 0002979