BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                   SB 820|
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                              UNFINISHED BUSINESS


          Bill No:  SB 820
          Author:   Negrete McLeod (D) and Aanestad (R)
          Amended:  9/4/09
          Vote:     21

           
           PRIOR SENATE VOTES NOT RELEVANT  

           ASSEMBLY FLOOR  :  73-0, 9/9/09 - See last page for vote


           SUBJECT  :    Healing arts:  peer review

           SOURCE  :     Author


           DIGEST  :    This bill 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. 

           Assembly Amendments  delete the prior version of the bill,  
          which was a Senate Business, Professions and Economic  
          Development Committee bill, and add the current language.

           ANALYSIS  :    

          Existing law:

          1. Provides for the professional review of specified  
             healing arts licentiates through a peer review process.
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          2. Provides that specified persons are required to file a  
             report, designated as an "805 report," with a licensing  
             board within 15 days after a specified action is taken  
             against a person licensed by that board.

          3. Requires the board to maintain an 805 report for a  
             period of three years after receipt.

          4. Authorizes the Medical Board of California (MBC), the  
             Osteopathic Medical Board of California (OMBC), and the  
             Dental Board of California (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, disciplinary information reported through 805  
             reports.

          6. Requires the MBC, the OMBC, and the California Board of  
             Podiatric Medicine (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  
             the Internet. 

          7. Requires the MBC, the OMBC, and the CBPM to disclose to  
             an inquiring member of the public information regarding  
             enforcement actions taken against a licensee by the  
             board or by another state or jurisdiction.

          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; 







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             B.    Any additional exculpatory or explanatory  
                statements regarding an 805 report submitted by a  
                licensee.
              
             C.    Information reported pursuant to an 805.01 report,  
                as specified. 

          2. Requires the MBC, the OMBC, and the CBPM, to disclose to  
             an inquiring member of the public information regarding  
             any enforcement actions taken against a former or  
             current licensee, and requires the 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  







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             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. 

             C.    Withdraws or abandons his or her request for  
                renewal of membership or staff privileges. 

          6. Requires 805 reports be maintained, submitted, and  
             distributed electronically, but permits an 805 report  
             and the notice advising the licentiate of his/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.
              
             B.    "Peer review" means both of the following: 

                (1)      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: 

                   (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  







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                      other setting providing medical services. 

                (2) 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 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.

             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  







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             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.
             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 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 the MBC, OMBC, and 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  







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             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 the MBC  
             of that fact, in which case the information shall be  
             removed immediately. 

          18.Requires the 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 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  







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             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 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 the MBC, and states that this  
             report does not exempt a peer review body from  
             submitting a 805 or 805.01 report. 

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

           SUPPORT  :   (Verified  9/10/09)

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

           OPPOSITION  :    (Verified  9/10/09)







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          California Hospital Association
          Catholic Healthcare West


           ASSEMBLY FLOOR  : 
          AYES:  Adams, Ammiano, Anderson, Arambula, Beall, Tom  
            Berryhill, Blakeslee, Block, Blumenfield, Brownley,  
            Buchanan, Caballero, Charles Calderon, Carter, Conway,  
            Cook, Coto, Davis, De La Torre, De Leon, DeVore,  
            Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,  
            Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore,  
            Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,  
            Jeffries, Jones, Knight, Krekorian, Lieu, Logue, Bonnie  
            Lowenthal, Ma, Monning, Nava, Nestande, Niello, Nielsen,  
            John A. Perez, V. Manuel Perez, Portantino, Ruskin,  
            Salas, Saldana, Silva, Skinner, Smyth, Solorio, Audra  
            Strickland, Swanson, Torlakson, Torres, Torrico, Tran,  
            Villines, Yamada, Bass
          NO VOTE RECORDED:  Bill Berryhill, Chesbro, Duvall, Hagman,  
            Mendoza, Miller, Vacancy


          JJA:mw  9/10/09   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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