BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 820|
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VETO
Bill No: SB 820
Author: Negrete McLeod (D) and Aanestad (R)
Amended: 9/4/09
Vote: 21
PRIOR SENATE VOTES NOT RELEVANT
SENATE FLOOR : 40-0, 9/10/09
AYES: Aanestad, Alquist, Ashburn, Benoit, Calderon,
Cedillo, Cogdill, Corbett, Correa, Cox, Denham,
DeSaulnier, Ducheny, Dutton, Florez, Hancock, Harman,
Hollingsworth, Huff, Kehoe, Leno, Liu, Lowenthal,
Maldonado, Negrete McLeod, Oropeza, Padilla, Pavley,
Price, Romero, Runner, Simitian, Steinberg, Strickland,
Walters, Wiggins, Wolk, Wright, Wyland, Yee
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,
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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.
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:
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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.
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.
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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.
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:
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(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.
(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
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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
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
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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 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.
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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 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
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SUPPORT : (Verified 9/10/09)
California Medical Association
Center for Public Interest Law
Kaiser Permanente
Medical Board of California
OPPOSITION : (Verified 9/10/09)
California Hospital Association
Catholic Healthcare West
GOVERNOR'S VETO MESSAGE:
"I am returning Senate Bill 820 without my signature.
Peer review is an extremely important part of
assuring the integrity and quality of care provided
in our California hospitals. Unfortunately, the peer
review process has also been criticized over the
years because it increases litigious behavior, and
lacks transparency and responsiveness. While perhaps
well-intentioned, this bill does not provide a
solution to the problem, but rather, jeopardizes the
entire process by narrowing the reporting element to
'serious' cases of incompetence involving only
patients. How is this good policy? For example,
what about a physician that engages in egregious
behavior against hospital staff or even other
physicians? how does this serve the public by keeping
these reports from the Medical Board?
This bill also fails to align with recent Joint
Commission requirements that hospitals adopt a 'zero
tolerance' policy towards physicians engaging in
disruptive behavior in their interactions with nurses
and other hospital staff. A peer review body should
not be limited from acting on this type of behavior
and in fact, should be encouraged to act more
swiftly.
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I believe the peer review process is worth
preserving. It does however, deserve to be
thoroughly reviewed and reworked to ensure that
inappropriate behavior of any kind is immediately
acted upon. I would ask that the author and
interested stakeholders work with my Department of
Consumer Affairs to streamline and improve the peer
review process in order to increase its effectiveness
in taking action against providers that jeopardize
quality or safety measures.
For this reason, I am unable to sign this bill."
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 1/6/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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