BILL ANALYSIS Ó
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|Hearing Date:June 20, 2011 |Bill No:AB |
| |536 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: AB 536Author:Ma
As Amended:June 14, 2011 Fiscal: Yes
SUBJECT: Physicians and surgeons.
SUMMARY: Requires the Medical Board of California (MBC), upon receipt
of a certified copy of an expungement order from a licensee, to post
notification of the expungement order and the date of the expungement
on MBC's Internet Website within six months.
Existing law:
1) Requires the MBC, along with other specified health care
licensing boards, to create and maintain a central file of the
names of all persons who hold a license, certificate, or
similar authority. Requires the central file to be created and
maintained to provide an individual historical record for each
licensee and must include specified information including the
following: any conviction of a crime, any judgment or
settlement in excess of $3,000, any public complaints as
specified, and any disciplinary information, as specified. (
Business & Professions Code (BPC) § 800)
2) States that the content of the central file that is not public
record under any other provision of law is confidential and
allows a licensee to submit any exculpatory or explanatory
statements or other information to be included in the central
file.
(BPC § 800)
3) Requires the MBC to post on the Internet specified information
regarding licensed physicians, including information relating
to the following: (BPC § 2027)
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a) Status of a license, whether or not a licensee is in good
standing, as specified.
b) Prior discipline, as specified.
c) Any felony convictions reported to the MBC after January
3, 1991.
d) All current accusations filed by the Attorney General.
e) Any malpractice judgment or arbitration award reported to
the MBC on or after January 1, 1993.
f) Any hospital disciplinary actions that resulted in the
termination or revocation of a licensee's hospital staff
privileges for a medical disciplinary cause or reason.
g) Any misdemeanor conviction that results in a disciplinary
action or an accusation that is not subsequently withdrawn or
dismissed.
h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of
what types of information are not disclosed.
i) States that the disclaimers and statements be developed by
the MBC and adopted by regulation.
j) Any enforcement action taken against a licensee including
temporary restraining orders, interim suspension orders,
civil judgments and all settlements.
4) Specifies what information may be posted on MBC's Internet
Website for a period of ten years, including all information on
the status of a license. States that information relating to
all felony convictions and any hospital disciplinary actions
that resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or
reason shall not be removed from posting on the MBC's Internet
Website. (BPC § 2027)
5) Provides that in any case in which a defendant has fulfilled the
conditions of probation for the entire period of probation, or has
been discharged prior to the termination of the period of
probation, or in any other case in which a court, in its discretion
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and in the interest of justice, determines that a defendant should
be granted a relief, as specified, the defendant shall, at any time
after the termination of the period of probation, if he or she is
not then serving a sentence for any offense, on probation for any
offense, or charged with the commission of any offense, be
permitted by the court to withdraw his or her plea of guilty or
plea of nolo contendere and enter a plea of not guilty, or if he or
she has convicted after a plea of not guilty, the court shall set
aside the verdict of guilty, and the court shall dismiss the
accusations or information against the defendant, as specified, and
shall be released from all penalties and disabilities resulting
from the offense of which he or she has been convicted. (Penal
Code § 1203.4)
This bill requires the Medical Board of California (MBC), upon receipt
of a certified copy of an expungement order from a licensee, to post
notification of the expungement order and the date of the expungement
on MBC's Internet Website within six months.
FISCAL EFFECT: According to the Assembly Appropriations Committee,
minor absorbable costs to MBC to update their Website upon receipt of
expungement certificates.
COMMENTS:
1.Purpose. According to the Union of American Physicians and
Dentists , the Sponsor of this bill, the "disclosure of information
by the MBC to the general public regarding physician conduct is an
important public safeguard. However, the MBC often publishes
information that is inaccurate such as criminal misdemeanors or
felony convictions that have been legally expunged. This is
economically disastrous for the physician and can disrupt the
successful delivery of health care services."
2.Background.
a) Posting of Information on the MBC Internet Website. AB 103
(Figueroa, Chapter 359, Statutes of 1997) required the MBC to
post on the Internet specified information regarding physicians
and surgeons. The information to be posted includes information
on the status of the license, prior discipline, all current
accusations filed by the Attorney General, felony convictions,
any hospital disciplinary actions, and misdemeanor convictions
that result in a disciplinary action or an accusation that is not
subsequently withdrawn or dismissed. Most of the information
that is required to be disclosed is posted on the Internet
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Website for a period of 10 years except for felony convictions
and hospital disciplinary actions . This bill, for specified
misdemeanor convictions that are posted on the Internet, would
require the MBC, upon receipt of a certified copy of an
expungement order from a licensee, to also post a notification of
the expungement order and the date of the expungement.
b) Expungement of Records. The Penal Code allows misdemeanor and
felony convictions to be expunged if the defendant was only given
a sentence of probation, rather than state imprisonment. Under
the Penal Code, if a defendant has fulfilled the conditions of
probation, or has been discharged from probation, and if the
court determines that a relief should be granted, the defendant
at any time after the termination of the period of probation, if
he or she is not serving a sentence for any offense, as
specified, is authorized to withdraw his or her plea of guilty or
plea of nolo contendere and enter a plea of not guilty. In such
instance, the court sets aside the verdict of guilty and
dismisses the accusations or information against the defendant
and releases the defendant from all penalties and disabilities
resulting from the offense of which he or she has been convicted.
However, in any subsequent prosecution of the defendant for any
other offense, the prior conviction may be pleaded and proved and
shall have the same effect as if probation had not been granted
or the accusation or information dismissed. The order shall
state, and the probationer shall be informed, that the order does
not relieve a person from the obligation to disclose the
conviction in response to any direct question contained in any
questionnaire or application for public office, for licensure by
any state or local agency, as specified. As such, even if this
bill becomes law, a licensee of the MBC, the Osteopathic Medical
Board and the California Board of Podiatric Medicine must
disclose the conviction for purposes of licensure.
3.Prior Legislation. AB 245 is similar to the provisions of this bill
but was vetoed by then Governor Schwarzenegger. The veto message
stated: "I am returning Assembly Bill 245 without my signature.
This bill reduces transparency for consumers. An expunged
misdemeanor or felony conviction does not mean a health care
provider has been found innocent of the crime or that the provider
has been successfully rehabilitated. Consumers deserve to know
whether their provider has been convicted of a misdemeanor or felony
and should be allowed to review the physician's criminal history in
its entirety. The law must always place consumer protection above
the protection of a provider's economic interest. I continue to put
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consumers first."
4.Prior Version of this Measure. The prior version of this bill would
have required the MBC to remove an expunged misdemeanor or felony
convictions posted on MBC's Internet Website within 90 days of
receiving a certified copy of the expungement order from the
licensee.
5.Arguments in Support. The California Medical Association and the
American Federation of State, County, and Municipal Employees
indicate that the bill ensures that the public receives accurate
information of a physician's license status in a timely manner and
avoid the possibility of irreparable harm to a physician's
professional and personal reputation due to inaccurate information
on the MBC's Website.
6.Oppose Unless Amended. The Medical Board of California took an
oppose unless amended position to the prior version of this bill and
stated that the MBC does not believe that expunged convictions
should be removed from its Website as the convictions are still
required to be reported to the MBC and maintained in the licensee's
file. The MBC indicated it could be supportive of this bill if it
is amended to instead require the MBC to include information on its
Website for expunged convictions the fact that the conviction has
been expunged and the date of expungement. These amendments, the
MBC pointed out, would ensure that the public has information on the
conviction, but will also inform the public that the conviction has
been expunged and give the public access to accurate information and
ensure that public protection is maintained.
The Center for Public Interest Law (CPIL) indicates that MBC's
disclosure policy has served the patients of California well by
providing patients with an early and truthful warning about serious
misconduct committed by physicians during the lengthy period it may
take the MBC to investigate and prosecute disciplinary action based
on that misconduct. Additionally, CPIL states that MBC's Internet
disclosure policy is so well-regarded that it has been ranked in the
top ten by Public Citizen, a Washington, D.C. based public interest
organization that evaluates and ranks state medical board websites
for user-friendliness and content. Lastly, CPIL provides that
criminal convictions are very serious matters and are matters of
public record. Expungement does not mean that the physician did not
commit the crime that resulted in the conviction; nor does it mean
that the physician has been found factually innocent of the crime.
It may merely mean that the physician has completed probation and
has not committed another criminal offense during the probationary
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period.
Similar to the MBC, CPIL also had an oppose unless amended position on
this measure and indicated it would remove its opposition if this
bill was amended to require the MBC to post the criminal conviction
Ýand to not remove it], but to also note on its Website that the
conviction has been expunged and the date of expungement.
This bill was amended on June 14, 2011 to address the concerns of both
the MBC and the CPIL and now instead requires the MBC, upon receipt
of a certified copy of an expungement order from a licensee, to post
notification of the expungement order and the date of the
expungement on MBC's Internet Website within six months.
SUPPORT AND OPPOSITION:
Support :
Union of American Physicians and Dentists (Sponsor)
American Federation of State, County and Municipal Employees
California Medical Association
Oppose Unless Amended : (Prior Version of the Bill)
Center for Public Interest Law
Medical Board of California
Opposition : None on file as of June 14, 2011
Consultant:Rosielyn Pulmano