BILL ANALYSIS Ó
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|Hearing Date:May 2, 2011 |Bill No:SB |
| |541 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 541Author:Price
As Amended:April 13, 2011 Fiscal:Yes
SUBJECT: Regulatory boards: expert consultants.
SUMMARY: Urgency measure which authorizes the boards and bureaus
within the Department of Consumer Affairs, as well as the State Board
of Chiropractic Examiners, and the Osteopathic Medical Board to
continue to utilize expert consultants, as done in the past, without
having to go through the formal contracting process.
Existing law:
1) Provides for the licensing and regulation of various professions
and businesses by some
23 boards, 4 committees, 7 bureaus, and 1 commission within the
Department of Consumer Affairs (DCA) under various licensing acts
within the Business and Professions Code (BPC).
2) Licenses and regulates chiropractors by State Board of Chiropractic
Examiners under the Chiropractic Act the, enacted by initiative.
3) Licenses and regulates osteopathic physicians and surgeons by the
Osteopathic Medical Board under the Osteopathic Act.
4) Generally requires applicants for a license to pass an examination
and authorizes boards to take disciplinary action against licensees
for violations of law.
5) Establishes standards relating to personal service contracts in
state employment, and authorizes their use under specified
circumstances, including:
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a) The services contracted are not available within civil
service, cannot be performed satisfactorily by civil service
employees, or are of such a highly specialized or technical
nature that the necessary expert knowledge, experience, and
ability are not available through the civil service system.
b) The legislative, administrative, or legal goals and purposes
cannot be accomplished through the utilization of persons
selected pursuant to the regular civil service system.
c) The services are of such an urgent, temporary, or occasional
nature that the delay incumbent in their implementation under
civil service would frustrate their very purpose. (Government
Code § 19130)
6) Requires, under the State Contract Act, state agencies to meet
certain conditions before entering into a consulting services
contract (personal services contract). (Part 2 (commencing with
Section 10100) of Division 2 of the Public Contract Code)
This bill:
1) Authorizes any board, within DCA, the State Board of Chiropractic
Examiners, and the Osteopathic Medical Board of California to enter
into an agreement, as specified, with an expert consultant to do
any of the following:
a) Provide an expert opinion on enforcement-related matters,
including providing testimony at an administrative hearing.
b) Assist the board as a subject matter expert in examination
development, examination validation, or occupational analyses.
c) Evaluate the mental or physical health of a licensee or an
applicant for a license as may be necessary to protect the public
health and safety.
2) Specifies that an executed contract between a board and an expert
consultant shall be exempt from the State Contract Act.
3) Requires each board to establish policies and procedures for the
selection and use of these consultants.
4) Makes its provisions operative as an Urgency measure.
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FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1. Purpose. This bill is sponsored by the Contractors State License
Board and the Medical Board of California (Sponsors) in order to
enable all boards and bureaus to continue to utilize expert
consultants, as has been done in the past, without having to go
through the formal contracting process.
The Sponsors state that the Department of Consumer Affairs (DCA)
issued a memo on November 10, 2010, which stated that all boards
and bureaus must enter into a formal consulting services contract
with each expert consultant they use to provide an opinion in an
enforcement matter (from the initial review through testifying at a
hearing). The memo further stated that each board would need to go
through the required contracting process for each consultant
utilized, according to the Sponsors.
The Sponsors state that going through the formal contracting process
in order to utilize the services of an expert consultant would
create an enormous backlog for both DCA and for each board and
would significantly impact the time required to complete the
initial review and investigate complaints filed with boards. In
addition, the Sponsors indicate that this would severely limit a
board's ability to take disciplinary actions against licensees and
result in tremendous case delays. This could also mean cases would
be lost due to the statute of limitations expiring.
2. Background. DCA boards and bureaus regularly enlist the expertise
of their own licensees to assist with evaluating investigative
documents, applications, educational and examination materials.
Rather than placing these "subject matter experts" on payroll, they
are hired as consultants on an as-needed basis. Subject matter
experts are paid an hourly fee for the services they provide, which
typically include:
Providing expert opinion in enforcement matter from the
initial review through testifying at a hearing.
Evaluating applications for applicant licensure.
Evaluating curriculum content and other requirements for
school or program approval.
Developing professional licensing exams.
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For years, these consultants were not required to enter into formal
contract agreements, which can be laborious, cumbersome and
time-consuming to execute. The boards and bureaus operated with
customized agreements that did not require the review or approval
of oversight entities. This process allowed the boards and bureaus
to select a consultant and get them started on the services in a
matter of days, rather than weeks or months. However, on November
10, 2010, DCA issued a memorandum instructing the boards and
bureaus that they are now required to enter into formal consulting
services contracts that follow all guidelines, procedures, and
rules governed by the State Contracting Manual and the California
Public Contract Code.
The memo states that DCA recognized the potential for delays in
obtaining consulting services and indicated that a rollout plan
will be developed to minimize the impact to licensing and
enforcement units.
Difficulties in identifying, hiring and training subject matter
experts were identified as a problem and a reason for delays in
completing enforcement cases by DCA's own Consumer Protection
Enforcement Initiative (CPEI) in June 2010. The CPEI is a
comprehensive plan to address long-standing enforcement backlogs,
including an intense review of pending cases at the Division of
Investigation, recommended regulatory changes, and an enhanced
tracking of pending cases. CPEI was created in direct response to
a series of articles that ran in the Los Angeles Times, beginning
in July 2009, which highlighted extreme delays in investigating and
prosecuting enforcement cases at the Board of Registered Nursing
(BRN). When developing CPEI, DCA conducted a review of existing
enforcement processes which identified systemic problems for all of
the DCA boards, not just BRN, that limits the boards' abilities to
investigate and act on cases in a timely manner. These problems
range from legal and procedural challenges to inadequate resources.
The CPEI is designed to overhaul the enforcement process at the
healing arts boards and to address the following three specific
areas: administrative improvements, staffing and information
technology improvements, and legislative changes.
DCA and this Committee have spent considerable time and effort the
past two years in a joint effort to reduce the time it takes to
process complaints, investigation and to carry out discipline.
There is a concern that this new contracting requirement is adding
an unnecessary and superfluous level of paperwork that will further
delay the closure of cases.
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1. Use of Expert Consultants. During the past calendar year, the
Medical Board of California referred approximately 2,900 cases to
expert consultants pertaining the initial or triage review to
determine the need to move the case forward for investigation. The
MBC utilized 281 expert consultants in one quarter to review
completed investigations, which translates to 457 cases. Under the
new DCA policy, the MBC would be required to go through the
contracting process for each expert consultant, even if the expert
only reviews one case. The contract would need to be approved
before the MBC could utilize the expert's services and the MBC
would have to encumber the funding for the expert consultant once
the contract is approved (again, before the expert's services are
utilized).
When investigating consumer complaints, Contractors State License
Board may ask a member of its Industry Expert Program to inspect a
project and render opinions on specific items of complaint. They
provide expert opinion and testimony about specific complaint items
and accepted trade standards. Industry experts participate in
complaint investigations, mandatory arbitration, voluntary
arbitration, on-site negotiation, administrative hearings and
license exam development. On an annual basis, CSLB utilizes the
service of industry experts a total of approximately 700 times to
assist in the review and development of examinations, and nearly
900 times for enforcement matters.
2. Committee Oversight Hearings. The issue of the use of expert
consultants was considered by this Committee during its March 14,
oversight hearing of the Department of Consumer Affairs and its
licensing boards, and was specifically covered in the Committee's
background paper titled: Issues To Be Addressed By The Department
of Consumer Affairs.
The Committee conducted oversight hearings to review 9 boards: the
Board of Registered Nursing, the Board of Vocational Nursing and
Psychiatric Technicians, the Dental Board of California, the State
Athletic Commission, the Board of Accountancy, Professional
Fiduciaries Bureau, the Contractors State License Board, the Board
for Professional Engineers, Land Surveyors and Geologists, the
California Architects Board, the Landscape Architects Technical
Committee. The Committee also conducted oversight hearings of the
Department of Real Estate and the Office of Real Estate Appraisers.
The Committee began its review of these licensing agencies in
March with three days of hearings.
3. Related Legislation This Session. This bill is one of 7 "sunset
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bills" authored by the Chair of the Business Professions and
Economic Development Committee. They are intended to implement
legislative changes as recommended in the Committee's Background
Papers for several licensing boards reviewed by the Committee in
2011.
Other sunset bills to be presented before the Senate Business and
Professions Committee include: SB 538 which deals with the Board
of Registered Nursing, SB 539 which deals with the Board of
Vocational Nursing and Psychiatric Technicians, SB 540 which deals
with the Dental Board of California, SB 541 which deals with Expert
Consultants, SB 542 which deals with the Board of Accountancy and
the Professional Fiduciaries Bureau, SB 543 which deals with the
Contractors State License Board, the Board for Professional
Engineers, Land Surveyors and Geologists, the California Architects
Board, and Landscape Architects Technical Committee, and the State
Athletic Commission, SB 706 which deals with the Department of Real
Estate and the Office of Real Estate Appraisers.
4. Arguments in Support. In sponsoring the bill, the Contractors
State License Board writes: "It is critical for CSLB, as well as
consumers and licensees, that CSLB have the ability to
expeditiously contract for the services of an industry expert. If
we are unable to do so, our timeframe for enforcement actions will
likely increase, potentially significantly, as we would be required
to complete the formal contracting process each time we need the
services of an industry expert."
Also sponsoring the bill, the Medical Board of California states that
going through the formal contracting process in to utilize an
expert reviewer will create enormous backlogs for both DCA and the
MBC and will significantly impact the time required to complete the
initial review and investigate complaints. In addition, this will
severely limit the MBC's ability to take disciplinary actions
against physicians, ultimately leading to tremendous case delays.
This could mean that cases would be lost due to the statute of
limitations expiring.
Court Reporters Board of California (CRB) writes that the bill is a
critical component to its mission-critical ongoing examination
development process, "We use working court reporters as subject
matter experts to develop our license examination. As court
reporters' schedules change right up to the last minute, its
imperative we have the flexibility to change the attendees right up
t to the day of the exam development workshop. To create contracts
with hundreds of of potential subject matter experts would not only
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require endless hours of staff time, it would encumber a huge
portion of our small budget."
The Board of Behavioral Sciences (BBS) is unable to take a formal
support position on this bill until board meeting on May 18;
however BBS staff has offered the following technical input
relating to the bill. The BBS utilizes the services of
approximately 375 expert consultants per year for exam development
and enforcements matters. Requiring the BBS to enter into a
contract with each individual expert consultant will require
increased staff time to write the contracts and will increase the
time needed to develop exams and process complaints from the public
against potentially harmful practitioners. SB 541 will allow the
BBS to utilize the services of expert consultants for exam
development and enforcement related matters without entering into
formalized contracts with each provider, thereby allowing the Board
to continue enforcing laws related to the competent and safe
practice of practitioners under its jurisdiction.
The staff of the California Board of Accountancy (CBA) has indicated
their full support of this measure, and expects the CBA to adopt a
position of support at its May 2011 meeting. CBA staff states that
the bill would allow the board to enter into agreements with expert
consultants to provide much needed enforcement assistance to the
CBA.
SUPPORT AND OPPOSITION:
Support:
Contractors State License Board (Sponsor)
Medical Board of California (Sponsor)
Court Reporters Board of California
Opposition:
None received as of April 27, 2011.
Consultant:G. V. Ayers