BILL ANALYSIS Ó ------------------------------------------------------------ |SENATE RULES COMMITTEE | SB 541| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 445-6614 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ UNFINISHED BUSINESS Bill No: SB 541 Author: Price (D) Amended: 6/21/11 Vote: 27 - Urgency SENATE BUSINESS, PROF. & ECON. DEV. COMMITTEE : 8-0, 5/2/11 AYES: Price, Emmerson, Correa, Hernandez, Negrete McLeod, Vargas, Walters, Wyland NO VOTE RECORDED: Corbett SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8 SENATE FLOOR : 39-0, 5/23/11 (Consent) AYES: Alquist, Anderson, Berryhill, Blakeslee, Calderon, Cannella, Corbett, Correa, De León, DeSaulnier, Dutton, Emmerson, Evans, Fuller, Gaines, Hancock, Hernandez, Huff, Kehoe, La Malfa, Leno, Lieu, Liu, Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Rubio, Runner, Simitian, Steinberg, Strickland, Vargas, Walters, Wolk, Wright, Wyland, Yee NO VOTE RECORDED: Harman ASSEMBLY FLOOR : 78-0, 8/25/11 (Consent) - See last page for vote SUBJECT : Regulatory boards: expert consultants SOURCE : Contractors State License Board Medical Board of California CONTINUED SB 541 Page 2 DIGEST : This bill 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. AssemblyAmendments specify that nothing in the bill expands the scope of practice of an expert consultant providing services. ANALYSIS : Existing law: 1. Provides for the licensing and regulation of various professions and businesses by some 23 boards, four committees, seven bureaus, and one 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 (SBCE) under the Chiropractic Act, enacted by initiative. 3. Licenses and regulates osteopathic physicians and surgeons by the Osteopathic Medical Board (OMB) 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: 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. CONTINUED SB 541 Page 3 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. 6. Requires, under the State Contract Act, state agencies to meet certain conditions before entering into a consulting services contract (personal services contract). This bill: 1. Authorizes any board, within DCA, the SBCE, and the OMB 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. Specifies nothing in this bill expands the scope of practice of an expert consultant providing services. Background CONTINUED SB 541 Page 4 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: 1. Providing expert opinion in enforcement matter from the initial review through testifying at a hearing. 2. Evaluating applications for applicant licensure. 3. Evaluating curriculum content and other requirements for school or program approval. 4. Developing professional licensing exams. 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 CONTINUED SB 541 Page 5 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. When developing CPEI, DCA conducted a review of existing enforcement processes which identified systemic problems for all of the DCA boards, not just Board of Registered Nursing, 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. FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes Local: No SUPPORT : (Verified 8/24/11) Contractors State License Board (co-source) Medical Board of California (co-source) Board for Professional Engineers, Land Surveyors and Geologists Board of Behavioral Sciences Board of Pharmacy Board of Podiatric Medicine Board of Psychology Board of Registered Nursing Board of Vocational Nursing and Psychiatric Technicians California Board of Accountancy California Board of Barbering and Cosmetology California State Board of Optometry California State Pipe Trades Council Court Reporters Board of California Dental Board of California International Brotherhood of Electrical Workers Physician Assistant Committee Respiratory Care Board of California State Board of Guide Dogs for the Blind Western States Council of Sheet Metal Workers CONTINUED SB 541 Page 6 ARGUMENTS IN SUPPORT : This bill's sponsor, Contractors State License Board (CSLB) 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 this bill, the Medical Board of California (MBC) 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 writes that this 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 to the day of the exam development workshop. To create contracts with hundreds of potential subject matter experts would not only require endless hours of staff time, it would encumber a huge portion of our small budget." ASSEMBLY FLOOR : 78-0, 8/25/11 (Consent) AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall, Bill Berryhill, Block, Blumenfield, Bradford, Brownley, Buchanan, Butler, Charles Calderon, Campos, Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson, Donnelly, Eng, Feuer, Fletcher, Fong, Fuentes, Furutani, Beth Gaines, Galgiani, Garrick, Gatto, Gordon, Grove, Hagman, Halderman, Hall, Harkey, Hayashi, Roger Hernández, Hill, Huber, Hueso, Huffman, Jeffries, Jones, CONTINUED SB 541 Page 7 Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell, Nestande, Nielsen, Norby, Olsen, Pan, Perea, V. Manuel Pérez, Portantino, Silva, Skinner, Smyth, Solorio, Swanson, Torres, Valadao, Wagner, Wieckowski, Williams, Yamada, John A. Pérez NO VOTE RECORDED: Bonilla, Gorell JJA:kc 8/26/11 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END **** CONTINUED