BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   SB 541|
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                              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


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           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.


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             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

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          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 

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          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

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           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, 

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            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

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