BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:April 23, 2012 |Bill No:SB | | |1236 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Curren D. Price, Jr., Chair Bill No: SB 1236Author:Price As Amended:April 17, 2012 Fiscal:Yes SUBJECT: Healing arts boards. SUMMARY: Extends the provisions establishing the California Board of Podiatric Medicine (BPM), and extends the Physician Assistant Committee (PAC), and its executive officer, and makes other changes, as specified. Existing law: 1)Licenses and regulates some 2,000 doctors of podiatric medicine (DPMs) by the California Board of Podiatric Medicine (BPM) under the Medical Board of California (MBC) within the Department of Consumer Affairs (DCA), and makes the BPM inoperative and repealed on January 1, 2013. (Business and Professions Code (BPC) § 2460) 2)Provides that the BPM is composed of seven members, three public members, and four professional members. The Governor appoints five members, and the Senate Rules Committee and the Assembly Speaker each appoints a public member. (BPC § 2462) 3)Provides that protection of the public shall be the highest priority for the BPM in exercising its licensing, regulatory, and disciplinary functions, and whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (BPC § 2460.1) 4)Defines the practice of "podiatric medicine" to mean the diagnosis, medical, surgical, mechanical, manipulative, and electrical treatment of the human foot, including the ankle and tendons that insert into the foot and the nonsurgical treatment of the muscles SB 1236 Page 2 and tendons of the leg governing the functions of the foot. (BPC § 2472 (b)) 5)Authorizes a DPM to administer local anesthetic, and requires an anesthetic other than local to be administered by another appropriately-licensed health care practitioner. (BPC § 2472 (c)) 6)Provides that a DPM of podiatric medicine who is ankle certified by the board on and after January 1, 1984, may do the following: (BPC § 2472 (d)) a) Perform surgical treatment of the ankle and tendons at the level of the ankle, as specified. b) Perform services under the direct supervision of a physician and surgeon, as an assistant with surgical procedures beyond the DPM scope of practice. c) Perform a partial amputation of the foot, as specified. 1)Prohibits a DPM from performing an admitting history and physical examination of a patient in an acute care hospital where doing so would violate the regulations governing the Medicare program. (BPC § 2472 (f)) 2)Provides that a graduate of an approved school of podiatric medicine may apply for and obtain a resident's license from the BPM, authorizing them to practice podiatric medicine, as specified. A resident's license may be renewed annually for up to four years. (BPC § 2475) 3)Provides that podiatric law does not prohibit the manufacture, recommendation or the sale of either corrective shoes or appliances for the human feet. (BPC § 2477) 4)Requires applicants for a DPM license to complete at least two years of postgraduate podiatric medical and podiatric surgical training in a general acute care hospital approved by the Council of Podiatric Medical Education. (BPC § 2484) 5)Requires "a passing score one standard error of measurement higher than the national passing scale score" on the American Podiatric Medical Licensing Examination (APMLE) Part III, the national examination administered by the National Board of Podiatric Medicine Examiners. (BPC § 2493 (b)) SB 1236 Page 3 6)Specifies that an Administrative Law Judge's (ALJ's) proposed decision shall be voted on by the BPM by mail, and requires the vote of two members of the BPM to defer final decision until the board has discussed the case as a whole. (BPC § 2335) 7)Authorizes the BPM to request an ALJ in a disciplinary matter to direct a licensee found guilty of unprofessional conduct in a proposed decision to pay to the BPM a sum not to exceed the actual and reasonable costs of the investigation and prosecution of the case. The law provides that the costs shall be fixed by the ALJ and shall not in any event be increased by the BPM. (BPC § 2497.5) 8)Licenses and regulates more than 7,500 physician assistants (PAs) under the Physician Assistant Practice Act by the PAC within the MBC, and makes the PAC inoperative and repealed on January 1, 2013. (BPC § 3504) 9)Authorizes the PAC to appoint an executive officer, and makes that authority inoperative and repealed on January 1, 2013. (BPC § 3512) 10)The PAC is comprised of nine members; 4 PAs, 4 public members and one physician representative of MBC. Four PAs, the physician members and two public members are appointed by the Governor. Senate Rules Committee and the Assembly Speaker each appoint a public member. (BPC § 3505) 11)Provides that protection of the public shall be the highest priority for the PAC in exercising its licensing, regulatory, and disciplinary functions, and whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (BPC § 3504.1) 12)Places specific reporting requirements upon specified health care licensing boards and upon licensees of those boards, including the following: a) Requires boards to create and maintain a central file on each of its licensees, which shall include information regarding: convictions, judgments, specified public complaints. (BPC § 800) b) Requires licensees to report to his or her licensing board the occurrence of an indictment or information charging a felony against the licensee or the conviction of the licensee of a felony or misdemeanor. (BPC § 802.1) c) Specifies procedures when a coroner receives information, as SB 1236 Page 4 specified, that a death may be the result of a specified licensee's gross negligence or incompetence, and in connection with disciplinary actions against those licensees. (BPC § 802.5) d) Requires a district attorney, city attorney, or other prosecuting agency to notify specific health licensing boards whenever a licensee is convicted of or charged with a felony, as specified. (BPC § 803.5) e) Provides for the professional review of specified healing arts licentiates through a peer review process. (BPC § 805) This bill: 1)Extends the BPM's sunset date 4 years to January 1, 2017. (BPC § 2460) 2)Amends BPC § 2472 (d) (1) Removes the reference to "ankle certification after January 1, 1984," thereby confirming a single scope of licensure for DPMs. 3)Repeal an obsolete provision prohibiting a DPM from performing an admitting history and physical exam at an acute care hospital. BPC § 2472) 4)Eliminates the four year limit for postgraduate training. (BPC § 2475) 5)Clarifies that anyone may offer special shoes and inserts without a license to aid comfort and athletic performance, but that a medical license is needed to diagnose and prescribe for medical conditions. (BPC § 2477) 6)Removes a requirement that applicants obtain a specific score on the licensing examination. (BPC § 2493) 7)Authorizes that the vote of only one board member of the BPM is necessary to defer a decision for consideration by the entire board. (BPC § 2335) 8)Authorizes BPM to increase costs assessed when a proposed decision is not adopted by the BPM and the BPM finds grounds for increasing the assessed costs (BPC § 2497.5) 9)Extends sunset dates for PAC/BPM and executive officer to January 1, 2013. (BPC §§ 3504, 3512) SB 1236 Page 5 10)Changes the name the PAC to Physician Assistant Board (PAB) and correspondingly changes "Board" to "Medical Board of California." (BPC multiple sections) 11)Changes the composition of the "Board" to replace the physician with a PA. (BPC § 3505). 12)Establishes an exemption for active military from payment of the PA license renewal. (BPC § 3521.3) 13)Establishes a "retired" license status for PA licensees no longer practicing to retain their license without payment of renewal fees or completion of continuing education. (BPC § 3521.4) 14)Clarifies that the reporting requirements in the 800 series apply to PAs. (BPC §§ 800-805) FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by Legislative Counsel. COMMENTS: 1.Purpose. This bill is sponsored by the Author . According to the Author, in 2012, the Business, Professions and Economic Development Committee (BPED) conducted oversight hearings to review 7 regulatory boards within the DCA: the Board of Podiatric Medicine, the Physician Assistant Committee, the Acupuncture Board, the Board of Pharmacy, the Court Reporters Board, the Board of Behavioral Sciences and the Board of Psychology. The Committee began its review of these licensing agencies in March and conducted two days of hearings. This bill, and the accompanying sunset bills, is intended to implement legislative changes as recommended in the Committee's Background Issue Papers for the agencies reviewed by the Committee this year. This bill is one of four "sunset bills" authored by the Chair of this Committee. According to the Author, this bill is necessary to extend the sunset date of the BPM and the PAC in order to continue the regulation of the practice of podiatric medicine, and the practice of PAs in California. The continued regulation will help to ensure that the BPM's and the PAC's mission of protecting the public is in place for an additional four years. SB 1236 Page 6 2.Background on the California Board of Podiatric Medicine (BPM). The BPM in the is responsible for licensing and regulating DPMs in California. Although the BPM functions in an independent manner, similar to other boards under DCA, the BPM lies within the jurisdiction of the MBC, and it is the MBC that officially issues licenses to these practitioners upon the "recommendation" of the BPM. The BPM licenses approximately 2,000 DPMs. The BPM issues some 55 licenses each year, and approximately 1,000 licenses are renewed each year. The DPM license as defined in the BPC and in the regulations of the BPM are specialists in the foot and ankle. Some DPMs specialize in conservative care while others practice mostly as surgeons. Many DPMs specialize in care and preservation of the diabetic foot. DPMs also assist other doctors in non-podiatric surgeries. DPMs are the only medical specialty limited to its area of expertise by the license itself, which enhances patient protection. Currently, the BPM is composed of seven members. It has a professional majority with three public members, and four professional members. The Governor appoints five members of the BPM. The Senate Rules Committee and the Assembly Speaker each appoints one public member. The BPM is required to meet at least three times each calendar year and meets at various locations throughout the state. Board meetings are open and give the public the opportunity to testify on agenda items and on other issues. The BPM currently has five committees that perform various functions: Public Outreach Committee: external communication & public liaison. Enforcement Committee: enforcement procedures. Legislative Committee: legislative liaison. Licensing & Medical Education Committee: licensing, exams, approval of schools & residencies. Professional Practice Committee: guides & advises staff on practice matters. As a Special Fund agency, the BPM receives no General Fund support, relying solely on fees set by statute and collected from licensees SB 1236 Page 7 and applicants. The total revenues anticipated by the BPM for FY 2011/2012 is $918,000. The total expenditures anticipated for BPM for FY 2011/2012 are $960,000, and for FY 2012/2013, $979,000. Based upon these figures, the BPM would have approximately 10 months in reserve in FY 2011/2012, and 9.3 months in reserve in FY 2012/2013. The BPM spends approximately 70% of its budget on enforcement-related functions. The BPM has a staff level of five authorized positions and currently has no vacancies. 1.Prior Review of the BPM. The BPM was last reviewed by the former Joint Legislative Sunset Review Committee (JLSRC) in 2002. At that time, the JLSRC made eight final recommendations regarding BPM. In November 2011, the BPM submitted its required Sunset Review Report to the Committee. In this report, the BPM described actions that have been taken since the BPM's last review. Below are the BPM's responses to the issues raised during the last sunset review. Increase Residency Training From One to Two Years. The JLSRC recommended that the BPM should thoroughly assess the need for this additional training. The BPM provided evidence that the American Podiatric Medical Association (APMA) and its affiliates had conducted an occupational analysis demonstrating that two-years of postgraduate residency training is the minimum required to achieve entry-level competence. Subsequently, BPC § 2484 was amended to reflect the two-year requirement by AB 932 (Koretz, Chapter 88, Statutes of 2004). Model Law Adoption. Neither the JLSRC nor DCA had a recommendation regarding adoption of a Model Law as had been proposed by the BPM. The JLSRC emphasized that a model law should reflect the consumer protection goals of this state. Accordingly, following further documentation and justification the BPM was instrumental in legislation enacting many Model Law provisions (AB 1777, Assembly B&P Committee, Chapter 586, Statutes of 2003; AB 932, Koretz, Chapter 88, Statutes of 2004). Renewal Fee Increase Extension. The BPM implemented a temporary license renewal fee increase, of from $800 to $900, effective in 2000 on a four-year basis (AB 1252, Wildman, Chapter 977, Statutes of 1999; extended by SB 724, Senate B&P Committee, Chapter 728, Statutes of 2001). The JLSRC recognized that the demands on the BPM's operating fund suggested continuation of the fee increase to maintain the BPM's licensing and enforcement activities, and enable the BPM's fund condition to stabilize. Since that time, the fee level was extended through 2005, and SB 1549 (Figueroa, Chapter 691, Statutes of 2004) removed the sunset SB 1236 Page 8 date and the renewal fee has remained $900. The fee level has been supported by the California Podiatric Medical Association. Audits of Continuing Medical Education (CME). Faced with fiscal challenges, the BPM discontinued its contract with the Medical Board to conduct random audits of CME. The JLSRC recommended that the BPM resume conducting random audits of CME courses and providers to guarantee that licensees are receiving CME courses of quality and relevance to the profession. The BPM resumed the annual Continuing Competence/CME random audit in 2004; however, the audits have been interrupted by staffing limitations, furloughs, and budget constraints. The annual random audit is of one percent of licensees. It verifies self-certification under penalty of perjury in the current renewal for compliance with the Continuing Competence and 50-hour CME requirements. The BPM has recently completed its 2011 random compliance audit of 20 licensees and found a 95% compliance rate with 19 providing documentation of CME (50 hours) and the required Continuing Competence. One licensee was granted a one-time waiver by the BPM. Review of Complaints by Board Members. In 2002, the JLSRC emphasized that Board members should not review complaints and the BPM should continue to contract with subject matter experts to do so. Board staff should conduct initial complaint review and forward select complaints to a panel of experts when technical expertise is needed. The BPM agrees and complies with this recommendation. Transition to a National Examination. SB 1955 (Figueroa, Chapter 1150, Statutes of 2002) amended BPC § 2486 to reflect a transition from the state oral clinical licensing examination to Part III of the National Board of Podiatric Medical Examiners (NBPME) examination. Refine Continuing Competency Program. The JLSRC recommended that the BPM's continuing competency program should be refined to provide additional pathways and ease compliance. Accordingly, SB 1955 (Figueroa, Chapter 1150, Statutes of 2002) amended BPC §2496 to provide that upon renewing a license, the DPM may show continued competency in practice by passing within the past 10 years Part III of the examination administered by the National Board of Podiatric Medical Examiners. The BPM deems this as landmark legislation, to reinforce lifelong learning. The BPM believes that the complaint data over time showing a steady 50-percent decline reflects that patient harm is being prevented SB 1236 Page 9 by these changes. 1. Current Issues Identified. The following are some of the major issues pertaining to the BPM along with background information concerning the particular issue and the BPM's response to the issue. Recommendations were made by Committee staff regarding the particular issue areas which needed to be addressed. a) Issue : Ankle certification. Background : The podiatric practice provisions of the Medical Practice Act essentially provide for a two-tier license system, depending on whether a DPM was ankle certified "on or after January 1, 1984," the date that legislation took effect (Chapter 305, Statutes of 1983) to clarify that a podiatrist may treat the ankle as part of the licensed scope of practice. Joint Committee staff discussed in 1997 whether this two-tiered system could be eliminated, upon receipt of BPM's first Sunset Review report. The BPM staff commented then that it was probably premature. In 1998, SB 1981 (Greene, Chapter 736, Statutes of 1998) repealed the requirement that licensed podiatrists obtain a certificate from BPM in order to perform ankle surgery, and instead, simply authorized a DPM certified by the BPM after January 1, 1984 to perform ankle surgery. Now, a decade and a half later, and approaching three decades since 1984, the BPM states in its Report that it would support a single scope of practice for DPMs. The useful life of the 1984 two-tier licensing has run its course, according to the BPM. More than 80-percent of the BPM's licensees are "ankle licensed" and this percentage continues to increase. According to the BPM, it is a small number of older licensees who do not perform ankle surgery, amputations or surgical assisting to MD and DO surgeons that the "ankle license" now allows. According to the BPM, a single-scope licensure would simplify the statute and its administration without harm to the public. Recommendation : Committee staff recommended that consideration should be given to the to remove reference to "ankle certification by the BPM on and after January 1, 1984" in BPC § 2472(d)(1) thereby confirming a single scope of licensure for doctors of podiatric medicine. SB 1236 Page 10 b) Issue : Status of BReEZe implementation by the BPM Background : The BreEZe Project will provide DCA boards, bureaus, and committees with a new enterprise-wide enforcement and licensing system. BreEZe will replace the existing outdated legacy systems and multiple "work around" systems with an integrated solution based on updated technology. BreEZe will provide all DCA organizations with a solution for all applicant tracking, licensing, renewal, enforcement, monitoring, cashiering, and data management capabilities. In addition to meeting these core DCA business requirements, BreEZe will improve DCA's service to the public and connect all license types for an individual licensee. BreEZe will be web-enabled, allowing licensees to complete applications, renewals, and process payments through the Internet. The public will also be able to file complaints, access complaint status, and check licensee information. The BreEZe solution will be maintained at a three-tier State Data Center in alignment with current State IT policy. BreEZe is an important opportunity to improve the BPM operations to include electronic payments and expedite processing. Staff from numerous DCA boards and bureaus have actively participated with the BreEZe Project. Due to increased costs in the BreEZe Project, last year SB 543 (Steinberg, Chapter 448, Statutes of 2011) was amended to authorize the Department of Finance (DOF) to augment the budgets of BPMs, bureaus and other entities that comprise DCA for expenditure of non-General Fund moneys to pay BreEZe project costs within the 2011-2012 Budget Year. The BPM indicated in its Report that in August 2011, DCA advised the BPM that the BPM budget and fund will be charged assessments of $4,000 in FY 2011/2012 followed in succeeding FYs by $11,000, $9,000, $8,000, $9,000 and $9,000 consecutively through FY 2016/2017 for BreEZe SPR Funding. The BPM is scheduled to begin using BreEZe in the Summer of 2012. Recommendation : Committee staff recommended the BPM should update the Committee about the current status of its implementation of BreEZe. What have been the challenges to implementing this new system? What are the costs of implementing this system? Is the cost of BreEZe consistent with what the BPM was told the project would cost? 2. Responses regarding Issues Raised by the Committee. The BPM SB 1236 Page 11 responded to the issues raised by Committee staff on April 10, 2012. In terms of removing the distinction regarding ankle certification for DPMs, the BPM concurs with amending BPC Section 2472 to strike the reference to "January 1, 1984." BPM states that 82% of its licensees are now "ankle licensed," and this percent will continue increasing. With reference to the status of BreEZe computer project, BPM indicates that it has met multiple times with the BreEZe team, and provided all the program data requested. BPM further states that it is participating in configuration sessions to assess the new system "hands on," and that implementation is scheduled for summer or fall 2012 (FY 2013). The cost to BPM is $50,000 through FYs 2012-2017. This is a $38,000-increase over the $12,000 previously budgeted for i-Licensing. Beginning in FY 2018, annual maintenance costs will be about $1,000, according to BPM. 3. This Bill Includes the Following Statutory Changes Related to the BPM Identified by this Committee During the March 2012 Oversight Hearings: a) Extends the sunset date of the BPM. The health, safety and welfare of consumers are protected by a well-regulated medical profession, including podiatric medicine. DPMs make independent medical judgments with patients including diagnosis, prescription medication, and method of treatment. The BPM continues to be an effective mechanism for licensure and oversight of DPMs and should be continued. The BPM has shown over the years a strong commitment to improve the BPM's overall efficiency and effectiveness and has worked cooperatively with the Legislature and this Committee to bring about necessary changes. The BPM should be continued under the jurisdiction of the MBC with a four-year extension of its sunset date so that the Committee may review once again if the issues and recommendations in this paper and others of the Committee have been addressed. This bill extends the sunset dates for the BPM to January 1, 2017 . b) Ankle Certification. As noted above, nearly three decades since the separate ankle certification was first established, the useful life of the 1984 two-tier licensing has run its course, according to BPM. The BPM supports a single scope of practice for DPMs. This bill establishes a single scope of licensure for DPMs by removing the reference to "ankle certification after January 1, 1984." . c) Admitting History and Exam. BPC Section 2472(f) provides that SB 1236 Page 12 "A doctor of podiatric medicine shall not perform an admitting history and physical examination of a patient in an acute care hospital where doing so would violate the regulations governing the Medicare program." In 2010, a California Attorney General Opinion No. 09-0504, regarding the effect of these provisions regarding the ability of a doctor of podiatric medicine to perform an admitting history and physical (H&P) at an acute care hospital found that "not only is a podiatrist not precluded from performing an admitting H&P by Business and Professions Code Section 2472, but failing to do so may fall below the standard of care expected of podiatrists generally." In stating this opinion, the AG points out that the prohibition of Section 2472 is for performing an H&P "where doing so would violate the regulations governing the Medicare program" and was placed in the statute in response to a former federal rule, which imposed restrictions on federal reimbursements of podiatric services under Medicare. The federal restriction was superseded by 42 C.F.R. Section 410.25 to provide that "Medicare Part B pays for the services of a doctor of podiatric medicine acting within the scope of his or her license, if the services would be covered as physician's services when performed by a doctor of medicine or osteopathy." Therefore, the BPM points out, Medicare regulations no longer restrict DPM history and physical examinations, thereby making Section 2472(f) obsolete. The BPM states that the provision is confusing to the public and should be deleted from the Code. The bill repeals this obsolete provision prohibiting a DPM from performing an admitting history and physical exam at an acute care hospital . d) Eliminate 4-year limit for postgraduate training. The law provides that a graduate of an approved school of podiatric medicine may apply for and obtain a resident's license from the BPM, authorizing them to practice podiatric medicine, as specified. A resident's license may be renewed annually for up to four years. In its Sunset Report, the BPM proposed that the four-year limitation of the resident's license be deleted, thus ending the four-year cap on DPM postgraduate training. According to the BPM, few individuals may participate in residency and fellowship training for more than four years, but the limit on education is unnecessary. The BPM argues that this limitation is the only known statutory cap on education anywhere in this country for any profession or group. Ultimately, the BPM believes that the four-year cap will interfere with advanced SB 1236 Page 13 training of some leading practitioners. The BPM states that it is a principle of medical education that there is no such thing as too much education and training. This bill eliminates the four year limit for postgraduate training . e) Corrective Shoes. In its Report, the BPM proposed that BPC § 2477 be amended to clarify that a medical license is required in order to diagnose and prescribe corrective shoes or appliances (called orthotics) for the foot. Orthotics typically refers to custom-made shoe inserts prescribed by a licensed doctor of podiatric medicine, an osteopathic doctor, or a medical doctor after a medical examination and diagnosis. Orthotics are designed to accommodate or correct an abnormal or irregular walking pattern, and ultimately make standing, walking, and running more comfortable and efficient by altering the angles at which the foot strikes the ground. Orthotics placed inside of an individual's shoes can absorb shock, improve balance, and take pressure off sore spots. The BPM has recommended amending the law to clarify that anyone may offer special shoes and inserts without a license to aid comfort and athletic performance, but that a medical license is needed to diagnose and prescribe for medical conditions. This bill clarifies that a medical license is needed to diagnose and prescribe for medical conditions . f) Examination Score. Following the BPM's 2001-2002 sunset review, BPC §2484 was amended to reflect the two-year residency requirement by AB 932 (Koretz, Chapter 88, Statutes of 2004). That bill correspondingly amended BPC § 2493 to require "a passing score one standard error of measurement higher than the national passing scale score" on the American Podiatric Medical Licensing Examination (APMLE) Part III, the national examination administered by the National Board of Podiatric Medicine Examiners (NBPME). In the BPM's experience, the California score, one standard error of measurement higher than the national scale passing score, raises the passing score from 75 one or two points, e.g., to 77, and slightly lowers the overall pass rate percentage. Numerically, this means that for each bi-annual Part III exam, one or two California candidates might achieve the national scale passing score of 75, but fall just below California's one standard error of measurement higher, and must retake the examination. SB 1236 Page 14 The BPM's requirement by law for a higher score than the national passing score confuses and disappoints applicants, and delays or blocks their entering practice, sometimes losing job offers in the process. In the judgment of the BPM's professional staff, it has a marginal if any effect on the quality of licensees and patient care. This bill removes the requirement that applicants obtain a specific score on the licensing examination . g) Remove Two-Vote Requirement. The BPM licenses DPMs under the authority of the MBC. The law creates the Health Quality Enforcement Section within the Department of Justice with the primary responsibility of prosecuting proceedings against licensees and applicants within the jurisdiction of MBC and various other boards, including the BPM. Under these provisions, a panel of administrative law judges, the Medical Quality Hearing Panel (MQHP) within the Office of Administrative Hearings, conducts disciplinary proceedings against a DPM. BPC Section 2335 provides that all proposed decisions of the MQHP are transferred to the executive officer of the BPM, and sent by Board staff to each Board member within 10 days. The BPM staff then polls each member regarding his or her vote on the proposed decision. By majority vote, the BPM may do any of the following: approve the decision, approve the decision with an altered penalty, refer the case back to the administrative law judge in order to take additional evidence, defer final decision pending discussion of the case by Board as a whole, or non-adopt the decision. The law provides that the votes of two members of the BPM are required to defer a final decision pending discussion of the case by the BPM as a whole. If two or more members vote to defer the final decision until after a discussion of the entire Board, then the BPM must engage in that discussion before 100 calendar days of the date the proposed decision is received by the BPM. In its Report, the BPM stated that the requirement that, "The votes of two members of the panel or board are required to defer a final decision pending discussion of the case by the panel or board as a whole," effectively prevents the BPM Board Members from discussing a case in closed session as a jury even when one member of the BPM identifies an issue and wishes to have discussion with her or his colleagues prior to voting. The BPM has recommended deleting this provision as it relates to the BPM, and believes that doing so, could empower the BPM as a jury in disciplinary matters and make its role more meaningful. This SB 1236 Page 15 bill authorizes the vote of only one board member of the BPM to defer a decision for consideration by the entire board . h) Increase Assessed Costs for Discipline. As part of the Medical Board, and utilizing MBC staff for enforcement, the BPM has cost recovery authority through BPC § 2497.5. The BPM's Manual of Disciplinary Guidelines and Model Disciplinary Orders provide that cost recovery is a standard condition for all cases. According to the BPM, Administrative Law Judges (ALJs) are inconsistent in the amount of cost recovery they propose from one case to another. In stipulated agreements, the BPM's staff and the Attorney General always seek cost recovery as part of the negotiation. In its Report, the BPM recommended amending BPC § 2497.5(b) to give the BPM discretion to increase cost recovery in disciplinary cases when it non-adopts a proposed decision from an administrative law judge "and in making its own decision finds grounds for increasing the costs to be assessed." The BPM indicated that it is unusual to non-adopt an ALJ's proposed decision and for the BPM to make its own decision. However, the BPM contends that it should not be prohibited from ordering actual and reasonable cost recovery in such cases. This bill authorizes BPM to increase costs assessed when a proposed decision is not adopted by the BPM and the BPM finds grounds for increasing the assessed costs . i) Technical cleanup. This bill makes several cleanup provisions to clarify the law as recommended by the BPM and Committee staff . 4.Background on the Physician Assistant Committee (PAC). The PAC was established in 1975. At the time, the Legislature was concerned about the existing shortage and geographic maldistribution of health care services in the state. The intent was in part to "create a framework for the development of a new category of health manpower, the physician assistant," and to encourage their utilization as a way of serving California's health care consumers. PAs are medical practitioners who perform services under the supervision of physicians. The PAC's primary role is the licensure of PAs. The PAC exists within the MBC but has limited ties to that board and acts independently on many of its mandates. The PAC continues to rely on MBC for investigative and other services and generally has a cooperative SB 1236 Page 16 working arrangement with the Board. The scope of practice of the PA is described in the Physician Assistant Practice Act and in regulations promulgated by MBC. Pursuant to these laws, each PA may perform only those services he or she is authorized to perform pursuant to a written delegation of authority by the supervising physician. The PAC is comprised of nine members; 4 PAs, 4 public members and one physician representative of MBC. Four PA members are appointed by the Governor. Two public members are also appointed by the Governor. One public member is appointed by the Senate Committee on Rules and one member is appointed by the Speaker of the Assembly. The PAC is a special fund agency, receiving its funding from the licensing of PAs and biennial renewal fees of PAs. Currently, the license fee for PAs is $200 while the renewal fee is $300. These fees provided approximately 60% of the PAC's revenue therefore to compensate for the loss of revenue from the supervising physician fees, the PA application and renewal fees were increased. The PAC currently licenses 7,589 licensees. The total revenues anticipated by the PAC for FY 2011/2012, is $2,002,000 and for FY 2012/2013, $1,948,000. The total expenditures anticipated for FY 2011/2012, is $1,371,000, and for FY 2012/2013, 1,469,000. The PAC anticipates it would have approximately 5.2 months in reserve for FY 2011/2012, and 3.8 months in reserve for FY 2012/2013. The PAC spends approximately 62 percent of its budget on its enforcement program, 20 percent on its licensing program, 8 percent on its diversion program and 10 percent on administration. The PAC's staff is comprised of the Executive Officer and four additional staff including two Associate Governmental Program Analysts, one Staff Services Analyst, and a .5 Office Technician. 5.Prior Review of the PAC. The PAC was last reviewed by the former JLSRC in 2005. At that time, the JLSRC raised 13 issues regarding PAC. In November 2011, the PAC submitted its required Sunset Review Report to the Committee. Below are actions which the PAC and the Legislature took over the past 6 years to address many of these issues, as well as significant changes to the PAC's functions. Probation monitoring of PA licensees and associated costs. The PAC assumed responsibility for monitoring its probationers in 2008 upon notification that the MBC would not be able to provide this monitoring. The PAC hired four retired annuitants with SB 1236 Page 17 investigator experience to provide necessary probation monitoring for licensees. The probation monitors began to conduct background checks for petitioners who were petitioning the PAC for reduction or modification of their probation or reinstatement of licensure. Prior to this, MBC provided these services; however, this change resulted in the petitions being processed in one to two months rather than four to six months. In its Sunset Report for 2005, the PAC noted that the cost of monitoring PAs who have had their license disciplined and were placed on probation was paid by the PAC through the enforcement budget. With that arrangement, all licensees would pay for the actions of a limited number of licensees who are placed on probation for violations of the laws and regulations. In 2007, the PAC amended its Disciplinary Guidelines to require that probationers pay the costs of their probation. Probationers are now required to pay the costs for an investigation and prosecution of the case, and if they fail to pay, their name is then forwarded to the Franchise Tax Board for collection. Prior to 2007, probation monitoring costs were included in stipulated settlements. Pocket licenses. In 2005, the PAC requested authorization to release funds to cover the costs of providing original and renewal pocket plastic licenses to its licensees. Paper licenses, which were previously issued, were not durable, often became illegible, and due to handling, often did not hold up for the two-year license period. As a result, many PAs had to order a replacement pocket license. Additionally, many hospitals and clinics make copies of the licenses and the plastic licenses contain security features not available on paper licenses and also are not as alterable. In 2008, the PAC secured a small business contract using existing funds to provide plastic licenses for all initial licenses and renewals. The PAC began to issue plastic credit card type pocket licenses in order to prevent fraudulent tampering and to provide a more durable license. Greater utilization of the profession. The JLSRC raised the issue of whether the PAC was "meeting its legislative mandate to encourage utilization of physician assistants by physicians in underserved areas of the state, and to allow for development of programs for the education and training of physician assistants." The passage of AB 3 in 2008 allowed supervising physicians the authority to supervise four PAs at any one time instead of two. Previously, supervising physicians could only supervise two PAs SB 1236 Page 18 at any one time unless they were practicing in underserved areas. This change provided more opportunity for PAs to be utilized in California and is essential to meet the growing demand for health care. AB 3 also expanded the scope of practice for PAs to include prescriptive authority to provide for more effective utilization of PAs by physicians. Prior to the bill's passage, PAs had to obtain patient specific authority before prescribing class II-V controlled substances but under the legislation, that requirement was eliminated and PAs who complete an approved educational course in controlled substances, and if delegated by the supervising physician, can write the order. The bill required a PA and his or her supervising physician and surgeon to establish written supervisory guidelines and specifies that this requirement may be satisfied by the adoption of specified protocols. If a PA chooses not to take the educational course, the requirements for patient-specific authority are still in place. SB 1069 (Pavley, Chapter 512, Statutes of 2010) provided that a PA acts as the agent of the supervising physician when performing authorized activities, and authorized a PA to perform physical examinations and other specified medical services, and sign and attest to any document evidencing those examinations and other services, as required pursuant to specified provisions of law. The bill also clarified that a delegation of services agreement may authorize PAs to order durable medical equipment and make arrangements with regard to home health services or personal care services. Additionally, SB 1069 authorized PAs to perform a physical examination that is required for participation in an interscholastic athletic program. According to the PAC, it engages in outreach to encourage utilization of PAs by: publishing informational articles during each publication of the MBC's Newsletter, which is sent via email to subscribers; providing information on its Website for supervising physicians, potential PA students and consumers and; participating at PA programs and conferences throughout the year. Use of a national practitioner database. The PAC began to request applicants to request a report on their licensing background through the National Practitioner Data Bank if they held a PA license in another state or held any previous health care licenses. The purpose of the report is to receive information about any previous disciplinary actions taken by SB 1236 Page 19 another state or licensing agency. Continuing Education. In 2010, the PAC updated its regulations to require 50 hours of continuing medical education (CME) or maintain certification by the National Commission on Certification of Physician Assistants (NCCPA) for each renewal period beginning with their license renewal on or after June 2012. Examination given on a continuing basis. Senate Bill 819 (Yee, Chapter 308, Statutes of 2009) eliminated interim approval from the application process to reflect that the Physician Assistant National Certification Examination was previously only given twice a year. Prior to SB 819, interim approval was a method to allow applicants who had completed a PA training program to practice as a PA before they obtained licensure; however, with the examination offered on a continuing basis, applicants can only practice once they have taken and passed the examination. Additionally, exam scores are now being submitted via a secure Website from the NCCPA to provide for timelier transmittal to the PAC. Streamlining efforts. Notices of deficient applications and other license-related notices are now generated by the DCA's Applicant Tracking System which results in consistent and standardized correspondence and less staff time to prepare such notices. These notices are also issued to applicants via email, if provided on an application, to allow for quicker receipt by the applicant as well as cost savings to the PAC on supplies and postage. The PAC has also performed routine evaluations of its application and eliminated questions and sections unrelated to the licensure process. 1. Current Issues Identified. The following are some of the major issues pertaining to the PAC along with background information concerning the particular issue and the PAC's response to the issue. Recommendations were made by Committee staff regarding the particular issue areas which needed to be addressed. a) Issue : Continued Enhancement of the Committee's Internet Services and Implementation of BreEZe. Background : One of the major changes since its last sunset review has been its increased utilization of the Internet and computer technology to provide services and information to the public and its licensees on the PAC's Website. These include: creating a SB 1236 Page 20 career page with links and specific information regarding the PA profession; adding a link for out of state licensure applicants to order fingerprint cards online; adding a customer satisfaction survey so that consumers, licensees and others may provide their comments to the PAC regarding service they receive or enhancements to the PAC program; adding licensing statistics for counties throughout the state which are updated quarterly; adding a quarterly Disciplinary Actions Report which allows consumers to view disciplinary actions by date or by practitioner name; adding a quarterly Enforcement Statistical Report which provides information regarding complaints, investigations, disciplinary actions, cost recovery, probationers and citation and fines; adding an online change of address link for licensees and applicants; developing and implementing a voluntary Website-based self-test for PA laws and regulations which allows Website visitors to test their current knowledge of PA laws and regulations; adding all citations issued by the Committee to the section of documents available to the public on the Website (previously only disciplinary actions such as statements of issue, accusations, decisions, probationary orders, surrenders, defaults and revocations were available on the PAC Website) ; and making the licensing application available on the Website. Despite these improvements, PA licensees are still not able to renew licenses online or by using credit cards. According to the PAC , licensees and employers have been asking for several years that the PAC enable them to renew on line and with credit cards. As consumers, licensees are typically used to making electronic payments often online for purchases and payments. No doubt it would be of great benefit to the licensing population and be more efficient for the PAC to be able to make credit card payments for fees online. Providing this service of allowing online renewals with a credit card will allow PAs to continue providing needed health care and would decrease staff work. As previously indicated, DCA is in the process of establishing a new integrated licensing and enforcement system, BreEZe, which would also allow for licensure and renewal to be submitted via the internet. BreEZe will replace the existing outdated legacy systems and multiple "work around" systems with an integrated solution based on updated technology. The goal is for BreEZe to provide all the DCA organizations with a solution for all applicant tracking, licensing, renewal, enforcement, monitoring, cashiering, and data management capabilities. BreEZe is an important opportunity to improve PAC operations to SB 1236 Page 21 include electronic payments and expedite processing. Staff from numerous DCA boards and bureaus have actively participated with the BreEZe Project and PAC staff continues to meet with BreEZe consultants to develop Committee-specific components of the system. Recommendation : The PAC should update the current status of its efforts to fully implement electronic payments of fees and online application and renewal processing, including anticipated timelines, existing impediments and current status of BreEZe. The PAC may wish to consider putting an interim plan in place to ease the collection of license renewal fees. The PAC should continue to explore ways to enhance its Internet Services to licensees and members of the public, including posting meeting materials, policies, and legislative reports on the Internet and webcasting meetings. b) Issue : Continuing Education Audits. Background : Assembly Bill 2482 (Maze & Bass, Chapter 76, Statutes of 2008) authorized the PAC to require a licensee to complete CME as a condition of license renewal. This requirement may be met by completing 50 hours of CME every two years or by obtaining certification by the NCCPA, or other qualified certifying body as determined by the PAC. January 2011, PAC regulations became effective to implement the provisions of AB 2482, including establishing criteria for complying with the statute, provisions for non-compliance, record-keeping requirements, approved course providers, audit and sanction provisions for non-compliance, and waiver provisions. Additionally, the regulatory change established an inactive status, allowing licensees to be exempt from renewal or continuing medical education requirements. The PAC verifies completion of CME through a self-reporting question on license renewal applications, allowing licensees to verify whether they met the requirement or not by simply checking a yes or no box. According to the PAC, PAs are currently required to meet the CME requirements; however, the self-reporting certification will only start appearing on renewal notices later this year. While the PAC plans to conduct random audits to verify compliance of those licensees who stated they had completed their CME hours, it has not yet conducted any audit. The PAC may be lacking information about improper compliance reporting, as licensees have yet to be required to provide any certification or records of complying with the continuing education requirement. The only licensees whose SB 1236 Page 22 compliance can be verified directly are those PAs certified by the NCCPA, as the PAC can obtain records directly from the Commission. Recommendation : The PAC should explain the lack of self-reporting audits and describe plans to implement audits. c) I ssue : Promoting and Understanding Workforce Development Issues for Physician Assistants. Background : In establishing the PA profession in this state, the Legislature intended to address "the growing shortage and misdistribution of health care services in California" by eliminating "existing legal constraints" that constitute "an unnecessary hindrance to the more effective provision of health care services." PAs have effectively and safely fulfilled this role and are widely recognized as an effective solution to access to care problems in all settings. A disproportionate number of PAs provide services in medically underserved settings (e.g., health manpower shortage areas) and settings where cost containment is especially important, e.g., HMOs). The PA profession has an exemplary safety record, and there is no evidence that PAs commit malpractice more frequently than physicians or nurse practitioners. Recent federal health care reform efforts will result in a large need for new health care providers to a growing population across the nation and in California. However, the state already faces a shortage of primary care providers which can result in potentially lower standards of care and longer wait times to access care. Recognizing the role that PAs can play in meeting health care needs, the Patient Protection and Affordable Care Act, the law, among other things, supported the educational preparation of PAs who intend to provide primary care services in rural and underserved communities and integrated PAs into newly established models of coordinated care, such as the patient centered primary care medical home and the independence at home models of care. The Act also funded a program to expand PA training with the intention of increasing student enrollment in PA programs. Over a five-year period beginning in 2010, the program will provide $32 million in funding for approximately 40 primary care PA training programs. Funds go to PA student stipends, educational expenses, reasonable living expenses and indirect costs for a total of $22,000 per student, for a maximum of two years per student, plus indirect costs. SB 1236 Page 23 According to the PAC, it monitors efforts by the California Academy of Physician Assistants to promote the use of PAs in health care settings. The PAC states that it plans to continue to review the relationship of PAs and Medical Assistants (MAs) in the health care workplace setting, including a discussion of the supervision of MAs by PAs, as several attempts have been made by the CAPA to pass legislation regarding this issue which could allow further use of PAs in delivery of health care in California and promote workforce development. The PAC has also encouraged California PA training programs to work with the Office of Statewide Health Planning and Development (OSHPD) for new graduates to apply for grants to work in medically underserved areas. OSHPD is also currently collecting data on the use of PAs in health care settings which could also allow better utilization of PAs, particularly in underserved areas. The PAC also states that it works collaboratively with MBC to ensure that physicians are able to utilize PAs effectively. Recommendation : The PAC should explain what additional efforts it can take or models it can follow to increase the PA workforce and ensure participation of its licensees in the state's health care delivery system. The PAC should look closely at the efforts and the collection of data by the Registered Nursing Board in determining workforce needs and in making future recommendations to policymakers, the Legislature and the Governor. 2. Responses regarding Issues Raised by the Committee. The PAC responded to the issues raised by Committee staff on April 16, 2012. In terms of the implementation of the BreEZe project, the PAC will begin using the database developed for BreEZe, and will begin offering online renewal payments and payment for initial licensing for both licensees and applicants. Additionally, all enforcement tracking activities will also migrate to BreEZe. The anticipated time for implementation to BreEZe is September 2012. The PAC further continues to enhance and improve information on the PAC Website. New enhancements to be made include the following: update the PAC Career Page to ensure it is more informative to perspective students interested in the PA profession. Additionally, the PAC will develop a new brochure for Career information. The PAC will place regulatory rulemaking files on the Website. Currently, the Website contains the past three years' of rulemaking files, but for historical purposes will include all rulemaking files on the Website, or will make the files available electronically. The PAC currently posts meeting minutes on the Website and will add all historical minutes on the Website for SB 1236 Page 24 historical purposes, space permitting. In the area of webcasting, the PAC continues to webcast all public meetings to allow members of the public and interested parties to view meetings without being physically present. The PAC began webcasting in 2011 and has received positive comments from the public and interested parties. Enhanced public participation: The PAC is exploring ways to enhance public participation in their meetings by including, if possible, the ability for the public to interact in real time at meetings by telephone at a designated location or some other media system. The PAC will work with the Department of Consumer Affairs in this area to determine how best to accomplish this task. Regarding the lack of continuing education audits, the PAC indicates that AB 2482 (Maze, Chapter 76, Statutes of 2008) authorized the PAC to require licensees to complete 50 hours of CME every two years as a condition of license renewal. Regulations implementing the CME requirement became effective January 2011, and beginning January 1, 2013, licensees who renew their license will self-certify if they have satisfied the CME requirement. Licensees are given a two year cycle in order to accrue the 50 hours of CME required to renew the license. Therefore, a PA who renews his or her license on or after January 2013 will be required to certify his or her compliance with the CME requirement by noting that they are either nationally certified or have completed the required CME if they are not nationally certified. The CME requirement is similar to the requirement for physicians licensed by the MBC as well as other boards who require self-certification, according to the PAC. Any audit of CME will occur after the January 2013 reporting requirement date. Prior to January 2013 renewal notices being sent, we will modify the renewal form to include the new certification requirements. Regarding workforce development, the PAC states that it recognizes the need for training, employing and retention of qualified, licensed PAs in California, especially in light of the health care reforms underway. At the May 7, 2012 PAC meeting promotion of Workforce Development will be considered, including forming a Subcommittee to review this issue and retention and distribution of PAs in California to support increased access to health care by consumers. The PAC will also be working with the California Academy of Physician Assistants on this issue. Additionally, the PAC will SB 1236 Page 25 work with the Department of Consumer Affairs to develop an information bulletin and brochure for distribution to persons interested in pursuing a career as a PA and work with them on development of more reporting on employment statistics of PAs in California. As recommended by the Committee, the PAC supports the suggestion that the Executive Officer meet with the Board of Registered Nursing to discuss their data collection efforts regarding workforce needs. 3. This Bill Includes the Following Statutory Changes Related to the PAC Identified by this Committee During the March 2012 Oversight Hearings: a) Extends the sunset date of the PAC and its executive officer. The PAC has shown over the years a strong commitment to improve its overall efficiency and effectiveness and has worked cooperatively with the Legislature and this Committee to bring about necessary changes. The PAC should be continued with the name change to the "Physician Assistant Board" with a four-year extension of its sunset date so that this "Board" may once again review if the issues and recommendations in this Background Paper have been addressed. This bill extends the sunset dates for the PAC and its executive officer to January 1, 2017 b) Changes the name of the Committee. Over the years, the PAC has continued its current status with ties to MBC and reliance on the Board for investigative and administrative services. At a July 2010 meeting, the PAC agreed to move forward to seek legislation to change its name from the "Physician Assistant Committee" to the "Physician Assistant Board," a change that is not intended to alter or do away with the current cooperative working arrangement with MBC; as PAs will continue to work under supervising physicians and that relationship is paramount to the PA practice. An example of the affiliation which the Committee has with the MBC is that of the BPM. This Board also relies on the MBC to provide many of the services that the PAC receives. This bill changes the name the "Committee" to "Board" and correspondingly changes "board" to "Medical Board of California." c) Composition of the Board. There is a question as to whether or not the PAC should still continue with a voting physician member once it is considered as an independent "board." It would not appear necessary to continue with a physician as a member of this board if the primary focus of this agency is on the practice of PAs. When the PAC, as well as other health boards (former committees) were considered as part of the "allied health SB 1236 Page 26 professions," they were primarily under the jurisdiction of the MBC and physicians were added to some of the former committees. This is no longer the case, and now all other health boards have independence from the MBC; even though this committee is still unique in that it utilizes the services of the MBC. There does not appear to be any good reason to continue with a physician on this committee, and it would seem more appropriate to replace the physician with a PA. It is recognized that the PAC maintains a close relationship with the MBC and that the relationship would continue, according to PAC, who states: "Because physician assistants may not practice independently and are required to have a supervising physician, our interaction and current relationship with the Medical Board is valued and important." This bill changes composition of the "Board" to replace the physician with a PA . d) Employer Reporting. Current law, the Business and Professions Code Section 800 series provides several reporting mandates for the MBC and several other health professions to assist licensing boards in protecting consumers from licensees who have had action taken against them by their employers, altering their workplace privileges. In its Sunset Report, the PAC maintained that the current Physician Assistant Practice Act does not clarify whether reports should be made to the PAC about certain actions against its licensees. The PAC encourages agencies to voluntarily provide 800 series reports on PAs to the PAC for review and processing and when a report is received, the PAC opens a complaint and takes appropriate action. However, under current PA laws, it is not explicitly clear that health plans and health care facilities are required to report certain actions taken by these entities against a licensee's privileges. The only reporting mandate that applies to PAs requires that the district attorney, city attorney, and prosecuting agencies to notify the PAC immediately upon obtaining information of any filings charging a felony against a PAC licensee. The PAC is interested in adding PAs to the 800 series, which it believes would enhance consumer protection and allow the PAC to receive critical information about its licensees. Employers would be required to report any actions taken against PAs by peer review bodies for medical disciplinary cause or reason to the PAC. This bill clarifies that the reporting requirements in the 800 series apply to PAs . e) Fee Waiver for Military Status. During the March oversight hearings, the issue was raised regarding providing an exemption SB 1236 Page 27 under the Physician Assistant Act for licensed PAs on active military duty from the license renewal fee requirement. In its written response, the PAC states its support for such a fee waiver for active duty military licensees. The PAC staff has received numerous requests from active duty military PAs asking for a renewal fee waivers. The PAC supports offering an exemption as an appropriate way to honor licensees in active military service. This proposal is similar to the Medical Board's exemption status for active military physicians. This bill establishes an exemption for active military from payment of license renewals . f) Retired license status. The PAC has further recommended that the PAC be granted a "retired" license status to accommodate licensees who are no longer practicing to retain their license without payment of renewal fees or completion of the CME. This license status is similar to other licensing boards within the Department of Consumer Affairs. This bill establishes a "retired" license status for licensees no longer practicing to retain their license without payment of renewal fees or completion of continuing education . 4. Arguments in Support. The Board of Podiatric Medicine states that it strongly supports SB 1236, the sunset review bill extending the BPM for an additional four years and updating the BPC sections administered by the BPM as recommended in the Board's report. Although the Physician Assistant Committee has not had the opportunity to meet to take a position on this bill, the Chairman of the PAC Robert Sachs writes his support of SB 1236. Chairman Sachs states: "I support the recommendation to changing the name of the Physician Assistant Committee to the Physician Assistant Board. I also believe that consumer protection will be further enhanced by including physician assistants in the BPC § 800 series reporting requirements. Additionally, the proposed change of the composition of the Physician Assistant Committee from four physician assistant members to five members by replacing the Medical Board physician member will further enhance the legislative mandate for consumer protection." "I believe that this bill will also benefit physician assistant licensees by amending the Physician Assistant Practice Act to add two new license status types; retired and military exemptions. The military status will address special requirements of those licensees who serve in the military. Licensees who wish to retire from practice will have an opportunity to take advantage of the SB 1236 Page 28 retire status." SB 1236 will be considered by the members of the PAC at the May 7, 2012 meeting. At that time the PAC will take a formal position on this bill. SUPPORT AND OPPOSITION: Support : Board of Podiatric Medicine Robert Sachs, Chairman of the Physician Assistant Committee Opposition : None received as of April 18, 2012 Consultant:G. V. Ayers