BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 1236
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          Date of Hearing:   June 26, 2012

              ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER 
                                     PROTECTION
                                 Mary Hayashi, Chair
                     SB 1236 (Price) - As Amended:  June 18, 2012

           SENATE VOTE  :   37-0
           
          SUBJECT  :   Healing arts boards.

           SUMMARY  :   Extends the sunset dates of the California Board of 
          Podiatric Medicine (BPM) and the Physician Assistant Committee 
          (PAC) and makes other changes, as specified.  Specifically,  this 
          bill  :   

          1)Extends the BPM's sunset date to January 1, 2017.

          2)Repeals an obsolete provision prohibiting a doctor of 
            podiatric medicine (DPM) from performing an admitting history 
            and physical (H&P) exam at an acute care hospital.

          3)Eliminates the four year limit on the renewal of a resident's 
            license for DPMs in postgraduate training programs.

          4)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.

          5)Removes a requirement that applicants for a DPM license obtain 
            a specific score on the licensing examination.

          6)Clarifies that the vote of only one member of the BPM is 
            necessary to defer a decision for consideration by the entire 
            board.

          7)Authorizes the 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, as specified.

          8)Extends sunset dates for the PAC and its authority to appoint 
            an executive officer to January 1, 2017.

          9)Changes the name of the PAC to the Physician Assistant Board 








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            (PAB) and makes conforming changes.

          10)Changes the composition of the PAB to add a physician 
            assistant (PA) and to make the physician member an ex officio, 
            non-voting member who shall not be counted for purposes of a 
            quorum.

          11)Allows the PAB to establish, by regulation, a system for 
            placement of a licensee on retired status, as specified.

          12)Provides that the expiration, cancelation, forfeiture, or 
            suspension of a PA license by operation of law or by order or 
            decision of the PAB or a court of law, the placement of a 
            license on a retired status, or the voluntary surrender of a 
            license by a licensee shall not deprive the PAB of 
            jurisdiction to commence or proceed with any investigation of, 
            or action or disciplinary proceeding against, the licensee or 
            to render a decision suspending or revoking the license.

          13)Applies to PAs the current-law requirements within the 800 
            series of the Business and Professions Codes (800 series) that 
            apply to specified health care licensing boards and licensees 
            of those boards. 

           EXISTING LAW  : 

          1)Licenses and regulates DPMs by the BPM under the Medical Board 
            of California (MBC) within the Department of Consumer Affairs 
            (DCA), and sunsets the BPM on January 1, 2013.

          2)Provides that the BPM is composed of four physician 
            assistants, one physician who is also a member of the MBC, and 
            four public members.

          3)Prohibits a DPM from performing an admitting H&P examination 
            of a patient in an acute care hospital where doing so would 
            violate the regulations governing the Medicare program.

          4)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.

          5)Provides that podiatric law does not prohibit the manufacture, 








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            recommendation or the sale of either corrective shoes or 
            appliances for the human feet.

          6)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 (NBPME).

          7)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.

          8)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.

          9)Licenses and regulates PAs under the Physician Assistant 
            Practice Act (PA Act) by the PAC within the MBC, and sunsets 
            the PAC on January 1, 2013.

          10)Authorizes the PAC to appoint an executive officer, and 
            sunsets that authority on January 1, 2013.

          11)Provides that the PAC is comprised of four physician 
            assistants, one physician who is also a member of the MBC, and 
            four public members.

          12)Places specific requirements on specified health care 
            licensing boards and licensees of those boards (800 series), 
            including the following:  

             a)   A requirement that boards create and maintain a central 
               file on their licensees, which must include information 
               regarding convictions, judgments, and specified public 
               complaints;

             b)   A requirement that licensees report to their licensing 
               board the occurrence of an indictment or information 
               charging a felony against the licensee or the conviction of 








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               the licensee of a felony or misdemeanor;

             c)   Specific procedures for when a coroner receives 
               information, as 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;

             d)   A requirement that a district attorney, city attorney, 
               or other prosecuting agency notify specific health 
               licensing boards whenever a licensee is convicted of or 
               charged with a felony, as specified; and,

             e)   Professional review of specified healing arts 
               licentiates through a peer review process.

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           Purpose of this bill  .  According to the author, "This bill 
          extends to January 1, 2017, the provisions establishing the BPM, 
          the PAC, and extends the executive officer of the PAC, and makes 
          other changes, as specified."

           Background  .  The BPM 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.  This bill extends the sunset date for the 
          BPM to January 1, 2017.

          Business and Professions Code (BPC) Section 2472(f) provides 
          that a doctor of podiatric medicine shall not perform an 
          admitting H&P examination of a patient in an acute care hospital 
          where doing so would violate the regulations governing the 
          Medicare program.  A 2010 California Attorney General Opinion 
          found that "not only is a podiatrist not precluded from 
          performing an admitting H&P by BPC Section 2472, but failing to 
          do so may fall below the standard of care expected of 








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          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 federal regulations 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 H&P 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.

          Current 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.  The BPM proposes 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 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.

          The BPM also proposes that current law 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 








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          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.

          Current law requires a passing score of one standard error of 
          measurement higher than the national passing scale score on the 
          APMLE Part III, the national examination administered by the 
          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.

          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.

          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 








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          the jurisdiction of MBC and various other boards, including the 
          BPM.  Under these provisions, a panel of ALJs, the Medical 
          Quality Hearing Panel (MQHP) within the Office of Administrative 
          Hearings, conducts disciplinary proceedings against a DPM.  
          Current law provides that all proposed decisions of the MQHP are 
          transferred to the executive officer of the BPM, and sent by BPM 
          staff to each BPM 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. 

          The BPM states that the requirement that the votes of two 
          members of the BPM are required to defer a final decision 
          effectively prevents the BPM 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 bill authorizes the vote of only 
          one board member of the BPM to defer a decision for 
          consideration by the entire board.

          As part of the MBC, and utilizing MBC staff for enforcement, the 
          BPM has cost recovery authority.  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, 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.  

          The BPM recommends amending current law to give the BPM 








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          discretion to increase cost recovery in disciplinary cases when 
          it non-adopts a proposed decision from an ALJ and, in making its 
          own decision, finds grounds for increasing the costs to be 
          assessed.  The BPM indicates 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.

          This bill also makes several cleanup provisions to clarify the 
          law as recommended by the BPM.  

          The PAC was established in 1975.  At the time, the Legislature 
          was concerned about the existing shortage and geographic 
          mal-distribution 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 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 working arrangement with the Board.  This bill 
          extends the sunset dates for the PAC and its executive officer 
          to January 1, 2017

          Over the years, the PAC has continued its current status with 
          ties to, and reliance on, the MBC 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 that the PAC has with the MBC is that of the BPM, 
          which also relies on the MBC to provide many of the services 
          that the PAC receives.  This bill changes the name of the PAC to 
          the PAB and makes corresponding changes.









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          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.  This bill changes composition of the PAB 
          to add a PA and to make the physician member an ex-officio, 
          non-voting member not to be counted toward a quorum.  

          Current law (the 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.  The PAC maintains that the current PA 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 
          district attorneys, city attorneys, 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.

          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 continuing education.  This 
          license status is similar to other licensing boards within DCA.  
          This bill allows the PAC to establish regulations for a retired 
          license status for PAC licensees.

           Related legislation  .  

          SB 1237 (Price) of 2012, extends the sunset dates for various 
          professional boards under the DCA and makes technical and 
          clarifying changes.  This bill is pending in Assembly Business, 








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          Professions and Consumer Protection Committee.

          SB 1238 (Price) of 2012, extends the sunset date of the Board of 
          Psychology and the Board of Behavioral Sciences and extends 
          their authority to appoint an executive officer (EO).  This bill 
          is pending in Assembly Business, Professions and Consumer 
          Protection Committee.

          SB 1239 (Price) of 2012, extends the sunset date for the 
          Acupuncture Board and the term of the Acupuncture Board's EO by 
          two years, until January 1, 2017, and makes technical and 
          clarifying changes.  This bill is pending in Assembly Business, 
          Professions and Consumer Protection Committee.

           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          Board of Podiatric Medicine
          Physician Assistant Committee
           
            Opposition 
           
          None on file.

           Analysis Prepared by  :    Angela Mapp / B.,P. & C.P. / (916) 
          319-3301