BILL ANALYSIS Ó SB 1236 Page 1 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 SB 1236 Page 2 (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, SB 1236 Page 3 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 SB 1236 Page 4 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 SB 1236 Page 5 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 SB 1236 Page 6 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 SB 1236 Page 7 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 SB 1236 Page 8 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. SB 1236 Page 9 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, SB 1236 Page 10 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