BILL ANALYSIS Ó
-----------------------------------------------------------------------
|Hearing Date:July 1, 2013 |Bill No:AB |
| |916 |
-----------------------------------------------------------------------
SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Ted W. Lieu, Chair
Bill No: AB 916Author:Eggman
As Introduced: February 22, 2013 Fiscal: No
SUBJECT: Healing arts: false or misleading advertising.
SUMMARY: Prohibits a physician from using the terms "board,"
"certified" or "certification" in advertising unless those terms are
used in reference to a certifying board, as specified.
Existing law:
1)Licenses and regulates physicians and surgeons under the Medical
Practice Act (Act) by the Medical Board of California (MBC) within
the Department of Consumer Affairs (DCA) and states that the
protection of the public is the highest priority of the MBC in
exercising its functions. (Business and Professions Code (BPC) §
2000 et seq.)
2)Provides that a physician and surgeon licensed by the MBC may include
a statement that he or she limits his or her practice to specific
fields, but shall not include a statement that he or she is
certified or eligible for certification by a private or public board
or parent association, including but not limited to a
multidisciplinary board or association unless the board or
association is: (BPC § 651)
a) An American Board of Medical Specialties (ABMS) member board;
b) A board or association with equivalent requirements approved
by that physician and surgeon's licensing board; or,
c) A board or association with an Accreditation Council for
Graduate Medical Education (ACGME) approved postgraduate training
AB 916
Page 2
program that provides complete training in that specialty or
subspecialty.
1)Prohibits a physician and surgeon, licensed by the MBC, and who is
certified by a qualified board or association, from using the term
'"board certified" unless the full name of the certifying board is
also used and given comparable prominence with the endorsement.
(BPC § 651 (h) (5) (C))
2)Defines multidisciplinary board or association to mean "an
educational certifying body that has a psychometrically valid test
process as determined by the board for certifying medical doctors
and other healthcare professionals that is based on the applicant's
education, training and experience." (BPC § 651 (h) (5) (C))
3)Specifies that for purposes of the terms "board certified," "board"
and "association" mean an organization that is an ABMS member board,
an organization with equivalent requirements approved by a physician
and surgeon's licensing board or an organization with an ACGME
approved postgraduate training program that provides complete
training in a specialty or subspecialty. (BPC § 651 (h) (5) (C))
This bill:
1)Prohibits a licensed physician and surgeon who is certified, as
specified, from using the terms "board," "certified" or
"certification" in advertising unless the full name of the
certifying board is also used and given comparable prominence with
the terms "board," "certified," "certification" or "board certified"
in the statement, and unless the term or terms are used in reference
to a certifying board, as specified.
2)Deletes an obsolete definition of the term "board certified."
3)Makes findings and declarations regarding the importance of
preventing false advertising of medical services.
FISCAL EFFECT: This bill has been keyed "non-fiscal" by Legislative
Counsel.
COMMENTS:
1.Purpose. This bill is sponsored by California Society of Plastic
Surgeons to protect consumers from false or misleading
advertisements about the training and qualifications of physicians
AB 916
Page 3
by prohibiting the use of the terms "board," "certified" or
"certification" in advertising unless the physician is certified by
an appropriate certifying body, as specified.
According to the Author, this bill aims to protect the public by
requiring better information about the qualification of health care
providers. Some physicians misrepresent themselves by advertising
they are part of a "board", are "certified" or have a
"certification." While most physicians and surgeons are following
the letter of the law, some physicians mislead the public by
implying they are board certified, according to the Author.
The Author states that consequences of seeing a physician or surgeon
who is not truly board certified in the advertised specialty or
subspecialty has been well documented in the media.
2.Background.
a) History of the Law. In 1990, SB 2036 (McCorquodale),
sponsored by the California Society of Plastic Surgeons, among
others, sought to prohibit physicians from advertising board
certification by boards that were not member boards of the
American Board of Medical Specialties (ABMS). It added BPC §
651(h) to prohibit physicians from advertising they are "board
certified" or "board eligible" unless they are certified by any
of the following:
An ABMS approved specialty board.
A board that has specialty training that is approved
by the Accreditation Council for Graduate Medical Education
(ACGME).
A board that has met requirements equivalent to ABMS
and has been approved by the MBC.
The ultimate effect is to provide that, unless physicians are
certified by a board, as defined by law, physicians are
prohibited from using the term "board certified" or "board
eligible" in their advertisements. The law does not, however,
prohibit the advertising of specialization, regardless of board
certification status.
To implement BPC § 651, the MBC adopted regulations which are
substantially based on the requirements of ABMS, including the
number of diplomates certified, testing, specialty and
AB 916
Page 4
subspecialty definitions, bylaws, governing and review bodies,
etc. The most notable requirement relates to the training
provided to those certified by the specialty boards. In the
regulations, training must be equivalent to an ACGME postgraduate
specialty training program in "scope, content and duration."
Since the regulations were adopted, the MBC has reviewed a number
of specialty board applications, and has approved four boards:
American Board of Facial Plastic & Reconstructive
Surgery
American Board of Pain Medicine
American Board of Sleep Medicine
American Board of Spine Surgery
The MBC has also disapproved two boards:
American Academy of Pain Management
American Board of Cosmetic Surgery
a) Consumer Protection Function. The purpose of the law and
regulations is to provide protection to consumers from misleading
advertising. Board certification is a major accomplishment for
physicians, and while board certification does not ensure
exemplary medical care, it does guarantee that physicians were
formally trained and tested in a specialty, and, with the ABMS'
Maintenance of Certification (MOC) requirements to remain
board-certified, offers assurances that ongoing training, quality
improvement, and assessment is occurring.
At the time the legislation was promoted, a number of television
news programs covered stories from severely injured patients who
were victims of malpractice from physicians who advertised they
were board certified, when, in fact, they had no formal training
in the specialty that they advertised. The law put an end to
physicians' ability to legally advertise board certification if
the certifying agency was not a member of ABMS.
More recently, news articles have highlighted cases of individuals
who may be selecting doctors based on false representation of
their certification credentials. Earlier this year, in a news
story by CBS 13 in Sacramento, patients of a Rocklin-based doctor
AB 916
Page 5
were left deformed and paralyzed after receiving plastic surgery
procedures from a doctor whose background and training were in
another medical specialty.
This bill would serve to prevent the misrepresentation of a
physician's credentials by prohibiting the physician's
advertising from including words that imply board certification.
b) Current Relevance. As stated above, the law merely addresses
advertising, and does not in any way require physicians to be
board certified or formally trained to practice in a specialty or
in the specialty of which they practice. Physicians only need to
possess a valid physician's license to practice in any specialty.
As prospective patients usually are covered by insurance,
searching for a physician in most specialties is generally done
through their insurance directory. At present, many insurance
companies select board-certified physicians for their panels, or
those physicians whose credentials they have vetted.
The same is generally true for the granting of hospital privileges.
Hospitals grant privileges after conducting a review of
qualifications. This process, called "credentialing," will
include looking into the background of a physician, including
accredited training and board certification. For that reason,
most physicians who are granted privileges will be
board-certified in the specialty for which they are granted
privileges, or similarly highly, formally trained.
Therefore, the "board certification" advertising prohibition is
primarily meaningful for elective procedures; that is to say,
those procedures that are not reimbursed by insurance or those
performed outside of hospitals or hospital clinic settings.
1.Board Certification and Licensure. Physician and surgeon licensing
requires a Doctor of Medicine degree from an approved school and
completion of a postgraduate training program accredited by the
ACGME or Royal College of Physician and Surgeons of Canada.
However, being licensed does not indicate whether a doctor is
qualified to practice in a specific medical specialty, such as
pediatrics, plastic surgery or dermatology. Currently, there are
three accrediting entities that provide board certification for
licensees regulated under the Board: 1) ABMS, 2) ACGME and 3) the
MBC. Between Board-approved specialty boards and the ABMS, there
are 28 certificated specialties.
2.American Board of Medical Specialty. The AMBS is non-profit
AB 916
Page 6
organization made up of twenty-four medical specialty boards and is
responsible for overseeing the certification of physician
specialists throughout the United States. The individual specialty
boards represented under the AMBS include: 1) Allergy and
Immunology, 2) Anesthesiology, 3) Colon and Rectal Surgery, 4)
Dermatology, 5) Emergency Medicine, 6) Family Medicine, 7) Internal
Medicine, 8) Medical Genetics, 9) Neurological Surgery, 10) Nuclear
Medicine, 11) Obstetrics and Gynecology, 12) Ophthalmology, 13)
Orthopaedic Surgery, 14) Otolaryngology,
15) Pathology, 16) Pediatrics, 17) Physical Medicine and
Rehabilitation, 18) Plastic Surgery, 19) Preventive Medicine, 20)
Psychiatry and Neurology, 21) Radiology, 22) Surgery,
23) Thoracic Surgery and 24) Urology.
Each of the twenty-four AMBS specialty boards is responsible for
establishing the standards of competency for specialty
certification. The specialty boards are governed by a board of
trustees or a board of directors who are certified in the board's
specialty area.
When an individual physician seeks board certification, they contact
that board directly for its certification standards and process.
For example, the board certification process for pediatrics includes
an application to take a certifying examination, and meeting general
admission requirements including a medical school degree,
satisfactory completion of three years of pediatric-accredited
training, and a valid and unrestricted license to practice medicine.
In regards to AB 916, ABMS states:
More than 100 organizations claim to certify physicians as
specialists, many based on variable education and training
requirements. For example, some certify medical specialists
based on proctorships and other training programs that are far
less rigorous and comprehensive than the training provided in an
ACGME accredited program. Others accept on-the-job experience
and do not require complete, specialty-specific training. Such
training requirements do not provide assurance that the board
certified physician has received experience and training in
every area needed to practice competently in that specialty.
Nor is there any way to ensure that the physician has had his or
her performance evaluated against national standards in given
clinical situations by recognized leaders in the specialty. If
physicians advertise themselves as board certified after being
"certified" by specialty boards that do not require complete and
comprehensive training, the potential for public confusion about
AB 916
Page 7
and ultimately, distrust of, specialty board certification is
high.
3.Related Legislation. SB 304 (Price) makes a number of changes
relating to the MBC as a result of the hearings by the Senate
Business, Professions and Economic Development Committee and the
Assembly Business, Professions and Consumer Protection Committees
(BPCP). Relative to this bill, SB 304, repeals the authority of the
MBC in BPC § 651 to approve the equivalency of a multidisciplinary
certification board. ( Status: This bill has been referred to
Assembly BPCP Committee)
4.Prior Related Legislation. SB 836 (Figueroa, Chapter 856, Statutes
of 1999) expanded and revised the prohibition against fraudulent
advertising by health practitioners, specifically targeting cosmetic
surgery advertisements.
SB 450 (Speier, Chapter 631, Statutes of 1999) required physicians,
surgeons and doctors of podiatric medicine to specify the full name
of the certifying board to which they belong.
SB 2036 (McCorquodale, Chapter 1660, Statutes of 1990), sponsored by
the California Society of Plastic Surgeons, among others, sought to
prohibit physicians from advertising board certification by boards
that were not member boards of the ABMS. It added BPC § 651(h) to
prohibit physicians from advertising they are "board certified" or
"board eligible" unless they are certified by: an ABMS member
board; a board or association with equivalent requirements approved
by the MBC; or a board or association with an ACGME approved
postgraduate training program.
5.Arguments in Support. In sponsoring the bill, the California Society
of Plastic Surgeons (CSPS) writes: Board certification represents
the "gold standard" for training a physician has received in their
specialty. When an individual sees an advertisement stating a
physician is board certified in a certain specialty such as plastic
surgery, they have confidence the plastic surgeon in the
advertisement has received extensive training in their specialty.
The CSPS argues that there are physicians who use terms including
"Board," "Certified," or "Certification" in reference to non-ABMS
Boards. The use of these terms misleads the consumer into assuming
the physician's qualifications are more credible, according to the
CSPS and patients will sometimes choose a physician based on this
misleading information, believing the physician is truly "board
certified." This has resulted in patient injury, deformity, and
even death.
AB 916
Page 8
The California Medical Association , the California Chapter of the
American College of Emergency Physicians , the California Chapter of
the American College of Cardiology , and the American Congress of
Obstetricians and Gynecologists argues that as Californians are
being asked to be more involved in their healthcare decisions,
understanding the training and education of healthcare practitioners
is becoming even more important. AB 916 protects the use of the
term board-certified and allows patients to better understand the
training and education of the healthcare practitioner whom they are
considering for their medical care.
The California Orthopaedic Association , supports the bill, stating that
some practitioners are skirting the law by using the terms "board"
"certified" or "certification" in their advertising, and contends
that AB 916 will close that loophole and protect consumers from
deceptive claims.
The Medical Board of California states that this bill will allow
patients to make informed decisions when choosing a health care
provider and tighten existing law related to advertising, which will
help to further the Board's mission of ensuring consumer protection.
The American Board of Medical Specialties (ABMS) writes in support that
the bill will clarify existing laws regarding advertising of board
certification by physicians, thus enabling patients to make informed
choices about their healthcare providers and protecting patient
safety by preventing fraud and deceptive practices.
6.Oppose Unless Amended. American Board of Cosmetic Surgery (ABCS)
states that under existing law, the terms "board certified,"
"certified," and "certification" in combination are already
reserved, for advertising purposes, to certain physicians and
surgeons. However,
AB 916 would prohibit a physician from using or referencing the
isolated term "board" in advertising communications, unless that
word references a certifying board recognized in California. ABCS
states, "This would have the overreaching effect of barring a
physician who is a credentialed diplomate of the ABCS from including
that information in his/her letterhead, website, and even answering
patient questions regarding his/her training and education.
Ironically, then, the bill would result in patients receiving less
information about physicians they are considering for procedures,
rather than more."
ABCS questions whether the bill's provisions would withstand court
AB 916
Page 9
scrutiny, stating:
While advertising and other communications proposing commercial
transactions between the speaker and listener are not fully
protected by the First Amendment, the U.S. Supreme Court has
said that commercial speech may only be restrained if it is
false, misleading or advertises unlawful activity. Any
governmental restraint must advance a substantial public
interest and must not be more extensive than necessary to serve
that interest. California public policy limits claims of "board
certification," when certain criteria are not met, but we see
little "substantial public interest" served by eliminating all
references to a physician's training and education.
The court also stated that unless commercial speech regulations
target false, misleading or coercive advertising, or require
disclosure of information that will help avoid misleading
advertising, strict First Amendment scrutiny should apply.
Section 651 of the Business and Professions Code regulates
advertising, only, and has little to do with actual physician
skill sets, preparation and capabilities. Eliminating all
references to training and recognition by a number of
credentialing entities will likely invoke that level of scrutiny
[by the Court].
Finally, ABCS believes that consumers would benefit from more
information, and the bill may actually put consumers at more risk by
limiting access to important information about their physician, or
incentivizing ever more creative ways to circumvent proposed
limitations on physician communications with patients and
prospective patients.
ABCS asks that the bill be amended to add the following to BPC § 651
(h) (5) (C):
Nothing in this section shall be construed to bar, or in any way
limit, a physician and surgeon using the term "diplamate" to inform
the public of his or her status as the holder of a post-nominal
title used to indicate the physician and surgeon's education and
training.
California Academy of Cosmetic Surgery (CACS) argues that the bill
will "disavow patients of valuable information as it pertains to
knowing what specific credentials their physician and surgeon may
possess. For example, a dermatologist, ophthalmologist,
otolaryngologist (i.e. ears, nose and throat - ENT) would be
prohibited from advertising or disclosing to patients that they are
AB 916
Page 10
a diplomate, fellow (or any other derivative descriptor) of the
American Board of Cosmetic Surgery (ABCS). CACS feels strongly that
patients need more information regarding the credentials of their
healthcare providers, not less."
CACS requests the bill be amended to delete the term "board" on page
5, line 39 and on page 6, line 2 of the bill.
The American Board of Physician Specialties (ABPS) argues that by
prohibiting a physician from using or referencing the isolated term
"board" in advertising communications, unless that word references a
certifying board recognized in California, the bill would have an
"overreaching effect of barring a physician who is a credentialed
diplomate of the ABPS from including that information in his/her
letterhead, website, and even answering patient questions regarding
his/her training and education. Ironically, then, the bill would
result in patients receiving less information about physicians they
are considering for procedures, rather than more."
The American Board of Phlebology (ABPh) contends: "Limiting the
ability to inform the public about expertise to only those certified
by an ABMS board would unfairly restrict well-trained physicians
from disclosing relevant and critical training as well as
objectively validated assessment of knowledge and competence."
7. Policy Issue. The Committee may wish to consider whether this
bill's prohibition of using the term "board" unless it is in
reference to a certifying board that meets the specified criteria
in law may be a significant broadening of the scope of BPC § 651.
Several boards such as the American Board of Cosmetic Surgery , the
American Board of Phlebology , and the American Board of Physician
Specialties each contend that the bill would prohibit an affiliated
physician from listing the board name. The Committee may wish to
consider the following amendment to more clearly narrow the focus
and effect of the bill:
On page 5, line 39, strike out: "board,"
On page 6, line 2, strike out: "board,"
SUPPORT AND OPPOSITION:
Support:
California Society of Plastic Surgeons (Sponsor)
AB 916
Page 11
American Board of Medical Specialties
American Congress of Obstetricians and Gynecologists
CalDerm
California Chapter of the American College of Cardiology
California Chapter of the American College of Emergency Physicians
California Medical Association
California Orthopaedic Association
California Radiological Society
California Society of Facial Plastic Surgery
Medical Board of California
Oppose Unless Amended:
American Board of Cosmetic Surgery (ABCS)
American Board of Phlebology
American Board of Physician Specialties
California Academy of Cosmetic Surgery
Numerous Physician and Surgeons
Consultant:G. V. Ayers