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