BILL ANALYSIS                                                                                                                                                                                                    







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        |Hearing Date:July 1, 2013          |Bill No:AB                         |
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                      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  





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             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  





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          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  





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             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  





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             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  





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          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  





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             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.





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       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  





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          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  





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          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)





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        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