BILL ANALYSIS Ó ----------------------------------------------------------------------- |Hearing Date:June 23, 2014 |Bill No:AB | | |1886 | ----------------------------------------------------------------------- SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT Senator Ted W. Lieu, Chair Bill No: AB 1886Author:Eggman As Amended:June 16, 2014 Fiscal: Yes SUBJECT: Medical Board of California. SUMMARY: Recasts and revises the law regarding Internet posting of physician and surgeon license information by the Medical Board of California (MBC); requires MBC to post indefinitely information related to all physician and surgeon discipline, including revocation, suspension, probation, surrender of a license or other equivalent action taken by MBC or a board of another state or jurisdiction; reduces the amount of time from ten years to three years for posting citation information, and reduces the amount of time from ten years to five years for posting settlement information. Existing law: 1)Licenses and regulates physicians and surgeons under the Medical Practice Act by the Medical Board of California (MBC) within the Department of Consumer Affairs (DCA). (Business and Professions Code (BPC) § 2000 et seq.) 2)Specifies that protection of the public shall be the highest priority for the MBC in exercising its licensing, regulatory, and disciplinary functions; and requires that whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (BPC § 2001.1) 3)Requires any complaint to the MBC against a physician and surgeon determined to involve quality of care to meet the following criteria before referral to a field office for further investigation: (BPC § 2220.08) AB 1886 Page 2 a) The complaint must be reviewed by one or more medical experts with the pertinent education, training, and expertise to evaluate the specific standard of care issues in the complaint to determine if further field investigation is required. b) The complaint must include a review of the following: i) Relevant patient records; ii) The statement or explanation of the care and treatment provided by the physician and surgeon; iii) Any additional expert testimony or literature provided by the physician and surgeon; iv) Any additional facts or information requested by the medical expert reviewers that may assist them in determining whether the care rendered constitutes a departure from the standard of care. 4)Requires an accusation to be filed against a licensee within three years after MBC discovers the act or omission alleged as the ground for disciplinary action, or within seven years after the act or omission alleged as the ground for disciplinary action occurs, whichever occurs first, as specified. (BPC § 2230.5) 5)Authorizes MBC to discipline a licensee by placing him or her on probation, which may include, but is not limited to, the following: (BPC § 2228) a) Requiring the licensee to obtain additional professional training and to pass an examination upon the completion of the training; b) Requiring the licensee to submit to a complete diagnostic examination by one or more physicians and surgeons appointed by MBC; c) Restricting or limiting the extent, scope, or type of practice of the licensee, including requiring notice to patients that the licensee is unable to perform the indicated treatment, where appropriate. 6)Authorizes MBC to issue to public letter of reprimand concurrently with issuing a license to a physician and surgeon license applicant AB 1886 Page 3 who has committed a minor violation. Requires that the public letter of reprimand to be purged three years from the date it was issued. (BPC § 2221.05) 7)Authorizes MBC, instead of filing a formal accusation, to instead issue a public letter of reprimand by stipulation or settlement with a physician and surgeon after it has conducted an investigation or inspection, subject to the following: (BPC § 2233) a) The public letter of reprimand may include a requirement for specified training or education; b) Use of a public letter of reprimand shall be limited to minor violations; c) A public letter of reprimand may be disclosed to an inquiring member of the public. 8)Declares as public information all civil judgments in any amount, whether or not vacated by a settlement after entry of the judgment, that were not reversed on appeal and arbitration awards in any amount of a claim or action for damages for death or personal injury caused by the physician and surgeon's negligence, error, or omission in practice, or by his rendering of unauthorized professional services. (BPC § 803.1 (b) (1)) 9)Requires MBC to adopt regulations designating each specialty and subspecialty practice area as either high risk or low risk. (BPC § 803.1 (f)) 10)Requires the following information to be posted on MBC's Web site for a period of ten years from the date MBC obtains possession, custody, or control of the information, and after the end of that period, be removed: (BPC § 2027) a) Whether a license is subject to a temporary restraining order (TRO) or interim suspension order (ISO); b) Revocations, suspensions, probations, or limitations on practice ordered by MBC, including those made as part of a probationary order or stipulated agreement. c) Public letters of reprimand; d) Discipline from a board of another state or jurisdiction; AB 1886 Page 4 e) Current accusations filed by the Attorney General (AG), including those on appeal; f) Any malpractice judgment or arbitration award reported to MBC after January 1, 1993; g) Any misdemeanor conviction that results in a disciplinary action or an accusation that is not subsequently withdrawn or dismissed. 11)Requires the following information to be posted on MBC's Web site indefinitely: (BPC § 2027) a) Whether a licensee is in good standing; b) Any felony convictions reported to MBC after January 3, 1991; c) Any hospital disciplinary actions that resulted in the termination or revocation of a licensee's hospital staff privileges for a medical disciplinary cause or reason, and any additional explanatory or exculpatory information submitted by the licensee, as specified. 12)If a licensee's hospital staff privileges are restored, and the licensee notifies MBC of the restoration, the information pertaining to the termination or revocation of those privileges, as specified, shall remain posted for a period of ten years from the restoration date of the privileges. (BPC § 2027 (c) (3)) This bill: 1)Recasts and revises current law regarding Internet posting of physician and surgeon licensee information, to instead require MBC to post on its Internet Web site, specified information on all current and former licensees of the MBC, as detailed below. 2)Requires MBC to post the following information on the current status of the license: a) Whether or not the licensee is presently in good standing; b) Current American Board of Medical Specialties certification or board-equivalent as certified by MBC; c) Any of the following enforcement actions or proceedings to AB 1886 Page 5 which the licensee is actively subjected: i) TROs; ii) ISOs; iii) Revocations, suspensions, probations, or limitations on practice ordered by MBC or the board of another state or jurisdiction, including those made part of a probationary order or stipulated agreement; iv) Current accusations filed by the AG, including accusations on appeal. Defines a "current accusation" as an accusation that has not been dismissed, withdrawn, or settled, and has not been finally decided upon by an administrative law judge and the MBC unless there is a pending appeal of the decision; v) Citations issued that have not been resolved or appealed within 30 days. 1)Requires MBC to post historical information in MBC's possession, custody, or control regarding all current and former licensees, including: a) Approved postgraduate training; b) Any final revocations and suspensions, or other equivalent actions, taken against the licensee by the MBC or the board of another state or jurisdiction or the surrender of a license in relation to a disciplinary action or investigation, including the accusation which resulted in the license surrender or discipline; c) Probation or other equivalent action ordered by MBC, or the board of another state or jurisdiction, completed or terminated, including the accusation which resulted in the discipline; d) Any felony convictions. Upon receipt of a certified copy of an expungement order granted, as specified, from a licensee, the MBC shall post notification of the expungement order and date within six months of receipt of the order; e) Misdemeanor convictions resulting in a disciplinary action or accusation that is not subsequently withdrawn or dismissed. Upon receipt of a certified copy of an expungement order granted, as specified, from a licensee, the MBC shall post notification of AB 1886 Page 6 the expungement order and date within six months of receipt of the order; f) Civil judgments issued in any amount, whether or not vacated by a settlement after entry of the judgment, that were not reversed on appeal, and arbitration awards issued in any amount, for a claim or action for damages for death or personal injury caused by the physician and surgeon's negligence, error, or omission in practice, or by his or her rendering of unauthorized professional services; g) A summary of any final hospital disciplinary actions that resulted in the termination or revocation of a licensee's hospital staff privileges for a medical disciplinary cause or reason. Requires the posting to provide any additional explanatory or exculpatory information submitted by the licensee, as specified. Requires MBC to post a factsheet that explains and provides information on the reporting requirements under Section 805. i) Provides that if a licensee's hospital staff privileges are restored and the licensee notifies the MBC, the information pertaining to the termination or revocation of those privileges shall remain posted for a period of 10 years from the restoration date of the privileges, and at the end of that period shall be removed. ii) Provides that if a court finds, in a final judgment, that peer review resulting in hospital disciplinary action was conducted in bad faith and the licensee notifies MBC of the finding, the information concerning that hospital disciplinary action shall be immediately removed . 1)Requires posting for 10 years , public letters of reprimand by the MBC or the board of another state or jurisdiction, including the accusation, if any, which resulted in discipline. 2)Requires posting for 3 years , citations that have been resolved by payment of the administrative fine or compliance with the order of abatement. 3)Requires posting for 5 years , all settlements in the possession, custody, or control of the MBC to be disclosed for a licensee in a "low-risk category" of practice if there are three or more settlements for that licensee within the last five years, and for a licensee in the "high-risk category" of practice if there are four AB 1886 Page 7 or more settlements for that licensee within the last five years. Specifies that classification of a licensee in either a "high-risk category" or a "low-risk" category depends upon the specialty or subspecialty practiced by the licensee and the designation assigned to that specialty or subspecialty by the MBC in regulations. a) "Settlement" for this paragraph means a settlement in an amount of $30,000 or more of any claim or action for damages for death or personal injury caused by the physician and surgeon's negligence, error, or omission in practice, or by his or her rendering of unauthorized professional services. b) "Settlement" for this paragraph does not include a settlement by a licensee, regardless of the amount paid, when: (i) the settlement is made as a part of the settlement of a class claim, (ii) the amount paid in settlement of the class claim is the same amount paid by the other licensees in the same class or similarly situated licensees in the same class, and (iii) the settlement was paid in the context of a case for which the complaint that alleged class liability on behalf of the licensee also alleged a products liability class action cause of action. c) The MBC shall not disclose the actual dollar amount of a settlement, but shall disclose settlement information in the same manner and with the same disclosures required under BPC § 803.1 (b) (2) (B). 1)Requires MBC to post appropriate disclaimers and explanatory statements to accompany the information posted as required above, including an explanation of what types of information are not disclosed. The disclaimers and statements shall be developed by the MBC and shall be adopted by regulation. 2)Requires MBC to post links to other Internet Web sites that provide information on board certifications that meet the advertising requirements in existing law. Authorizes MBC to post links to any other Internet Web sites that provide information on the affiliations of licensed physicians and surgeons. Authorizes MBC to provide links to other Internet Web sites that provide information on health care service plans, health insurers, hospitals, or other facilities. FISCAL EFFECT: This measure has been keyed "fiscal" by Legislative AB 1886 Page 8 Counsel. According to the Assembly Committee on Appropriations analysis, this bill may result in potential one-time staff workload and reprogramming costs to reconfigure information displayed on the MBC's Web site and develop processes and procedures related to the display and removal of information, not likely to exceed $50,000 (Contingent Fund of the MBC). Ongoing costs should be minor. COMMENTS: 1.Purpose. This bill is sponsored by the Medical Board of California (Sponsor) to recast and revise the law regarding Internet posting of physician and surgeon license information. This bill will require MBC to post indefinitely on its Web site certain information related to all physician and surgeon discipline (a revocation, suspension, probation, surrender of a license by the licensee in relation to a disciplinary action or investigation, or other equivalent action taken against the licensee by MBC or a board of another state or jurisdiction). Under current law, information regarding these actions are taken down after ten years. The bill reduces the amount of time from ten years to three years for posting of citation information, and reduces the amount of time from ten years to five years for posting settlement information. 2.Removal of Public Disciplinary Records from MBC Web Site. In 2003, the law was amended to require MBC to remove certain public information from its Web site after 10 years, and MBC began removing these documents in 2013. On January 1, 2013, MBC had to remove approximately 6,900 records from its Web site due to this 10-year limit, and continues to remove 30-40 records per month, which equates to 350-400 records per year. MBC will return the applicable records to its Web site should this bill be enacted. 3.Differences in Disclosure between Public Records and the MBC Web Site. The approach taken by this bill is echoed in recommendations from MBC's 2013 Sunset Review report, in which staff of this Committee recommended that the 10-year posting requirement be removed "in order to ensure transparency to the public." The California Research Bureau (CRB) also recommended this change in their 2008 report, "Physician Misconduct and Public Disclosure Practices at the Medical Board of California." Although MBC posts disclaimers about the availability and extent of information on its Web site, consumers may reasonably believe that the MBC Web site presents all the publicly available information on a physician and surgeon's license. As a result, consumers may be AB 1886 Page 9 misled into believing - incorrectly - that some physicians have no record of discipline. This bill would help rectify that discrepancy by putting more - but not all - public disciplinary information online. This bill, in conjunction with other provisions of current law, would require information posted as follows: a) Information posted as long as the information is public: Whether or not a license is presently in good standing; A licensee's current American Board of Medical Specialties certification or MBC equivalent, as certified by MBC, and approved postgraduate training; A revocation, suspension, probation, surrender of a license by the licensee in relation to a disciplinary action or investigation, or other equivalent action taken against the licensee by MBC or a board of another state or jurisdiction, as specified; A malpractice judgment or arbitration award; Any misdemeanor conviction that results in a disciplinary action or an accusation that is not subsequently withdrawn or dismissed; Any felony convictions; Any hospital disciplinary actions that resulted in the termination or revocation of a licensee's hospital staff privileges for a medical disciplinary cause or reason, and information about additional explanatory or exculpatory information submitted by the licensee, as specified. b) Information posted for as long as the licensee is subject to the action: Current accusations filed by the AG, including those on appeal; Temporary restraining orders; Interim suspension orders. AB 1886 Page 10 c) Information posted as described below: Licensees will have a grace period of 30 days to resolve a citation, and citations issued will be posted for 3 years ; A public letter of reprimand will be posted for 10 years ; Settlement information will be posted for 5 years , as specified. 1.The Unclear Past of Public Disclosure. The 2002 Sunset Review of the MBC revealed numerous and significant problems with the MBC's enforcement and public disclosure practices, resulting in the enactment of SB 1950 (Figueroa, Chapter 1085, Statutes of 2002), which, among other things, required an independent enforcement monitor to be appointed to evaluate the MBC's enforcement system. The 2004 Initial Report: Medical Board of California Enforcement Program Monitor identified serious deficiencies in the MBC's enforcement program and in the MBC's "diversion" program. The Report made 65 specific recommendations. Among the findings in the report were noted problems with MBC's public disclosure policy. The Monitor pointed out the complex, overlapping, and dizzying laws (primarily BPC §§ 803.1 and 2027), supplemented by MBC regulations. Ultimately, the Monitor indicated that together these laws create four categories of information on physicians: (1) public information that must be posted on MBC's Web site; (2) public information that must be disclosed upon request but may not be posted on MBC's Web site; (3) public information that is known to MBC but is not disclosed; and (4) non-public information known to MBC that is not disclosed. SB 1438 (Figueroa, Chapter 223, Statutes of 2006) made a number of changes to the Act, recasting and clarifying the law as it relates to the disclosure and reporting of information concerning settlements, arbitration awards, judgments in medical malpractice actions, and legal actions, for physicians, podiatrists and osteopaths. The bill further required the CRB to conduct a study of the role of public disclosure in the public protection mandate of the MBC. In its subsequent report, Physician Misconduct and Public Disclosure Practices at the Medical Board of California (November 2008), the CRB concluded that past disciplinary history of a physician is predictive of future disciplinary troubles, stating "the largest single predictive factor in the odds that a physician faces an AB 1886 Page 11 accusation appears to be whether the physician has a history of past disciplinary proceedings." CRB also noted that "malpractice payout information has predictive power." Ultimately CRB recommended the MBC improve and expand the information it discloses about physicians on the Internet, stating: "Our statistical analysis of MBC accusations suggests that 10-year availability of disciplinary documents is a minimum period for which such documents likely are informative to members of the public, rather than a maximum. Hence, the current ten-year (or shorter) Internet disclosure limitations are counter-productive for the goal of public protection." Although this bill does not fully expand the MBC disclosures on the Internet as broadly as what might be indicated by CRB, it appears to move further in the direction of better public protection by giving greater disclosures to the public. 2.Related Legislation. SB 304 (Lieu, Chapter 515, Statutes of 2013) revises the Act to transfer investigators and medical consultants from the MBC to the Division of Investigation (DOI) within the DCA; extends the sunset date of MBC by four years to January 1, 2018. This bill made a number of additional changes recommended by the Senate and Assembly Business and Professions Committees relative to the sunset review of the MBC. SB 1950 (Figueroa, Chapter 1085, Statutes of 2002) established the provision in current law requiring the disclosure of settlements of $30,000 or more, including the current provision in BPC § 2027 requiring MBC to remove certain public disclosure information from its Website after 10 years. The bill extended the sunset date for the MBC to July 1, 2005, and made a number of other changes, including requiring the DCA director to appoint an Enforcement Program Monitor. 3.Arguments in Support. In sponsoring this measure the Medical Board of California (MBC) states, "Currently, public disciplinary information for licensed physicians can only be posted on the Board's website for 10 years. AB 1886 would allow the Board to post the most serious disciplinary information, which is already public information, on the Board's website for as long as it remains public." MBC further states the bill was recently amended to address concerns raised by the California Medical Association (CMA) and other provider groups. According to MBC, the CMA raised concerns that posting all public information indefinitely would be punitive, especially for information that is a lesser form of discipline or is AB 1886 Page 12 not considered discipline. CMA also raised concerns that the existing statute was confusing and convoluted. MBC states that the Author, sponsor, and CMA worked on amendments, and with these amendments, CMA is now neutral on this bill. MBC indicates that the amendments restructure the statute to reflect the current and historical information that can be posted to the MBC website related to physicians; require malpractice settlement information to be posted over a 5-year period, instead of a 10-year period (the posting would be in the same manner as specified in BPC § 803.1); require public letters of reprimand to be posted for 10 years, instead of indefinite posting; and require citations to be posted that have not been resolved or appealed within 30 days, and once the citation has been resolved, to only be posted for 3 years, instead of 5 years (citations are not considered discipline). According to MBC, the bill does not change what information is available to the public it simply allows consumers to more easily access information that is already public. "Currently, a consumer can call or come to Board offices and request any public documents that have been removed from the Board's website due to the 10-year restriction. However, requiring consumers to call or physically come to the Board's office is burdensome to consumers. In addition, the Board believes that not posting these public documents can be misleading to consumers, as they may believe that the physician has no history of discipline, when in fact the public documents have only been removed from the Board's website. To increase transparency and accessibility, the Board feels it is very important, in the interest of consumer protection, to have the serious disciplinary public information available for consumers on the Board's website." The MBC believes that this bill will further its mission of consumer protection. The Center for Public Interest Law (CPIL) believes the bill enhances the MBC's public disclosure policy - a centerpiece of its public protection mandate. Under existing law, MBC is required to disclose on its Web site indefinitely: felony criminal convictions and hospital disciplinary actions that result in the permanent termination of staff privileges, according to CPIL, and this bill would also require MBC to post indefinitely other pieces of public information: disciplinary actions against physicians taken by the Board or by other state medical boards, medical malpractice judgments and arbitration awards. CPIL argues the permanent posting of this public information will help Californians to ensure that the medical professionals to whom they entrust their lives and their health are qualified. AB 1886 Page 13 CPIL contends "the MBC Web site should disclose- truthfully and accurately- complete public information about the disciplinary, hospital privileges, medical malpractice, and criminal track record of all physicians licensed in California. Adequate and accurate public disclosure of adverse events in a physician's professional life is especially important in light of the fact that it still takes MBC an average of 2.36 years to complete an investigation and take public disciplinary action against a license." "AB 1886 would remove that arbitrary 10-year limitation on Internet posting as to the Board's own disciplinary actions, disciplinary actions taken against California-licensed physicians by other state medical boards, and medical malpractice judgments (usually entered by a jury after a public trial) and arbitration awards reported to MBC after January 1, 1993 - thus allowing patients immediate access to public, accurate, and complete information about a physician's disciplinary history." 4.Technical Amendment. Committee staff recommends the following technical amendment to correct a reference to BPC Section 651 (h). On page 5, line 27, strike out "subdivision (b) of Section 851" and insert: " subdivision (h) of Section 651 " SUPPORT AND OPPOSITION: Support: Medical Board of California (Sponsor) Center for Public Interest Law Opposition: None received as of June 18, 2014 Consultant:G. V. Ayers