BILL ANALYSIS                                                                                                                                                                                                    Ó







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        |Hearing Date:June 23, 2014         |Bill No:AB                         |
        |                                   |1886                               |
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                      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)





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           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  





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          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;





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           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  





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             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  





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             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  





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          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  





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        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  





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          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.






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           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  





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          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  





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          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.





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       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