BILL ANALYSIS Ó
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|Hearing Date: April 29, 2013 |Bill No:SB |
| |304 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 304Author:Price
As Amended: April 24, 2013 Fiscal:Yes
SUBJECT: Healing arts: boards
SUMMARY: Makes various changes to the Medical Practice Act and to the
Medical Board of California.
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)Prohibits an advertisement by a physician and surgeon from including
a statement that he or she is board certified by a private or public
board or parent association, including a multidisciplinary board or
association, unless that board or association meets at least one of
several standards, including being a board or association with
equivalent requirements approved by the MBC. (BPC § 651)
3)Requires the MBC, to annually send an electronic notice to each
applicant and licensee who has chosen to receive correspondence by
electronic mail that requests confirmation that the electronic mail
address is current. (BPC § 2021)
4)Requires an applicant for a physician and surgeon's certificate to
obtain a passing score on step 3 of the United States Medical
Licensing Examination (USMLE) with not more than 4 attempts, subject
to an exception. (BPC § 2177)
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5)Requires that a complaint to the MBC against a physician involving
quality of care, before being referred to a field office for further
investigation, must be reviewed by one or more medical experts to
evaluate the specific standard of care issues raised in the
complaint, as specified, and exempts from the requirement complaints
involving a physician and surgeon who is the subject of a pending
accusation, investigation, or is on probation and physician peer
review reports (805 Reports), as specified. (BPC § 2220.08)
6)Requires a health care facility to comply with a request of MBC for
certified medical records of a patient, authorized by the patient in
writing within 30 days, and provides for a civil penalty of
up to $1,000 per day, as specified, imposed on a health care facility
that fails to comply with that request. (BPC § 2225.5)
7)Provides that whenever it appears that a healing arts practitioner
may be unable to practice his or her profession safely because of an
impaired ability due to mental illness or physical illness affecting
competency, the licensing board may order the licensee to be
examined by a physician and surgeon or psychologist; and, provides
that if the board determines that the licensee's ability to practice
is impaired because of mental or physical illness affecting
competency, that board may, revoke the license, suspend the right to
practice, place the licensee on probation, or take any other action
deemed proper by the board.
(BPC §§ 820, 822)
8)Prohibits a party from bringing expert testimony in a matter brought
by the MBC unless certain information regarding the expert witness
and a brief summary of the testimony is exchanged in written form
with counsel for the other party, within 30 calendar days prior to
the hearing. (BPC § 2334)
9)Prohibits corporations and other artificial legal entities from
having any medical professional rights, privileges, or powers (known
as the "prohibition against the corporate practice of medicine").
(BPC § 2400 et. seq.)
10)Provides for the licensing and regulation of licensed midwives under
the Licensed Midwifery Practice Act of 1993, by the MBC, and
specifies under that law that a midwife student meeting certain
conditions is not precluded from engaging in the practice of
midwifery as part of the course of study, if certain conditions are
met, including, that the student is under the supervision of a
licensed midwife. (BPC § 2514)
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11)Provides for the regulation of registered dispensing opticians by
the MBC and requires that the powers and duties of the MBC in that
regard be subject to review by the Joint Sunset Review Committee as
if those provisions were scheduled to be repealed on January 1,
2014. (BPC § 2569)
12)Under the Administrative Procedure Act (APA), establishes within the
Office of Administrative Hearings (OAH) a Medical Quality Hearing
Panel to conduct adjudicative hearings and proceedings relative to
licensees of the MBC under the terms and conditions set forth in the
APA, except as provided in the Medical Practice Act. (Government
Code (GC) §§ 11371, 11373)
13)Authorizes the administrative law judge of the Medical Quality
Hearing Panel to issue an interim suspension order (ISO) suspending
a license, or imposing drug testing, continuing education,
supervision of procedures, or other licensee restrictions. Requires
that an accusation must be filed within 15 days of the date the ISO
is granted or else the order will be dissolved. (GC § 11529)
14)Establishes the Health Quality Enforcement Section within the
Department of Justice whose primary responsibility is to investigate
and prosecute proceedings against licensees and applicants of the
MBC and other specified health-care boards. (GC § 12529)
a) Provides for the appointment of a Senior Assistant Attorney
General to the section to carry out specified duties, and
provides that the section to be staffed by a sufficient number of
employees capable of handling the most complex and varied types
of disciplinary actions.
b) Provides for the funding for the section, from the special
funds financing the MBC and other specified health-care boards.
15)Requires that all complaints or relevant information concerning
licensees that are within the jurisdiction of the MBC, the
California Board of Podiatric Medicine, or the Board of Psychology
be made available to the Health Quality Enforcement Section. (GC §
12529.5)
a) Establishes the procedures for processing the complaints,
assisting the boards or committees in establishing training
programs for their staff, and for determining whether to bring a
disciplinary proceeding against a licensee of the boards.
b) Provides for the repeal of those provisions on January 1,
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2014.
16)Establishes a vertical enforcement and prosecution model for cases
before the MBC.
(GC § 12529.6)
a) Requires that a complaint referred to a district office of the
MBC for investigation also be simultaneously and jointly assigned
to an investigator and to the deputy attorney general in the
Health and Quality Enforcement Section, as provided.
b) Provides for the repeal of those provisions on January 1,
2014.
17)Requires the MBC in consultation with the Department of Justice to
report to the Governor and Legislature on the vertical prosecution
model by March 1, 2012. (BPC § 12529.7)
This bill:
1)Repeals the authority of the MBC to approve the equivalency of a
multidisciplinary certification board.
2)Requires applicants and licensees who have an electronic mail address
to report the email address to the MBC, and provides that the email
address is to be considered confidential by the MBC.
3)Clarifies that an applicant must obtain a passing score on all parts
of the USMLE examination in not more than 4 attempts, as specified.
4)Specifies that reports submitted to the MBC under BPC § 801.1
regarding a settlement or arbitration award for damages for death or
personal injury cause by a physician's negligence, error or omission
in practice are not subject to the review by a medical expert before
being referred to a field office for investigation.
5)Shortens the time limit to 15 days for a health care facility that
uses electronic health records to comply with a request of MBC for
certified medical records, as specified.
6)Authorizes the MBC to issue a notification to cease practice
immediately to a physician and surgeon who fails to comply with an
order related to a mental of physical examination.
7)Requires information regarding expert witness testimony to be
exchanged within 90 days from the filing of a notice of defense and
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further requires the information to include a complete expert
witness report.
8)Provides that the corporate practice of medicine prohibition does not
apply to a physician and surgeon enrolled in approved residency
postgraduate training program or fellowship program.
9)Clarifies that a student is to be enrolled and participating in a
midwifery education program or enrolled in a program of supervised
clinical training, in order to practice midwifery under supervision,
and additionally authorizes a student to practice under the
supervision of a licensed nurse-midwife.
10)Makes the powers and duties of the MBC relative to Registered
Dispensing Opticians subject to review by the appropriate policy
committees of the Legislature as if those provisions were scheduled
to be repealed on January 1, 2018.
11)Extends to 30 days, the time in which the accusation must be filed
after an ISO has been granted.
12) Amends GC § 12529 to provide that on January 1, 2014, all persons
employed by the MBC who are performing investigations and their
staff shall be transferred to the DOJ.
a) Provides that upon transfer, the status, position and rights
of those persons shall be the same as DOJ employees holding
similar positions, including the retention of peace officer
status for those persons performing investigations, as specified.
b) Requires the MBC to maintain the duty of preserving patient
confidentiality.
c) Specifies that on and after January 1, 2014, any reference to
an investigation conducted by the MBC shall be deemed to refer to
an investigation by employees of DOJ.
13)Removes the January 1, 2014 repeal date applicable to the vertical
enforcement prosecution provisions (GC §§ 12529, 12529.5, 12529.6),
thereby extending the vertical enforcement prosecution provisions
indefinitely.
14)Extends the requirement for MBC to submit a report to the Governor
and Legislature on the vertical enforcement prosecution model to
March 1, 2015.
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FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. This bill is one of six "sunset review bills" authored by
the Chair of this Committee. Unless legislation is carried this
year to extend the sunset dates for the Medical Board of California
and its executive director they will be repealed on January 1, 2014.
This bill makes a number of legislative changes recommended by the
MBC as well as recommendations made in the Committee's background
paper.
2.Oversight Hearings and Sunset Review of Licensing Boards and
Commission of DCA. In 2013, this Committee conducted oversight
hearings to review 14 regulatory boards within the DCA. The
Committee began its review of these licensing agencies in March and
conducted three days of hearings. This bill, and the accompanying
sunset bills, is intended to implement legislative changes as
recommended in the Committee's Background/Issue Papers for all of
the agencies reviewed by the Committee this year.
3.Review of the Medical Board of California (MBC), Issues Identified
and Recommended Changes. The following are some of the major issues
pertaining to the MBC or areas of concern reviewed and discussed by
the Committee during the review of the MBC, along with background
information concerning each particular issue. Recommendations were
made by Committee staff regarding the particular issues or problem
areas which needed to be addressed.
a) Issue : Specialty Board Advertising.
Background : The MBC raised the following as a new issue in its
Sunset Report. In 1990, SB 2036 (McCorquodale), sponsored by the
California Society of Plastic Surgeons, sought to prohibit
physicians from advertising board certification by boards that
were not member boards of the American Board of Medical
Specialties (ABMS) by adding BPC § 651(h) to prohibit physicians
from advertising they are "board certified" or "board eligible"
unless they are certified by:
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
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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
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 MBC
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.
The purpose of the law and regulation 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 that
were victims of malpractice from physicians who advertised they
were board certified, when, in fact, they had no formal training
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in the specialty advertised. The law put an end to physicians'
ability to legally advertise board certification if the
certifying agency was not a member board of ABMS.
Is the Program Still Relevant? As explained, the law addresses
advertising, and does not 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, insurance
companies generally only choose 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.
Cost of Program. The cost for the MBC to administer the program
has been minimal in recent years, since there has only been one
recent application. It is likely that non-ABMS certifying boards
have been deterred from filing applications due to the law, the
strict regulations, the demanding review process, and the fee.
Processing the application for meeting the basic requirements can
be done by an analyst. The evaluation of the medical training,
however, must be performed by a physician consultant that is an
expert with academic experience. Therefore, a medical education
expert must be hired to perform a review of the specialty board's
formal training program. The cost of the expert varies, but when
the fee regulations were promulgated in the 1990s, it was
estimated that such a review would require from 80 to 160 hours
to complete. At present, the cost of hiring an expert would be
from $5,000 to $11,000. The current application fee for a
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specialty board application is $4,030.
Ultimately, the costs of processing specialty board applications
has not been the major expense in this program. The cost comes
when an application is denied and litigation results, and thereby
legal costs.
Risk of Lawsuits and Potential Payouts. Since the program's
inception, the MBC has only denied two specialty boards.
American Academy of Pain Management was denied, and filed four
suits against the MBC, including one in Federal Court. American
Board of Cosmetic Surgery applied for approval twice, was denied
both times, and filed suit on the second denial.
The MBC states that it has prevailed in all litigation, but the
cost has been considerable. While AG billing methods makes it
difficult to ascertain the exact cost of legal representation
specific to the suits, MBC estimates its litigation costs
conservatively to be in excess of $200,000.
Other than the Board, Who Could Fulfill this Function? According
to the MBC, three entities have the expertise to review and
evaluate the quality of medical specialty boards' training and
certification criteria: (1) ABMS, (2) ACGME, and to a lesser
degree (3) medical schools that provide ABMS designed and ACGME
accredited residency training programs. Unfortunately, according
to the MBC, it would be inappropriate for any of these entities
to judge a competing specialty board training program.
The Board recommends that the Legislature delete the provision
requiring the MBC to approve non-ABMS specialty boards. For
consumer protection, the law should continue to require
physicians to advertise as board certified only if they have been
certified by ABMS boards and the four additional boards currently
approved by the MBC. In addition, the law could be amended to
prevent the use of other misleading terms.
Recommendation : The Committee staff recommended amending BPC §
651(h) to delete the MBC's authority to approve non-ABMS
specialty boards, and to prevent the use of other misleading
terms in physician and surgeon advertising, as recommended by the
MBC. [The current language in this measure reflects these
recommended changes.]
a) Issue : Mandatory Email Address.
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Background : The MBC raised the following as a new issue in its
Sunset Report. The MBC believes it would be beneficial to
require all licensees to provide the Board with an email address
if they possess one. Currently, providing an email address to
the MBC is optional for applicants and licensees. An email
address is requested on the application and renewal forms. When
an email address is provided, it is considered confidential.
When appropriate, the MBC sends some correspondence
electronically instead of mailing to the physical address on
record. This practice has proven to be a quicker, more
convenient, and potentially more reliable delivery method while
saving printing and postage costs. For example, the Board's
Summer 2012 Newsletter was sent electronically via email to
approximately 113,800 licensees and 6,800 applicants. In
addition, when there is an FDA alert, it can be relayed in the
same day the alert is released.
On rare occasions, licensee email addresses are used to send
notices of important law changes, emergency regulations, as well
as other urgent issues affecting licensees and public health.
The MBC states that in such cases Executive and MBC staff review
and approve these rare, relatively infrequent emails that are
distributed.
The Board regularly posts information on its Internet Website to
alert licensees of urgent issues. The Board also uses a
subscriber list service to notify individuals about items of
interest relating to the activities of the Board via email.
Subscribers may choose to receive email alerts for some or all of
the offered topics. This is a valuable tool to get important
information to licensees and other interested parties, but it is
not widely used by licensees. As of August 2012, there were less
than 4,000 subscribers for each topic.
In addition, the MBC is moving to a new information technology (IT)
system that will allow licensees to receive renewal notifications
and other information via email. The new IT system will allow
licensees the opportunity to choose the best method (i.e.
electronically or U.S. Postal Service) of receiving information
from the Board. SB 1575 Price (Chapter 799, Statutes of 2012)
amended BPC § 2424 to allow the MBC to send email notifications
for expired licenses. The Board wants to communicate with its
licensees to provide the most current, meaningful, and important
information in a 21st century manner, that is also respectful of
the time that is taken going through email messages.
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The MBC recommends a legislative change to require that licensees
provide the Board with an email address, if they possess one. In
addition, the language should state the email address provided
will be confidential.
Recommendation : Committee staff recommended amendments regarding
licensees providing email addresses to the MBC, if they possess
one. The language should additionally require the MBC to keep a
provided email address confidential. [The current language in
this measure reflects these recommended changes.]
b) Issue : United States Medical Licensing Examination
Background : In its Sunset Report, the MBC raised the following new
issue. Individual state medical boards set their own rules,
regulations and requirements for passage of examinations to
demonstrate an applicant's qualifications for medical licensure.
In California, the MBC receives examination results from the
United States Medical Licensing Examination (USMLE) program,
which is used to determine if an individual will be granted
licensure to practice medicine in California.
The examination consists of three steps, which must be passed
sequentially in order to be eligible to move on to the next
examination step. The steps are defined as:
Step 1: Focuses primarily on understanding and
application of key concepts of basic biomedical sciences.
Step 2: Focuses primarily on knowledge, skills, and
understanding of clinical science that forms the foundation for
safe and competent supervised practice.
Step 3: Focuses primarily on the knowledge and
understanding of the biomedical and clinical science essential
for the unsupervised, general practice of medicine.
The evolution of medical advancements as well as shifts in
medical practice and education, have required changes to the
format delivery and content of the examinations. However, the
original three-step concept remains intact. In 1999, a major
change was made to the examination format delivery, which
transitioned from paper-based delivery to computer delivery. In
2004, a standardized patient examination was introduced as a
component of Step 2. However, the focus and overall structure of
the step examinations have remained relatively unchanged.
The USMLE Composite Committee and its parent organizations, the
Federation of State Medical Boards (FSMB), and the National Board
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of Medical Examiners (NBME), have approved plans to change the
structure of the USMLE. Step 3 is slated to be the first
examination impacted. The USMLE has stated the changes to Step 3
will "occur no earlier than 2014." The plans call to divide Step
3 into two separate exams, one day in length each, and will focus
on different sets of competencies. The two examinations will be
scored separately and applicants must pass each. There may also
be new testing formats to focus on competencies not currently
addressed in Step 3. Step 3 of the USMLE will remain known as
Step 3; however, it will be a two-part examination.
The MBC recommended that the language of BPC § 2177 be amended to
accommodate two parts of the Step 3 examination, and any new
evolving examination requirement.
Recommendation : The Committee staff recommended amending BPC §
2177 to accommodate two parts to Step 3 of the USMLE and to
accommodate future examination changes. [The current language in
this measure reflects this recommended change.]
a) Issue : Medical Expert Review of Medical Malpractice Reports.
Background : The MBC raised the following as a new issue in its
Sunset Report. BPC § 2220.08 requires that before a quality of
care complaint is referred for investigation it must be reviewed
by a medical expert with the expertise necessary to evaluate the
specific standard of care issue raised in the complaint. While,
the rationale for the up-front specialty review makes sense, it
may not make sense in the case of Medical Malpractice cases that
have been reported to the Board.
The Board believes that medical malpractice cases reported pursuant
to section 801.01, after the civil action have been concluded,
would be appropriate to exclude from the upfront specialty review
as well. Unlike complaints filed by the public, medical
malpractice cases have had the benefit of review by a number of
medical experts. Typically both the plaintiff and the defendant
will obtain an expert to review the care provided by the
physician and opine as to whether the standard of care was met.
Whether the case settles prior to trial or proceeds through the
litigation process, it has been subjected to numerous reviews by
medical experts. The outcome from the medical malpractice case
is required to be reported to the Board by the insurance carrier
or employer who pays the award on behalf of the physician.
According to the MBC, there is little benefit to obtain an
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initial medical expert review on these cases and this additional
review adds approximately two months to the time it takes to
refer the case to investigation.
The Board recommended that medical malpractice reports be excluded
from the requirements of Section 2220.08 consistent with the
exception made for 805 Reports.
Recommendation : The Committee staff recommended that legislation
should be enacted to exclude medical malpractice reports from the
requirements of a medical expert review under BPC § 2220.08.
[The current language in this measure reflects this recommended
change.]
b) Issue : Medical Facilities to Produce Medical Records Within
15 Days.
Background : The MBC raised the following in its Report. BPC §
2225.5 (a) (1) requires a licensee to produce the certified
medical records of a patient, pursuant to the patient's
authorization, within 15 business days of the receipt of the
request. However, subsection § 2225.5 (b) gives a medical
facility 30 days to produce certified records. This disparity
may have been seen as appropriate prior to the implementation of
Electronic Health Records (EHR), however, today most facilities
(hospitals) maintain EHRs, which reduces the time required to
retrieve and prepare medical records in response to requests. In
an effort to reduce investigation time, consideration should be
given to whether there is a need to allow a facility twice the
amount of time to produce records than is allowed for production
from the office of a licensee.
Additionally, if a subpoena duces tecum were served, the facility
would have 15 days to produce the same records that they would be
allowed 30 days to produce if requested via patient
authorization. Therefore, the disparity should be eliminated and
consistency established by affording 15 days for production of
medical records by both the licensee and facilities.
The Board recommends that the law be amended to allow a facility
only 15 days to provide medical records, upon request, if the
facility has EHRs.
Recommendation : Committee staff recommended that BPC § 2225.5 (b)
should be amended to require a facility to produce medical
records within 15 days, if the facility has implemented
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Electronic Health Records (EHR). [The current language in this
measure reflects this recommended change.]
c) Issue : Cease Practice - Failure To Comply.
Background : Under BPC § 820, the MBC may order a physical or
mental health examination of a licensee whenever it appears that
a licensee's ability to practice may be impaired by physical or
mental illness. The examination order is part of the
investigation phase, and allows the MBC to make a substantive
determination that the licentiate's ability to practice his or
her profession actually has become impaired because of mental or
physical illness.
Failure to comply with an examination order constitutes grounds for
suspension or revocation of the individual's certificate or
license (BPC 821). However, the process for suspension or
revocation for refusal to submit to a duly-ordered examination
can be lengthy, as demonstrated by a recent court case in which a
licentiate of the Board of Registered Nursing refused a
psychiatric examination yet continued to practice for months
thereafter (see Lee v Board of Registered Nursing, 209 Cal. App.
4th 793; 147 Cal. Rptr. 3d 269; Sept. 26, 2012).
To refuse or delay compliance with an examination order poses risks
for consumers because of the possibility that a mentally or
physically ill practitioner could continue to see patients until
the MBC completes suspension or revocation proceedings under BPC
§ 821. Public protection would be better served if the MBC has
the authority to issue a cease practice order in cases where
compliance with an examination order under BPC § 820 is delayed
beyond a reasonable amount of time (perhaps 15-30 days).
Recommendation : Committee staff recommended amendments to the
MBC's authority to issue a cease practice order to expand to
situations where, in the course of a fitness to practice
investigation, a licensee refuses to undergo a duly ordered
physical or mental health examination. [The current language in
this measure reflects this recommended change.]
d) Issue : Expert Reviewer Reports.
Background : The MBC raised the following in its Report. The
Administrative Procedure Act (APA) includes limited discovery
provisions that do not assist in discovering opposing expert
information. The MBC states that in some instances, once the
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Board received this information, it has to amend the accusation
and thereby increase the timeframe for administrative action. In
the civil context, the best tool to find out information from
opposing experts would be to depose the expert. However, the APA
only allows depositions in extreme circumstances, which do not
usually apply to Board cases (GC § 11511).
The MBC recommends that the best way to make changes regarding
expert testimony as it relates to MBC disciplinary cases is to
amend BPC § 2334 which relates to expert testimony in
disciplinary cases before the Board. Since its implementation, §
2334 has been beneficial to the DAGs prosecuting Board cases.
While § 2334 has been beneficial, the MBC believes it could be
improved. The Board requires its own experts to prepare expert
witness reports that, under the APA, must be produced in
discovery. Requiring respondents to produce expert reports
addressing each of the quality-of-care issues raised in the
pending accusation would be of enormous benefit to the entire
disciplinary process. It is believed that more cases would
settle prior to hearing, thus avoiding the months of waiting by
both sides while the parties await the commencement of hearings.
The deadline for both sides to make the required disclosures is
only 30 calendar days prior to the commencement date of the
hearing. That deadline is too late in the process and, as a
result, can delay early settlement. If the date were 90 calendar
days before the commencement date of the hearing or 180 calendar
days after service of the accusation on respondent, then
settlements could occur earlier, thus the imposition of public
protection measures would occur sooner.
The Board recommended amending § 2334 to require the respondent to
provide the full expert witness report. Additionally, there
needs to be specificity in the timeframes for providing the
reports, such as 90 days from the filing of an accusation. This
would provide enhanced consumer protection, as the physician who
is found to be in violation of the law would be placed on
probation, monitored, or sanctioned in a more expeditious manner,
according to the MBC.
Recommendation : The Committee staff recommended amending BPC §
2334 to:
e) (1) require a respondent to provide the full expert witness
report; (2) clarify the timeframes for providing the reports,
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such as 90 days from the filing of an accusation. [The current
language in this measure reflects these recommended changes.]
f) Issue : Residency Training Program Employment Clarification.
Background : The MBC raised the following as a new issue in its
Sunset Report. A question has been raised regarding whether the
employment of residents is a violation of the prohibition against
the corporate practice of medicine.
BPC § 2052, provides that any person who practices or attempts to
practice [medicine] without a valid, unrevoked, or unsuspended
certificate is guilty of a public offense. In addition, BPC §
2400 provides: "Corporations and other artificial entities shall
have no professional rights, privileges, or powers."
The policy in BPC § 2400 against the corporate practice of medicine
is intended to prevent unlicensed persons from interfering with
or influencing the physician's professional judgment. The MBC
has a long-standing interpretation that physicians in an
accredited postgraduate training (accredited residency) and/or
fellowships do not meet the criteria for the prohibition against
the corporate practice of medicine.
However, the MBC believes that the corporate practice of medicine
issue regarding accredited residency programs and their residents
should be clarified, and addressed as a specific exemption. This
will ensure California accredited residency/fellowship programs
are not in danger of closing due to the concerns regarding the
prohibition of the corporate practice of medicine.
Recommendation : The Committee staff agreed that the Business and
Professions Code should be amended to clarify that participation
in an accredited physician residency training program is not a
violation of the prohibition against the corporate practice of
medicine. [The current language in this measure reflects this
recommended change.]
g) Issue : Clarify Midwifery education and clinical training.
Background : The MBC raised the following in its Report. BPC §
2514 authorizes a "bona fide student" who is enrolled or
participating in a midwifery education program or who is enrolled
in a program of supervised clinical training to engage in the
practice of midwifery as part of that course of study if: (1)
the student is under the supervision of a physician or a licensed
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midwife who holds a clear and unrestricted California midwife
license and who is present on the premises at all times client
services are provided; and (2) the client is informed of the
student's status. There has been disagreement between the MBC
and some members of the midwifery community regarding what
constitutes a "bona fide student." The MBC believes the current
statute is very clear regarding a student midwife.
Some members of the midwifery community hold that an individual who
has executed a formal agreement to be supervised by a licensed
midwife but is not formally enrolled in any approved midwifery
education program qualifies the individual as a student in
apprenticeship training. Many midwives consider that an
individual may follow an "apprenticeship pathway" to licensure.
The original legislation of the Midwifery Practice Act, included
the option to gain midwifery experience that will then allow them
to pursue licensure via the "Challenge Mechanism" detailed in
BPC § 2513 (a) which allows an approved midwifery education
program to offer the opportunity for students to achieve credit
by examination for previous clinical experience. According to
the MBC, this provision was included to allow for those who had
been practicing to meet the requirements for licensure. The
statute clearly states a midwife student must be formally
enrolled in a midwifery educational institution in order to
participate in a program of supervised midwifery clinical
training. A written agreement between a licensed midwife and a
"student" does not qualify as a "program of supervised clinical
training". Accordingly, these types of arrangements are not
consistent with the provisions of BPC § 2514. A Task Force
consisting of members of the Midwifery Advisory Council has
recently been formed to examine this issue. However, the issue
of students/apprenticeships may need to be addressed through the
legislative process, according to the MBC.
Recommendation : The Committee staff recommended that legislation
should be enacted to clarify when an individual is considered a
bona fide student, and to clarify that a written agreement does
not meet the requirement of a program of supervised clinical
training. [The current language in this measure reflects these
recommended changes.]
h) Issue : Interim Suspension Authority.
Background : Government Code § 11529 authorizes the administrative
law judge of the Medical Quality Hearing Panel in the Office of
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Administrative Hearings to issue an interim order suspending a
license of a physician, or imposing drug testing, continuing
education, supervision of procedures, or other license
restrictions. Interim orders may be issued only if the
affidavits in support of the petition show that the licensee has
engaged in, or is about to engage in, acts or omissions
constituting a violation of the Medical Practice Act or the
appropriate practice act governing each allied health profession,
or is unable to practice safely due to a mental or physical
condition, and that permitting the licensee to continue to engage
in the profession for which the license was issued will endanger
the public health, safety, or welfare. When an ISO is issued,
the MBC has 15 days to file and serve a formal accusation under
the Government Code to revoke the license of the physician.
This interim suspension order (ISO) authority was the first of its
kind for the DCA's regulatory boards, and was established in 1990
by SB 2375 (Presley, Chapter 1597, Statutes of 1990). This
provision was intended to immediately halt the practice of very
dangerous physicians in egregious cases.
A number of the recent newspaper articles critical of the MBC's
enforcement practices have highlighted the time it takes to
remove a dangerous doctor from practice. Enforcement statistics
from the MBC's sunset report show that for the last 3 fiscal
years, an average of 23 ISOs or temporary restraining orders
(TRO) have been issued.
In 2004, the MBC Enforcement Monitor's Initial Report stated:
"MBC's enforcement output statistics indicate a troubling decline
in the efforts to use the powerful ISO/TRO authority in the
recent past. ISOs/TROs sought by HQE on behalf of the MBC
diminished from a high of 40 in 2001-2002 to 26 in the 2003-04
fiscal year (a decline of 40%). Given the importance of these
public safety circumstances, a decline in the use of these tools
is a source of concern to the Monitor." Since that time,
ISO/TROs have remained low. According to the MBC, it sought 36
ISOs in FY 2011/12 although there were only 28 granted.
In discussing the challenges faced with obtaining an ISO,
regulatory boards often point out the level of standard that must
be demonstrated to obtain the ISO, and the difficulty in filing a
formal accusation within 15 days from the time the ISO is issued.
The Committee staff raised the issue of whether there should be a
lower standard in order for an ALJ to issue an ISO. Furthermore,
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should there be lengthier timeframes (longer than 15 days) for
the filing of an accusation after an ISO has been issued? In
addition, in cases where the MBC is seeking to simply restrict a
physician's prescribing privileges (rather than suspend the
entire license), it may be an appropriate consumer protection
tool to lower the standard for obtaining an ISO and for
lengthening the timeframes for filing an accusation against a
physician.
Recommendation : The bill extends the time for filing a formal
accusation to 30 days from the time the ISO is issued. [The
current language in this measure reflects this recommended
change.]
i) Issue : Continuation of Vertical Enforcement Prosecution (VE).
Background : In 2005, SB 231 (Figueroa, Chapter 674, Statutes of
2005) created a pilot program establishing a vertical prosecution
model, also known as vertical enforcement (VE) program to handle
MBC investigations and prosecutions. VE requires Board
investigators and Attorney General (AG) Health Quality
Enforcement Section (HQES) prosecutors to work together from the
beginning of an investigation to the conclusion of legal
proceedings. The MBC and the HQES have used the VE program since
2006, and a number of modifications have been made since its
inception to make the program more efficient.
In 2010, VE was extensively studied by Benjamin Frank, LLC. The
report, titled Medical Board of California - Program Evaluation
made several conclusions, including that the insertion of DAGs
into the investigative process did not translate into more
positive disciplinary outcomes or a decrease in investigation
completion times, and recommended scaling back and optimizing DAG
involvement in investigations. The AG's Office took great
exception to certain portions of the report, namely the cost of
VE in the investigation phase of the case and that greater DAG
involvement under the VE model has not translated into greater
public protection.
The MBC states that although the investigation timelines have
shortened, it is unknown if this is due to VE or if it is due to
increased efficiencies in enforcement processes and procedures in
general. In order to more fully determine the level of success
of the VE program, the MBC and the AG have engaged in discussions
of the accumulated data from the VE cases. At this time, the
analysis of the VE program by the MBC and the AG has not been
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fully completed. The Committee anticipates greater detail to be
furnished by the Board and the AG's office later in 2013.
What the MBC has concluded thus far is that significant
improvements in actions taken have occurred and are identified
below:
Comparing fiscal year (FY) 2006/2007 to FY 2011/2012:
47% more cases were referred to the Attorney
General's Office.
74% more probation violation cases were referred to
the Attorney General's Office.
49% more license restrictions/suspensions were
imposed while administrative action was pending.
203% more cases were referred for criminal action.
35% more revocations were issued.
25% more cases resulting in probation were issued.
26% more disciplinary actions were issued.
The Committee staff strongly recommends that the VE program
should continue and further ways should be explored to make the
collaborative relationship between investigators and prosecutors
more effective to carrying out a vigorous enforcement process to
protect the public.
Recommendation : The Committee staff recommends continuing the VE
program, removing the sunset provisions, thereby making VE a
permanent program. In addition, further ways should be explored
to improve the collaborative relationship between investigators
and prosecutors to improve the effectiveness of the MBC
enforcement program. [The current language in this measure
reflects this recommended change.]
a) Issue : Transfer of Investigators to DOJ.
Background : As stated above, SB 231 (Figueroa, Chapter 674,
Statutes of 2005) created and established a (VE) pilot program to
handle MBC investigations and prosecutions. VE pairs MBC
investigators and HQES prosecutors from the AG's office from the
beginning of an investigation to the conclusion of any legal
proceedings. The VE program has been operational since 2006.
As originally recommended by the MBC Enforcement Monitor in 2005,
and initially drafted in SB 231, the VE program would have
transferred the MBC's investigators to the HQES in the AG's
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office. This would have placed the investigator and prosecutor
in the same office under the same agency, a practice, as is done
in numerous other law enforcement shops throughout the country.
Very late in the legislative process the transfer of
investigators was taken out of the bill, but the bill with the
amendments transferring the board investigators to DOJ had
received support from both the MBC and the California Medical
Association.
The impetus to revisit the issue of transferring investigators to
the AG's office, comes from the clear need to improve the
enforcement activities and results in MBC enforcement cases. The
case for changes in the MBC's enforcement processes has been
further made by events such as the 2012, the Los Angeles Times
series "Dying For Relief" which was the outcome of an intensive
review of the epidemic of prescription drug-related deaths in
four Southern California counties. That investigation revealed
cases where doctors had
3 or more patients who had died of drug overdoses who continued
to practice, while being investigated by the MBC. Other doctors
continued to have clean records with the MBC, according to the
Times.
On April 1, 2013, the Authors of this bill, Senator Price and
Assemblymember Gordon, sent a letter calling upon the MBC to take
a more proactive approach to its consumer protection mission,
including its enforcement operations, and suggesting that that
strong consideration should be given to taking steps to further
align MBC's investigators with prosecutors.
Transferring the investigatory operations from the MBC to the
HQES in the AG's office is a good initial start to proactively
addressing enforcement issues.
Recommendation : Committee staff recommends strengthening the VE
program by transferring the MBC investigators to the HQES in the
Department of Justice. [The current language in this measure
reflects this recommended change.]
4. Current Related Legislation. SB 305 (Price, 2013). Extends until
January 1, 2018, the provisions establishing the Naturopathic
Medicine Committee and the Respiratory Care Board of California,
and extends the term of the executive officers of the Respiratory
Care Board of California and the California State Board of
Optometry. Specifies that the Osteopathic Medical Board of
California is subject to review by the appropriate policy
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committees of the Legislature. Exempts individuals who have
performed pulmonary function tests in Los Angeles County facilities
for at least 15 years, from licensure as a respiratory care
therapist. Specifies that any board under the Department of
Consumer Affairs is authorized to receive certified records from a
local or state agency to complete an applicant or licensee
investigation and authorizes them to provide those records to the
board. ( Note : This bill will also be heard before the BP&ED
Committee during today's hearing)
SB 306 (Price, 2013). Extends until January 1, 2018, the provisions
establishing the State Board of Chiropractic Examiners,
Speech-Language Pathology and Audiology and Hearing Aid Dispensers
Board, the Physical Therapy Board of California and the California
Board of Occupational Therapy and extends the terms of the
executive officers of the Physical Therapy Board of California and
the Speech-Language Pathology and Audiology and Hearing Aid
Dispensers Board. This bill also subjects the boards to be
reviewed by the appropriate policy committees of the Legislature.
( Note : This bill will also be heard before the BP&ED Committee
during today's hearing)
SB 307 (Price, 2013) Extends, until January 1, 2018, the term of the
Veterinary Medicine Board, which provides for the licensure and
registration of veterinarians and registered veterinary technicians
and the regulation of the practice of veterinary medicine by the
Veterinary Medical Board. ( Note : This bill will also be heard before
the BP&ED Committee during today's hearing)
SB 308 (Price, 2013). Extends, until January 1, 2018, the term of the
Interior Design Law. Specifies that a certified interior designer
provides plans and documents that collaborates with other design
professionals. Requires a certified interior designer to use a
written contract when contracting to provide interior design
services to a client. Extends, until January 1, 2018, the State
Board of Guide Dogs for the Blind and extends an arbitration
procedure for the purpose of resolving disputes between a guide dog
user and a licensed guide dog school. Extends until January 1,
2016, the State Board of Barbering and Cosmetology and requires a
school to be approved by the board before it is approved by the
Bureau for Private Postsecondary Education. The bill would also
authorize the board to revoke, suspend, or deny its approval of a
school on specified grounds. ( Note : This bill will also be heard
before the BP&ED Committee during today's hearing)
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SB 309 (Price, 2013). Extends the term of the State Athletic
Commission, which is responsible for licensing and regulating
boxing, kickboxing, and martial arts matches and is required to
appoint an executive officer until January 1, 2018. ( Note : This
bill will also be heard before the BP&ED Committee during today's
hearing)
5.Arguments in Support. This bill is supported by the Center for
Public Interest Law (CPIL) whose Administrative Director, Julianne
D'Angelo Fellmeth writes that because of problems at MBC's
enforcement program in 2002, she was appointed as the MBC
Enforcement Monitor by the Director of DCA. In two exhaustive
reports the Monitor made 65 recommendations to strengthen MBCs
enforcement program. The reports centered around two centerpiece
recommendations (1) full implementation of the VE model in which in
which investigators and prosecutors closely collaborate starting at
the point of the referral of a complaint for formal investigation,
and (2) to achieve full implementation of VE, transfer MBC's
investigators into the HQES in the AG's office.
CPIL further writes: "Both proposals were contained in SB 231
(Figueroa) in 2005. That bill was supported by all of the relevant
stakeholders, including MBC, HQES/DOJ, California Medical
Association, Kaiser Permanente, CPIL, and eight former Medical Board
Presidents. Unfortunately, during the final days of the 2005
legislative year, the Schwarzenegger Administration insisted that
the transfer provision be removed from SB 231." CPIL adds: "VE
could be more seamless implemented if the investigators and
prosecutors worked for the same agency, with easy access to each
other and to the same electronic tracking system."
CPIL concludes stating: "Time and experience have proven that this
critically important change is long overdue. The transfer would
permit investigators and prosecutors to work for the same team in
the same agency, under the same procedures and protocols, and with
access to the same electronic case tracking system . . . the
transfer would enable improved efficiency and effectiveness due to
better communication and coordination of efforts; improved training
for both prosecutors and investigators; and the potential for
improved morale, recruitment, and retention of experienced
investigators."
SUPPORT AND OPPOSITION:
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Support:
Center for Public Interest Law
Opposition:
None received as of April 24, 2013
Consultant:G. V. Ayers