BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | SB 304|
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THIRD READING
Bill No: SB 304
Author: Price (D), et al.
Amended: 4/24/13
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEV. COMM. : 9-0, 4/29/13
AYES: Price, Emmerson, Corbett, Galgiani, Hernandez, Hill,
Padilla, Wyland, Yee
NO VOTE RECORDED: Block
SENATE APPROPRIATIONS COMMITTEE : 5-0, 5/23/13
AYES: De León, Walters, Hill, Lara, Padilla
NO VOTE RECORDED: Gaines, Steinberg
SUBJECT : Medical Board of California
SOURCE : Author
DIGEST : This bill makes various changes to the Medical
Practice Act and to the Medical Board of California (MBC).
ANALYSIS :
Existing law:
1. Prohibits an advertisement by a physician and surgeon from
including a statement that he/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,
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including being a board or association with equivalent
requirements approved by the MBC.
2. 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.
3. 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 four attempts, subject to an exception.
4. 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.
5. 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.
6. Provides that whenever it appears that a healing arts
practitioner may be unable to practice his/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.
7. Prohibits a party from bringing expert testimony in a matter
brought by the MBC unless certain information regarding the
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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.
8. 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").
9. 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.
10.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.
11.Under the Administrative Procedure Act (APA) establishes
within the Office of Administrative Hearings 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.
12.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.
13.Establishes the Health Quality Enforcement Section (HQES)
within the Department of Justice (DOJ) whose primary
responsibility is to investigate and prosecute proceedings
against licensees and applicants of the MBC and other
specified health-care boards.
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14.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 HQES.
15.Establishes a vertical enforcement and prosecution model for
cases before the MBC.
16.Requires the MBC, in consultation with DOJ, to report to the
Governor and Legislature on the vertical prosecution model by
March 1, 2012.
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 four
attempts, as specified.
4. Specifies that reports submitted to the MBC under Business
and Professions Code Section 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
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be exchanged within 90 days from the filing of a notice of
defense and 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 Government Code (GOV) Section 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 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.
1. Removes the January 1, 2014 repeal date applicable to the
vertical enforcement prosecution provisions (GOV Sections
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12529, 12529.5, and 12529.6), thereby extending the vertical
enforcement prosecution provisions indefinitely.
2. Extends the requirement for MBC to submit a report to the
Governor and the Legislature on the vertical enforcement
prosecution model to March 1, 2015.
Background
This bill is one of six "sunset review bills" authored by the
Chair of the Senate Business, Professions and Economic
Development Committee. Unless legislation is carried this year
to extend the sunset dates for the MBC 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/
Issue Papers.
Note: In 2013, the 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 are 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. For a detailed summary of
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 and
recommendations made by Committee staff refer to pages
5-16 of the Senate Business, Professions and Economic
Development Committee analysis.
Related Legislation
SB 305 (Price) extends, until January 1, 2018, the provisions
establishing the Naturopathic Medicine Committee and the
Respiratory Care Board (RCB), and extends the term of the
executive officers of the RCB and the Board of Optometry;
specifies that the Osteopathic Medical Board of California is
subject to review by the appropriate policy 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
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that any board under the DCA 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.
SB 306 (Price) extends, until January 1, 2018, the provisions
establishing the Board of Chiropractic Examiners, the
Speech-Language Pathology and Audiology and Hearing Aid
Dispensers Board (SLPAHADB), the Physical Therapy Board (PTB)
and the Board of Occupational Therapy and extends the terms of
the executive officers of the PTB and the SLPAHADB. Also
subjects the Boards to be reviewed by the appropriate policy
committees of the Legislature.
SB 307 (Price) extends, until January 1, 2018, the term of the
Veterinary Medicine Board (VMB), which provides for the
licensure and registration of veterinarians and registered
veterinary technicians and the regulation of the practice of
veterinary medicine by the VMB.
SB 308 (Price) extends, until January 1, 2018, the term of the
Interior Design Law; specifies that a certified interior
designer provides plans and documents that collaborate 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 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 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. Also authorizes the Board to revoke, suspend, or
deny its approval of a school on specified grounds.
SB 309 (Price) extends, until January 1, 2018, 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
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Ongoing costs up to $1.8 million per year for
investigations, based on differences in employee
classifications between the MBC and DOJ (Contingent Fund of
the MBC).
Increased costs of about $1.1 million per year for
additional support staff at DOJ (Contingent Fund of the
MBC). The DOJ indicates that it currently does not have
some of the MBC's technical expertise and, therefore, DOJ
would need to add some additional staff to provide
technical expertise to investigators.
Ongoing costs of about $2.5 million per year for the
continued operation of the vertical enforcement program by
DOJ (Contingent Fund of the MBC). A report commissioned by
the MBC indicates that eight investigator and 10 attorney
positions have been authorized to support this program.
SUPPORT : (Verified 5/24/13)
Center for Public Interest Law
OPPOSITION : (Verified 5/24/13)
American Board of Cosmetic Surgery
California Academy of Cosmetic Surgery
Department of Finance
ARGUMENTS IN SUPPORT : The Center for Public Interest Law
(CPIL) writes that because of problems at MBC's enforcement
program in 2002, the MBC's Enforcement Monitor, appointed by the
DCA Director, made 65 recommendations to strengthen the program.
The reports centered around two centerpiece recommendations (1)
full implementation of the Vertical Enforcement (VE) model 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 Attorney
General's office.
CPIL further writes, "Both proposals were contained in SB 231
(Figueroa, 2005). That bill was supported by all of the
relevant stakeholders, including MBC, HQES/DOJ, California
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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."
ARGUMENTS IN OPPOSITION : The Department of Finance is opposed
to this bill because "it would result in the elimination of the
Board, which could disrupt the licensure and regulation of
physicians and surgeons, which could harm license applicants,
licensees, and consumers. In addition, this bill could result
in significant additional costs associated with transferring the
Board's investigative positions to the DOJ."
The California Academy of Cosmetic Surgery writes that this bill
will "inadvertently disavow patients of valuable information as
it pertains to knowing what specific credentials their physician
and surgeon may possess. Specifically, on a prospective basis,
many multispecialty boards or associations would be prohibited
from even seeking MBC approval for their nationally "board
certified" physicians and surgeons."
MW:ej 5/24/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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