BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



           ----------------------------------------------------------------- 
          |SENATE RULES COMMITTEE            |                        SB 304|
          |Office of Senate Floor Analyses   |                              |
          |1020 N Street, Suite 524          |                              |
          |(916) 651-1520         Fax: (916) |                              |
          |327-4478                          |                              |
           ----------------------------------------------------------------- 
           
                                           
                                    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,  
                                                                CONTINUED





                                                                     SB 304
                                                                     Page  
          2

             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  

                                                                CONTINUED





                                                                     SB 304
                                                                     Page  
          3

             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.


                                                                CONTINUED





                                                                     SB 304
                                                                     Page  
          4

           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  

                                                                CONTINUED





                                                                     SB 304
                                                                     Page  
          5

             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  

                                                                CONTINUED





                                                                     SB 304
                                                                     Page  
          6

             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  

                                                                CONTINUED





                                                                     SB 304
                                                                     Page  
          7

          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:

                                                                CONTINUED





                                                                     SB 304
                                                                     Page  
          8


                 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  

                                                                CONTINUED





                                                                     SB 304
                                                                     Page  
          9

          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

                                   ****  END  ****



                                                                CONTINUED





                                                                     SB 304
                                                                     Page  
          10














































                                                                CONTINUED