BILL ANALYSIS Ó
SB 304
Page 1
SENATE THIRD READING
SB 304 (Lieu)
As Amended September 3, 2013
Majority vote
SENATE VOTE :35-2
BUSINESS & PROFESSIONS 11-2APPROPRIATIONS 12-4
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|Ayes:|Bonilla, Bocanegra, |Ayes:|Gatto, Bocanegra, |
| |Campos, Dickinson, | |Bradford, |
| |Eggman, Gordon, Holden, | |Ian Calderon, Campos, |
| |Maienschein, Mullin, | |Eggman, Gomez, Hall, |
| |Skinner, Ting | |Holden, Pan, Quirk, Weber |
| | | | |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Jones, Wilk |Nays:|Harkey, Bigelow, |
| | | |Donnelly, Wagner |
| | | | |
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SUMMARY : Revises the Medical Practice Act (Act) to transfer
inspectors from the Medical Board of California (MBC) to the
Division of Investigation (DOI) within the Department of
Consumer Affairs (DCA) and extend the sunset date of MBC by four
years, and amends the Veterinary Practice Act to extend its
sunset date by two years. Specifically, this bill :
1)Transfers the Health Quality Investigation Unit (Unit) from
MBC to DOI within DCA, and states that the primary
responsibility of the Unit is to investigate violations of law
or regulation by licensees and applicants within the
jurisdiction of MBC, the California Board of Podiatric
Medicine, the Board of Psychology, or any committee under the
jurisdiction of MBC.
2)Prohibits MBC from being charged an hourly rate, or for
investigation costs, for the performance of investigations by
the Unit.
3)Clarifies that all civil service employees whose functions are
transferred to DOI as a result of this bill and who are
currently employed by MBC shall retain their positions,
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status, and rights, as specified.
4)Requires the transfer of the Unit to DOI to occur by July 1,
2014.
5)Requires that the transfer of employees shall include all
peace officer positions and all staff support positions for
those peace officer positions.
6)Extends MBC's sunset date until January 1, 2018, and makes MBC
subject to review by the appropriate policy committees of the
Legislature.
7)Requires that MBC's executive director be approved by the
director of DCA.
8)Requires each physician and surgeon applicant and licensee who
has an electronic mail address to report it to MBC by July 1,
2014. The electronic mail address shall be considered
confidential and not subject to public disclosure.
9)Removes language requiring MBC to send regular mail to those
physician and surgeons who do not confirm his or her
electronic mail address.
10)Permits eligibility for a physician and surgeon's certificate
for a graduate from an unrecognized foreign medical school if
that individual holds an unlimited and unrestricted license as
a physician and surgeon in a Canadian province for a minimum
of 10 years.
11)Reduces the number of years from five to two for a physician
and surgeon's certificate applicant to have held an
unrestricted license and continuously practiced in another
state, federal territory, or Canadian province.
12)Permits eligibility for a physician and surgeon's certificate
for an applicant who acquired any part of his or her
professional instruction from a foreign medical school that
was disapproved by MBC at the time he or she attended the
school after 12 years of unrestricted practice as a physician
and surgeon, as specified, instead of 20 years.
13)Clarifies that a physician and surgeon applicant shall have
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obtained a passing score on all parts of Step 3 of the United
States Medical Licensing Examination (USMLE) within not more
than four attempts in order to be eligible for a physician's
and surgeon's certificate.
14)Clarifies that an applicant who obtains a passing score on
all parts of Step 3 of the USMLE in more than four attempts
and who meets specified requirements shall be eligible to be
considered for issuance of a physician's and surgeon's
certificate.
15)Changes references from the Department of Corporations to the
Department of Business Oversight.
16)Changes references from the California Emergency Management
Agency to the Office of Emergency Services.
17)Requires an accredited outpatient setting to report an
adverse event to MBC no later than five days after the adverse
event has been detected, or, if that event is an ongoing
urgent or emergent threat to the welfare, health, or safety of
patients, personnel, or visitors, not later than 24 hours
after the adverse event has been detected. States that
disclosure of individually identifiable patient information
shall be consistent with applicable law.
18)Permits MBC to fine an accredited outpatient setting an
amount not to exceed $100 for each day that the adverse event
is not reported, as specified. If the accredited outpatient
setting disputes a determination by MBC regarding alleged
failure to report an adverse event, the accredited outpatient
setting may, within 10 days of notification of MBC's
determination, request a hearing, as specified. Requires that
penalties be paid when appeals have been exhausted.
19)Declares that civil settlements are treated as complaints by
the board, as specified.
20)States that a health care facility with electronic health
records' failure to provide an authorizing patient's certified
medical records to MBC within 15 days of receiving the
request, authorization, and notice will subject the health
care facility to a civil penalty, payable to MBC, of up to
$1,000 per day for each day that the documents have not been
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produced, and after the 15th day, up to $10,000, unless the
health care facility is unable to provide the documents within
this time period for good cause.
21)Strikes provisions of law related to expert testimony before
MBC.
22)Permits corporations to employ physicians and surgeons or
doctors of podiatric medicine enrolled in approved residency
postgraduate training programs or fellowship programs.
23)Permits a bona fide student to engage in the practice of
midwifery if the student is under the supervision of a
certified nurse-midwife, as specified.
24)Defines a "bona fide student" to mean an individual who is
enrolled and participating in a midwifery education program or
who is enrolled in a program of supervised clinical training
as part of the instruction of a three year postsecondary
midwifery education program approved by MBC.
25)States that the failure of a physician and surgeon to comply
with an order to be examined by one or more physicians and
surgeons or psychologists designated by DCA for evaluation of
competency to practice may constitute grounds to issue an
interim suspension order (ISO).
26)Extends the time period from 15 to 30 days between the
issuance of an ISO and the filing of an accusation.
27)Deletes the sunset date on the Health Quality Enforcement
Section in the Department of Justice (DOJ) and vertical
enforcement (VE).
28)Requires MBC, in consultation with DOJ and DCA, to report and
make recommendations to the Governor and the Legislature on
the vertical enforcement and prosecution model.
29)Extends until January 1, 2016, the provisions establishing
the Veterinary Medical Board (VMB) and subjects the VMB to a
review by the appropriate policy committees of the Legislature
and clarifies that the review of the VMB shall be limited to
those issues identified by the appropriate policy committees
and does not involve the preparation or submission of a sunset
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review document or questionnaire.
30)Clarifies that the VMB's inspection authority does not extend
to premises that are not required to be registered with the
VMB and specifies that this provision does not affect the
VMB's ability to investigate alleged unlicensed activity.
31)Requires the VMB to make every effort to inspect at least 20%
of veterinary premises on an annual basis.
32)Requires the Multidisciplinary Committee (MDC) to only serve
in an advisory capacity to the VMB and specifies that the
objectives, duties and actions of the MDC shall not be a
substitute for or conflict with any of the powers, duties and
responsibilities of the VMB.
33)Increases the membership of the MDC from seven to nine by
adding a veterinarian member of the VMB, who is to be
appointed by the VMB president, and the Registered Veterinary
Technician (RVT) member of the VMB and specifies that VMB
members on the MDC serve concurrently with their term of
office.
34)States the intent of the Legislature that the MDC give
appropriate consideration to issues pertaining to the practice
of RVTs.
35)Requires prior to authorizing a veterinary assistant (VA) to
obtain or administer a controlled substance by the order of a
supervising veterinarian, the licensee manager in a veterinary
practice to conduct a background check on that VA and
specifies that a veterinary assistant who has a drug or
alcohol-related felony conviction, as indicated in the
background check, shall be prohibited from obtaining or
administering controlled substances.
36)Authorizes a RVT or a VA to administer a drug, including but
not limited to, a drug that is a controlled substance under
the direct or indirect supervision of a licensed veterinarian
when done pursuant to the order, control, and full
professional responsibility of a licensed veterinarian and
further specifies that no person other than a licensed
veterinarian may induce anesthesia unless authorized by
regulation of the VMB.
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37)Authorizes a VA to obtain or administer a controlled
substance pursuant to the order, control, and full
professional responsibility of a licensed veterinarian if he
or she meets both of the following conditions:
a) Is designated by a licensed veterinarian to obtain or
administer controlled substances; and,
b) Holds a veterinary assistant controlled substance permit
(VACSP) as specified.
38)Permits the VMB to restrict access to a drug that the VMB in
consultation with the Board of Pharmacy (BOP) identifies as a
dangerous drug that has an established pattern of being
diverted, as specified.
39)Provides a definition for "controlled substance," "direct
supervision," "drug," and "indirect supervision" as specified.
40)Specifies that the provision pertaining to an RVT or VA
administering a drug, as specified, becomes operative on
January 1, 2015, or the effective date of the statute in which
the Legislature makes a determination that the VMB has
sufficient staffing to implement.
41)Requires applications for a VACSP to be on a form furnished
by the VMB.
42)Specifies that the application fee for a VACSP is set by the
VMB in an amount it determines is reasonably necessary, not to
exceed $100.
43)Authorizes the VMB to deny, suspend or revoke the controlled
substance permit of a VA after notice and hearing for any
cause, as specified, and specifies that proceedings shall be
conducted in accordance with the provisions of administrative
adjudication as specified.
44)Specifies that the VMB may revoke or suspend a VACSP for any
of the following reasons:
a) The employment of fraud, misrepresentation or deception
in obtaining a VACSP;
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b) Chronic inebriety or habitual use of controlled
substances; and,
c) Violating or attempts to violate, directly or
indirectly, or assisting in or abetting the violation of,
or conspiring to violate, any specified provision or
adopted regulations.
45)Specifies that the VMB shall not issue a VACSP to any
applicant with state or federal felony controlled substance
convictions.
46)Authorizes the VMB to revoke a VACSP upon notification that
the VA has been convicted of a state or federal felony
controlled substance violation.
47)Requires the applicant for a VACSP, as part of the
application process, to submit to the DOJ fingerprint images
and related information as required by DOJ for the purposes of
obtaining information as to the existence and content of a
record of state or federal convictions and state or federal
arrests and also information as to the existence and content
of a record of state or federal arrests for which the DOJ
establishes that the person is free on bail or on his or her
recognizance pending trial or appeal.
48)Requires the DOJ to forward to the Federal Bureau of
Investigation (FBI) requests for federal summary criminal
history information that it receives, as specified, and
requires the DOJ to review any information returned from the
FBI and compile and disseminate a response to the VMB
summarizing that information.
49)Requires the DOJ to provide a state or federal level response
to the VMB as specified.
50)Requires the DOJ to charge a reasonable fee sufficient to
cover the cost of processing the requests.
51)Requires the VMB to request from the DOJ subsequent
notification service, as specified, for VACSP applicants.
52)Requires each person who has been issued a VACSP by the VMB,
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to biennially apply for renewal of his or her permit on or
before the last day of the applicant's birthday month and
requires the application to be made on a form provided by the
VMB.
53)Requires the application for a VACSP to contain a statement
that the applicant has not been convicted of a felony, has not
been the subject of professional disciplinary action taken by
any public agency in California or any other state or
territory, and has not violated any of the provisions
pertaining to the VACSP, and specifies that if the applicant
is unable to make that statement, the application shall
contain a statement of the conviction, professional
discipline, or violation.
54)Permits the VMB, as part of the renewal process, to make the
necessary inquiries of the applicant and conduct an
investigation in order to determine if cause for disciplinary
action exists.
55)Authorizes the VMB to establish the fee for filing a renewal
application for a VACSP in an amount the VMB determines is
reasonable necessary not to exceed $50.
56)Requires every person who has been issued a VACSP, who
changes his or her mailing or employer address to notify the
VMB of his or her new mailing or employer address within 30
days of that change and specifies that the VMB may not renew
the permit of any person who fails to comply with address
change notification requirements unless the person pays a
specified penalty fee.
57)Requires an applicant for a renewal permit to specify in his
or her application whether he or she has changed his or her
mailing or employer address and the VMB may accept that
statement as evidence of the fact.
58)Specifies that the provisions pertaining to the VACSP and the
renewal application for the VACSP becomes operative on January
1, 2015, or the effective date of the statute in which the
Legislature makes a determination that the VMB has sufficient
staffing to implement.
59)Makes clarifying and technical changes.
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FISCAL EFFECT : According to Assembly Appropriations Committee:
Medical Board of California Provisions :
1)Unknown potential new General Fund (GF) revenues from new
authority to levy fines.
2)$16.7 million annually to DOJ to continue operations of the
Health Quality Enforcement Section, including $14 million
annually to continue the VE program.
3)Annual fee-supported special fund costs of $58 million
(Contingent Fund of the Medical Board of California)
associated with continued operation of the MBC.
4)$13.8 million in operating expenditures and 113 positions will
shift from the MBC to the Division of Investigation within
DCA, effective July 1, 2014.
Veterinary Medical Board provisions : All costs will accrue to
the Veterinary Medical Board Contingent Fund.
1)Annual fee-supported special fund costs of $3 million
associated with continued operation of the VMB.
2)Cost pressure to the VMB of approximately $100,000 associated
with increased frequency of inspections of veterinary
facilities.
3)One-time costs to VMB of $550,000 to establish, and annual
costs to VMB of $200,000 per year to administer, a veterinary
assistant controlled substance permit program.
4)One-time costs of $70,000 and annual costs of $12,000 to DOJ
for background checks, supported by the Veterinary Medical
Board Contingent Fund.
COMMENTS :
1)Purpose of this bill . This bill represents the combined
provisions drafted to address many of the issues raised in the
2013 Sunset Review Reports for the MBC and VMB. In addition
to extending the sunset dates for the MBC by four years and
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the VMB by two years, this bill includes a number of reforms
designed to better protect consumers and make boards more
efficient and accountable, including shifting the Unit from
MBC to DOI within DCA. This measure is author-sponsored.
2)Author's statement . According to the author, "This bill is
one of several sunset review bills authored by Senator Lieu.
Unless legislation is carried this year to extend the sunset
dates for MBC and VMB, they will be repealed on January 1,
2014. In 2013, the Senate and Assembly Business and
Professions Committees conducted joint oversight hearings to
review 14 regulatory boards within the DCA. The Committees
began their review of these licensing agencies in March and
conducted three days of hearings. This bill is intended to
implement legislative changes as recommended in the
Committee's Background/Issue Papers for all of the agencies
reviewed by the Committees this year."
3)MBC . MBC was established in 1876 and is a special-funded
state entity responsible for regulating physicians and
surgeons and a number of other allied health professionals.
There are currently 126,483 active physicians and surgeons and
270 licensed midwives in California. This bill makes a number
of improvements to streamline enforcement mechanisms and
enhance penalties to encourage compliance. Below are several
major issues addressed by this bill:
a) Vertical enforcement and prosecution (VE) . Under
current law, VE requires the Attorney Generals' (AG's)
Office to be involved in MBC's investigation activities as
well as its prosecution activities. VE was established in
2006 as a result of an in-depth review of the MBC's
Enforcement and Diversion Programs, and included
significant recommendations for improvement.
VE requires that each complaint referred to MBC district
office for investigation be simultaneously and jointly
assigned to a MBC investigator and Health Quality
Environment Section (HQES) deputy. The legislative goal of
VE was to bring MBC investigators and HQES Deputies
Attorney together, so that each complaint referred to a
MBC's district office for investigation is simultaneously
and jointly assigned to a MBC investigator and a Deputy
Attorney General (DAG) from the AG's Office. This team
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approach encourages early coordination and faster
decisions, filings, and results. Subsequent legislation
extended the sunset date several times. VE has been
successful in integrating investigations and prosecutions
and has resulted in faster resolutions. This bill deletes
the sunset date on VE, extending the program indefinitely.
b) Transfer of MBC investigators to DOI . As initially
drafted in VE's enabling legislation, investigators would
have been transferred to HQES in the AG's 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 departments throughout
the country. Very late in the legislative process the
transfer of investigators was removed, but not before
receiving support from MBC.
The impetus to revisit the issue of transferring
investigators from MBC comes from the need to improve the
enforcement activities and results in MBC enforcement
cases. The 2012 Los Angeles Times series "Dying For
Relief" illustrated that MBC has failed to aggressively
investigate and pursue actions against dangerous doctors.
This bill transfers MBC investigators to DCA, rather than
DOJ, allowing the Legislature to retain oversight authority
over the investigatory process.
c) Failure to comply with a mental or physical examination .
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. However, the process for
suspension or revocation for refusal to submit to a
duly-ordered examination can be lengthy, as demonstrated by
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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.
This bill states that the failure of a licensee to comply
with an order to be examined by a physician or psychologist
for evaluation of competency to practice may constitute
grounds to issue an ISO.
d) Midwives . This bill defines a bona fide midwife student
to resolve confusion between the medical and midwifery
community. "Bona fide student" means an individual who is
enrolled and participating in a midwifery education program
or who is enrolled in a program of supervised clinical
training as part of the instruction of a three year
postsecondary midwifery education program approved by MBC.
This bill also clarifies that a bona fide student may
engage in the practice of midwifery if the student is under
the supervision of a certified nurse-midwife, as specified.
4)Veterinary Medical Board . The VMB licenses and regulates
veterinarians, RVTs, schools/programs and veterinary
premises/hospitals through the enforcement of the California
Veterinary Medicine Practice Act. The VMB develops and
enforces the standards for examinations, licensing, and
hospital and school inspections. The veterinary medical
profession provides health care to a variety of animals
including livestock, poultry, and pets from birds, fish,
rabbits, hamsters, and snakes to dogs, cats, goats, pigs,
horses, and llamas. Currently there are 36 recognized
specialties in veterinary medicine such as surgery, internal
medicine, pathology, and ophthalmology. The VMB was last
reviewed by the former Joint Legislative Sunset Review
Committee (JLSRC) in 2004.
The VMB licenses approximately 10,998 Veterinarians and 5,811
RVTs. The VMB also requires registration of all premises
where veterinary medicine, veterinary dentistry, veterinary
surgery, and the various branches thereof, is being practiced,
which totals approximately 3,100 veterinary premises. This
bill would extend the provisions establishing the VMB and the
term of the executive officer until 2016, where a follow up
review of the VMB's outstanding issues from the 2013 sunset
review process will be addressed. The VMB will not be
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required to produce a full report, but will be instructed to
address issues as designated by the appropriate policy
committees of the Legislature.
a) Veterinary Premises and Facility Inspections . During
the 2004 sunset review of the VMB the JLSRC raised the
issue that only 13% of veterinary premises/facilities were
inspected by the VMB, and that once a facility has been
inspected, it is generally not inspected again until other
facilities have been inspected - perhaps as long as six or
more years later. The JLSRC recommended that the VMB
should attempt to increase the number of veterinary
facilities inspected. In the current 2012 sunset review,
limited follow up information was provided pertaining to
the VMB's inspection program of veterinary premises. The
VMB noted that it hired additional inspectors to help with
its goal to increase the number of its inspections of
veterinary premise. To address concerns raised during the
2013 sunset review process about VMB's premises and
facility inspections, this bill requires the VMB to make
every effort to inspect at least 20% of veterinary premises
on an annual basis. The increased inspections will help
the VMB enforce and review safety and compliance issues
with premises and facilities that care for animals.
In addition to increasing premises and facility
inspections, another issue raised during the 2013 sunset
review process that the VMB may have been inspecting
non-veterinarian premises, including 501(c)(3) animal
rescue groups, providing an "inspection report" and
possibly issuing citations and fines. The Senate Business,
Professions and Economic Development Committee raised the
issue that this may not be a reasonable use of resources
for the VMB.
In order to better define the inspection authority of the
VMB, this bill clarifies existing law so that the VMB is
not inspecting non-veterinarian premises so that it can
better target their use of scarce enforcement resources.
b) Addressing Registered Veterinarian Technician (RVT)
Issues . In 2010, AB 1980 (Hayashi), Chapter 538, Statutes
of 2010 changed the composition of the VMB to include an
RVT member on the VMB, made the "multidisciplinary
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committee" (MDC) permanent, and provided for additional
duties to be added to the committee. Among other changes,
the bill also eliminated the RVT Committee. According to
those representing the RVT profession, there have been RVT
issues which either the MDC or the VMB have not addressed
or delayed. The MDC was intended to be inclusive of all
issues regarding the veterinarian profession. To assure
the VMB has direct input and oversight of matters related
to the MDC, this bill requires that there be one
veterinarian member of the VMB that sits on the MDC, and
the RVT member of the VMB also sit on the MDC. This will
help ensure that issues pertaining to RVTs are addressed in
a more timely and efficient manner.
c) Veterinarian Assistants Access to Controlled Substances .
For many years, it had been common practice for RVTs and
VAs who assisted veterinarians in practice to administer
drugs under indirect supervision of a veterinarian, by the
veterinarian's order, control, and full professional
responsibility. However, in 2007, the VMB's legal counsel
questioned existing law regarding who can administer drugs
to animals in a veterinary practice setting. SB 969
(Aanestad), Chapter 83, Statutes of 2007, made a statutory
change to clarify those persons who could provide
controlled substances in a veterinary office or clinic and
under what level of supervision and also contained a sunset
provision. The purpose for the sunset provision was to
assure that there were no problems or complaints received
by the VMB regarding the access to controlled substances by
VAs. The sunset provision was extended to January 1, 2013,
pursuant to SB 943 (Business, Professions and Economic
Development Committee), Chapter 350, Statutes of 2011.
There have been stakeholder discussions pertaining to
changes in law to assure that VAs who have access to
controlled substances have appropriate oversight and no
criminal history. Discussions focused on a fingerprinting
requirement for VAs who would have access to controlled
substances within the veterinary facility. DOJ indicated
that they would be unable to provide criminal background
information on VAs to the VMB unless they were under the
authority of the VMB. Therefore, the VMB would have to at
least require VAs to obtain a permit from the VMB to be
allowed access to controlled substances, so that the VMB
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could request fingerprints of the VAs that would be
provided to DOJ. The VMB could then be provided with the
criminal background information from DOJ before they grant
a permit.
This bill establishes the guidelines for the VACSP and the
appropriate fingerprinting and background checks necessary
for the permitting of VAs in order to ensure the safety of
animals receiving medical care, and protect the public from
any inappropriate dispensing of controlled substances.
Further, this bill specifies that the process should begin
by January 1, 2015, unless the Legislature determines that
sufficient staffing is available prior to the specified
implementation date.
Analysis Prepared by : Sarah Huchel / B.,P. & C.P. / (916)
319-3301
FN: 0002271