BILL NUMBER: SB 670	AMENDED
	BILL TEXT

	AMENDED IN SENATE  APRIL 8, 2013

INTRODUCED BY   Senator Steinberg

                        FEBRUARY 22, 2013

   An act  to amend Sections 2225 and 2234 of, and to add Section
2221.5 to, the Business and Professions Code, and  to amend
Section 11529 of the Government Code, relating to 
administrative adjudication   healing arts  .


	LEGISLATIVE COUNSEL'S DIGEST


   SB 670, as amended, Steinberg.  Medical Quality Hearing
Panel: limitation on licensee authority: controlled substances.
  Physicians and surgeons: drug prescribing privileges:
investigation.  
   (1) Existing law authorizes investigators and representatives of
the Medical Board of California, among others, to inquire into any
alleged violation of the Medical Practice Act or any other federal or
state law, regulation, or rule relevant to the practice of medicine
or podiatric medicine, and to inspect documents relevant to those
investigations, including the inspection and copying of any document
relevant to an investigation where patient consent is given. 

   Existing law requires specified persons, including the
administrator of a peer review body, to file a report with the board
within 15 days after the effective date of any specified action taken
against a licensee for a medical disciplinary cause or reason.
Existing law also requires a coroner to make a report to the board,
among other specified entities, when he or she receives information
that indicates that a death may be the result of a physician and
surgeon's, podiatrist's, or physician assistant's gross negligence or
incompetence.  
   This bill would authorize the board, if it receives a report
pursuant to either of the provisions described above that involves
the death of a patient from a prescription drug overdose, to inspect
and copy the medical records of the deceased patient without the
consent of the patient's next of kin or a court order in order to
determine the extent to which the death was the result of a
prescriber's inappropriate conduct.  
   (2) Existing law requires the board to take action against any
licensee who is charged with unprofessional conduct. Unprofessional
conduct is defined for this purpose to include, among other things,
the repeated failure by a licensee who is the subject of a board
investigation, in the absence of good cause, to attend and
participate in an interview scheduled by the mutual agreement of the
licensee and the board.  
   This bill would revise that definition of unprofessional conduct
to include the failure by a licensee who is the subject of a board
investigation, in the absence of good cause, to attend and
participate in an interview scheduled within 30 days of notification
from the board. 
    (3)    Existing law, the Administrative
Procedure Act, authorizes the administrative law judge of the Medical
Quality Hearing Panel to issue an interim order suspending a
license, or imposing drug testing, continuing education, supervision
of procedures, or other licensee restrictions.
   This bill would further authorize the administrative law judge to
issue an interim order limiting the authority to prescribe, furnish,
administer, or dispense controlled substances. The bill would also
 declare the intent of the Legislature to enact legislation
that would significantly reduce the time in which a disciplinary
proceeding against a physician is adjudicated, if the proceeding
involves a patient who has died as a result of the overprescribing of
controlled substances   require   the board,
notwithstanding the authority of an administrative law judge to issue
an interim order, to impose limitations on the authority of a
physician and surgeon to prescribe, furnish, administer, or dispense
controlled substances during a pending investigation if there is a
reasonable suspicion that the physician and surgeon has engaged in
overprescribing drugs or other behavior related to his or her drug
prescribing privileges that has resulted in the death of a patient
 .
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
   
  SECTION 1.    It is the intent of the Legislature
to enact legislation that would significantly reduce the time in
which a disciplinary proceeding against a physician is adjudicated,
if the proceeding involves a patient who has died as a result of the
overprescribing of controlled substances. 
   SECTION 1.    Section 2221.5 is added to the 
 Business and Professions Code   , to read:  
   2221.5.  Notwithstanding Section 11529 of the Government Code, the
board shall impose limitations on the authority of a physician and
surgeon to prescribe, furnish, administer, or dispense controlled
substances during a pending investigation if there is a reasonable
suspicion that the physician and surgeon has engaged in either of the
following:
   (a) Overprescribing drugs.
   (b) Other behavior related to his or her drug prescribing
privileges that has resulted in the death of a patient. 
   SEC. 2.    Section 2225 of the   Business
and Professions Code   is amended to read: 
   2225.  (a) Notwithstanding Section 2263 and any other 
provision of  law making a communication between a physician
and surgeon or a doctor of podiatric medicine and his or her
patients a privileged communication, those provisions shall not apply
to investigations or proceedings conducted under this chapter.
Members of the board, the Senior Assistant Attorney General of the
Health Quality Enforcement Section, members of the California Board
of Podiatric Medicine, and deputies, employees, agents, and
representatives of the board or the California Board of Podiatric
Medicine and the Senior Assistant Attorney General of the Health
Quality Enforcement Section shall keep in confidence during the
course of investigations, the names of any patients whose records are
reviewed and may   shall  not disclose or
reveal those names, except as is necessary during the course of an
investigation, unless and until proceedings are instituted. The
authority of the board or the California Board of Podiatric Medicine
and the Health Quality Enforcement Section to examine records of
patients in the office of a physician and surgeon or a doctor of
podiatric medicine is limited to records of patients who have
complained to the board or the California Board of Podiatric Medicine
about that licensee.
   (b) Notwithstanding any other  provision of  law,
the Attorney General and his or her investigative agents, and
investigators and representatives of the board or the California
Board of Podiatric Medicine, may inquire into any alleged violation
of the Medical Practice Act or any other federal or state law,
regulation, or rule relevant to the practice of medicine or podiatric
medicine, whichever is applicable, and may inspect documents
relevant to those investigations in accordance with the following
procedures:
   (1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where patient consent is given.
   (2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied  where
  if  relevant to an investigation of a licensee.

   (c) Notwithstanding subdivision (b) or any other law, if the board
receives a report pursuant to Section 802.5 or 805 that involves the
death of a patient from a prescription drug overdose, the board may
inspect and copy the medical records of the deceased patient without
the consent of the patient's next of kin or a court order in order to
determine the extent to which the death was the result of a
prescriber's inappropriate conduct.  
   (c) 
    (d)  In all cases  where   in which
 documents are inspected or copies of those documents are
received, their acquisition or review shall be arranged so as not to
unnecessarily disrupt the medical and business operations of the
licensee or of the facility where the records are kept or used.

   (d) Where 
    (e)     If  documents are lawfully
requested from licensees in accordance with this section by the
Attorney General or his or her agents or deputies, or investigators
of the board or the California Board of Podiatric Medicine,
they   the documents  shall be provided within 15
business days of receipt of the request, unless the licensee is
unable to provide the documents within this time period for good
cause, including, but not limited to, physical inability to access
the records in the time allowed due to illness or travel. Failure to
produce requested documents or copies thereof, after being informed
of the required deadline, shall constitute unprofessional conduct.
The board may use its authority to cite and fine a physician and
surgeon for any violation of this section. This remedy is in addition
to any other authority of the board to sanction a licensee for a
delay in producing requested records. 
   (e) 
    (f)  Searches conducted of the office or medical
facility of any licensee shall not interfere with the recordkeeping
format or preservation needs of any licensee necessary for the lawful
care of patients.
   SEC. 3.    Section 2234 of the   Business
and Professions Code   is amended to read: 
   2234.  The board shall take action against any licensee who is
charged with unprofessional conduct. In addition to other provisions
of this article, unprofessional conduct includes, but is not limited
to, the following:
   (a) Violating or attempting to violate, directly or indirectly,
assisting in or abetting the violation of, or conspiring to violate
any provision of this chapter.
   (b) Gross negligence.
   (c) Repeated negligent acts. To be repeated, there must be two or
more negligent acts or omissions. An initial negligent act or
omission followed by a separate and distinct departure from the
applicable standard of care shall constitute repeated negligent acts.

   (1) An initial negligent diagnosis followed by an act or omission
medically appropriate for that negligent diagnosis of the patient
shall constitute a single negligent act.
   (2) When the standard of care requires a change in the diagnosis,
act, or omission that constitutes the negligent act described in
paragraph (1), including, but not limited to, a reevaluation of the
diagnosis or a change in treatment, and the licensee's conduct
departs from the applicable standard of care, each departure
constitutes a separate and distinct breach of the standard of care.
   (d) Incompetence.
   (e) The commission of any act involving dishonesty or corruption
 which   that  is substantially related to
the qualifications, functions, or duties of a physician and surgeon.
   (f) Any action or conduct  which   that 
would have warranted the denial of a certificate.
   (g) The practice of medicine from this state into another state or
country without meeting the legal requirements of that state or
country for the practice of medicine. Section 2314 shall not apply to
this subdivision. This subdivision shall become operative upon the
implementation of the proposed registration program described in
Section 2052.5.
   (h) The  repeated  failure by a certificate
holder, in the absence of good cause, to attend and participate in an
interview scheduled  by the mutual agreement of the
certificate holder and   within 30   days of
notification from  the board. This subdivision shall only apply
to a certificate holder who is the subject of an investigation by the
board.
   SEC. 2.   SEC. 4.   Section 11529 of the
Government Code is amended to read:
   11529.  (a) The administrative law judge of the Medical Quality
Hearing Panel established pursuant to Section 11371 may issue an
interim order suspending a license, imposing drug testing, continuing
education, supervision of procedures, limitations on the authority
to prescribe, furnish, administer, or dispense controlled substances,
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.
   (b) All orders authorized by this section shall be issued only
after a hearing conducted pursuant to subdivision (d), unless it
appears from the facts shown by affidavit that serious injury would
result to the public before the matter can be heard on notice. Except
as provided in subdivision (c), the licensee shall receive at least
15 days' prior notice of the hearing, which notice shall include
affidavits and all other information in support of the order.
   (c) If an interim order is issued without notice, the
administrative law judge who issued the order without notice shall
cause the licensee to be notified of the order, including affidavits
and all other information in support of the order by a 24-hour
delivery service. That notice shall also include the date of the
hearing on the order, which shall be conducted in accordance with the
requirement of subdivision (d), not later than 20 days from the date
of issuance. The order shall be dissolved unless the requirements of
subdivision (a) are satisfied.
   (d) For the purposes of the hearing conducted pursuant to this
section, the licentiate shall, at a minimum, have the following
rights:
   (1) To be represented by counsel.
   (2) To have a record made of the proceedings, copies of which may
be obtained by the licentiate upon payment of any reasonable charges
associated with the record.
   (3) To present written evidence in the form of relevant
declarations, affidavits, and documents.
   The discretion of the administrative law judge to permit testimony
at the hearing conducted pursuant to this section shall be identical
to the discretion of a superior court judge to permit testimony at a
hearing conducted pursuant to Section 527 of the Code of Civil
Procedure.
   (4) To present oral argument.
   (e) Consistent with the burden and standards of proof applicable
to a preliminary injunction entered under Section 527 of the Code of
Civil Procedure, the administrative law judge shall grant the interim
order  where   if  , in the exercise of
discretion, the administrative law judge concludes that:
   (1) There is a reasonable probability that the petitioner will
prevail in the underlying action.
   (2) The likelihood of injury to the public in not issuing the
order outweighs the likelihood of injury to the licensee in issuing
the order.
   (f) In all cases  where   in which  an
interim order is issued, and an accusation is not filed and served
pursuant to Sections 11503 and 11505 within 15 days of the date
 in   on  which the parties to the hearing
on the interim order have submitted the matter, the order shall be
dissolved.
   Upon service of the accusation the licensee shall have, in
addition to the rights granted by this section, all of the rights and
privileges available as specified in this chapter. If the licensee
requests a hearing on the accusation, the board shall provide the
licensee with a hearing within 30 days of the request, unless the
licensee stipulates to a later hearing, and a decision within 15 days
of the date the decision is received from the administrative law
judge, or the board shall nullify the interim order previously
issued, unless good cause can be shown by the Division of Medical
Quality for a delay.
   (g)  Where   If    an interim
order is issued, a written decision shall be prepared within 15 days
of the hearing, by the administrative law judge, including findings
of fact and a conclusion articulating the connection between the
evidence produced at the hearing and the decision reached.
   (h) Notwithstanding the fact that interim orders issued pursuant
to this section are not issued after a hearing as otherwise required
by this chapter, interim orders so issued shall be subject to
judicial review pursuant to Section 1094.5 of the Code of Civil
Procedure. The relief  which   that  may be
ordered shall be limited to a stay of the interim order. Interim
orders issued pursuant to this section are final interim orders and,
if not dissolved pursuant to subdivision (c) or (f), may only be
challenged administratively at the hearing on the accusation.
   (i) The interim order provided for by this section shall be:
   (1) In addition to, and not a limitation on, the authority to seek
injunctive relief provided for in the Business and Professions Code.

   (2) A limitation on the emergency decision procedure provided in
Article 13 (commencing with Section 11460.10) of Chapter 4.5.