Amended in Senate May 24, 2013

Amended in Senate April 8, 2013

Senate Bill No. 670

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 healing arts.

LEGISLATIVE COUNSEL’S DIGEST

SB 670, as amended, Steinberg. 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, begin delete if it receives a report pursuant to either of the provisions described above end delete begin insert in any case end insert that involves the death of a patient begin delete from a prescription drug overdose end delete , 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 begin delete a prescriber’s inappropriate conduct end delete begin insert the physician and surgeon’s violation of the Medical Practice Act end insert .

(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 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 begin delete a reasonable suspicion end delete begin insert probable cause to believe end insert that the physician and surgeon has begin delete engaged in overprescribing drugs or other behavior related to his or her drug prescribing privileges that has resulted in the death of a patient end delete begin insert prescribed, furnished, administered, or dispensed controlled substances in violation of the Medical Practice Act end insert .

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.  

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 begin delete a
reasonable suspicion end delete begin insert probable cause to believe end insert that the physician
and surgeon has begin delete engaged in either of the following: end delete begin insert prescribed,
furnished, administered, or dispensed controlled substances in
violation of the Medical Practice Act. end insert

begin delete

(a) Overprescribing drugs.

end delete begin delete

(b) Other behavior related to his or her drug prescribing
privileges that has resulted in the death of a patient.

end delete

SEC. 2.  

Section 2225 of the Business and Professions Code is
amended to read:

2225.  

(a) Notwithstanding Section 2263 and any other 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 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 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 if relevant to
an investigation of a licensee.

(c)  begin insert (1) end insert begin insert   end insert Notwithstanding subdivision (b) or any other law, begin delete if
the board receives a report pursuant to Section 802.5 or 805 end delete begin insert in any
case end insert that involves the death of a patient begin delete from a prescription drug
overdose end delete , 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 begin delete a prescriber’s inappropriate conduct end delete begin insert the
physician and surgeon’s conduct in violation of the Medical
Practice Act end insert .

begin insert

(2) The Legislature finds and declares that the authority created
in the board pursuant to this section, and a physician and surgeon’s
compliance with this section, are consistent with the public interest
and benefit activities of the federal Health Insurance Portability
and Accountability Act (HIPAA).

end insert

(d) In all cases 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.

(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, 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.

(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 that is substantially related to the qualifications,
functions, or duties of a physician and surgeon.

(f) Any action or conduct 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 failure by a certificate holder, in the absence of good
cause, to attend and participate in an interview scheduled 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. 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 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 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 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) 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 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.