Amended in Assembly September 6, 2013

Amended in Assembly August 19, 2013

Amended in Assembly August 6, 2013

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, in any investigation that involves the death of a patient, to inspect and copy the medical records of the deceased patient without the authorization of the beneficiary or personal representative of the deceased patient or a court order solely to determine the extent to which the death was the result of the physician and surgeon’s violation of the Medical Practice Act, if the board provides a written request to the physician and surgeon that includes a declaration that the board has been unsuccessful in locating or contacting the deceased patient’s beneficiary or personal representative after reasonable efforts.

(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 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 by 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 authorize 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 begin delete controlled substances end delete begin insert Schedule II, III, or IV drugs end insert during a pending investigation if the board has probable cause to believe that the physician and surgeon has prescribed, furnished, administered, or dispensed begin delete controlled substances end delete begin insert Schedule II, III, or IV drugs end insert in violation of the Medical Practice Act and the failure of the board to impose those limitations will begin insert imminently end insert endanger the public health, safety, or welfare begin insert , as specified end insert . begin insert The bill would require written notification to the physician and surgeon of the limitations at least 10 business days prior to the effective date of those limitations and would specify administrative procedures for the review of the limitations, including end insert begin insert , upon the request of the physician and surgeon, end insert begin insert requiring a committee of 3 board members to conduct an informal hearing prior to the effective date of the limitations. end insert

begin insert

(4) The California Constitution requires that a statute, court rule, or other authority adopted after November 4, 2004, that limits the public’s right of access be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.

end insert begin insert

This bill would, with respect to this constitutional provision, express findings and declarations of the Legislature regarding the privacy interests of patients and doctors that are protected under the bill.

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.  

(a) (1) Notwithstanding Section 11529 of the
Government Code, the board may impose limitations on the
authority of a physician and surgeon to prescribe, furnish,
administer, or dispense begin delete controlled substances end delete begin insert Schedule II, III, or
IV drugs end insert during a pending investigation if begin delete both of the following
apply end delete begin insert the board has probable cause to believe both of the
following end insert :

(A) The begin delete board has probable cause to believe that the end delete physician
and surgeon has prescribed, furnished, administered, or dispensed
begin delete controlled substances end delete begin insert Schedule II, III, or IV drugs end insert in violation of
the Medical Practice Act.

(B) The failure of the board to impose limitations on the
authority of that physician and surgeon to prescribe, furnish,
administer, or dispense begin delete controlled substances end delete begin insert Schedule II, III, or
IV drugs end insert will begin insert imminently end insert endanger the public health, safety, or
welfare. begin insert Proof of imminent danger shall include, but not be limited
to, a pattern or practice of prescribing, furnishing, administering,
or dispensing Schedule II, III, or IV drugs that has led to, or may
lead to, death or great bodily injury. end insert

(2) The board shall provide written notice of the limitations to
the affected physician and surgeon at least begin delete five end delete begin insert 10 end insert business days
prior to the effective date of any begin delete limitations imposed pursuant to
this subdivision end delete begin insert limitations. Notice shall be accomplished end insert by either
24-hour delivery service or personal begin delete service. end delete begin insert service, shall state
the effective date of the limitations, and shall include all of the
following: end insert

begin insert

(A) Affidavits showing that the board has met the requirements
of paragraph (1), including a summary of facts and evidence upon
which the board is relying.

end insert begin insert

(B) An explanation of the time and manner in which the
physician and surgeon may respond to the notice of limitations at
an informal hearing pursuant to subdivision (b).

end insert begin insert

(C) Notice of the physician and surgeon’s right to be represented
in a proceeding under subdivision (b).

end insert begin insert

(b) (1) Upon the request of the physician and surgeon to whom
the limitations would apply, a committee of three board members,
appointed by the executive director of the board and comprised
of two physician and surgeons and one public member, shall
conduct an informal hearing prior to the effective date of any
limitations imposed pursuant to subdivision (a). The hearing shall
determine whether the board has met all of the requirements of
paragraph (1) of subdivision (a). For good cause, the committee
may delay the effective date of the limitations in order to complete
a hearing and to issue a decision. The committee’s decision shall
take into account all materials and testimony submitted by the
board and the physician and surgeon. The decision by the
committee to sustain, reject, or modify the limitations is final.

end insert begin insert

(2) Meetings of the committee pursuant to this subdivision are
exempt from Article 9 (commencing with Section 11120) of Chapter
1 of Part 1 of Division 3 of Title 2 of the Government Code relating
to public meetings.

end insert begin delete

(b)

end delete

begin insert (c) end insert  In all cases in which the board, pursuant to this section, has
imposed any limitations on the authority of a physician and surgeon
to prescribe, furnish, administer, or dispense begin delete controlled substances end delete
begin insert Schedule II, III, or IV drugs end insert , and a petition for an interim
suspension order is not filed and served against the physician and
surgeon pursuant to Section 11529 of the Government Code within
30 business days of the date on which the board imposed the
limitations, the imposed limitations shall be begin delete dissolved, and any
record of those end delete begin insert dissolved. Any record of the end insert limitations begin insert imposed
pursuant to this section end insert shall be removed from the board’s Internet
Web site begin insert immediately after the limitations are dissolved or when
action is taken pursuant to Section 11529 of the Government Code end insert .

begin insert

(d)  Limitations imposed pursuant to this section shall not be
deemed a reportable act by a state medical licensing agency or
board of medical examiners for purposes of the National
Practitioner Data Bank.

end insert begin delete

(c)

end delete

begin insert (e) end insert  The board may adopt regulations or policies and procedures
to carry out the provisions of this section.

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) (1) Notwithstanding subdivision (b) or any other law, in
any investigation that involves the death of a patient, the board
may inspect and copy the medical records of the deceased patient
without the authorization of the beneficiary or personal
representative of the deceased patient or a court order solely for
the purpose of determining the extent to which the death was the
result of the physician and surgeon’s conduct in violation of the
Medical Practice Act, if the board provides a written request to
the physician and surgeon that includes a declaration that the board
has been unsuccessful in locating or contacting the deceased
patient’s beneficiary or personal representative after reasonable
efforts. Nothing in this subdivision shall be construed to allow the
board to inspect and copy the medical records of a deceased patient
without a court order when the beneficiary or personal
representative of the deceased patient has been located and
contacted but has refused to consent to the board inspecting and
copying the medical records of the deceased patient.

(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).

(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 repeated failure by a certificate holder, in the absence
of good cause, to attend and participate in an interview by 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.

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begin insert SEC. 5. end insert   

end insert begin insert

The Legislature hereby finds and declares that Section
1 of this bill, which adds Section 2221.5 to the Business and
Professions Code, imposes a limitation on the public’s right of
access to the meetings of public bodies or the writings of public
officials and agencies within the meaning of Section 3 of Article
I of the California Constitution. Pursuant to that constitutional
provision, the Legislature makes the following findings to
demonstrate the interest protected by this limitation and the need
for protecting that interest:

end insert begin insert

The protection of confidential medical information is of great
interest to the state and to the health care system. The privacy
rights of the patients whose treatment occasioned the hearing
would be impaired if the hearing were open to the public.

end insert