BILL NUMBER: SB 670 AMENDED
BILL TEXT
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
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 controlled substances
Schedule II, III, or IV drugs during a pending
investigation if the board has probable cause to believe that the
physician and surgeon has prescribed, furnished, administered, or
dispensed controlled substances Schedule II,
III, or IV drugs in violation of the Medical
Practice Act and the failure of the board to impose those limitations
will imminently endanger the public health, safety, or
welfare , as specified . 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 , upon the request of
the physician and surgeon, requiring a committee of 3
board members to conduct an informal hearing prior to the effective
date of the limitations.
(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.
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.
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
controlled substances Schedule II, III, or IV
drugs during a pending investigation if both of the
following apply the board has probable cause to
believe both of the following :
(A) The board has probable cause to believe that the
physician and surgeon has prescribed, furnished,
administered, or dispensed controlled substances
Schedule II, III, or IV drugs 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 controlled substances
Schedule II, III, or IV drugs will imminently
endanger the public health, safety, or welfare. 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.
(2) The board shall provide written notice of the limitations to
the affected physician and surgeon at least five
10 business days prior to the effective date of any
limitations imposed pursuant to this subdivision
limitations. Notice shall be accomplished by either
24-hour delivery service or personal service.
service, shall state the effective date of the limit
ations, and shall include all of the following:
(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.
(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).
(C) Notice of the physician and surgeon's right to be represented
in a proceeding under subdivision (b).
(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.
(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.
(b)
(c) 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
controlled substances Schedule II, III, or IV drugs
, 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 dissolved, and any record of those
dissolved. Any record of the limitations imposed pursuant
to this section shall be removed from the board's Internet Web
site immediately after the limitations are dissolved or when
action is taken pursuant to Section 11529 of the Government Code
.
(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.
(c)
(e) 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.
SEC. 5. 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:
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.