BILL ANALYSIS �
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THIRD READING
Bill No: SB 670
Author: Steinberg (D)
Amended: 5/24/13
Vote: 21
SENATE BUSINESS, PROF. & ECON. DEV. COMM. : 8-0, 4/15/13
AYES: Price, Block, Corbett, Galgiani, Hernandez, Hill,
Padilla, Yee
NO VOTE RECORDED: Emmerson, Wyland
SENATE APPROPRIATIONS COMMITTEE : 7-0, 4/29/13
AYES: De Le�n, Walters, Gaines, Hill, Lara, Padilla, Steinberg
SUBJECT : Physicians and surgeons: drug prescribing
privileges: investigation
SOURCE : Author
DIGEST : This bill authorizes the Medical Board of California
(MBC) to inspect medical records of a patient, in any case where
a patient has died, without the consent of the patient's next of
kin or a court order; makes it unprofessional conduct for a
licensee who is under investigation by the MBC to fail to attend
and participate in an interview within 30 days from
notification, as specified; authorizes an administrative law
judge to issue an interim suspension order (ISO) limiting the
authority of a physician to prescribe, furnish, administer, or
dispense controlled substances; and requires the MBC to impose
limitations on the authority of a physician and surgeon to
prescribe, furnish, administer, or dispense controlled
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substances during a pending investigation if there is probable
cause to believe that the physician and surgeon has prescribed,
furnished, administered, or dispensed controlled substances in
violation of the Medical Practice Act (MPA); and makes
legislative findings and declarations.
Senate Floor Amendments of 5/24/13 (1) revise the provision
requiring the MBC to impose limitations on a physician's
authority to prescribe, furnish, administer or dispense
controlled substances during a pending investigation, to instead
require the MBC to have probable cause that the physician has
prescribed, furnished or dispensed controlled substances in
violation of the MPA; (2) authorize the MBC to inspect medical
records without the consent of a patient's next of kin or a
court order in any case where a patient has died; and (3) make
legislative findings and declarations that this authority is
consistent with the public interest and benefit activities of
the federal Health Insurance Portability and Accountability Act
(HIPAA).
ANALYSIS :
Existing law:
1. Licenses and regulates physicians and surgeons under the MPA
by the MBC and states that the protection of the public is
the highest priority of the MBC in exercising its functions.
2. Authorizes investigators and representatives of the MBC,
among others, to inquire into any alleged violation of the
MPA 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.
3. Provides for the professional review of specified healing
arts licentiates (as a physician and surgeon, doctor of
podiatric medicine, clinical psychologist, marriage and
family therapist, clinical social worker, or dentist) by a
peer review body, as defined.
4. Requires a coroner to make a report to the MBC, among other
specified entities, when he/she receives information that
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indicates that a death may be the result of a physician and
surgeon's, podiatrist's, or physician assistant's gross
negligence or incompetence.
5. Requires the MBC to take action against any licensee who is
charged with unprofessional conduct. Unprofessional conduct
is defined to include, among other things, the repeated
failure by a licensee who is the subject of an MBC
investigation, in the absence of good cause, to attend and
participate in an interview scheduled by the mutual agreement
of the licensee and the MBC.
6. Under the Administrative Procedure Act (APA), establishes
within the Office of Administrative Hearings a Medical
Quality Hearing Panel to conduct adjudicative hearings and
proceedings relative to licensees of the MBC under the terms
and conditions set forth in the APA, except as provided in
the MPA.
7. Authorizes an administrative law judge of the Medical Quality
Hearing Panel to issue an ISO suspending a license, or
imposing drug testing, continuing education, supervision of
procedures, or other licensee restrictions.
8. Requires that the burden and standards of proof to obtain an
ISO shall be those applicable to a preliminary injunction
under Code of Civil Procedure Section 527.
This bill:
1. Authorizes the MBC, in any case that involves the death of a
patient, 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 the physician and surgeon's
conduct in violation of the MPA.
2. Revises the definition of unprofessional conduct under the
MPA to include the failure by a licensee who is the subject
of an MBC investigation, in the absence of good cause, to
attend and participate in an interview scheduled within 30
days of notification from the MBC.
3. Authorizes an administrative law judge to issue an ISO
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limiting the authority of a physician to prescribe, furnish,
administer, or dispense controlled substances.
4. Requires the MBC, notwithstanding the authority of an
administrative law judge, 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 probable cause to believe
that the physician and surgeon has prescribed, furnished,
administered, or dispensed controlled substances in violation
of the MPA.
5. Makes legislative findings and declarations that the
authority created in the MBC pursuant to this bill, and a
physician and surgeon's compliance with this bill, are
consistent with the public interest and benefit activities of
HIPAA.
Background
Prescription drug deaths . A recent Centers for Disease Control
(CDC) analysis found that drug overdose deaths increased for the
11th consecutive year in 2010 and prescription drugs,
particularly opiod analgesics, are the top drugs leading the
list of those responsible for fatalities. According to CDC,
38,329 people died from a drug overdose in 2010, up from 37,004
deaths in 2009, and 16,849 deaths in 1999. CDC found that
nearly 60% of the overdose deaths in 2010, involved
pharmaceutical drugs, with opiods associated with approximately
75% of these deaths. Nearly three out of four prescription drug
overdoses are caused by opioid pain relievers. CDC recommends
the use of Prescription Drug Monitoring Programs (PDMPs) with a
focus on both patients at highest risk in terms of prescription
painkiller dosage, numbers of prescriptions and numbers of
prescribers as well as prescribers who deviate from accepted
medical practice and those with a high proportion of doctor
shoppers among their patients. CDC also recommends that PDMPs
link to electronic health records systems so that the
information is better integrated into health care providers'
day-to-day practices. CDC believes that state benefits programs
like Medicaid and workers' compensation should consider
monitoring prescription claims information and PDMP data for
signs and inappropriate use of controlled substances. CDC also
acknowledges the value of PDMPs in taking regulatory action
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against health care providers who do operate outside the limits
of appropriate medical practice when it comes to prescription
drug prescribing.
Drug deaths and MBC enforcement issues . In late 2012, the Los
Angeles Times published a series of four articles titled "Dying
For Relief," which were the outcome of an intensive review of
the epidemic of prescription drug-related deaths in four
Southern California counties (Los Angeles, Orange, Ventura and
San Diego). In the investigation, reporters examined coroners'
records and interviewed doctors, regulators, law enforcement
officials and relatives of those who died from overdoses. In
these cases toxicology tests found a prescription drug in the
deceased's system, usually a painkiller, anti-anxiety drug or
other narcotic; coroners' investigators reported finding a
container of the same medication bearing the doctor's name, or
records of a prescription; and the coroner determined that the
drug caused or contributed to the death. The investigators also
created and analyzed a searchable database of 3,700 drug related
deaths during a five-year span (2005-2011) in Southern
California to identify those tied to doctors' prescriptions.
An examination of coroner records by the Times found that:
In 47% of those cases (1,762 deaths) drugs for which the
deceased had a prescription were the sole cause or a
contributing cause of death.
A small number of doctors were associated with a
disproportionate number of those fatal overdoses. 71
physicians in the four counties wrote prescriptions for drugs
that caused or contributed to 298 deaths. That is 17% of the
total deaths linked to doctors' prescriptions.
Each of the 71 physicians prescribed drugs to three or more
patients who died; four of the physicians had 10 or more
patients who fatally overdosed; and one physician had 16
patients who died.
The Times found that the 71 physicians with three or more fatal
overdoses among their patients are primarily pain specialists,
general practitioners and psychiatrists. Four of the physicians
have been convicted of drug offenses in connection with their
prescriptions, and a fifth is awaiting trial on second-degree
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murder charges in the overdose deaths of three patients. The
remaining physicians had clean records with the MBC, according
to the Times.
Sunset review oversight hearing . Earlier this year, the Senate
Business, Professions and Economic Development Committee and the
Assembly Business, Professions and Consumer Protection Committee
held a Joint Oversight Hearing of the MBC. At that hearing,
testimony was heard from the MBC, consumers, parents, consumer
groups, professional associations and the public at large.
Primarily focused on the enforcement program of the MBC. The
question was raised about the MBC's effectiveness in protecting
consumers from dangerous practitioners in the medical field.
Comments
According to the author's office, Senator Steinberg was prompted
to pursue the legislation following the recent Los Angeles Times
investigation that uncovered significant issues with physicians,
overprescribing and patient deaths. To speed up investigations
in cases where patients have died as a result of prescription
drug overdose, this bill seeks to:
Authorize the MBC, in any case that involves the death of a
patient, 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 the physician and surgeon's
conduct in violation of the MPA.
Revise the definition of unprofessional conduct to include
the failure by a licensee who is the subject of an MBC
investigation, in the absence of good cause, to attend and
participate in an interview scheduled within 30 days of
notification from the MBC.
In order to ensure potentially dangerous doctors are not able to
continue prescribing, while an investigation is pending, this
bill seeks to require the MBC 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 probable cause to believe that the
physician and surgeon has prescribed, furnished, administered,
or dispensed controlled substances in violation of the MPA.
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FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
One-time costs between $75,000 and $150,000 for the MBC to
adopt regulations (Contingent Fund of the MBC).
Minor cost savings to the MBC due to streamlined processes
when conducting investigations (Contingent Fund of the MBC).
The Committee states that this bill expands some of the MBC's
authority to investigate and sanction licensees. According to
MBC, the changes in this bill are likely to streamline the
investigatory process. For example, by simplifying the process
for gaining access to medical records or by requiring licensees
under investigation to meet with the MBC staff earlier in an
investigation. Thus, the overall impact of this bill is likely
to be reduced investigation costs.
SUPPORT : (Verified 5/28/13)
Center for Public Interest Law
OPPOSITION : (Verified 5/28/13)
California Medical Association
ARGUMENTS IN SUPPORT : The Center for Public Interest Law
writes that this bill will provide needed tools to the MBC to
protect patients from potentially dangerous physicians who
improperly prescribe drugs, and that each of the bill's reforms
will save lives.
ARGUMENTS IN OPPOSITION : The California Medical Association
writes, "We continue to have concerns about the lack of due
process afforded by the expansion of the MBC's authority. SB
670 gives the MBC the ability to suspend a physician's ability
to prescribe controlled substances without allowing the
physician to refute the allegation. The MBC should and does
have the authority, through the interim suspension order, to
intercede when there is an immediate concern about patient
safety. This process includes important due process
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protections. The state is not served by physicians who
prescribe inappropriately. However, justice and due process are
not served by an overly rapid system of investigation that
assumes guilt before evidence proves otherwise. The latter
could easily impact physician practice in a way that discourages
the most appropriate treatment when that treatment involves
prescribing a controlled substance."
MW:k 5/28/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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