BILL ANALYSIS �
SB 670
Page 1
SENATE THIRD READING
SB 670 (Steinberg)
As Amended August 19, 2013
Majority vote
SENATE VOTE :35-3
BUSINESS & PROFESSIONS 8-4 APPROPRIATIONS 11-5
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|Ayes:|Bonilla, Bocanegra, |Ayes:|Gatto, Bocanegra, |
| |Campos, Dickinson, | |Bradford, |
| |Gordon, Holden, Mullin, | |Ian Calderon, Campos, |
| |Ting | |Eggman, Gomez, Hall, |
| | | |Holden, Quirk, Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Jones, Hagman, |Nays:|Harkey, Bigelow, |
| |Maienschein, Wilk | |Donnelly, Linder, Wagner |
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SUMMARY : Permits the Medical Board of California (MBC) to limit a
physician's prescribing privileges for 30 days, permits MBC to
inspect and copy a deceased patient's medical records, clarifies
language relating to unprofessional conduct, and permits an interim
suspension order (ISO) to place restrictions on a physician's
prescribing privileges, as specified. Specifically, this bill :
1)Permits 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 MBC has
probable cause to believe that the physician and surgeon has
prescribed, furnished, administered, or dispensed controlled
substances in violation of the Medical Practice Act (Act), and
that not imposing limitations on the authority of that physician
and surgeon to prescribe, furnish, administer, or dispense
controlled substances will endanger the public health, safety, or
welfare.
2)Requires MBC to provide written notice to the affected physician
and surgeon by either 24-hour delivery service or personal service
at least five business days prior to the effective date of any
limitation being imposed.
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3)States that the limitation must be discontinued unless, within 30
business days, MBC has filed and served a petition for an ISO
against the physician and surgeon.
4)Requires MBC to remove any record of a physician and surgeon's
prescribing limitations from the board's Internet Web site if the
physician and surgeon is not served a petition for an ISO.
5)Authorizes MBC to adopt regulations or policies and procedures to
effectuate the ability for MBC to impose limitations on a
physician and surgeon's ability to prescribe, furnish, administer,
or dispense controlled substances.
6)Permits MBC to inspect and copy the medical records of a deceased
patient, in any investigation that involves the death of that
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 Act, if MBC provides a written request to the physician and
surgeon that includes a declaration that MBC has been unsuccessful
in locating or contacting the deceased patient's beneficiary or
personal representative after reasonable efforts.
7)Prohibits MBC from inspecting a deceased patient's medical records
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 MBC inspecting and
copying the medical records.
8)Makes legislative findings and declarations that the authority
created in MBC to inspect a deceased's records according to this
bill, and a physician and surgeon's compliance with that request,
are consistent with the public interest and benefit activities of
the federal Health Insurance Portability and Accountability Act.
9)States that the repeated failure by a physician and surgeon who is
the subject of an investigation by MBC, in the absence of good
cause, to attend and participate in an interview scheduled by MBC
is unprofessional conduct.
10)Permits an administrative law judge (ALJ) of the Medical Quality
Hearing Panel to issue an ISO limiting the authority of a
physician and surgeon to prescribe, furnish, administer or
dispense controlled substances.
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11)Makes clarifying and technical amendments.
FISCAL EFFECT : According to the Assembly Appropriations Committee:
1)Costs to MBC to adopt regulations, not likely to exceed $100,000.
2)MBC may experience some minor costs associated with use of the
tools allowed in this bill, as well as some level of increased
efficiency in investigation and enforcement; however, it is
unlikely to impact the number of cases or total workload
significantly.
COMMENTS :
1)Physician interviews . MBC reports that current statutory
requirements are too lax and do not encourage physicians to attend
mandatory investigatory interviews in a timely fashion. This bill
eliminates the "mutual agreement" provision that requires MBC and
the physician to jointly determine a meeting time. This bill
states that the repeated failure of a physician under
investigation to attend and participate in an interview scheduled
by MBC, in the absence of good cause, is unprofessional conduct.
2)Deceased patient records . According to MBC, if it is
investigating a physician whose patient has died, MBC must receive
written authorization from the patient's next of kin in order to
obtain the patient's medical records. However, the next of kin
may not be found, and MBC still needs those medical records to
determine if a physician is prescribing appropriately.
This bill would allow MBC to inspect and copy a deceased patient's
medical records if MBC provides a written request to the physician
and surgeon that includes a declaration that MBC has been
unsuccessful in locating or contacting the deceased patient's
beneficiary or personal representative after reasonable efforts.
MBC would be prohibited from inspecting and copying those records
if the beneficiary or personal representative refuses
authorization.
3)Current enforcement options . MBC has a variety of options
available to halt the practice of a physician who it determines is
a risk to the public: MBC may issue an ISO or a temporary
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restraining order, require certain conditions as part of bail, or
agree to a stipulated agreement to restrict or halt practice. MBC
can also require a physician to cease practice if the physician
has failed to comply with a term or condition of their probation.
This bill is intended to supplement current enforcement actions,
especially for those cases in which a physician's prescribing
behavior is particularly egregious and available remedies are
insufficient.
4)This bill's prescription restriction provisions . This bill would
permit MBC to impose limitations on the authority of a physician
to prescribe, furnish, administer, or dispense controlled
substances during a pending investigation if MBC has probable
cause to believe that the physician has used his or her
prescribing privileges in violation of the Act, and that the
failure to impose such restrictions would endanger the public
health, safety or welfare. MBC must give the physician five days'
notice before the restrictions begin.
These restrictions would remain in place for 30 days, and would be
dissolved unless the physician is served with an ISO. Under
current law, this action would be posted on MBC's Web site for 10
years. Federal law also requires reporting of limitations on a
physician's license. If the restrictions were not followed by an
ISO, this bill requires MBC to delete references to the
restriction on MBC's Web site.
5)Interim Suspension Orders (ISO) . An ISO is a broad instrument of
enforcement that can impose conditions as minor as a drug test or
as major as the suspension of a physician's license to practice
medicine. The procedural safeguards in the ISO process are
designed to protect against inappropriate use of the most severe
discipline.
Existing law authorizes an ALJ of the Medical Quality Hearing
Panel within the Office of Administrative Law to issue an order to
suspend for an interim period (an ISO) a physician's license,
impose drug testing, require continuing education or supervision
of procedures, or other license restrictions. However, an ISO may
only restrict a physician's prescribing abilities if the physician
is already under probation and prescribing limits are part of the
terms and conditions of that probation.
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To obtain an ISO against a physician, MBC must present affidavits
in support of the ISO to the ALJ showing that the physician has,
or is about to, violate the Medical Practice Act or that the
physician is unable to practice safely due to a mental or physical
condition, and that permitting the physician to continue practice
will endanger the public health, safety, or welfare. It is at the
ALJ's discretion to issue the ISO as requested by MBC, and ALJs
have the authority to deny or alter the requested ISO.
Current law requires that a physician be notified 15 days in
advance of a pending ISO, so that the physician may participate in
a hearing about the validity of the ISO's issuance. The notice
must include affidavits and all the other information provided in
support of the order. However, an ISO may be granted immediately
if MBC can demonstrate that "serious injury to the public" would
result otherwise. After the ISO issuance, MBC has 15 days to file
and serve an accusation (which is the document enumerating the
formal charges against the physician's license) and 30 days to
hold a hearing. In practical terms, this requires MBC to have its
investigation, evidence, and findings nearly complete before
petitioning for an ISO. An ISO effectively imposes restrictions
on a physician's practice for 45 days prior to a hearing.
According to MBC, it sought 36 ISOs in FY 2011-12 and 28 were
granted, out of a population of 126,483 physicians. In discussing
the challenges faced with obtaining an ISO, MBC pointed out that
it must meet a very high standard of evidence to obtain an ISO,
and filing a formal accusation within 15 days of the ISO's
issuance is a very tight timeline. MBC defended its low use of
ISOs by stating "An ISO is considered extraordinary relief ? [and]
before an ISO can be requested, there are a number of steps that
must be taken (gathering medical records, obtaining patient
consent, medical consultant review, etc.) in order to prove that a
licensee's continued practice presents an immediate danger to
public health, safety, or welfare."
6)SB 670 and the ISO process . This bill creates a more rapid
process for MBC to impose limitations on a physician's prescribing
ability, compared to the current ISO process. This bill would
allow MBC, not an ALJ, to impose limitations using a lower
standard of proof (probable cause) than that used in the ISO
process (clear and convincing).
According to MBC, it is anticipated that most, if not all,
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restrictions issued according to this bill would be followed by an
ISO. To prepare for an ISO requires approximately six months
investigation time to gather the evidence necessary to prevail at
an ISO hearing (following the accusation). Should MBC issue an
order restricting prescribing privileges according to the terms of
this bill, and with the further intention of issuing an ISO, MBC
will already have had at least four months of investigation time
to develop evidence against the physician.
By tying this new enforcement tool to the existing ISO process,
MBC has to eventually meet the same higher burden of proof, but
this mechanism allows MBC to protect the public for an additional
30 days while it gathers its case against the physician. If
followed by an ISO, this bill would restrict a physician's ability
to prescribe for 75 days before a hearing.
This new enforcement tool does not require MBC to automatically
remove a physician's prescription power, but rather gives MBC the
ability to limit a physician's prescribing authority within a
spectrum. MBC may choose to limit the types of drugs a physician
may prescribe, requires certain types of prescriptions be
co-signed by another doctor, or limit a physician ability to
prescribe to certain patients, among some options.
These provisions were originally suggested in the 2013 Joint
Sunset Review Committee's analysis, which raised the idea of
lowering standard for an ISO in cases of restricting a physician's
prescribing privileges and lengthening the timeframes for the
filing of an accusation.
This bill would also permit an ISO to limit a physician's
authority to prescribe, furnish, administer, or dispense
controlled substances without those limitations being a condition
of a physician's probation.
Analysis Prepared by : Sarah Huchel / B.,P. & C.P. / (916)
319-3301
FN: 0001856
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