BILL ANALYSIS Ó
SB 670
Page 1
SENATE THIRD READING
SB 670 (Steinberg)
As Amended September 6, 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 Schedule II, III, or IV drugs during a pending
investigation if MBC has probable cause to believe that the
physician and surgeon has prescribed, furnished, administered,
or dispensed Schedule II, III, or IV drugs 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 Schedule II, III, or IV drugs
will imminently endanger the public health, safety, or
welfare.
2)States that 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.
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3)Requires MBC to provide written notice to the affected
physician and surgeon by either 24-hour delivery service or
personal service at least 10 business days prior to the
effective date of any limitation being imposed.
4)Requires the written notice provided to the physician and
surgeon to state the effective date of the limitations, and
also include the following:
a) Affidavits showing that MBC has met the requirements for
issuing the prescribing limitations, including a summary of
the facts and evidence upon which MBC 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, as specified; and,
c) Notice of the physician and surgeon's right to be
represented in an informal hearing, as specified.
5)States that, upon the request of the physician and surgeon to
whom the limitations would apply, a committee of three MBC
members, appointed by the MBC executive director and comprised
of two physician and surgeons and one public member, shall
conduct an informal hearing prior to the effective date of any
limitation imposed.
6)Requires that the informal hearing determine whether or not
MBC has met its burden of proof, as specified.
7)Authorizes the committee to delay the effective date of the
limitations for good cause in order to complete a hearing and
issue a decision.
8)Requires the committee to take into account all materials and
testimony submitted by MBC and the physician and surgeon.
9)Declares that the decision by the committee to sustain,
reject, or modify the limitations is final.
10)Exempts the committee from the provisions of the Bagley-Keene
Open Meeting Act.
11)States that the limitation must be discontinued unless,
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within 30 business days, MBC has filed and served a petition
for an ISO against the physician and surgeon.
12)Requires MBC to remove any record of a physician and
surgeon's prescribing limitations from the board's Internet
Web site immediately after the limitations are dissolved or
when a petition for an ISO is served.
13)States that limitations imposed pursuant to this bill 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.
14)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.
15)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.
16)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.
17)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.
18)States that the repeated failure by a physician and surgeon
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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.
19)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.
20)Makes clarifying and technical amendments.
21)Declares that the informal hearing created by this bill
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.
22)Makes findings and declarations that the protection of
confidential medical information is of great interest to the
state and to the health care system, and that the privacy
rights of the patients whose treatment occasioned the hearing
would be impaired if the hearing were open to the public.
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
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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 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
Schedule II, III, or IV drugs 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
imminently endanger the public health, safety or welfare. MBC
must give the physician 10 days' notice before the
restrictions begin, which shall include information giving the
basis for the restrictions. A physician and surgeon has the
option of convening an informal hearing of committee of three
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MBC members to determine whether the limitations are
appropriate based on evidence provided by the MBC and the
physician and surgeon.
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. However, if the temporary restrictions
were not followed by an ISO, this bill requires MBC to delete
any references to the restriction on MBC's Web site. This
bill would not require reporting of the temporary prescribing
limitations to the National Practitioner Data Bank.
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.
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,
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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,
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
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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: 0002579