BILL ANALYSIS Ó AB 2745 Page 1 Date of Hearing: April 19, 2016 ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS Rudy Salas, Chair AB 2745 Holden - As Amended April 12, 2016 SUBJECT: Healing arts: licensing and certification. SUMMARY: Makes a number of changes to the Medical Practice Act including: specifies that a physician's and surgeon's licensee, as specified, is authorized to receive the limited license; authorizes the Medical Board of California (MBC) to require an independent clinical evaluation before providing a limited or disability license; authorizes the MBC, during an investigation of the death of a patient, to provide a written request to a facility where medical records are located or the care to a deceased patient was provided; authorizes the MBC to place a midwife license on probation and establish a fee for monitoring a licensee on probation; authorizes a person whose midwife license has been voluntarily surrendered while under investigation or while charges are pending or whose license has been suspended, revoked, or placed on probation to petition the MBC for reinstatement or modification of penalty; requires the revocation of a midwife license for a person required to register as a sex offender; authorizes a polysomnographic technician registration to be placed on probation and would establish a fee for monitoring a registrant on probation; authorizes a person whose polysomnographic registration has been voluntarily surrendered while under investigation or while charges are pending or whose registration has been suspended, revoked, or placed on probation to petition the MBC for AB 2745 Page 2 reinstatement or modification of penalty; and requires the revocation of a research psychoanalyst or polysomnographic technologist registration for a person required to register as a sex offender. EXISTING LAW: 1)Provides for the licensure and regulation of physicians and surgeons by the MBC. (Business and Professions Code (BPC) § 2004 et seq; 2307; 2232.) 2)Provides for the licensing and regulation of midwives by the MBC. (BPC § 2512 et seq.) 3)Authorizes a licensee who demonstrates that he or she is unable to practice medicine due to a disability to request a waiver of the license renewal fee, and specifies that a licensee granted that waiver is prohibited from practicing medicine until he or she establishes that the disability no longer exists or signs an agreement, under penalty of perjury, agreeing to limit his or her practice in the manner prescribed by the reviewing physician. (Title 17 California Code of Regulations (CCR) §§ 1315.50; 1315.55; 1315.53) 4)Authorizes the MBC, 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 MBC provides a written AB 2745 Page 3 request to the physician and surgeon that includes a declaration that the MBC has been unsuccessful in locating or contacting the deceased patient's beneficiary or personal representative after reasonable efforts. (BPC § 2225(c)(1)) 5)Prohibits a person from using the title "certified polysomnographic technologist" or engaging in the practice of polysomnography unless he or she is registered as a certified polysomnographic technologist, is supervised and directed by a licensed physician and surgeon, and meets certain other requirements. (BPC § 3575 et seq.) 6)Requires polysomnographic technologists to apply to and register with the MBC and to pay specified fees to be fixed by the MBC at no more than $100 each, and to renew their registration biennially for a fee of no more than $150. (BPC § 3577) THIS BILL: 1)Specifies that an applicant for a physician's and surgeon's license or a physician's and surgeon's licensee who is otherwise eligible for that license but is unable to practice some aspects of medicine safely due to a disability may receive a limited license if he or she does both of the following: a) Pays the appropriate initial or renewal license fee. AB 2745 Page 4 b) Signs an agreement on a form prescribed by the MBC in which the applicant or licensee agrees to limit his or her practice in the manner prescribed by the reviewing physician and agreed to by the MBC. 2)Indicates that the MBC may require the applicant or licensee to obtain an independent clinical evaluation of his or her ability to practice medicine safely as a condition of receiving a limited or a disability license. 3)Requires an agreement for a disability license, as specified, to additionally be signed by the MBC. 4)Specifies that any person who knowingly provides false information in a disability license agreement shall be subject to any sanctions available to the MBC. 5)Authorizes the MBC to deny a physician's and surgeon's postgraduate training authorization letter for unprofessional conduct and other violations, as specified. 6)Specifies that in any investigation that involves the death of a patient, the MBC 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 MBC provides a written request to either the physician AB 2745 Page 5 and surgeon or the facility where the medical records are located or the care to the deceased patient was provided, that includes a declaration that the MBC has been unsuccessful in locating or contacting the deceased patient's beneficiary or personal representative after reasonable efforts. 7)Authorizes the MBC to suspend, revoke, or place on probation the license of a midwife for specified acts, including unprofessional conduct and crimes of dishonesty. 8)Specifies that the fee for the midwife examination shall be the cost of administering the examination to the applicant, as determined by the organization that has entered into a contract with the Division of Licensing and that fee may be collected and retained by that organization. The fee for monitoring a licensee on probation shall be the cost of monitoring, as fixed by the MBC. 9)Allows a person whose midwife license has been voluntarily surrendered while under investigation or while charges are pending or whose license has been revoked or suspended or placed on probation, to petition the MBC for reinstatement or modification of penalty, including modification or termination of probation. 10)Specifies that the person may file the petition after a period of not less than the following minimum periods have elapsed from the effective date of the surrender of the license or the decision ordering that disciplinary action: AB 2745 Page 6 a) At least three years for reinstatement of a license surrendered or revoked for unprofessional conduct, except that the MBC may, for good cause shown, specify in a revocation order that a petition for reinstatement may be filed after two years. b) At least two years for early termination of probation of three years or more. c) At least one year for modification of a condition, or reinstatement of a license surrendered or revoked for mental or physical illness, or termination of probation of less than three years. 11)Indicates that the petition shall state any facts as may be required by the MBC. The petition shall be accompanied by at least two verified recommendations from midwives licensed in any state who have personal knowledge of the activities of the petitioner since the disciplinary penalty was imposed. 12)Further notes that the petition may be heard by a panel of the MBC or the MBC may assign the petition to an administrative law judge. After a hearing on the petition, the administrative law judge shall provide a proposed decision to the MBC, which shall be acted upon, as specified. 13)Allows the panel of the MBC or the administrative law judge hearing the petition to consider all activities of the AB 2745 Page 7 petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner's activities during the time the license was in good standing, and the petitioner's rehabilitative efforts, general reputation for truth, and professional ability. The hearing may be continued from time to time as the administrative law judge finds necessary. 14)Specifies that the administrative law judge reinstating a license or modifying a penalty may recommend the imposition of any terms and conditions deemed necessary. 15)Indicates that no petition shall be considered while the petitioner is under sentence for any criminal offense, including any period during which the petitioner is on court-imposed probation or parole. No petition shall be considered while there is an accusation or petition to revoke probation pending against the person. The MBC may deny without a hearing or argument any petition filed pursuant to this section within a period of two years from the effective date of the prior decision following a hearing under this section. 16) Permits the MBC to revoke the midwife license of any person who has been required to register as a sex offender. 17)Specifies that provisions of the bill shall not apply to a person or licensed midwife who is required to register as a sex offender pursuant to Section 290 of the Penal Code solely because of a misdemeanor conviction under Section 314 of the Penal Code. AB 2745 Page 8 18)Further specifies that provisions of the bill shall not apply to a person or licensed midwife who has been relieved under Section 290.5 of the Penal Code of his or her duty to register as a sex offender, or whose duty to register has otherwise been formally terminated under California law. 19)Provides that the use of any controlled substance or the use of any of the dangerous drugs specified in Section 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to a research psychoanalyst or polysomnographic technologist registrant, or to any other person or to the public, or to the extent that this use impairs the ability of the registrant to practice safely or more than one misdemeanor or any felony conviction involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct. The record of the conviction is conclusive evidence of this unprofessional conduct. 20)A plea or verdict of guilty or a conviction following a plea of nolo contendere is deemed to be a conviction for purposes of discipline for a research psychoanalyst or polysomnographic technologist registrant. The MBC may order discipline of the registrant in accordance with Section 2227 or may order the denial of the registration when the time for appeal has elapsed or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code allowing this person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of AB 2745 Page 9 guilty, or dismissing the accusation, complaint, information, or indictment. 21)Authorizes the MBC to suspend or revoke the registration of a polysomnographic technologist, polysomnographic technician, or polysomnographic trainee for unprofessional conduct as specified. 22)Permits a person whose polysomnographic technologist registration has been voluntarily surrendered while under investigation or while charges are pending or whose registration has been revoked or suspended or placed on probation, to petition the MBC for reinstatement or modification of penalty, including modification or termination of probation. 23)Specifies that the person may file the petition after a period of not less than the following minimum periods have elapsed from the effective date of the surrender of the registration or the decision ordering that disciplinary action: a) At least three years for reinstatement of a registration surrendered or revoked for unprofessional conduct, except that the MBC may, for good cause shown, specify in a revocation order that a petition for reinstatement may be filed after two years. b) At least two years for early termination of probation of AB 2745 Page 10 three years or more. c) At least one year for modification of a condition, or reinstatement of a registration surrendered or revoked for mental or physical illness, or termination of probation of less than three years. 24)Indicates that the petition shall state any facts as may be required by the MBC. The petition shall be accompanied by at least two verified recommendations from polysomnographic technologists registered in any state who have personal knowledge of the activities of the petitioner since the disciplinary penalty was imposed. 25)Permits the petition to be heard by a panel of the MBC. The MBC may assign the petition to an administrative law judge, and after a hearing on the petition, the administrative law judge shall provide a proposed decision to the MBC. 26)Indicates that the panel of the MBC or the administrative law judge hearing the petition may consider all activities of the petitioner since the disciplinary action was taken, the offense for which the petitioner was disciplined, the petitioner's activities during the time the registration was in good standing, and the petitioner's rehabilitative efforts, general reputation for truth, and professional ability. The hearing may be continued from time to time as the administrative law judge finds necessary. AB 2745 Page 11 27)Specifies that the administrative law judge reinstating a registration or modifying a penalty may recommend the imposition of any terms and conditions deemed necessary. 28)Indicates that no petition shall be considered while the petitioner is under sentence for any criminal offense, including any period during which the petitioner is on court-imposed probation or parole. No petition shall be considered while there is an accusation or petition to revoke probation pending against the person. The MBC may deny without a hearing or argument any petition filed pursuant to this section within a period of two years from the effective date of the prior decision following a hearing under this section. 29)Permits the MBC to revoke the research psychoanalyst or polysomnographic technologist registration of any person who has been required to register as a sex offender pursuant to Section 290 of the Penal Code. 30)Indicates that provisions of this bill shall not apply to a person or research psychoanalyst or polysomnographic technologist registrant who is required to register as a sex offender pursuant to Section 290 of the Penal Code solely because of a misdemeanor conviction under Section 314 of the Penal Code. 31)Indicates that the provisions of the bill shall not apply to a person or research psychoanalyst or polysomnographic technologist registrant who has been relieved under Section 290.5 of the Penal Code of his or her duty to register as a AB 2745 Page 12 sex offender, or whose duty to register has otherwise been formally terminated under California law. 32)Specifies that the fee for monitoring a licensee on probation shall be the cost of monitoring, as fixed by the MBC. 33)Makes other technical, updating, and clarifying changes. FISCAL EFFECT: Unknown. This bill has been keyed fiscal by the Legislative Counsel. COMMENTS: Purpose. This bill is sponsored by the MBC . According to the author, "[The MBC's] authority consists of licensing and regulating allied health licensees such as Licensed Midwives, Research Psychoanalysts and Polysomnographic Technologists and Trainees. There are also many provisions that apply to physicians and surgeons that the MBC also applies to health licensees. Assembly Bill 2745 is a clean-up bill to ensure that the MBC's authority to perform their duties is clearly defined and aligned with current law." Background. Licensing and Regulation of Allied Health Professionals. The MBC is responsible for licensing and regulating allied health licensees, including licensed midwives and polysomnographic technologists, technicians and trainees. There are certain provisions in the Medical Practice Act that apply to physicians and surgeons that the MBC also relies upon when regulating the aforementioned allied health licensees. As such, the author believes it is necessary to clarify the MBC's authority to do the following: AB 2745 Page 13 Revoke or deny a license for registered sex offenders; Allow allied health licensees to petition for license reinstatement; and, Allow the MBC to use probation as a disciplinary option for allied health licenses, and to procure payment for the costs of probation monitoring. Limited License. The MBC offers a limited practice license to new applicants or disabled status licensees who have a disability and are unable to practice all aspects of medicine safely. Only new licensees or disabled status licensees can apply for a limited practice license. Physicians and surgeons who have disabled license status, and who wish to switch their license to a limited practice license, do not currently have a pathway to do so. Written Records Request. Current law authorizes the MBC to investigate patient deaths and to copy medical records of the deceased patient without obtaining the approval of the next of kin of the deceased patient or a court order. This authority was granted in order for the MBC to determine if the death was a result of a physician and surgeon violating the Medical Practice Act. Standard protocol is for the MBC to submit a written request to the physician, declaring that the MBC has been unsuccessful in contacting the patient's next of kin. However, the MBC indicates that for certain cases, the records reside with the facility where care was provided versus the physician who provided care. This hinders the MBC's ability to obtain records and proceed with its investigation. AB 2745 Page 14 ARGUMENTS IN SUPPORT: The Medical Board of California (sponsor) writes in support, "This bill would clean up existing law to ensure that the MBC's authority to perform its regulatory oversight of licensees is clearly defined and aligned with current law. For these reasons, the MBC is please to sponsor this important bill." ARGUMENTS IN OPPOSITION: None on file. AMENDMENTS: The bill includes the terminology: "disability license." However, the current terminology utilized on forms of the MBC is "disabled status license." In order to be consistent, the bill should be amended as follows: On page 8, line 31 strike:disability licenseand insert: disabled status license . The language in the bill refers to polysomnographic technicians as "licensees," but the proper terminology is "registrant" as these allied healthcare professionals are registered, not licensed, with the MBC. On page 18, line 8 strike:licenseeand insert: registrant AB 2745 Page 15 REGISTERED SUPPORT: Medical Board of California (sponsor) REGISTERED OPPOSITION: None on file. Analysis Prepared by:Le Ondra Clark Harvey Ph.D. / B. & P. / (916) 319-3301