BILL ANALYSIS Ó
SENATE COMMITTEE ON
BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT
Senator Jerry Hill, Chair
2015 - 2016 Regular
Bill No: SB 1033 Hearing Date: April 11,
2016
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|Author: |Hill |
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|Version: |March 17, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant|Sarah Mason |
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Subject: Medical Board: disclosure of probationary status
SUMMARY: Requires physicians and surgeons, osteopathic physicians and
surgeons, podiatrists, acupuncturists, chiropractors and
naturopathic doctors to notify patients of their probationary
status before visits take place.
Existing law:
1)Requires health care licensing boards to create and maintain a
central file of the names of all persons who hold a license,
certificate, or similar authority. Requires the central file
to be created and maintained to provide an individual
historical record for each licensee and must include specified
information including the following: any conviction of a
crime, any judgment or settlement in excess of $3,000, any
public complaints as specified, and any disciplinary
information, as specified. States that the content of the
central file that is not public record under any other
provision of law is confidential. Allows a licensee to submit
any exculpatory or explanatory statements or other information
to be included in the central file. (Business and Professions
Code (BPC) § 800)
2)Requires reporting of settlements over $30,000 and arbitration
awards or civil judgments of any amount to the Medical Board
of California (MBC), Osteopathic Medical Board of California
(OMBC), California Board of Podiatric Medicine (BPM) and
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Physician Assistant Board (PAB). Specifies the report must be
filed within
30 days by either the insurer providing professional liability
insurance to the licensee, the state or local government
agency that self-insures the licensee, the employer of the
licensee, or the licensee if not covered by professional
liability insurance and that failure to provide the report is
a public offense punishable by a fine of $500, not to exceed
$5,000. (BPC § 801.01)
3)Requires a physician and surgeon, osteopathic physician and
surgeon, a doctor of podiatric medicine, and a physician
assistant to report the bringing of an indictment or
information charging a felony against the licensee or
conviction of the licensee, including any guilty verdict or
guilty or no contest plea for a felony or misdemeanor to the
licensee's licensing board within 30 days and provides that
failure to make a report shall be a public offense punishable
by a fine not to exceed five thousand dollars ($5,000). (BPC
§ 802.1)
4)States that when a coroner receives information that is based
on findings that were reached by, or documented and approved
by a board-certified or board-eligible pathologist indicating
that a death may be the result of a physician and surgeon's,
podiatrist's, or physician assistant's gross negligence or
incompetence, the coroner must file a report with MBC, OMBC,
BPM or PAB. Requires the report to include the name of the
decedent, date and place of death, attending physicians or
podiatrists, and all other relevant information available and
be followed within
90 days by copies of the coroner's report, autopsy protocol, and
all other relevant information. Establishes confidentiality
for a report filed pursuant to this section. Grants immunity
from damages in any civil action to any coroner, physician and
surgeon, or medical examiner, or any authorized agent, for
complying with this section and grants immunity from damage in
any civil action to a board-certified or board-eligible
pathologist, or any authorized agent, for providing the
report.
(BPC § 802.5)
5)Requires the clerk of a court that renders a judgment that a
licensee of a health care licensing board has committed a
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crime, or is liable for any death or personal injury resulting
in a judgment of any amount caused by the licensee's
negligence, error or omission in practice, or his or her
rendering of unauthorized professional services, to report
that judgment to MBC for physicians or surgeons, OMBC for
osteopathic physicians and surgeons, BPM for podiatrists and
PAB for physician assistants. (BPC § 803)
6)Provides for the professional review of specified healing
arts licentiates by a peer review body, as defined,
including a medical or professional staff of any licensed
health care facility or clinic, health care service plan,
specified health professional societies, or a committee
organized by any entity that functions as a body to
review the quality of professional care provided by
specified health care practitioners. (BPC § 805)
7)Requires a report to be filed by a peer review body to an
agency having regulatory jurisdiction over healing arts
licentiates if a licentiate's application for staff
privileges is denied or rejected, has had his or her
membership, staff privileges, or employment terminated or
revoked for medical disciplinary reasons; or if
restrictions are imposed, or voluntarily accepted, on
staff privileges, membership or employment for a
cumulative total of 30 days or more for any 12-month
period, for a medical disciplinary cause or reason
(Commonly referred to as an "805 report" pursuant to BPC
§ 805.)
8)Requires a peer review body to file a report with the
relevant agency within 15 days after a peer review body
makes a final decision or recommendation regarding the
disciplinary action to be taken against a licentiate if
it is determined, based on the investigation of the
licentiate, that the licentiate was involved in the use
of, or prescribing for or administering to himself or
herself, any controlled substance; or the use of any
dangerous drug or alcoholic beverages, to the extent, or
in such a manner as to be dangerous or injurious to the
licentiate, any other person, or to the public, or to the
extent that such use impairs the ability of the
licentiate to practice safely. (BPC § 805.01)
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9)Provides for the licensure and regulation of physicians and
surgeons by MBC pursuant to the Medical Practice Act (Act).
(BPC § 2000 et. seq.)
10)Requires the MBC to disclose on the Internet specified
information in its possession, custody, or control
regarding licensed physicians and surgeons, including:
any felony convictions reported to the MBC after January
3, 1991; or, any misdemeanor conviction that results in a
disciplinary action or an accusation that is not
subsequently withdrawn or dismissed. (BPC § 2027)
11)Requires MBC to investigate complaints from the public,
other licensees, health care facilities or from others as
specified. (BPC § 2220)
12)Requires MBC to prioritize its investigative and
prosecutorial resources to ensure that physicians and
surgeons representing the greatest threat of harm are
identified and disciplined expeditiously. (BPC §2220.05)
13)Sets forth what the MBC may do in disciplining a physician
(e.g., revoke or suspend a license, place a physician on
probation, etc); further states that a licensee can "Have any
other action taken in relation to discipline as part of an
order as the board or administrative law judge may deem
proper." (BPC § 2227)
14)Requires the automatic suspension of a physician and
surgeon's certificate during any time that the holder of
the certificate is incarcerated after conviction of a
felony, regardless of whether the conviction has been
appealed. Requires the MBC, immediately upon receipt of
the certified copy of the record of conviction, to
determine whether the certificate of the physician and
surgeon has been automatically suspended by virtue of his
or her incarceration, and if so, the duration of that
suspension. Requires the MBC to notify the physician and
surgeon of the license suspension and of his or her right
to elect to have the issue of penalty heard, as provided.
(BPC § 2236.1)
This bill:
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1) Requires MBC, OMBC, BPM, Acupuncture Board (CAB), Board of
Chiropractic Examiners (BCE) and the Naturopathic Medicine
Committee (NMC) by July 1, 2018, to include a standardized,
single paragraph, plain-language summary that contains the
listing of causes that led to the licensee's probation, the
length of the probation and the end date, and all practice
restrictions placed on the licensee in a disclosure regarding
the status of a licensee's license made to an inquiring
member of the public as well as on any documents informing
the public of probation orders and probation licenses,
including but not limited to newsletters. Requires the
summary to be posted on the BreEZe profile web page of each
licensee subject to probation.
2) Requires licensees of the MBC, OMBC, BPM, CAB, BCE and NMC to
disclose their probationary status to patients or their
guardians or health care surrogates prior to the patient's
first visit while the licensee is on probation under any of
the following circumstances:
a) The licensee's licensing board made a finding in the
probation order of:
i. Gross negligence;
ii. Repeated negligent acts involving a departure from
the standard of care with multiple patients;
iii. Repeated acts of inappropriate and excessive
prescribing of controlled substances, including, but not
limited to, prescribing controlled substances without
appropriate prior examination or without medical reason
documented in medical records;
iv. Drug or alcohol abuse that threatens to impair a
licensee's ability to practice medicine safely, including
practicing under the influence of drugs or alcohol;
v. Felony conviction arising from or occurring during
patient care or treatment; and
vi. Mental illness or other cognitive impairment that
impedes a licensee's ability to safely practice.
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a) The licensee's licensing board ordered any of the
following in conjunction with placing the licensee on
probation:
i. That a third party chaperone be present when the
licensee examines patients as a result of sexual
misconduct;
ii. That the licensee submit to drug testing as a result
of drug or alcohol abuse;
iii. That the licensee have a monitor;
iv. Restricting totally or partially the licensee from
prescribing controlled substances; or
v. Suspending the licensee from practice in cases
related to quality of care.
a) The licensee has not successfully completed a clinical
training program or any associated examinations required by
the board as a condition of probation.
b) The licensee has been on probation repeatedly.
3)Provides an exemption to this requirement if the patient is
unconscious or otherwise unable to comprehend the disclosure
and sign the receipt of disclosure and if a guardian or health
care surrogate is unavailable to comprehend the disclosure and
sign the receipt of disclosure. Specifies that the licensee
shall disclose his or her status as soon as either the patient
or a guardian or health care surrogate is available to
comprehend and sign the disclosure.
4)Requires boards to develop a standardized format for the
summary in #1 above.
FISCAL
EFFECT: Unknown. This bill is keyed "fiscal" by Legislative
Counsel.
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COMMENTS:
1. Purpose. The Author is the Sponsor of this bill and notes
that SB 1033 will only require additional disclosure for
patients served by 500 - 600 licensed physicians in the
state. According to the Author, patients deserve to be
proactively informed if their doctor has been placed on
probation by the Medical Board, Osteopathic Medical Board,
Board of Podiatric Medicine, Acupuncture Board, or Board of
Chiropractic Examiners or Naturopathic Medicine Committee for
serious offenses such as sexual misconduct, substance abuse,
gross negligence, or a felony conviction related to patient
care and treatment. The Author states that on average, only
up to 0.6 percent of the over 137,000 licensed professionals
in the state are on probation at any given time and that
while this bill will not affect many practitioners, these
practitioner's actions affect tens of thousands of patients.
The Author notes that physicians, osteopathic physicians and
podiatrists are already required to inform hospitals and
malpractice insurers of their probation status, but their
patients have to seek out the information for themselves on
the state's licensee database. The Author adds that while
California licensing boards post information on their
websites related to licensee discipline, patients may not
know about this resource or have the ability to check the
databases. The Author notes that these websites are difficult
to navigate and often people have to review complicated legal
documents to find out why their doctor was placed on
probation. SB 1033 would ensure that patients receive an
easy to understand document prior to their visit and require
the regulatory boards to make their websites more user
friendly and easier for patients to determine why their
physician is on probation.
The Author notes that misconduct cases undergo rigorous
scrutiny by multiple state entities and are not taken
lightly. MBC's expert physicians review cases to determine if
they have merit. They are investigated by Department of
Consumer Affairs investigators and reviewed by the state
Attorney General's Office for the filing of a charging
document called "an accusation." The case then goes to a
hearing before an administrative law judge, if the physician
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disputes the accusation. According to the Author, ultimately,
the outcome of the hearing or of an undisputed case is
decided by MBC, which determines whether to accept findings
and impose discipline. Discipline could range from a letter
of reprimand, probation with specified terms and conditions,
or license revocation.
2. Background.
a) Probation. According to information provided by the
Author and in a petition filed before the MBC by Consumers'
Union Safe Patient Project calling on MBC to amend its
Manual of Model Disciplinary Orders and Disciplinary
Guidelines and require physicians on probation to inform
their patients of this, physicians are routinely placed on
probation by MBC for multiple years. Generally, while on
probation these physicians are allowed to continue
practicing medicine, often with limitations and
requirements, but most commonly they are not required to
provide any information to their patients regarding their
MBC discipline. As of September 29, 2015, according to
information provided by MBC, nearly 500 California
physicians - among 102,000 California physicians in active
practice - were on probation. According to the MBC
information provided at a 2013 Enforcement Committee
meeting, during fiscal years 2011-2012 and 2012-2013, 444
of 561 physicians on probation were actively practicing in
California.
Physicians are placed on probation following the Attorney
General making an accusation for a variety of reasons, for
example, gross negligence/incompetence (the most common reason
for probation), substance abuse, inappropriate prescribing,
sexual misconduct, conviction of a felony or other miscellaneous
violations.
A November 2008 report issued by The California Research Bureau
(CRB), Physician Misconduct and Public Disclosure Practices at
the Medical Board of California, reported that physicians who
have received serious sanctions in the past are far more likely
to receive additional sanctions in the future. According to the
CRB report, "These findings strongly imply that disciplinary
histories provide patients with important information about the
likely qualities of different physicians." The CRB cited
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research that examined physician discipline data from the
Federation of State Medical Boards. The researchers split their
sample into two periods, Period A 1994 - 98 and Period B 1999 -
2002. They classified physicians by whether they had no
sanctions in the period, or had been assessed with one or more
mild, medium or severe sanctions. Severe sanctions encompassed
disciplinary actions that resulted in the revocation,
suspension, surrender, or mandatory retirement of a license or
the loss of privileges afforded by that license. The medium
sanctions included actions that resulted in probation,
limitation, or conditions on the medical license or a
restriction of license privileges. The study found that less
than 1 percent of physicians who were unsanctioned during Period
A were assessed a disciplinary action during Period B. However,
physicians sanctioned during the earlier period were much more
likely to be assessed additional sanctions in the second period;
for example, 15.7% of those who received a medium sanction in
Period A went on to receive either a medium or a severe sanction
in Period B; physicians who received a medium sanction in Period
A were 28 percent more likely to receive a severe sanction in
Period B than someone who received no sanction in period A; and,
physicians who received a medium sanction in Period A were 32
percent more likely to receive another medium sanction in Period
B than someone who received no sanction in Period A.
MBC data from a 2013 Enforcement Committee meeting also showed
that in
FY 2011-2012 and FY 2012-2013, 17 percent of 444
actively-practicing California physicians on probation (77
doctors total) either required subsequent discipline or
surrendered their licenses while on probation.
b) Disclosures. When the MBC places physicians on
probation, generally they continue to practice medicine and
see patients under restricted conditions. The MBC posts
information regarding probation on its website and
distributes the information to its email list which
includes media and interested persons who have signed up to
receive it.
A 2011 Consumer Reports National Research Center telephone
survey of a nationally representative sample revealed that only
one-quarter of respondents (26 percent) said they would know
where to file a complaint about a medical error they experienced
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at a hospital.
According to a recent Pew Research Center U.S. analysis, seniors
who are the most likely to seek healthcare, are also the group
most likely to say they never go online. About four-in-ten
adults ages 65 and older (39 percent) do not use the internet,
compared with only 3 percent of 18- to 29-year-olds.
One-in-five African Americans, 18 percent of Hispanics and 5
percent of English-speaking Asian-Americans do not use the
internet, compared with 14 percent of whites.
In October, 2012 MBC staff made a proposal to the MBC to require
physicians to inform their patients when the physician is on
probation and required to have a monitor. In its recommendation
staff said, "This would insure the public has the ability to
make informed decisions regarding their healthcare provider."
The Board did not approve the staff proposal.
c) Amendments Requested to MBC's Manual of Model
Disciplinary Orders and Disciplinary Guidelines. The
following changes were requested in the petition outlined
above as a standard condition of probation:
Physicians who continue to see patients would
be required to inform their patients of their
probationary status;
Patients are notified of the physician's
probationary status when the patient contacts the
physician's office to make an appointment;
Disclosure provided in writing and signed at
the time of the patient's appointment by each patient
the physician sees while on probation to acknowledge
the notice;
Disclosure posted in the physician's office in
a place readily apparent to patients;
Disclosures include at least a one-paragraph
description of the offenses that led the MBC to place
the physician on probation and include a description
of any practice restrictions placed on the physician;
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Patient referral for more details to online
MBC documents related to the physician's probation;
Physician maintains a log of all patients to
whom the required oral notification was made. The log
should contain the following: 1) patient's name,
address and phone number; patient's medical record
number, if available; 3) the full name of the person
making the notification; 4) the date notification was
made; 5) a copy of the notification given; and 6) a
signed attestation by the patient that notification
was received. Respondent shall keep this log in a
separate file or ledger, in chronological order, and
shall make the log available for immediate inspection
and copying on the premises at all times during
business hours by the board or its designee, and shall
retain the log for the entire term of probation.
1. MBC Disclosure Discussions. MBC voted to deny the petition
outlined above and instead established a task force to
explore a variety of suggestions for enhancing and improving
the public's awareness of MBC's regulation of physicians. At
the January 2016 MBC meeting, the task force discussed
improving MBC's online license lookup function, modifying the
consumer notice posted in physician waiting rooms, increasing
public outreach regarding physicians on probation and
revising MBC's disciplinary guidelines. MBC did not take
action on the option for health care providers on probation
to notify their patients.
2. Arguments in Support. Californians for Patients Rights writes
in support of this bill, citing the example of a patient who
died following elective surgery performed by a physician with
a long arrest record, including violations for controlled
substances, noting that the underserved and most critically
ill Californians should be kept in mind. The organization
notes that rather than approve a petition requiring
disclosure to patients a standard of probation, MBC focused
on website enhancements and believes this is important
legislation to improve physician accountability, transparency
and public participation.
The Center for Public Interest Law (CPIL) supports this bill,
writing that patients deserve to know critical information
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such as if their doctor is practicing while on probation.
CPIL notes when MBC places a physician on probation for
serious offenses, it often places certain conditions upon
that physician but that patients are typically unaware of
such conditions or the fact that their doctor is on probation
at all. CPIL also states that because MBC's probation unit
has struggled to keep up with its incredibly large case load
and petitions to revoke probation based on documented
probation violations have not been filed properly, this
bill's notification requirement is even more important.
According to CPIL, MBC's paramount priority is public
protection yet each time the MBCs probation unit fails to act
promptly on probation violations, patients are at risk which
makes it even more compelling that patients be affirmatively
notified that their doctors are on probation so they can make
an informed choice about their physician.
According to Consumers Union's Safe Patient Project (CUSPP),
this legislation is necessary, as MBC declined to require
notification to patients, particularly necessary as
physicians on probation are allowed to continue practicing
medicine, in order to fully inform California patients.
CUSPP and CALPIRG , which also supports this bill, cite
information from published research and the MBC's own data
that show physicians who receive serious sanctions like
probation are more likely to receive additional sanctions.
According to CUSPP and CALPIRG , the bill and disclosure of
probationary status are particularly important and cites the
Pew study above indicating that seniors, most likely to
utilize healthcare, would not be able to access information
from MBC's website. CUSPP notes that even though information
about physicians on probation is on the MBC's website, it is
likely that most patients do not know the board exists, let
alone that they post information about physician discipline
and that even those who do find their way to the website will
find obscure, lengthy documents in legalese.
The Consumer Federation of California (CFC) believes that the
requirements in this bill for direct reporting to patients
are essential in light of the varied availability of the
internet in California and note that information relating to
a doctor's probationary status should be provided
affirmatively. CFC states that consumers deserve to feel
safe and confident in their medical care and should be
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empowered to make informed choices regarding their health.
Consumer Watchdog writes in support of this bill, stating
that "within the last week, the Medical Board issued notice
that it had placed two physicians on probation for improper
prescribing of narcotics without a legitimate medical purpose
or even conducting a medical exam and that another doctor was
placed on probation for seeing patients while suffering from
a mental illness that impaired his ability to practice
medicine safely." Consumer Watchdog believes that this is
the kind of information every patient deserves to know about
their doctor before they receive medical care and that
patients of these doctors deserve to be notified proactively.
According to Consumer Watchdog, patients expect their
doctors are operating with a clean record and if this is not
the case, they deserve a proactive warning. The group
believes that this information is important enough to patient
safety that doctors are required to report it to hospitals
where they practice as well as to their malpractice insurers
and it is clearly also important enough to require them to
inform their patients.
Consumer Attorneys of California states that, on average,
only up to 0.6 percent of these licensed professionals are on
probation at any given time. The group believes this bill is
a common sense consumer protection measure that will help
consumers make informed medical decisions.
3. Arguments in Opposition. The California Chapter of the
American College of Emergency Room Physicians (California
ACEP) is opposed to this bill unless amended, noting that the
bill presents a challenge for patients being treated in the
emergency department and that during the course of emergency
treatment, a patient may receive treatment from a number of
physicians and in some cases, be transferred to another
hospital. California ACEP believes that due to the unique
nature of treating patients in the emergency department, the
bill should be amended to exempt emergency medical services.
According to the California Medical Association (CMA), the
notification requirements in this bill and requiring a signed
receipt of notification will result, in some cases, in the
patient seeking another provider without seeking additional
information. CMA states that in other cases, the patient may
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seek to get additional information from the physician and it
is "unrealistic to think a patient will not pose questions to
the licensee." CMA believes that this conversation will take
time and inevitably expand into time in which patient care
can be provided, severely impacting the physician's ability
to practice. According to CMA, the practical impacts of the
notice requirement on a practice make probation substantially
similar to suspension by significantly constraining the
physician's ability to practice and add that the impacts will
influence a physician's decisions about his or her defense
against an MBC accusation. CMA is also concerned about the
liability created by the exemption in this bill for
circumstances when the patient is unconscious. CMA argues
that this bill will discourage stipulated settlement and
encourage more physicians to pursue a hearing on the matter,
which will slow the disciplinary process for all cases. CMA
states that the bill would permit probation based upon
unsubstantiated allegations in an accusation, arguments and
bare conclusions in a statement of issues, or speculation
based on what an administrative law judge's ultimate legal
conclusions might be.
SUPPORT AND OPPOSITION:
Support:
Californians for Patients' Rights
CALPIRG
Center for Public Interest Law
Consumer Federation of California
Consumers Union's Safe Patient Project
Consumer Watchdog
One individual
Opposition:
California Chapter of the American College of Emergency Room
Physicians
California Medical Association
-- END --
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