Senate Bill No. 1217

Introduced by Senator Stone

February 18, 2016

An act to amend Sections 800, 801, 801.1, and 802 of the Business and Professions Code, relating to healing arts.

LEGISLATIVE COUNSEL’S DIGEST

SB 1217, as introduced, Stone. Healing arts: reporting requirements: professional liability resulting in death or personal injury.

Existing law establishes within the Department of Consumer Affairs various boards that license and regulate the practice of various professions and vocations, including those relating to the healing arts. Existing law requires each healing arts licensing board to create and maintain a central file containing an individual historical record on each person who holds a license from that board. Existing law requires that the individual historical record contain any reported judgment or settlement requiring the licensee or the licensee’s insurer to pay over $3,000 in damages for any claim that injury or death was proximately caused by the licensee’s negligence, error or omission in practice, or rendering unauthorized professional service.

This bill would instead require the record to contain reported judgments or settlements with damages over $10,000.

Existing law requires an insurer providing professional liability insurance to a physician and surgeon, a governmental agency that self-insures a physician and surgeon or, if uninsured, a physician and surgeon himself or herself, to report to the respective licensing board information concerning settlements over $30,000, arbitration awards in any amount, and judgments in any amount in malpractice actions to the practitioner’s licensing board. Existing law provides that information concerning professional liability settlements, judgments, and arbitration awards of over $10,000 in damages arising from death or personal injury must be reported to the respective licensing boards of specified healing arts practitioners including, among others, licensed professional clinical counselors, licensed dentists, and licensed veterinarians. Existing law provides that, for other specified healing arts practitioners including, among others, licensed educational psychologists, licensed nurses, and licensed pharmacists, information concerning professional liability settlements, judgments, and arbitration awards of over $3,000 in damages arising from death or personal injury shall be reported to their respective licensing boards.

This bill would raise the minimum dollar amount triggering those reporting requirements from $3,000 to $10,000.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 800 of the Business and Professions Code
is amended to read:

800.  

(a) The Medical Board of California, the Board of
Psychology, the Dental Board of California, the Dental Hygiene
Committee of California, the Osteopathic Medical Board of
California, the State Board of Chiropractic Examiners, the Board
of Registered Nursing, the Board of Vocational Nursing and
Psychiatric Technicians of the State of California, the State Board
of Optometry, the Veterinary Medical Board, the Board of
Behavioral Sciences, the Physical Therapy Board of California,
the California State Board of Pharmacy, the Speech-Language
Pathology and Audiology and Hearing Aid Dispensers Board, the
California Board of Occupational Therapy, the Acupuncture Board,
and the Physician Assistant Board shall each separately create and
maintain a central file of the names of all persons who hold a
license, certificate, or similar authority from that board. Each
central file shall be created and maintained to provide an individual
historical record for each licensee with respect to the following
information:

(1) Any conviction of a crime in this or any other state that
constitutes unprofessional conduct pursuant to the reporting
requirements of Section 803.

(2) Any judgment or settlement requiring the licensee or his or
her insurer to pay any amount of damages in excess of begin delete three
thousand dollars ($3,000) end delete begin insert ten thousand dollars ($10,000) end insert for any
claim that injury or death was proximately caused by the licensee’s
negligence, error or omission in practice, or by rendering
unauthorized professional services, pursuant to the reporting
requirements of Section 801 or 802.

(3) Any public complaints for which provision is made pursuant
to subdivision (b).

(4) Disciplinary information reported pursuant to Section 805,
including any additional exculpatory or explanatory statements
submitted by the licentiate pursuant to subdivision (f) of Section
805. If a court finds, in a final judgment, that the peer review
resulting in the 805 report was conducted in bad faith and the
licensee who is the subject of the report notifies the board of that
finding, the board shall include that finding in the central file. For
purposes of this paragraph, “peer review” has the same meaning
as defined in Section 805.

(5) Information reported pursuant to Section 805.01, including
any explanatory or exculpatory information submitted by the
licensee pursuant to subdivision (b) of that section.

(b) (1) Each board shall prescribe and promulgate forms on
which members of the public and other licensees or certificate
holders may file written complaints to the board alleging any act
of misconduct in, or connected with, the performance of
professional services by the licensee.

(2) If a board, or division thereof, a committee, or a panel has
failed to act upon a complaint or report within five years, or has
found that the complaint or report is without merit, the central file
shall be purged of information relating to the complaint or report.

(3) Notwithstanding this subdivision, the Board of Psychology,
the Board of Behavioral Sciences, and the Respiratory Care Board
of California shall maintain complaints or reports as long as each
board deems necessary.

(c) (1) The contents of any central file that are not public
records under any other provision of law shall be confidential
except that the licensee involved, or his or her counsel or
representative, shall have the right to inspect and have copies made
of his or her complete file except for the provision that may
disclose the identity of an information source. For the purposes of
this section, a board may protect an information source by
providing a copy of the material with only those deletions necessary
to protect the identity of the source or by providing a
comprehensive summary of the substance of the material.
Whichever method is used, the board shall ensure that full
disclosure is made to the subject of any personal information that
could reasonably in any way reflect or convey anything detrimental,
disparaging, or threatening to a licensee’s reputation, rights,
benefits, privileges, or qualifications, or be used by a board to
make a determination that would affect a licensee’s rights, benefits,
privileges, or qualifications. The information required to be
disclosed pursuant to Section 803.1 shall not be considered among
the contents of a central file for the purposes of this subdivision.

(2) The licensee may, but is not required to, submit any
additional exculpatory or explanatory statement or other
information that the board shall include in the central file.

(3) Each board may permit any law enforcement or regulatory
agency when required for an investigation of unlawful activity or
for licensing, certification, or regulatory purposes to inspect and
have copies made of that licensee’s file, unless the disclosure is
otherwise prohibited by law.

(4) These disclosures shall effect no change in the confidential
status of these records.

SEC. 2.  

Section 801 of the Business and Professions Code is
amended to read:

801.  

(a) Except as provided in Section 801.01 and begin delete subdivisions
(b), (c), and (d) end delete begin insert subdivision (b) end insert of this section, every insurer
providing professional liability insurance to a person who holds a
license, certificate, or similar authority from or under any agency
specified in subdivision (a) of Section 800 shall send a complete
report to that agency as to any settlement or arbitration award over
begin delete three thousand dollars ($3,000) end delete begin insert ten thousand dollars ($10,000) end insert of
a claim or action for damages for death or personal injury caused
by that person’s negligence, error, or omission in practice, or by
his or her rendering of unauthorized professional services. The
report shall be sent within 30 days after the written settlement
agreement has been reduced to writing and signed by all parties
thereto or within 30 days after service of the arbitration award on
the parties.

begin delete

(b) Every insurer providing professional liability insurance to
a person licensed pursuant to Chapter 13 (commencing with
Section 4980), Chapter 14 (commencing with Section 4990), or
Chapter 16 (commencing with Section 4999.10) shall send a
complete report to the Board of Behavioral Sciences as to any
settlement or arbitration award over ten thousand dollars ($10,000)
of a claim or action for damages for death or personal injury caused
by that person’s negligence, error, or omission in practice, or by
his or her rendering of unauthorized professional services. The
report shall be sent within 30 days after the written settlement
agreement has been reduced to writing and signed by all parties
thereto or within 30 days after service of the arbitration award on
the parties.

(c) Every insurer providing professional liability insurance to
a dentist licensed pursuant to Chapter 4 (commencing with Section
1600) shall send a complete report to the Dental Board of
California as to any settlement or arbitration award over ten
thousand dollars ($10,000) of a claim or action for damages for
death or personal injury caused by that person’s negligence, error,
or omission in practice, or rendering of unauthorized professional
services. The report shall be sent within 30 days after the written
settlement agreement has been reduced to writing and signed by
all parties thereto or within 30 days after service of the arbitration
award on the parties.

(d)

end delete

begin insert (b) end insert  Every insurer providing liability insurance to a veterinarian
licensed pursuant to Chapter 11 (commencing with Section 4800)
shall send a complete report to the Veterinary Medical Board of
any settlement or arbitration award over ten thousand dollars
($10,000) of a claim or action for damages for death or injury
caused by that person’s negligence, error, or omission in practice,
or rendering of unauthorized professional service. The report shall
be sent within 30 days after the written settlement agreement has
been reduced to writing and signed by all parties thereto or within
30 days after service of the arbitration award on the parties.

begin delete

(e)

end delete

begin insert (c) end insert  The insurer shall notify the claimant, or if the claimant is
represented by counsel, the insurer shall notify the claimant’s
attorney, that the report required by subdivision begin delete (a), (b), or (c) end delete begin insert (a) end insert
has been sent to the agency. If the attorney has not received this
notice within 45 days after the settlement was reduced to writing
and signed by all of the parties, the arbitration award was served
on the parties, or the date of entry of the civil judgment, the
attorney shall make the report to the agency.

begin delete

(f)

end delete

begin insert (d) end insert  Notwithstanding any other provision of law, no insurer shall
enter into a settlement without the written consent of the insured,
except that this prohibition shall not void any settlement entered
into without that written consent. The requirement of written
consent shall only be waived by both the insured and the insurer.
This section shall only apply to a settlement on a policy of
insurance executed or renewed on or after January 1, 1971.

SEC. 3.  

Section 801.1 of the Business and Professions Code
is amended to read:

801.1.  

begin delete (a) end delete begin delete   end delete Every state or local governmental agency that
self-insures a person who holds a license, certificate, or similar
authority from or under any agency specified in subdivision (a) of
Section 800 (except a person licensed pursuant to Chapter 3
(commencing with Section 1200) or Chapter 5 (commencing with
Section 2000) or the Osteopathic Initiative Act) shall send a
complete report to that agency as to any settlement or arbitration
award over begin delete three thousand dollars ($3,000) end delete begin insert ten thousand dollars
($10,000) end insert of a claim or action for damages for death or personal
injury caused by that person’s negligence, error, or omission in
practice, or rendering of unauthorized professional services. The
report shall be sent within 30 days after the written settlement
agreement has been reduced to writing and signed by all parties
thereto or within 30 days after service of the arbitration award on
the parties.

begin delete

(b) Every state or local governmental agency that self-insures
a person licensed pursuant to Chapter 13 (commencing with
Section 4980), Chapter 14 (commencing with Section 4990), or
Chapter 16 (commencing with Section 4999.10) shall send a
complete report to the Board of Behavioral Science Examiners as
to any settlement or arbitration award over ten thousand dollars
($10,000) of a claim or action for damages for death or personal
injury caused by that person’s negligence, error, or omission in
practice, or rendering of unauthorized professional services. The
report shall be sent within 30 days after the written settlement
agreement has been reduced to writing and signed by all parties
thereto or within 30 days after service of the arbitration award on
the parties.

end delete

SEC. 4.  

Section 802 of the Business and Professions Code is
amended to read:

802.  

begin delete (a) end delete begin delete   end delete Every settlement, judgment, or arbitration award over
begin delete three thousand dollars ($3,000) end delete begin insert ten thousand dollars ($10,000) end insert of
a claim or action for damages for death or personal injury caused
by negligence, error or omission in practice, or by the unauthorized
rendering of professional services, by a person who holds a license,
certificate, or other similar authority from an agency specified in
subdivision (a) of Section 800 (except a person licensed pursuant
to Chapter 3 (commencing with Section 1200) or Chapter 5
(commencing with Section 2000) or the Osteopathic Initiative Act)
who does not possess professional liability insurance as to that
claim shall, within 30 days after the written settlement agreement
has been reduced to writing and signed by all the parties thereto
or 30 days after service of the judgment or arbitration award on
the parties, be reported to the agency that issued the license,
certificate, or similar authority. A complete report shall be made
by appropriate means by the person or his or her counsel, with a
copy of the communication to be sent to the claimant through his
or her counsel if the person is so represented, or directly if he or
she is not. If, within 45 days of the conclusion of the written
settlement agreement or service of the judgment or arbitration
award on the parties, counsel for the claimant (or if the claimant
is not represented by counsel, the claimant himself or herself) has
not received a copy of the report, he or she shall himself or herself
make the complete report. Failure of the licensee or claimant (or,
if represented by counsel, their counsel) to comply with this section
is a public offense punishable by a fine of not less than fifty dollars
($50) or more than five hundred dollars ($500). Knowing and
intentional failure to comply with this section or conspiracy or
collusion not to comply with this section, or to hinder or impede
any other person in the compliance, is a public offense punishable
by a fine of not less than five thousand dollars ($5,000) nor more
than fifty thousand dollars ($50,000).

begin delete

(b) Every settlement, judgment, or arbitration award over ten
thousand dollars ($10,000) of a claim or action for damages for
death or personal injury caused by negligence, error or omission
in practice, or by the unauthorized rendering of professional
services, by a marriage and family therapist, a clinical social
worker, or a professional clinical counselor licensed pursuant to
Chapter 13 (commencing with Section 4980), Chapter 14
(commencing with Section 4990), or Chapter 16 (commencing
with Section 4999.10), respectively, who does not possess
professional liability insurance as to that claim shall within 30
days after the written settlement agreement has been reduced to
writing and signed by all the parties thereto or 30 days after service
of the judgment or arbitration award on the parties be reported to
the agency that issued the license, certificate, or similar authority.
A complete report shall be made by appropriate means by the
person or his or her counsel, with a copy of the communication to
be sent to the claimant through his or her counsel if he or she is
so represented, or directly if he or she is not. If, within 45 days of
the conclusion of the written settlement agreement or service of
the judgment or arbitration award on the parties, counsel for the
claimant (or if he or she is not represented by counsel, the claimant
himself or herself) has not received a copy of the report, he or she
shall himself or herself make a complete report. Failure of the
marriage and family therapist, clinical social worker, or
professional clinical counselor or claimant (or, if represented by
counsel, his or her counsel) to comply with this section is a public
offense punishable by a fine of not less than fifty dollars ($50) nor
more than five hundred dollars ($500). Knowing and intentional
failure to comply with this section, or conspiracy or collusion not
to comply with this section or to hinder or impede any other person
in that compliance, is a public offense punishable by a fine of not
less than five thousand dollars ($5,000) nor more than fifty
thousand dollars ($50,000).

end delete