BILL ANALYSIS
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|Hearing Date:June 29, 2009 |Bill No:AB 245 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: AB 245Author:Ma
As Amended:June 1, 2009 Fiscal: Yes
SUBJECT: Physicians and surgeons.
SUMMARY: Requires the Medical Board of California to remove an
expunged or misdemeanor or felony conviction posted on the Board's
Internet Website within 90 days of receiving notice of the
expungement.
Existing law:
1)Establishes the Medical Board of California (MBC) to license,
regulate and discipline physicians and surgeons in California.
States that the protection of the public is the highest priority
of the MBC in exercising its functions.
2)Requires the MBC, along with other specified 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.
3)States that the content of the central file that is not public
record under any other provision of law is confidential and
allows a licensee to submit any exculpatory or explanatory
statements or other information to be included in the central
file.
4)Requires the MBC to post on the Internet specified information
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regarding licensed physicians, including information relating to
the following:
a) Status of a license, whether or not a licensee is in good
standing, as specified.
b) Prior discipline, as specified.
c) Any felony convictions reported to the MBC after January
3, 1991.
d) All current accusations filed by the Attorney General.
e) Any malpractice judgment or arbitration award reported to
the MBC on or after January 1, 1993.
f) Any hospital disciplinary actions that resulted in the
termination or revocation of a licensee's hospital staff
privileges for a medical disciplinary cause or reason.
g) Any misdemeanor conviction that results in a disciplinary
action or an accusation that is not subsequently withdrawn or
dismissed.
h) Appropriate disclaimers and explanatory statements to
accompany the above information, including an explanation of
what types of information are not disclosed.
i) States that the disclaimers and statements be developed by
the MBC and adopted by regulation.
j) Any enforcement action taken against a licensee including
temporary restraining orders, interim suspension orders,
civil judgments and all settlements.
5)Specifies what information may be posted on MBC's Internet
Website for a period of ten years, including all information on
the status of a license.
6)States that information relating to all felony convictions and
any hospital disciplinary actions that resulted in the
termination or revocation of a licensee's hospital staff
privileges for a medical disciplinary cause or reason shall not
be removed from postage on the MBC's Internet Website.
7)Requires the MBC to provide links to other Websites on the
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Internet that provide information on MBC certification, as
specified.
This bill requires the MBC to remove an expunged misdemeanor or
felony conviction posted on the Internet within 90 days of
receiving notice of the expungement.
FISCAL EFFECT: According to the Assembly Appropriations Committee,
annual fee-supported special fund costs of $800,000 to $1 million to
support the MBC staffing and follow-up needed to meet the requirements
of this bill.
COMMENTS:
1.Purpose. According to the Author, the disclosure of information by
the MBC to the general public regarding physician conduct is an
important public safeguard. However, the MBC often publishes
information that is inaccurate such as criminal misdemeanors or
felony convictions that have been legally expunged. Continuous
publication of such information can be economically disastrous for a
physician and can disrupt the successful delivery of health care
services.
2.Background.
a) Posting of Information on the MBC Internet Website. Current
law requires the MBC to post certain information on physicians
and surgeons on its Internet Website. The information that must
be posted will include status of a license, whether or not a
licensee is in good standing, prior discipline, any felony
convictions reported to the MBC after January 3, 1991, all
current accusations filed by the Attorney General, any
malpractice judgment or arbitration award reported to the MBC on
January 1, 1993, any hospital disciplinary actions that resulted
in the termination or revocation of a licensee's hospital staff
privileges for a medical disciplinary cause or reason, any
misdemeanor conviction that results in a disciplinary action or
an accusation that is not subsequently withdrawn or dismissed.
Any enforcement action taken against a licensee including
temporary restraining orders, interim suspension orders, civil
judgments and all settlements. Most of this information that is
required to be disclosed are posted on the Internet Website for a
period of ten years. Existing law requires MBC to post
appropriate disclaimers and explanatory statements to accompany
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the above information, including an explanation of what types of
information are not disclosed.
b) Expungement of Records. The Penal Code allows misdemeanor and
felony convictions to be expunged if the defendant was only given
a sentence of probation, rather than state imprisonment. Under
the Penal Code, if a defendant has fulfilled the conditions of
probation, or has been discharged from probation, and if the
court determines that a relief should be granted, the defendant
at any time after the termination of the period of probation, if
he or she is not serving a sentence for any offense, as
specified, is authorized to withdraw his or her plea of guilty or
plea of nolo contendere and enter a plea of not guilty. In such
instance, the court sets aside the verdict of guilty and
dismisses the accusations or information against the defendant
and releases the defendant from all penalties and disabilities
resulting from the offense of which he or she has been convicted.
The MBC asserts that they do remove expunged misdemeanor or
felony convictions upon notification and verification.
c) Report by the California Research Bureau. On November 2008,
the California Research Bureau (CRB) submitted to the Legislature
its report entitled Physician Misconduct and Public Disclosure
Practices at the Medical Board of California. This report was
mandated by SB 1438 (Figueroa), Chapter 223, Statutes of 2006,
which instructed the CRB to study the role of public disclosure
in the public protection mandate of the MBC. The report
considered whether the public is adequately informed about
physician misconduct by the current laws and regulations
providing for disclosure. The report analyzed what difference
MBC disclosure policies make to public safety and the quality of
medical care in California. According to the report, national
data suggests that the volume of "Quality of Care" complaints
received by MBC each year falls far short (by an order of
magnitude) of the number of serious injuries Californians receive
in hospitals each year due to negligent or incompetent care.
Most peer-reviewed studies of medical errors and malpractice
imply that the large majority of patients who are harmed by a
health care provider's negligence or incompetence fail to file
formal complaints. The report further states that while many
medical errors are attributable to the actions or omissions of
other professionals in the caregiver stream, these studies
suggest that most negligent and/or incompetent acts committed by
physicians nationwide and in California alike each year escape
MBC scrutiny . The report also pointed out that there is a lack
of survey evidence specific to California about the degree to
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which the public is well-informed about the MBC's regulatory
role, and consumers would likely benefit from policy changes that
would expand and lengthen public disclosure and Internet display
of a variety of information about physicians' records, including
malpractice payouts, MBC's enforcement actions, and MBC's
citations and fines. Public records generally are available in
perpetuity to inquiring members of the public; however, current
disclosure laws and regulations limit the MBC's Internet display
of various public record documents to ten years or less. CRB's
report pointed out that the medical boards in several other
states, both large and small, provide considerably more
accessible information about physicians on their Internet
Websites than does the MBC. Furthermore, a number of
biographical facts about physicians not currently displayed on
the MBC's Internet physician profiles, such as gender, age,
specialty board certification and graduate training are useful
for predicting the odds a physician will face MBC's enforcement
actions in the future. Finally, the report offers a series of
policy options by which MBC could improve its capacity to fulfill
its primary mission to protect the public.
3.Arguments in Support. The American Federation of State, County, and
Municipal Employees indicates that this bill ensures that
information posted on MBC's Website is accurate, complete and
accessible.
4.Related Legislation.
a) SB 700 (Negrete McLeod), among other provisions, would
prohibit disclosure by certain health care regulatory bodies of
any summaries of hospital disciplinary actions that result in the
termination or revocation of a licensee's staff privileges for
medical disciplinary cause or reason if a court finds that the
peer review resulting in the disciplinary action was conducted in
bad faith and the licensee notifies the board of such finding.
SB 700 is pending on the Senate floor.
b) SB 58 (Aanestad), among other provisions, makes changes to
information that are publicly disclosed regarding licensing and
enforcement actions against physicians and surgeons. SB 58 is
pending on the Senate Appropriations suspense file.
5.Recommended Amendment. This bill requires the MBC to remove an
expunged misdemeanor or felony conviction posted on its Internet
Website within 90 days of receiving notice of the expungement.
However, the bill is silent on how MBC would be notified of the
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expungement, whether the notice should be provided by a court or
whether a licensee should be required to send to the MBC an official
copy of the court document relating to the expungement. The Author
may wish to amend this bill to clarify her intent.
NOTE : Double-referral to Judiciary Committee. This bill is
double-referred. Should it pass out of this Committee, it will be
referred to the Senate Judiciary Committee.
SUPPORT AND OPPOSITION:
Support:
Union of American Physicians and Dentists (Sponsor)
American Federation of State, County, and Municipal Employees
(co-Sponsor)
Opposition: None on file as of June 23, 2009
Consultant:Rosielyn Pulmano