BILL NUMBER: AB 834 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 14, 2009
INTRODUCED BY Assembly Member Solorio
FEBRUARY 26, 2009
An act relating to the healing arts. An
act to amend Sections 805 and 809.2 of, and to add Section 805.05 to,
the Business and Professions Code, relating to health care
practitioners.
LEGISLATIVE COUNSEL'S DIGEST
AB 834, as amended, Solorio. Health care practitioners: peer
review. review: voluntary remediation.
Existing law requires peer review bodies, as defined, and the
chief executive officer or administrator of any licensed health care
facility or clinic to file reports with the applicable state
licensing agency of specified health care practitioners upon the
occurrence of specified events, including, without limitation, a
practitioner voluntarily accepting restrictions on staff privileges,
membership, or employment, as specified, for a medical disciplinary
cause or reason. Existing law also entitles a practitioner to a
hearing, as specified, concerning a final proposed action for which a
report is required to be filed. Existing law prohibits a hearing
officer from gaining any direct financial benefit from the outcome,
from acting as a prosecuter or advocate, and from having a vote.
This bill would provide an alternative to the requirement to file
a report of voluntary acceptance of these restrictions, by
authorizing a peer review body to impose, and a practitioner to
accept, voluntary remediation which may include mandatory proctoring,
consultation, education, and retraining. The bill would also
authorize the peer review body to limit the practitioner's staff
privileges, and prohibit a practitioner from seeking new staff
privileges, during the pendency of the voluntary remediation. The
bill would also require the reporting person, as defined, to file a
report, as specified, with the applicable agency within 15 days
following the commencement date of a voluntary remediation, to
immediately file a supplementary report if the practitioner fails to
fulfill the terms of the remediation, and to file another report
within 30 days following completion of a remediation. The bill would
require the reporting person to provide the subject practitioner with
all reports it files and with a notice of the practitioner's right
to submit additional statements or other information. Within 15 days
following the commencement of a voluntary remediation, the reporting
person would be required to provide a notice of remediation to each
facility where the practitioner then has staff privileges. The bill
would provide that a practitioner who accepts a voluntary remediation
is not entitled to a hearing with respect to the remediation, and
would specify that a practitioner who rejects the remediation would
be entitled to a hearing concerning any proposed final action for
which a reporting person is required to file a report pursuant to
existing law. The bill would prohibit a lawyer who has represented
the applicable peer review body or licensed health care facility or
clinic within the prior 2 years from serving as a hearing officer,
and would prohibit any hearing officer from gaining any benefit from
the outcome. The bill would also make conforming changes.
Existing law requires peer review bodies, as defined, to file
reports with the applicable state licensing agency of specified
health care practitioners upon the occurrence of specified events,
including, without limitation, a licensee being denied staff
privileges for a medical disciplinary reason.
This bill would declare the Legislature's intent to enact
legislation revising the health care practitioner peer review process
in California to improve patient safety and care.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 805 of the Business
and Professions Code is amended to read:
805. (a) As used in this section, the following terms have the
following definitions:
(1) "Peer review body" includes:
(A) A medical or professional staff of any health care facility or
clinic licensed under Division 2 (commencing with Section 1200) of
the Health and Safety Code or of a facility certified to participate
in the federal Medicare Program as an ambulatory surgical center.
(B) A health care service plan registered under Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code or a disability insurer that contracts with licentiates to
provide services at alternative rates of payment pursuant to Section
10133 of the Insurance Code.
(C) Any medical, psychological, marriage and family therapy,
social work, dental, or podiatric professional society having as
members at least 25 percent of the eligible licentiates in the area
in which it functions (which must include at least one county), which
is not organized for profit and which has been determined to be
exempt from taxes pursuant to Section 23701 of the Revenue and
Taxation Code.
(D) A committee organized by any entity consisting of or employing
more than 25 licentiates of the same class that functions for the
purpose of reviewing the quality of professional care provided by
members or employees of that entity.
(2) "Licentiate" means a physician and surgeon, doctor of
podiatric medicine, clinical psychologist, marriage and family
therapist, clinical social worker, or dentist. "Licentiate" also
includes a person authorized to practice medicine pursuant to Section
2113.
(3) "Agency" means the relevant state licensing agency having
regulatory jurisdiction over the licentiates listed in paragraph (2).
(4) "Staff privileges" means any arrangement under which a
licentiate is allowed to practice in or provide care for patients in
a health facility. Those arrangements shall include, but are not
limited to, full staff privileges, active staff privileges, limited
staff privileges, auxiliary staff privileges, provisional staff
privileges, temporary staff privileges, courtesy staff privileges,
locum tenens arrangements, and contractual arrangements to provide
professional services, including, but not limited to, arrangements to
provide outpatient services.
(5) "Denial or termination of staff privileges, membership, or
employment" includes failure or refusal to renew a contract or to
renew, extend, or reestablish any staff privileges, if the action is
based on medical disciplinary cause or reason.
(6) "Medical disciplinary cause or reason" means that aspect of a
licentiate's competence or professional conduct that is reasonably
likely to be detrimental to patient safety or to the delivery of
patient care.
(7) "805 report" means the written report required under
subdivision (b).
(b) The chief of staff of a medical or professional staff or other
chief executive officer, medical director, or administrator of any
peer review body and the chief executive officer or administrator of
any licensed health care facility or clinic shall file an 805 report
with the relevant agency within 15 days after the effective date of
any of the following that occur as a result of an action of a peer
review body:
(1) A licentiate's application for staff privileges or membership
is denied or rejected for a medical disciplinary cause or reason.
(2) A licentiate's membership, staff privileges, or employment is
terminated or revoked for a medical disciplinary cause or reason.
(3) Restrictions are imposed , or voluntarily
accepted, other than as provided in Section 805.05, 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.
(c) The chief of staff of a medical or professional staff or other
chief executive officer, medical director, or administrator of any
peer review body and the chief executive officer or administrator of
any licensed health care facility or clinic shall file an 805 report
with the relevant agency within 15 days after any of the following
occur after notice of either an impending investigation or the denial
or rejection of the application for a medical disciplinary cause or
reason:
(1) Resignation or leave of absence from membership, staff, or
employment.
(2) The withdrawal or abandonment of a licentiate's application
for staff privileges or membership.
(3) The request for renewal of those privileges or membership is
withdrawn or abandoned.
(d) For purposes of filing an 805 report, the signature of at
least one of the individuals indicated in subdivision (b) or (c) on
the completed form shall constitute compliance with the requirement
to file the report.
(e) An 805 report shall also be filed within 15 days following the
imposition of summary suspension of staff privileges, membership, or
employment, if the summary suspension remains in effect for a period
in excess of 14 days.
(f) A copy of the 805 report, and a notice advising the licentiate
of his or her right to submit additional statements or other
information pursuant to Section 800, shall be sent by the peer review
body to the licentiate named in the report.
The information to be reported in an 805 report shall include the
name and license number of the licentiate involved, a description of
the facts and circumstances of the medical disciplinary cause or
reason, and any other relevant information deemed appropriate by the
reporter.
A supplemental report shall also be made within 30 days following
the date the licentiate is deemed to have satisfied any terms,
conditions, or sanctions imposed as disciplinary action by the
reporting peer review body. In performing its dissemination functions
required by Section 805.5, the agency shall include a copy of a
supplemental report, if any, whenever it furnishes a copy of the
original 805 report.
If another peer review body is required to file an 805 report, a
health care service plan is not required to file a separate report
with respect to action attributable to the same medical disciplinary
cause or reason. If the Medical Board of California or a licensing
agency of another state revokes or suspends, without a stay, the
license of a physician and surgeon, a peer review body is not
required to file an 805 report when it takes an action as a result of
the revocation or suspension.
(g) The reporting required by this section shall not act as a
waiver of confidentiality of medical records and committee
peer review body reports. The information
reported or disclosed shall be kept confidential except as provided
in subdivision (c) of Section 800 and Sections 803.1 and 2027,
provided that a copy of the report containing the information
required by this section may be disclosed as required by Section
805.5 with respect to reports received on or after January 1, 1976.
(h) The Medical Board of California, the Osteopathic Medical Board
of California, and the Dental Board of California shall disclose
reports as required by Section 805.5.
(i) An 805 report shall be maintained by an agency for
dissemination purposes for a period of three years after receipt.
(j) No person shall incur any civil or criminal liability as the
result of making any report required by this section.
(k) A willful failure to file an 805 report by any person who is
designated or otherwise required by law to file an 805 report is
punishable by a fine not to exceed one hundred thousand dollars
($100,000) per violation. The fine may be imposed in any civil or
administrative action or proceeding brought by or on behalf of any
agency having regulatory jurisdiction over the person regarding whom
the report was or should have been filed. If the person who is
designated or otherwise required to file an 805 report is a licensed
physician and surgeon, the action or proceeding shall be brought by
the Medical Board of California. The fine shall be paid to that
agency but not expended until appropriated by the Legislature. A
violation of this subdivision may constitute unprofessional conduct
by the licentiate. A person who is alleged to have violated this
subdivision may assert any defense available at law. As used in this
subdivision, "willful" means a voluntary and intentional violation of
a known legal duty.
(l) Except as otherwise provided in subdivision (k), any failure
by the administrator of any peer review body, the chief executive
officer or administrator of any health care facility, or any person
who is designated or otherwise required by law to file an 805 report,
shall be punishable by a fine that under no circumstances shall
exceed fifty thousand dollars ($50,000) per violation. The fine may
be imposed in any civil or administrative action or proceeding
brought by or on behalf of any agency having regulatory jurisdiction
over the person regarding whom the report was or should have been
filed. If the person who is designated or otherwise required to file
an 805 report is a licensed physician and surgeon, the action or
proceeding shall be brought by the Medical Board of California. The
fine shall be paid to that agency but not expended until appropriated
by the Legislature. The amount of the fine imposed, not exceeding
fifty thousand dollars ($50,000) per violation, shall be proportional
to the severity of the failure to report and shall differ based upon
written findings, including whether the failure to file caused harm
to a patient or created a risk to patient safety; whether the
administrator of any peer review body, the chief executive officer or
administrator of any health care facility, or any person who is
designated or otherwise required by law to file an 805 report
exercised due diligence despite the failure to file or whether they
knew or should have known that an 805 report would not be filed; and
whether there has been a prior failure to file an 805 report. The
amount of the fine imposed may also differ based on whether a health
care facility is a small or rural hospital as defined in Section
124840 of the Health and Safety Code.
(m) A health care service plan registered
licensed under Chapter 2.2 (commencing with Section 1340) of
Division 2 of the Health and Safety Code or a disability insurer that
negotiates and enters into a contract with licentiates to provide
services at alternative rates of payment pursuant to Section 10133 of
the Insurance Code, when determining participation with the plan or
insurer, shall evaluate, on a case-by-case basis, licentiates who are
the subject of an 805 report, and not automatically exclude or
deselect these licentiates.
SEC. 2. Section 805.05 is added to the
Business and Professions Code , to read:
805.05. (a) (1) "Voluntary remediation" means remedial
requirements that are imposed by a peer review body and voluntarily
accepted by a licentiate pursuant to this section. These remedial
requirements may include mandatory proctoring, consultation,
education, and retraining.
(2) "Reporting person" means the chief of staff of a medical or
professional staff or other chief executive officer, medical
director, or administrator of any peer review body imposing a
voluntary remediation upon a licentiate, or the chief executive
officer or administrator of any licensed health care facility or
clinic where the licentiate has staff privileges.
(b) A peer review body may impose, and a licentiate may accept,
voluntary remediation when deemed appropriate by the peer review
body, including without limitation, for a medical disciplinary cause
or reason. The remediation period shall not exceed six months, except
to the extent necessary, in the discretion of the peer review body,
to permit a licentiate to complete an ongoing program of education or
training that was in progress prior to the expiration of the
six-month period. As needed to protect patients, the peer review body
may limit the licentiate's staff privileges during the pendency of
voluntary remediation.
(c) A licentiate shall not seek to establish new staff privileges
at any health care facility or clinic during the pendency of any
voluntary remediation.
(d) (1) Within 15 days following the commencement date of
voluntary remediation, the reporting person shall submit a report to
the agency that includes the name and license number of the
licentiate involved, a description of the facts and circumstances of
the voluntary remediation, and may include any other information the
reporting person deems relevant.
(2) The reporting person shall file a supplemental report within
30 days following the date on which all the requirements of the
voluntary remediation have been successfully completed or lifted by
the peer review body.
(3) The reporting person shall immediately file a supplemental
report if the licentiate fails to comply with the terms of a
voluntary remediation.
(4) The reporting person shall provide the licentiate with a copy
of the initial report, together with a notice advising the licentiate
of his or her right to submit additional statements or other
information pursuant to subdivision (c) of Section 800, and any
supplemental reports, in each case at the time of filing the
respective report with the agency.
(e) Within 15 days following the commencement date of a voluntary
remediation, the reporting person shall provide written notice to
each facility at which the affected licentiate then has staff
privileges of the voluntary remediation, the facts and circumstances
of the voluntary remediation, and may include any other relevant
information the reporting person deems relevant. The reporting person
shall also notify each of these facilities that the voluntary
remediation has been completed within 30 days following the date on
which all the requirements of the voluntary remediation have been
successfully completed or lifted by the peer review body.
(f) Voluntary remediation shall not entitle a licentiate to a
hearing pursuant to Section 809.2.
(g) If a licentiate chooses not to accept voluntary remediation,
and the peer review body takes or recommends an action required to be
reported to the agency pursuant to Section 805, the licentiate shall
have hearing rights with respect thereto pursuant to Sections 809 to
809.9, inclusive.
(h) The reporting required by this section shall not act as a
waiver of confidentiality of medical records and peer review body
reports. Notwithstanding Sections 803.1 and 2027, the information
reported or disclosed pursuant to this section shall be kept
confidential except as provided in subdivision (c) of Section 800.
(i) No person shall incur any civil or criminal liability as the
result of making any report required by this section.
SEC. 3. Section 809.2 of the Business
and Professions Code is amended to read:
809.2. If a licentiate timely requests a hearing concerning a
final proposed action for which a report is required to be filed
under Section 805, the following shall apply:
(a) The hearing shall be held, as determined by the peer review
body, before a trier of fact, which shall be an arbitrator or
arbitrators selected by a process mutually acceptable to the
licentiate and the peer review body, or before a panel of unbiased
individuals who shall gain no direct financial benefit from the
outcome, who have not acted as an accuser, investigator, factfinder,
or initial decisionmaker in the same matter, and which shall include,
where feasible, an individual practicing the same specialty as the
licentiate.
(b) If a hearing officer is selected to preside at a hearing held
before a panel, the hearing officer shall gain no benefit,
including, without limitation, any direct financial benefit
, from the outcome, shall not act as a prosecuting officer
or advocate, and shall not be entitled to vote
, and shall not be an attorney who has represented the
applicable peer review body or licensed health care facility or
clinic within the prior two years .
(c) The licentiate shall have the right to a reasonable
opportunity to voir dire the panel members and any hearing officer,
and the right to challenge the impartiality of any member or hearing
officer. Challenges to the impartiality of any member or hearing
officer shall be ruled on by the presiding officer, who shall be the
hearing officer if one has been selected.
(d) The licentiate shall have the right to inspect and copy at the
licentiate's expense any documentary information relevant to the
charges which the peer review body has in its possession or under its
control, as soon as practicable after the receipt of the licentiate'
s request for a hearing. The peer review body shall have the right to
inspect and copy at the peer review body's expense any documentary
information relevant to the charges which the licentiate has in his
or her possession or control as soon as practicable after receipt of
the peer review body's request. The failure by either party to
provide access to this information at least 30 days before the
hearing shall constitute good cause for a continuance. The right to
inspect and copy by either party does not extend to confidential
information referring solely to individually identifiable
licentiates, other than the licentiate under review. The arbitrator
or presiding officer shall consider and rule upon any request for
access to information, and may impose any safeguards the protection
of the peer review process and justice requires.
(e) When ruling upon requests for access to information and
determining the relevancy thereof, the arbitrator or presiding
officer shall, among other factors, consider the following:
(1) Whether the information sought may be introduced to support or
defend the charges.
(2) The exculpatory or inculpatory nature of the information
sought, if any.
(3) The burden imposed on the party in possession of the
information sought, if access is granted.
(4) Any previous requests for access to information submitted or
resisted by the parties to the same proceeding.
(f) At the request of either side, the parties shall exchange
lists of witnesses expected to testify and copies of all documents
expected to be introduced at the hearing. Failure to disclose the
identity of a witness or produce copies of all documents expected to
be produced at least 10 days before the commencement of the hearing
shall constitute good cause for a continuance.
(g) Continuances shall be granted upon agreement of the parties or
by the arbitrator or presiding officer on a showing of good cause.
(h) A hearing under this section shall be commenced within 60 days
after receipt of the request for hearing, and the peer review
process shall be completed within a reasonable time, after a
licentiate receives notice of a final proposed action or an immediate
suspension or restriction of clinical privileges, unless the
arbitrator or presiding officer issues a written decision finding
that the licentiate failed to comply with subdivisions (d) and (e) in
a timely manner, or consented to the delay.
SECTION 1. It is the intent of the Legislature
to enact legislation revising the current health care practitioner
peer review process in California in order to improve patient safety
and care.