BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 1767|
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THIRD READING
Bill No: AB 1767
Author: Hill (D)
Amended: 6/7/10 in Senate
Vote: 21
SENATE BUS., PROF. & ECON. DEVEL. COMMITTEE : 7-0, 6/14/10
AYES: Negrete McLeod, Aanestad, Calderon, Correa, Florez,
Walters, Yee
NO VOTE RECORDED: Wyland, Oropeza
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 71-0, 4/22/10 - See last page for vote
SUBJECT : Healing arts
SOURCE : Author
DIGEST : This bill requires the Office of the Attorney
General, with approval by the Medical Board of California
(MBC), to provide representation to any licensed physician
and surgeon who provides expertise to the MBC in the
evaluation of the conduct of an applicant or a licensee
when, as a result of providing that expertise, the
physician and surgeon is the subject of a disciplinary
proceeding undertaken by a specialty board of which the
physician and surgeon is a member. In addition, this bill
extends the term of appointments of two members of the
Health Professions Education Foundation appointed by the
MBC to January 1, 2016.
CONTINUED
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ANALYSIS :
1. Establishes the MBC to license, regulate, and discipline
physicians and surgeons, and specifies that the
protection of the public is the highest priority of the
MBC.
2. Provides that the Attorney General (AG) has charge, as
attorney, of all legal matters in which the State is
interested, including the regulatory boards and bureaus
within the Department of Consumer Affairs.
3. Requires the MBC to provide for representation in a
civil action to defend a person, who is not a regular
employee of the board who is hired, under contract, or
retained under any other arrangement, paid or unpaid, to
provide expertise or nonexpert testimony to the MBC or
to the California Board of Podiatric Medicine,
including, but not limited to, the evaluation of the
conduct of an applicant or a licensee, and that person
is named as a defendant in an action for defamation,
malicious prosecution, or any other civil cause of
action directly resulting from opinions rendered,
statements made, or testimony given to, or on behalf of,
the committee or its representatives. Requires the MBC
to be liable for any judgment rendered against that
person, except that the MBC shall not be liable for any
punitive damages award. States that if the plaintiff
prevails in a claim for punitive damages, the defendant
shall be liable to the MBC for the full costs incurred
in providing representation to the defendant.
4. Provides immunity to specified persons, including a
physician and surgeon, or other healing arts licensee
who provides information to the MBC, to the California
Board of Podiatric Medicine, or to the Department of
Justice indicating that a licensed physician and surgeon
may be guilty of unprofessional conduct or may be
impaired because of drug or alcohol abuse or mental
illness.
5. Requires a licensed physician and surgeon to report to
the MBC upon issuance of an initial license and upon
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renewal any specialty board certification, as specified.
6. Establishes the Health Professions Education Foundation
(HPEF), administered by the Office of Statewide Health
Planning and Development (OSHPD), to solicit and receive
funds from various entities for the purpose of providing
financial assistance through scholarships or loans to
students who agree to practice in medically underserved
areas.
This bill
1. Provides that if a licensed physician and surgeon who
provides expertise to the board in the evaluation of an
applicant or a licensee is, as a result of providing
that expertise, the subject of a disciplinary proceeding
undertaken by a specialty board of which the physician
and surgeon is a member, the Office of the AG, with MBC
approval, shall represent the physician and surgeon in
that disciplinary proceeding regarding any allegation
brought against the physician and surgeon as a direct
result of providing that expertise to the board.
2. Extends the term of appointments of the two members of
the HPEF that are appointed by the MBC to January 1,
2016.
Background
Expert Reviewer Program . In July 1994, the MBC established
the Expert Reviewer Program (program) as an impartial and
professional means by which to support the investigation
and enforcement functions of the MBC. Specifically,
medical experts assist the MBC by providing expert reviews
and opinions on MBC cases and conducting professional
competency exams, physical exams and psychiatric
examinations. Physicians who participate in the program
are reimbursed $150 per hour for conducting case reviews
and oral competency exams, $200 an hour for providing
expert testimony, and usual and customary fees for physical
or psychiatric exams. To qualify, a physician must have
the following: (1) possess a current California medical
license in good standing, no prior discipline, no
accusations pending, and no complaint history within the
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last three years, (2) Board certification in one of 24
specified specialties, including the American Board of
Facial Plastic & Reconstructive Surgery, the American Board
of Pain Medicine, the American Board of Sleep Medicine and
the American Board of Spine Surgery, with a minimum of
three years of practice in the specialty area after
obtaining MBC certification, and (3) have an active
practice (defined as at least 80 hours a month in direct
patient care, clinical activity, or teaching, at least 40
hours of which is in direct patient care) or have been
non-active or retired from practice no more than two years.
Health Professions Education Foundation . According to the
MBC, the history of the HPEF can be traced back to the
California Physician Corps Loan Repayment Program (Loan
Repayment Program), later renamed the Steven M. Thompson
Physician Corps Loan Repayment Program, established by AB
982 (Firebaugh) Chapter 1131, Statutes of 2002. AB 982 was
co-sponsored by the MBC, the California Medical
Association, the California Primary Care Association, and
the Latino Coalition for a Healthy California. The purpose
of AB 982 was to further the MBC's charge of consumer
protection and to undertake innovative and proactive steps
to tackle the significant issue of increased access to
health care for underserved areas.
In 2005, two bills were signed into law that significantly
impacted the Loan Repayment Program. First, AB 327 (De La
Torre) Chapter 293, Statutes of 2005, authorized the MBC to
charge a voluntary $50 fee for the issuance and renewal of
a physician's license to provide support for the Loan
Repayment Program. Subsequent legislation eliminated the
$50 voluntary fee, and instead charged physicians and
surgeons a $25 mandatory fee to support the Loan Repayment
Program. Second, AB 920 (Aghazarian) Chapter 317, Statutes
of 2005, moved the Loan Repayment Program from the MBC to
the HPEF. Because of the leadership role the MBC undertook
in implementing and administering the Program, AB 920
provided for two appointees by the MBC to serve on HPEF
while being funded by the Board. These appointed positions
are set to expire on January 1, 2011.
The HPEF, administered by OSHPD, provides scholarships and
loan repayments to aspiring and practicing health
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professionals who agree to practice in a medically
underserved area. Scholarships are offered to health
professional students attending one of California's
accredited colleges or universities. Loan repayment
programs are offered to graduates pursuing a health
professional career to assist in the repayment of
educational debt. Scholarships and loan repayments are
offered to students and graduates from the following
professions: allied health, nursing, mental health, medical
and dental. Service obligations are typically one to four
years and vary depending on the program.
According to OSHPD's website, the HPEF awards scholarships
and loan repayments through five special funds: The Health
Professions Education Fund, the Registered Nurse Education
Fund, the Vocational Nurse Education Fund, the Mental
Health Practitioner Education Fund, and the Medically
Underserved Account for Physicians. The Health Professions
Education Fund is funded entirely through philanthropic
contributions from hospitals, health plans, foundations,
corporations & individuals. The Registered Nurse Education
Fund is funded by a $10.00 surcharge on Registered Nurse
licensure renewal. The Vocational Education Fund is funded
through a $5.00 surcharge on the biennial licensure renewal
for vocational nurses. The Mental Health Services Provider
Education Program is supported through a $10.00 surcharge
for renewal of psychologist, marriage and family therapist,
and licensed clinical social worker licenses. The
Medically Underserved Account for Physicians is funded by
voluntary physician and osteopathic physician contributions
and private donations. According to OSHPD, since 1990, the
Foundation has awarded scholarships and loan repayments
totaling over $17 million. These awards have helped over
2,400 economically disadvantaged and/or underrepresented
students and graduates fulfill their dream of pursuing a
career in the health professions while serving in an
underserved area.
The HPEF, until January 1, 2011, is governed by a board
consisting of 13 members, nine members are appointed by the
Governor, one member each appointed by the Speaker of the
Assembly, and the Senate Committee on Rules, and two
members of the MBC, appointed by the MBC. Effective
January 1, 2011, the 2 appointess of the MBC to the HPEF
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will be eliminated. This bill extends the term of the
appointees of the MBC to the HPEF.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 6/29/10)
Medical Board of California (source)
American Congress of Obstetricians and Gynecologists
ARGUMENTS IN SUPPORT : According to the MBC, the sponsor
of this bill, existing law requires the MBC to provide
legal representation to physicians and surgeons hired or
under contract who provide expertise to the MBC, if they
are named as a defendant in a civil action arising out of
the evaluation or any opinions rendered, or statements made
or testimony given to the MBC. However, when a
professional grievance is filed with a specialty board of
which the physician and surgeon is a member, the MBC cannot
protect the physician and surgeon, creating a disincentive
for these reviewers who provide a critical consumer
protection function.
The MBC indicated that recently a situation arose where an
expert reviewer provided the MBC with external reviews of
care provided by another licensed physician in two matters
that were being investigated. The expert reviewer opined
that certain aspects of the care and documentation by the
physician and surgeon being investigated did not meet the
applicable standard of care. An accusation was filed and
the expert reviewer testified before an administrative law
judge who found that one of the two issues was justified,
and the MBC issued a public letter of reprimand against the
physician being investigated. The physician for whom a
public letter of reprimand was issued subsequently filed a
grievance with a medical specialty board, of which they are
both members, asking that the expert reviewer be expelled
from the specialty board for giving biased and false
testimony before the administrative law judge. The expert
reviewer was notified and directed to respond to the
allegations, only to find out that the MBC could not
provide assistance since the grievance did not create a
risk of civil liability. Fortunately, the medical group
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that employs the expert reviewer agreed to provide
assistance, but the MBC argues that the state should
protect expert reviewers who provide such a critical
consumer protection function in highly specialized and
complex cases. This bill fixes this problem so that expert
reviewers can continue to provide expert reviews and
opinions that protect medical consumers in California.
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Bass, Beall,
Bill Berryhill, Tom Berryhill, Blakeslee, Block,
Bradford, Brownley, Buchanan, Charles Calderon, Carter,
Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,
Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,
Fuller, Furutani, Galgiani, Garrick, Gilmore, Hagman,
Hall, Harkey, Hayashi, Hernandez, Hill, Jeffries, Jones,
Knight, Lieu, Logue, Bonnie Lowenthal, Ma, Mendoza,
Miller, Monning, Nava, Nestande, Niello, Nielsen, V.
Manuel Perez, Portantino, Ruskin, Salas, Saldana, Silva,
Skinner, Solorio, Audra Strickland, Swanson, Torlakson,
Torres, Torrico, Tran, Villines, Yamada, John A. Perez
NO VOTE RECORDED: Blumenfield, Caballero, DeVore, Gaines,
Huber, Huffman, Norby, Smyth, Vacancy
JJA:do 6/29/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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