BILL ANALYSIS �
AB 655
Page 1
Date of Hearing: May 3, 2011
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
AB 655 (Hayashi) - As Introduced: February 16, 2011
(As Proposed to be Amended)
SUBJECT : Healing arts: peer review.
SUMMARY : Revises the medical peer review process by requiring
a peer review body to respond to the request of another peer
review body and produce specified information concerning a
licentiate under review. Specifically, this bill :
1)Requires a peer review body to respond to the request of
another peer review body and produce relevant peer review
information about a licentiate that was subject to peer review
by the responding peer review body.
2)Permits the responding peer review body to determine the means
of producing requested information and to elect to do so
through:
a) A written summary of relevant peer review information;
or
b) Relevant peer review records.
3)Specifies that relevant peer review information or records
includes any allegations and findings, any explanatory or
exculpatory information submitted by the licentiate, any
conclusions made, any actions taken, and the reasons for those
actions, to the extent not otherwise prohibited by applicable
state or federal law.
4)Requires the information produced to be used solely for peer
review purposes.
5)Prohibits the information produced from being subject to
discovery to the extent provided in current law, as specified,
and from identifying any person except the licentiate.
6)Exempts a responding peer review body acting in good faith
from civil or criminal liability for providing information to
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the requesting peer review body.
7)Requires the responding peer review body to be entitled to all
confidentiality protections and privileges provided by law as
to the information disclosed.
8)Prior to the release of any peer review information, requires
the requesting peer review body to sign a mutually agreeable
peer review sharing agreement with the responding peer review
body, upon request.
9)Requires the requesting peer review body to indemnify the
responding peer review body for any and all claims, demands,
liabilities, losses, damages, costs and expenses, as
specified, resulting from the receiving peer review body's
improper release or disclosure of information shared.
10)Prior to the release of any peer review information, requires
the licentiate under review by the requesting peer review body
to release the responding peer review body, its members, and
the health care entity for which the responding peer review
body conducts peer reviews from liability for the disclosure
of information, upon request. If the licentiate does not
provide a release that is acceptable to the responding peer
review body, the responding peer review body shall not be
obligated to produce any information.
EXISTING LAW
1)Establishes the Medical Board of California (MBC), which
regulates and licenses physicians and surgeons.
2)Provides for the professional review of specified healing arts
licentiates through a peer review process conducted by peer
review bodies, as specified.
3)Provides various due process rights for licentiates who are
the subject of a final proposed disciplinary action of a peer
review body, as codified under Section 809, et seq. These
include authorizing a licensee to request a hearing concerning
a final action, which must be held before either an arbitrator
mutually acceptable to the licensee and the peer review body
or a panel of unbiased individuals, as specified. These due
process requirements do not apply to peer review proceedings
conducted in state or county hospitals, University of
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California hospitals, or to other teaching hospitals, as
defined.
4)Requires 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 healthcare facility
or clinic to file an 805 report to the MBC within 15 days
after the effective date of any of the following occurring as
a result of an action of a peer review body:
a) A licentiate's application for staff privileges or
membership is denied or rejected for a medical disciplinary
cause or reason;
b) A licentiate's membership, staff privileges, or
employment is terminated or revoked for a medical
disciplinary cause or reason; or,
c) 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.
FISCAL EFFECT : Unknown. This bill is keyed non-fiscal.
COMMENTS :
Purpose of this bill . According to the author's office, "AB 655
will improve the peer review system in California to ensure
quality health care is being provided to patients by
facilitating the sharing of peer review records. It is
essential that California has a robust and equitable peer review
system that ensures quality healthcare and patient safety. Peer
review cannot be effective unless physicians feel that it is a
fair system, free from bias, and physicians are able to report
incidents of substandard care or unprofessional conduct.
"Physicians are often reluctant to serve on peer review
committees due to the risk of involvement in related future
litigation, including medical malpractice lawsuits against a
physician under review. In addition, there has been rising
concern relating to "sham peer review," the use of the peer
review system to discredit, harass, discipline, or otherwise
negatively affect a physician's ability to practice medicine or
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exercise professional judgment for a non-medical or patient
safety related reason. Sharing summaries between peer review
bodies will both increase consumer protection and protect
physicians."
Background . Medical peer review is the process by which a
professional review body considers whether a practitioner's
clinical privileges or membership in a professional society will
be adversely affected by a physician's competence or
professional conduct. The foremost objective of the medical
peer review process is the promotion of the highest quality of
medical care as well as patient safety.
Variations exist on the procedures, commencement, practice and
subject of peer review. All medical entities set their own
standards for peer review, some more rigorous than others, and
some adhere to them more meticulously than others. The peer
review process is often lengthy and can take months or even
years.
Although peer review is supposed to be an objective review of
professional skills, there has been rising concern relating to
"sham peer review." Sham peer review is the use of the peer
review system to discredit, harass, discipline, or otherwise
negatively affect a physician's ability to practice medicine or
exercise professional judgment for a non-medical or patient
safety related reason. Other criticisms of peer review include
over legalization of the process, lack of transparency in the
system, and burdensome human and financial toll peer review
brings not only to the hospital but also to a physician under
review.
California law entitles a licentiate who is the subject of a
final action of a peer review body to specified due process
rights. Under Section 809 of the Business and Professions Code,
a physician about whom an 805 report may be filed is entitled to
notice of the proposed action and an opportunity for a hearing
with full procedural rights, including discovery, examination of
witnesses, formal record of the proceedings and written
findings. A physician may contest the results of this hearing
with judicial review in Superior Court.
When a licensee is disciplined for a medical cause or reason by
a peer review committee, the MBC receives an 805 report so that
it may take appropriate action. According to the MBC in 2007,
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it received 138 reports from a licensee pool of 125,612
physicians. Of these reports, one accusation was filed, 92
cases are pending disposition, and 45 cases were closed. The
number of 805 reports varies from year to year.
SB 231 (Figueroa) Chapter 674, Statutes of 2005, required the
MBC to contract with an independent entity to conduct a
comprehensive study of the existing peer review process. SB 231
required the study to include a comprehensive description of the
various steps of, and decision makers in, the peer review
process; a survey of peer review cases to determine the
incidence of peer review; and, an assessment of the cost of peer
review to licentiates. The study, conducted by Lumetra,
concluded that "the present peer review system is broken for
various reasons and is in need of a major fix, if the process is
to truly serve the citizens of California."
AB 1235 (Hayashi) of 2010 amended the medical peer review
process by recommending external peer review in limited
circumstances, requiring peer review bodies to share
information, establishing the duties of a hearing officer, and
setting parameters for attorney representation. In his veto
message for this bill, Governor Schwarzenegger stated, "I vetoed
two bills on this subject last year, with a clear message for
the interested stakeholders to work together, along with my
Administration, on this extremely complicated and complex issue.
Unfortunately, this consensus did not occur. As California
stands ready to implement health reform, we need hospitals and
physicians to work in new and more efficient ways. I believe
both parties are working to provide quality care to patients but
there are better ways to work together. Litigation and
protracted contract disputes are not going to be mechanisms to
achieve this common goal.
"I would encourage the author to keep working with these parties
in the coming year. This problem must be addressed. I believe
that a final consensus product that first, and most importantly,
protects patients while also allowing hospitals and physicians
to work together can be reached."
This bill is the product of continued discussions between
stakeholders that narrowly addresses the issue of shared records
between peer review bodies, and is being presented today as
proposed to be amended to reflect the most recent negotiations.
It contains protections for peer review bodies, physicians and
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patients by prohibiting information from being subject to
discovery, exempting a responding peer review body from civil or
criminal liability, and requiring confidentiality protections
for responding peer review bodies.
Under this bill, peer review bodies must sign a sharing
agreement and use information solely for peer review purposes.
Requesting peer review bodies must indemnify the responding peer
review body for specified liabilities in the event that the
receiving peer review body improperly releases or discloses
shared information.
If the physician under review by the requesting peer review body
does not release the responding peer review body, its members,
and the health care entity for which the responding peer review
body conducts peer reviews from liability for the disclosure of
information to the satisfaction of the responding peer review
body, the responding peer review body is not obligated to
produce any information.
Previous legislation . AB 1235 (Hayashi) of 2010 amends the
medical peer review process by recommending external peer review
in limited circumstances, requiring peer review bodies to share
information, establishing the duties of a hearing officer, and
setting parameters for attorney representation. This bill was
vetoed.
AB 120 (Hayashi) of 2009 amends the medical peer review process
by recommending external peer review in limited circumstances,
requiring peer review bodies to share information, establishing
the duties of a hearing officer, and setting parameters for
attorney representation. This bill was contingent on SB 820,
which was vetoed.
SB 820 (Aanestad and Negrete McLeod) of 2009 makes various
changes related to disciplinary reporting by specified healing
arts boards, including adding to the central file if a court
finds that a peer review was held in bad faith and the filing of
an additional report under certain circumstances. This bill was
vetoed by Governor Schwarzenegger, stating in part: "While
perhaps well-intentioned, this bill does not provide a solution
to the problem, but rather, jeopardizes the entire process by
narrowing the reporting element to "serious" cases of
incompetence involving only patients. How is this good policy?
For example, what about a physician that engages in egregious
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behavior against hospital staff or even other physicians? How
does this serve the public by keeping these reports from the
Medical Board?
"This bill also fails to align with recent Joint Commission
requirements that hospitals adopt a 'zero tolerance' policy
towards physicians engaging in disruptive behavior in their
interactions with nurses and other hospital staff. A peer
review body should not be limited from acting on this type of
behavior and in fact, should be encouraged to act more swiftly."
SB 58 (Aanestad) of 2009 makes various changes relating to the
Business and Professions Section 805 reporting process. This
bill was held in Senate Appropriations Committee.
SB 700 (Negrete McLeod), Chapter 505, Statutes of 2009, defines
peer review and changes what is included in the definition of
peer review body. The bill also allows the Medical, Dental, or
Osteopathic Boards of California to inspect and copy any peer
review minutes or reports in a disciplinary proceeding that
results in a Business and Professions Section 805 report.
REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
None on file.
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301