BILL ANALYSIS �
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|Hearing Date:June 13, 2011 |Bill No:AB |
| |655 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: AB 655Author:Hayashi
As Amended:June 1, 2011 Fiscal: No
SUBJECT: Healing arts.
SUMMARY: Requires a peer review body to produce relevant peer review
information about a physician and surgeon that was subject to peer
review for a medical disciplinary cause or reason.
Existing law:
1)Establishes the Medical Board of California (MBC) to license,
regulate and discipline physicians and surgeons in California and
states that the protection of the public is the highest priority of
the MBC in exercising its functions.
2)Provides for the professional review of specified healing arts
licentiates by a peer review body, as defined, including:
(Business& Professions Code (BPC) � 805)
a) A medical or professional staff of any health care facility
or a licensed clinic, or a facility certified to participate in
the federal Medicare Program as an ambulatory surgical center.
b) A health care service plan or a disability insurer, as
specified.
c) Any medical, psychological, marriage and family therapy,
social work, dental, or podiatric professional society, as
specified.
d) A committee organized by any entity that functions for the
purpose of reviewing the quality of professional care provided
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by members or employees of that entity.
3)Defines a licentiate, for purposes of item # 2) above, as a
physician and surgeon, doctor of podiatric medicine, clinical
psychologist, marriage and family therapist, clinical social
worker, or dentist. (Id.)
4)Requires an 805 report to be filed by the chief of staff, chief
executive officer, medical director, or administrator of any peer
review body and the chief executive officer or administrator of a
health facility or clinic, as defined, with the relevant agency
having regulatory jurisdiction over a licentiate under the
following: (Id.)
a) 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:
i) A licentiate's application for staff privileges or
membership is denied or rejected for a medical disciplinary
cause or reason.
ii) A licentiate's membership, staff privileges, or
employment is terminated or revoked for a medical disciplinary
cause or reason.
iii) 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.
b) Within 15 days if a licentiate does any of the following
based on information indicating medical disciplinary cause or
reason: (Id.)
i) Resigns or takes a leave of absence from membership,
staff, or employment.
ii) Withdraws or abandons an application for staff privileges
or membership.
iii) Withdraws or abandons the request for renewal of
privileges or membership.
5)Requires also for an 805 report to be filed within 15 days after
the imposition of a summary suspension of staff privileges,
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membership, or employment, if the summary suspension remains in
effect for over 14 days. (Id.)
6)Defines the following terms: (Id.)
a) Staff privileges as any arrangement under which a licentiate
is allowed to practice or provide care for patients in a health
facility. Such arrangements include, but are not limited to,
full staff privileges, active staff privileges, limited staff
privileges, auxiliary staff privileges, courtesy staff
privileges, locum tenens arrangements, and contractual
arrangements to provide professional services, including
arrangements to provide outpatient services.
b) 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.
c) Medical disciplinary cause or reason as the 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)Requires a copy of the 805 report, and a notice advising the
licentiate of his or her right to submit additional statements or
other information, as specified, to be sent by the peer review body
to the licentiate named in the report. (Id.)
8)Indicates that the reporting required under Section 805 does not
act as a waiver of confidentiality of medical records and committee
reports. Requires that the information reported or disclosed be
kept confidential, as specified. (Id.)
9)Requires, prior to granting or renewing staff privileges for any
physician and surgeon, psychologist, podiatrist or dentist, any
licensed health care facility, health care service plan or medical
care foundation, or the medical staff of an institution, to request
a report from the MBC, the Board of Psychology, the Osteopathic
Medical Board of California, or the Dental Board of California to
determine if any 805 report has been made, indicating that the
applying physician and surgeon, psychologist, podiatrist or dentist
has been denied staff privileges, been removed from medical staff,
or had his or her staff privileges restricted as provided in
Section 805. Prohibits providing any report in the following
circumstances:
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(BPC � 805.5)
a) If the denial, removal, or restriction was imposed solely
because of the failure to complete medical records.
b) If the MBC found the information reported is without merit.
c) If a period of three years has elapsed since the report was
submitted.
10)Provides that peer review action may only be taken against the
licentiate by the peer review body if certain procedures and rules
are followed including written notice to the licentiate of the
proposed action, an opportunity for a hearing with full procedural
rights, including discovery, examination of witnesses, formal
record of the proceedings and written findings.
(BPC � 809 et seq.)
This bill:
1)Finds and declares that the sharing of information between peer
review bodies is essential to protect the public health.
2)Requires a peer review body, upon receipt of reasonable processing
costs, 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 for a
medical disciplinary cause or reason.
3)Requires the responding peer review body to determine the manner by
which to produce the information specified in #2) above and may
elect to do so through: 1) a written summary of relevant peer review
information, or 2) a relevant peer review record.
4)Provides that relevant peer review information or peer review record
includes, but is not limited to, allegations and findings,
explanatory or exculpatory information submitted by a licentiate,
any conclusions made, or actions taken, and the reasons for those
actions, to the extent not prohibited by state or federal law.
Prohibits the information from identifying any other person, except
the licentiate.
5)Indicates that the information produced by a peer review body shall
be used solely for peer review purposes and shall not be subject to
discovery, as specified.
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6)States that the responding peer review body acting in good faith is
not subject to civil or criminal liability for providing information
to the requesting peer review body pursuant to this bill.
7)Entitles the peer review body responding to the request to all
confidentiality protections and privileges provided by law as to the
information disclosed.
8)Requires the following prior to the release of any information
pursuant to this bill:
a) The requesting peer review body shall, upon request, sign a
mutually agreeable peer review sharing agreement with the
responding peer review body. 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, including reasonable attorney's fees, resulting in any
manner, directly or indirectly, from the receiving peer review
body's improper release or disclosure of information that is
shared.
b) The licentiate under review by the peer review body requesting
information pursuant to this section shall, upon request, 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.
9)Provides that the responding peer review body is not obligated to
produce the relevant peer review information unless both of the
following conditions are met:
a) The licentiate provides a release, as specified in #8 above
that is acceptable to the responding peer review body.
b) The requesting peer review body signs a mutually agreeable
peer review sharing agreement, as specified in #8) above with the
responding peer review body.
FISCAL EFFECT: Unknown. This bill has been keyed "nonfiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. The California Medical Association (CMA) is the Sponsor of
this measure. According to CMA, this bill facilitates the medical
peer review process by specifying procedures peer review bodies must
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follow in requesting and sharing peer review information with other
peer review bodies. CMA indicates that nearly all peer review in
California is done efficiently, timely, and in a manner that
protects patients from quality of care deficiencies. However, the
current peer review system has certain weaknesses. 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 exercise professional judgment for a non-medical or
patient safety related reason. Sharing information between peer
review bodies will both increase consumer protection and protect
physicians. CMA also states that "this bill reflects the mutual
agreement reached between CMA and the California Hospital
Association toward improving the peer review system."
2.Background. In peer review, physicians evaluate their colleagues'
practice to determine compliance with the standard of care. Peer
reviews are intended to detect incompetent or unprofessional
physicians early and terminate, suspend, or limit their practice if
necessary. Peer review is triggered by a wide variety of events
including patient injury, disruptive conduct, substance abuse, or
other medical staff complaints. A peer review committee
investigates the allegation, comes to a decision regarding the
physician's conduct, and takes appropriate remedial actions.
However, there is reluctance among physicians 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." 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.
Recognizing that peer review is necessary to maintain and improve
quality medical care, Congress, in 1986, enacted the Health Care
Quality Improvement Act (HCQIA.) HCQIA established standards for
hospital peer review committees, provided immunity for those who
participate in peer review, and created the National Practitioner
Data Bank (NPDB). The NPDB is a confidential repository of
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information related to the professional competence and conduct of
physicians, dentists, and other health care practitioners.
Credentialing bodies are required to check the NPDB database before
granting privileges to physicians or re-appointing them. Entities
such as hospitals, professional societies, state boards, and
plaintiffs' attorneys are given access to the NPDB. In enacting the
NPDB, the United States Congress intended to improve the quality of
health care by encouraging State licensing boards, hospitals, and
other health care entities, and professional societies to identify
and discipline those who engage in unprofessional behavior; and to
restrict the ability of incompetent physicians, dentists, and other
health care practitioners to move from State to State without
disclosure or discovery of previous medical malpractice payment and
adverse action history. The NPDB is a central repository of
information about: (1) Malpractice payments made for the benefit of
physicians, dentists, and other health care practitioners; (2)
licensure actions taken by State medical boards and State boards of
dentistry against physicians and dentists; (3) professional review
actions primarily taken against physicians and dentists by hospitals
and other health care entities, including health maintenance
organizations, group practices, and professional societies; (4)
actions taken by the Drug Enforcement Administration (DEA), and (5)
Medicare/Medicaid Exclusions.
According to the MBC, it received 138 805 reports in 2007-2008 from
hospitals/clinics (74), health care service plans (17), and medical
group/employers (47). Out of all 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, but it
appears that when adjusted to the number of physicians and surgeons
licensed and living in California, or the number of people living in
California, the trend shows a downward direction.
3.Due Process Provisions (Section 809 et seq.). In 1989, several due
process provisions for physicians subject to an 805 report were
adopted and codified under Section 809 et seq. of the Business and
Professions Code. Committee analysis on SB 1211 (Keene, Chapter
336, Statutes of 1989), which contained the provisions of Section
809, indicated that the CMA was the sponsor of the legislation, and
on the due process provisions of the measure, CMA indicated that
"the clear procedural standards in SB 1211 will reduce the risk of
erroneous peer review decisions." Under Section 809, any physician,
for which an 805 report may be required to be filed, is entitled to
specified due process rights, including notice of the proposed
action, an opportunity for a hearing with full procedural rights
(including discovery, examination of witnesses, formal record of the
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proceedings and written findings). Furthermore, a physician may
seek a judicial review in the Superior Court pursuant to Code of
Civil Procedure Section 1094.5 (writ of mandate). It should be
noted that the due process requirements do not apply to peer review
proceedings conducted in state or county hospitals, to the
University of California hospitals or to other teaching hospitals as
defined.
4.Previous Related Legislation.
a) AB 1235 (Hayashi) of 2010 included various revisions to the
due process requirements of the medical peer review process,
including provisions relating to the production of peer review
information which are similar to this measure. AB 1235 was
vetoed by former Governor Schwarzenegger who indicated: "It is
with sincere disappointment that I am unable to sign this
hospital peer review measure. 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 as 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."
b) SB 700 (Negrete McLeod), Chapter 505, Statutes of 2010, made
various changes relating to peer review and the 805 process,
including requiring 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 to file a confidential report with the
relevant agency within 15 days after completion of a formal
investigation of a licentiate for specified actions.
c) SB 58 (Aanestad) of 2009, among other provisions, provided for
changes in a physician and surgeon's central file of individual
historical records and the information that is publicly disclosed
regarding licensing and enforcement actions; required a peer
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review body to annually report to the MBC on its peer review
activities; defined an external peer review organization;
encouraged external peer review under certain conditions;
mandated external peer review for specific circumstances; and,
established an early detection and resolution program for
physicians and surgeons in lieu of the filing of an 805 report.
SB 58 was held on the Senate Appropriations suspense file.
d) SB 820 (Negrete McLeod) of 2009, included many of the
provisions of SB 700 and included the requirement that a
physician peer review body of a hospital make a confidential
report to the MBC regarding a disciplinary action taken against
a physician. SB 820 was vetoed by then Governor Schwarzenegger.
e) AB 120 (Hayashi) of 2009, is identical to AB 1235, and the
only difference is that AB 120 was made contingent on the
enactment of SB 820. Since SB 820 was vetoed by the Governor,
the Governor was unable to sign AB 120.
f) AB 834 (Solorio)of 2009, authorized a peer review body to
impose, and a licentiate to accept, voluntary remediation when
deemed appropriate by the peer review body, including for a
medical disciplinary cause or reason; made changes relating to
the qualifications of a hearing officer. AB 834 was held in the
Assembly Business and Professions Committee.
g) 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.
Lumetra was chosen by the MBC to conduct the study and the
report was submitted to the Legislature on July 31, 2008. In
the report, 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." Among other findings, the Lumetra Study indicated
there is variation and inconsistency in entity peer review
policies and standards; there is poor tracking of peer review
events; there is confusion regarding 805 reporting; lack of
coordination among state agencies, and licensing agencies; and
the costs of peer review are burdensome.
5.Arguments in Support. The California Hospital Association states
that the peer review information sharing contained in this bill
will improve the peer review process and provide better protection
for patients.
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NOTE : Double-referral to Judiciary Committee (second.)
SUPPORT AND OPPOSITION:
Support:
California Medical Association (Sponsor)
California Hospital Association
Opposition: None on file as of June 3, 2011
Consultant:Rosielyn Pulmano