BILL ANALYSIS �
SB 1236
Page 1
Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Mary Hayashi, Chair
SB 1236 (Price) - As Amended: June 18, 2012
SENATE VOTE : 37-0
SUBJECT : Healing arts boards.
SUMMARY : Extends the sunset dates of the California Board of
Podiatric Medicine (BPM) and the Physician Assistant Committee
(PAC) and makes other changes, as specified. Specifically, this
bill :
1)Extends the BPM's sunset date to January 1, 2017.
2)Repeals an obsolete provision prohibiting a doctor of
podiatric medicine (DPM) from performing an admitting history
and physical (H&P) exam at an acute care hospital.
3)Eliminates the four year limit on the renewal of a resident's
license for DPMs in postgraduate training programs.
4)Clarifies that anyone may offer special shoes and inserts
without a license to aid comfort and athletic performance, but
that a medical license is needed to diagnose and prescribe for
medical conditions.
5)Removes a requirement that applicants for a DPM license obtain
a specific score on the licensing examination.
6)Clarifies that the vote of only one member of the BPM is
necessary to defer a decision for consideration by the entire
board.
7)Authorizes the BPM to increase costs assessed when a proposed
decision is not adopted by the BPM and the BPM finds grounds
for increasing the assessed costs, as specified.
8)Extends sunset dates for the PAC and its authority to appoint
an executive officer to January 1, 2017.
9)Changes the name of the PAC to the Physician Assistant Board
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(PAB) and makes conforming changes.
10)Changes the composition of the PAB to add a physician
assistant (PA) and to make the physician member an ex officio,
non-voting member who shall not be counted for purposes of a
quorum.
11)Allows the PAB to establish, by regulation, a system for
placement of a licensee on retired status, as specified.
12)Provides that the expiration, cancelation, forfeiture, or
suspension of a PA license by operation of law or by order or
decision of the PAB or a court of law, the placement of a
license on a retired status, or the voluntary surrender of a
license by a licensee shall not deprive the PAB of
jurisdiction to commence or proceed with any investigation of,
or action or disciplinary proceeding against, the licensee or
to render a decision suspending or revoking the license.
13)Applies to PAs the current-law requirements within the 800
series of the Business and Professions Codes (800 series) that
apply to specified health care licensing boards and licensees
of those boards.
EXISTING LAW :
1)Licenses and regulates DPMs by the BPM under the Medical Board
of California (MBC) within the Department of Consumer Affairs
(DCA), and sunsets the BPM on January 1, 2013.
2)Provides that the BPM is composed of four physician
assistants, one physician who is also a member of the MBC, and
four public members.
3)Prohibits a DPM from performing an admitting H&P examination
of a patient in an acute care hospital where doing so would
violate the regulations governing the Medicare program.
4)Provides that a graduate of an approved school of podiatric
medicine may apply for and obtain a resident's license from
the BPM, authorizing them to practice podiatric medicine, as
specified. A resident's license may be renewed annually for
up to four years.
5)Provides that podiatric law does not prohibit the manufacture,
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recommendation or the sale of either corrective shoes or
appliances for the human feet.
6)Requires a passing score one standard error of measurement
higher than the national passing scale score on the American
Podiatric Medical Licensing Examination (APMLE) Part III, the
national examination administered by the National Board of
Podiatric Medicine Examiners (NBPME).
7)Specifies that an Administrative Law Judge's (ALJ's) proposed
decision shall be voted on by the BPM by mail, and requires
the vote of two members of the BPM to defer final decision
until the board has discussed the case as a whole.
8)Authorizes the BPM to request an ALJ in a disciplinary matter
to direct a licensee found guilty of unprofessional conduct in
a proposed decision to pay to the BPM a sum not to exceed the
actual and reasonable costs of the investigation and
prosecution of the case. The law provides that the costs
shall be fixed by the ALJ and shall not in any event be
increased by the BPM.
9)Licenses and regulates PAs under the Physician Assistant
Practice Act (PA Act) by the PAC within the MBC, and sunsets
the PAC on January 1, 2013.
10)Authorizes the PAC to appoint an executive officer, and
sunsets that authority on January 1, 2013.
11)Provides that the PAC is comprised of four physician
assistants, one physician who is also a member of the MBC, and
four public members.
12)Places specific requirements on specified health care
licensing boards and licensees of those boards (800 series),
including the following:
a) A requirement that boards create and maintain a central
file on their licensees, which must include information
regarding convictions, judgments, and specified public
complaints;
b) A requirement that licensees report to their licensing
board the occurrence of an indictment or information
charging a felony against the licensee or the conviction of
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the licensee of a felony or misdemeanor;
c) Specific procedures for when a coroner receives
information, as specified, that a death may be the result
of a specified licensee's gross negligence or incompetence,
and in connection with disciplinary actions against those
licensees;
d) A requirement that a district attorney, city attorney,
or other prosecuting agency notify specific health
licensing boards whenever a licensee is convicted of or
charged with a felony, as specified; and,
e) Professional review of specified healing arts
licentiates through a peer review process.
FISCAL EFFECT : Unknown
COMMENTS :
Purpose of this bill . According to the author, "This bill
extends to January 1, 2017, the provisions establishing the BPM,
the PAC, and extends the executive officer of the PAC, and makes
other changes, as specified."
Background . The BPM is responsible for licensing and regulating
DPMs in California. Although the BPM functions in an
independent manner, similar to other boards under DCA, the BPM
lies within the jurisdiction of the MBC, and it is the MBC that
officially issues licenses to these practitioners upon the
recommendation of the BPM.
The BPM licenses approximately 2,000 DPMs. The BPM issues some
55 licenses each year, and approximately 1,000 licenses are
renewed each year. This bill extends the sunset date for the
BPM to January 1, 2017.
Business and Professions Code (BPC) Section 2472(f) provides
that a doctor of podiatric medicine shall not perform an
admitting H&P examination of a patient in an acute care hospital
where doing so would violate the regulations governing the
Medicare program. A 2010 California Attorney General Opinion
found that "not only is a podiatrist not precluded from
performing an admitting H&P by BPC Section 2472, but failing to
do so may fall below the standard of care expected of
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podiatrists generally."
In stating this opinion, the AG points out that the prohibition
of Section 2472 is for performing an H&P "where doing so would
violate the regulations governing the Medicare program" and was
placed in the statute in response to a former federal rule,
which imposed restrictions on federal reimbursements of
podiatric services under Medicare. The federal restriction was
superseded by federal regulations to provide that "Medicare Part
B pays for the services of a doctor of podiatric medicine acting
within the scope of his or her license, if the services would be
covered as physician's services when performed by a doctor of
medicine or osteopathy."
Therefore, the BPM points out, Medicare regulations no longer
restrict DPM H&P examinations, thereby making Section 2472(f)
obsolete. The BPM states that the provision is confusing to the
public and should be deleted from the Code. The bill repeals
this obsolete provision prohibiting a DPM from performing an
admitting history and physical exam at an acute care hospital.
Current law provides that a graduate of an approved school of
podiatric medicine may apply for and obtain a resident's license
from the BPM, authorizing them to practice podiatric medicine,
as specified. A resident's license may be renewed annually for
up to four years. The BPM proposes that the four-year
limitation of the resident's license be deleted, thus ending the
four-year cap on DPM postgraduate training. According to the
BPM, few individuals may participate in residency and fellowship
training for more than four years, but the limit on education is
unnecessary. The BPM argues that this limitation is the only
known statutory cap on education anywhere in this country for
any profession or group. Ultimately, the BPM believes that the
four-year cap will interfere with advanced training of some
leading practitioners. The BPM states that it is a principle of
medical education that there is no such thing as too much
education and training. This bill eliminates the four year
limit for postgraduate training.
The BPM also proposes that current law be amended to clarify
that a medical license is required in order to diagnose and
prescribe corrective shoes or appliances (called orthotics) for
the foot.
Orthotics typically refers to custom-made shoe inserts
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prescribed by a licensed doctor of podiatric medicine, an
osteopathic doctor, or a medical doctor after a medical
examination and diagnosis. Orthotics are designed to
accommodate or correct an abnormal or irregular walking pattern,
and ultimately make standing, walking, and running more
comfortable and efficient by altering the angles at which the
foot strikes the ground. Orthotics placed inside of an
individual's shoes can absorb shock, improve balance, and take
pressure off sore spots.
The BPM has recommended amending the law to clarify that anyone
may offer special shoes and inserts without a license to aid
comfort and athletic performance, but that a medical license is
needed to diagnose and prescribe for medical conditions. This
bill clarifies that a medical license is needed to diagnose and
prescribe for medical conditions.
Current law requires a passing score of one standard error of
measurement higher than the national passing scale score on the
APMLE Part III, the national examination administered by the
NBPME.
In the BPM's experience, the California score, one standard
error of measurement higher than the national scale passing
score, raises the passing score from 75 one or two points, e.g.,
to 77, and slightly lowers the overall pass rate percentage.
Numerically, this means that for each bi-annual Part III exam,
one or two California candidates might achieve the national
scale passing score of 75, but fall just below California's one
standard error of measurement higher, and must retake the
examination.
The BPM's requirement by law for a higher score than the
national passing score confuses and disappoints applicants, and
delays or blocks their entering practice, sometimes losing job
offers in the process. In the judgment of the BPM's
professional staff, it has a marginal if any effect on the
quality of licensees and patient care. This bill removes the
requirement that applicants obtain a specific score on the
licensing examination.
The BPM licenses DPMs under the authority of the MBC. The law
creates the Health Quality Enforcement Section within the
Department of Justice with the primary responsibility of
prosecuting proceedings against licensees and applicants within
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the jurisdiction of MBC and various other boards, including the
BPM. Under these provisions, a panel of ALJs, the Medical
Quality Hearing Panel (MQHP) within the Office of Administrative
Hearings, conducts disciplinary proceedings against a DPM.
Current law provides that all proposed decisions of the MQHP are
transferred to the executive officer of the BPM, and sent by BPM
staff to each BPM member within 10 days. The BPM staff then
polls each member regarding his or her vote on the proposed
decision. By majority vote, the BPM may do any of the
following: approve the decision; approve the decision with an
altered penalty; refer the case back to the administrative law
judge in order to take additional evidence; defer final decision
pending discussion of the case by Board as a whole; or,
non-adopt the decision.
The law provides that the votes of two members of the BPM are
required to defer a final decision pending discussion of the
case by the BPM as a whole. If two or more members vote to
defer the final decision until after a discussion of the entire
board, then the BPM must engage in that discussion before 100
calendar days of the date the proposed decision is received by
the BPM.
The BPM states that the requirement that the votes of two
members of the BPM are required to defer a final decision
effectively prevents the BPM from discussing a case in closed
session as a jury even when one member of the BPM identifies an
issue and wishes to have discussion with her or his colleagues
prior to voting. The BPM has recommended deleting this
provision as it relates to the BPM, and believes that doing so,
could empower the BPM as a jury in disciplinary matters and make
its role more meaningful. This bill authorizes the vote of only
one board member of the BPM to defer a decision for
consideration by the entire board.
As part of the MBC, and utilizing MBC staff for enforcement, the
BPM has cost recovery authority. The BPM's Manual of
Disciplinary Guidelines and Model Disciplinary Orders provide
that cost recovery is a standard condition for all cases.
According to the BPM, ALJs are inconsistent in the amount of
cost recovery they propose from one case to another. In
stipulated agreements, the BPM's staff and the Attorney General
always seek cost recovery as part of the negotiation.
The BPM recommends amending current law to give the BPM
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discretion to increase cost recovery in disciplinary cases when
it non-adopts a proposed decision from an ALJ and, in making its
own decision, finds grounds for increasing the costs to be
assessed. The BPM indicates that it is unusual to non-adopt an
ALJ's proposed decision and for the BPM to make its own
decision. However, the BPM contends that it should not be
prohibited from ordering actual and reasonable cost recovery in
such cases. This bill authorizes BPM to increase costs assessed
when a proposed decision is not adopted by the BPM and the BPM
finds grounds for increasing the assessed costs.
This bill also makes several cleanup provisions to clarify the
law as recommended by the BPM.
The PAC was established in 1975. At the time, the Legislature
was concerned about the existing shortage and geographic
mal-distribution of health care services in the state. The
intent was, in part, to create a framework for the development
of a new category of health manpower and to encourage their
utilization as a way of serving California's health care
consumers. PAs are medical practitioners who perform services
under the supervision of physicians.
The PAC's primary role is the licensure of PAs. The PAC exists
within the MBC but has limited ties to that board and acts
independently on many of its mandates. The PAC continues to
rely on MBC for investigative and other services and generally
has a cooperative working arrangement with the Board. This bill
extends the sunset dates for the PAC and its executive officer
to January 1, 2017
Over the years, the PAC has continued its current status with
ties to, and reliance on, the MBC for investigative and
administrative services. At a July 2010 meeting, the PAC agreed
to move forward to seek legislation to change its name from the
"Physician Assistant Committee" to the "Physician Assistant
Board," a change that is not intended to alter or do away with
the current cooperative working arrangement with MBC, as PAs
will continue to work under supervising physicians and that
relationship is paramount to the PA practice. An example of the
affiliation that the PAC has with the MBC is that of the BPM,
which also relies on the MBC to provide many of the services
that the PAC receives. This bill changes the name of the PAC to
the PAB and makes corresponding changes.
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There is a question as to whether or not the PAC should still
continue with a voting physician member once it is considered as
an independent board. This bill changes composition of the PAB
to add a PA and to make the physician member an ex-officio,
non-voting member not to be counted toward a quorum.
Current law (the 800 series) provides several reporting mandates
for the MBC and several other health professions to assist
licensing boards in protecting consumers from licensees who have
had action taken against them by their employers, altering their
workplace privileges. The PAC maintains that the current PA Act
does not clarify whether reports should be made to the PAC about
certain actions against its licensees. The PAC encourages
agencies to voluntarily provide 800 series reports on PAs to the
PAC for review and processing and when a report is received, the
PAC opens a complaint and takes appropriate action. However,
under current PA laws, it is not explicitly clear that health
plans and health care facilities are required to report certain
actions taken by these entities against a licensee's privileges.
The only reporting mandate that applies to PAs requires
district attorneys, city attorneys, and prosecuting agencies to
notify the PAC immediately upon obtaining information of any
filings charging a felony against a PAC licensee.
The PAC is interested in adding PAs to the 800 series, which it
believes would enhance consumer protection and allow the PAC to
receive critical information about its licensees. Employers
would be required to report any actions taken against PAs by
peer review bodies for medical disciplinary cause or reason to
the PAC. This bill clarifies that the reporting requirements in
the 800 series apply to PAs.
The PAC has further recommended that the PAC be granted a
retired license status to accommodate licensees who are no
longer practicing to retain their license without payment of
renewal fees or completion of continuing education. This
license status is similar to other licensing boards within DCA.
This bill allows the PAC to establish regulations for a retired
license status for PAC licensees.
Related legislation .
SB 1237 (Price) of 2012, extends the sunset dates for various
professional boards under the DCA and makes technical and
clarifying changes. This bill is pending in Assembly Business,
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Professions and Consumer Protection Committee.
SB 1238 (Price) of 2012, extends the sunset date of the Board of
Psychology and the Board of Behavioral Sciences and extends
their authority to appoint an executive officer (EO). This bill
is pending in Assembly Business, Professions and Consumer
Protection Committee.
SB 1239 (Price) of 2012, extends the sunset date for the
Acupuncture Board and the term of the Acupuncture Board's EO by
two years, until January 1, 2017, and makes technical and
clarifying changes. This bill is pending in Assembly Business,
Professions and Consumer Protection Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Board of Podiatric Medicine
Physician Assistant Committee
Opposition
None on file.
Analysis Prepared by : Angela Mapp / B.,P. & C.P. / (916)
319-3301