BILL ANALYSIS �
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|Hearing Date:June 23, 2014 |Bill No:AB |
| |916 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Ted W. Lieu, Chair
Bill No: AB 916Author:Eggman
As Introduced: February 22, 2013 Fiscal: No
SUBJECT: Healing arts: false or misleading advertising.
SUMMARY: Prohibits a physician from using the terms "board,"
"certified" or "certification" in advertising unless those terms are
used in reference to a certifying board, as specified.
Existing law:
1)Licenses and regulates physicians and surgeons under the Medical
Practice Act (Act) by the Medical Board of California (MBC) within
the Department of Consumer Affairs (DCA) and states that the
protection of the public is the highest priority of the MBC in
exercising its functions. (Business and Professions Code (BPC) �
2000 et seq.)
2)Provides that a physician and surgeon licensed by the MBC may include
a statement that he or she limits his or her practice to specific
fields, but shall not include a statement that he or she is
certified or eligible for certification by a private or public board
or parent association, including but not limited to a
multidisciplinary board or association unless the board or
association is: (BPC � 651)
a) An American Board of Medical Specialties (ABMS) member board;
b) A board or association with equivalent requirements approved
by that physician and surgeon's licensing board (i.e., the MBC);
or,
c) A board or association with an Accreditation Council for
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Graduate Medical Education (ACGME) approved postgraduate training
program that provides complete training in that specialty or
subspecialty.
1)Prohibits a physician and surgeon, licensed by the MBC, and who is
certified by an organization other than a board or organization
described under # 2, above, from using the term '"board certified"
unless the full name of the certifying board is also used and given
comparable prominence with the term "board certified" in the
statement. (BPC � 651 (h) (5) (C))
2)Defines multidisciplinary board or association to mean "an
educational certifying body that has a psychometrically valid test
process as determined by the MBC for certifying medical doctors
and other healthcare professionals that is based on the applicant's
education, training and experience." (BPC � 651 (h) (5) (C))
3)Specifies that "board certified," "board" and "association" means an
organization that is an ABMS member board, an organization with
equivalent requirements approved by a physician and surgeon's
licensing board or an organization with an ACGME approved
postgraduate training program that provides complete training in a
specialty or subspecialty. (BPC � 651 (h) (5) (C))
This bill:
1)Prohibits a physician and surgeon from using the terms "board,"
"certified" or "certification" in advertising unless the full name
of the certifying board is also used and given comparable prominence
with the terms "board," "certified," "certification" or "board
certified" in the statement, and unless the term or terms are used
in reference to an ABMS member board, a board with equivalent
requirement as approved by the MBC, or a board with an ACGME
approved postgraduate training program, as specified.
2)Deletes an obsolete definition of the term "board certified."
3)Makes findings and declarations regarding the importance of
preventing false advertising of medical services.
FISCAL EFFECT: This bill has been keyed "non-fiscal" by Legislative
Counsel.
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COMMENTS:
1.Purpose. This bill is sponsored by California Society of Plastic
Surgeons to protect consumers from false or misleading
advertisements about the training and qualifications of physicians
by prohibiting the use of the terms "board," "certified" or
"certification" in advertising unless the physician is certified by
an appropriate certifying body, as specified.
According to the Author, this bill aims to protect the public by
requiring better information about the qualification of health care
providers. Some physicians misrepresent themselves by advertising
they are part of a "board", are "certified" or have a
"certification." While most physicians and surgeons follow the
letter of the law, some physicians mislead the public by implying
they are board certified, according to the Author.
The Author states that consequences of seeing a physician or surgeon
who is not truly board certified in the advertised specialty or
subspecialty has been well documented in the media.
2.Background.
a) History of the Law. In 1990, SB 2036 (McCorquodale),
sponsored by the California Society of Plastic Surgeons, among
others, sought to prohibit physicians from advertising board
certification by boards that were not member boards of the
American Board of Medical Specialties (ABMS). It added BPC � 651
(h) to prohibit physicians from advertising they are "board
certified" or "board eligible" unless they are certified by any
of the following:
An ABMS approved specialty board.
A board that has specialty training that is approved
by the Accreditation Council for Graduate Medical Education
(ACGME).
A board that has met requirements equivalent to ABMS
and has been approved by the MBC.
The ultimate effect is to provide that, unless physicians are
certified by a board, as defined by law, physicians are
prohibited from using the term "board certified" or "board
eligible" in their advertisements. The law does not, however,
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prohibit the advertising of specialization, regardless of board
certification status.
To implement BPC � 651, the MBC adopted regulations which are
substantially based on the requirements of ABMS, including the
number of diplomates certified, testing, specialty and
subspecialty definitions, bylaws, governing and review bodies,
etc. The most notable requirement relates to the training
provided to those certified by the specialty boards. In the
regulations, training must be equivalent to an ACGME postgraduate
specialty training program in "scope, content and duration."
Since the regulations were adopted, the MBC has reviewed a number
of specialty board applications, and has approved four boards:
American Board of Facial Plastic & Reconstructive
Surgery
American Board of Pain Medicine
American Board of Sleep Medicine
American Board of Spine Surgery
The MBC has also disapproved two boards:
American Academy of Pain Management
American Board of Cosmetic Surgery
a) Consumer Protection Function. The purpose of the statute and
regulations is to provide protection to consumers from misleading
advertising. Board certification is a major accomplishment for
physicians, and while board certification does not ensure
exemplary medical care, it does guarantee that physicians were
formally trained and tested in a specialty, and, with the ABMS'
Maintenance of Certification (MOC) requirements to remain
board-certified, offers assurances that ongoing training, quality
improvement, and assessment is occurring.
At the time the original legislation was pursued in 1990, a number
of television news programs covered stories from severely injured
patients who were victims of malpractice from physicians who
advertised they were board certified, when, in fact, they had no
formal training in the specialty that they advertised. The law
put an end to physicians' ability to legally advertise board
certification if the certifying agency was not a member of ABMS.
More recently, news articles have highlighted cases of individuals
who may be selecting doctors based on false representation of
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their certification credentials. In 2013, CBS 13 in Sacramento
documented patients of a Rocklin-based doctor who were left
deformed and paralyzed after receiving plastic surgery procedures
from a doctor whose background and training were in another
medical specialty.
This bill would serve to prevent the misrepresentation of a
physician's credentials by prohibiting the physician's
advertising from including words that imply board certification.
b) Current Relevance. As stated above, the law merely addresses
advertising, and does not in any way require physicians to be
board certified or formally trained to practice in a specialty or
in the specialty in which they practice. Doctors only need to
possess a valid physician and surgeon's license to practice in
any specialty. As prospective patients usually are covered by
insurance, searching for a physician in most specialties is
generally done through their insurance directory. At present,
many insurance companies select board-certified physicians for
their panels, or those physicians whose credentials they have
vetted.
The same is generally true for granting hospital privileges.
Hospitals grant privileges after conducting a review of
qualifications. This process, called "credentialing," includes
looking into the background of a physician, including accredited
training and board certification. For that reason, most
physicians who are granted privileges will be board certified in
the specialty for which they are granted privileges, or similarly
highly, formally trained.
Therefore, the "board certification" advertising prohibition is
primarily meaningful for elective procedures; that is to say,
those procedures that are not reimbursed by insurance or those
performed outside of a hospital or a hospital clinic setting.
1.Board Certification and Licensure. Physician and surgeon licensing
requires a Doctor of Medicine degree from an approved school and
completion of a postgraduate training program accredited by the
ACGME or Royal College of Physician and Surgeons of Canada.
However, being licensed does not indicate whether a doctor is
qualified to practice in a specific medical specialty, such as
pediatrics, plastic surgery or dermatology. Currently, there are
three accrediting entities that provide board certification for
licensees regulated by the MBC:
1) ABMS, 2) ACGME and 3) the MBC. Between MBC-approved specialty
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boards and the ABMS, there are 28 certificated specialties.
2.American Board of Medical Specialty. The AMBS is non-profit
organization made up of twenty-four medical specialty boards and is
responsible for overseeing the certification of physician
specialists throughout the United States. The individual specialty
boards represented under the AMBS include: 1) Allergy and
Immunology, 2) Anesthesiology,
3) Colon and Rectal Surgery, 4) Dermatology, 5) Emergency Medicine, 6)
Family Medicine,
7) Internal Medicine, 8) Medical Genetics, 9) Neurological Surgery, 10)
Nuclear Medicine,
11) Obstetrics and Gynecology, 12) Ophthalmology, 13) Orthopaedic
Surgery,
14) Otolaryngology, 15) Pathology, 16) Pediatrics, 17) Physical
Medicine and Rehabilitation, 18) Plastic Surgery, 19) Preventive
Medicine, 20) Psychiatry and Neurology, 21) Radiology, 22) Surgery,
23) Thoracic Surgery and 24) Urology.
Each of the 24 AMBS specialty boards is responsible for establishing
the standards of competency for specialty certification. The
specialty boards are governed by a board of trustees or a board of
directors who are certified in the board's specialty area.
When an individual physician seeks board certification, they contact
that board directly for its certification standards and process.
For example, the board certification process for pediatrics includes
an application to take a certifying examination, and meeting general
admission requirements including a medical school degree,
satisfactory completion of three years of pediatric-accredited
training, and a valid and unrestricted license to practice medicine.
In reference to AB 916, ABMS states:
More than 100 organizations claim to certify physicians as
specialists, many based on variable education and training
requirements. For example, some certify medical specialists
based on proctorships and other training programs that are far
less rigorous and comprehensive than the training provided in an
ACGME accredited program. Others accept on-the-job experience
and do not require complete, specialty-specific training. Such
training requirements do not provide assurance that the board
certified physician has received experience and training in
every area needed to practice competently in that specialty.
Nor is there any way to ensure that the physician has had his or
her performance evaluated against national standards in given
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clinical situations by recognized leaders in the specialty. If
physicians advertise themselves as board certified after being
"certified" by specialty boards that do not require complete and
comprehensive training, the potential for public confusion about
and ultimately, distrust of, specialty board certification is
high.
3.Related Legislation. SB 304 (Price, Chapter 515, Statutes of 2013)
made a number of changes relating to the MBC as a result of the
hearings by the Senate Business, Professions and Economic
Development Committee and the Assembly Business, Professions and
Consumer Protection Committees (BPCP).
SB 836 (Figueroa, Chapter 856, Statutes of 1999) expanded and revised
the prohibition against fraudulent advertising by health
practitioners, specifically targeting cosmetic surgery
advertisements.
SB 450 (Speier, Chapter 631, Statutes of 1999) required physicians,
surgeons and doctors of podiatric medicine to specify the full name
of the certifying board to which they belong.
SB 2036 (McCorquodale, Chapter 1660, Statutes of 1990), sponsored by
the California Society of Plastic Surgeons, among others, sought to
prohibit physicians from advertising board certification by boards
that were not member boards of the ABMS. It added BPC � 651(h) to
prohibit physicians from advertising they are "board certified" or
"board eligible" unless they are certified by: an ABMS member
board; a board or association with equivalent requirements approved
by the MBC; or a board or association with an ACGME approved
postgraduate training program.
4.Arguments in Support. In sponsoring the bill, the California Society
of Plastic Surgeons (CSPS) writes: Board certification represents
the "gold standard" for training a physician has received in their
specialty. When an individual sees an advertisement stating a
physician is board certified in a certain specialty such as plastic
surgery, they have confidence the plastic surgeon in the
advertisement has received extensive training in their specialty.
The CSPS argues that there are physicians who use terms including
"Board," "Certified," or "Certification" in reference to non-ABMS
Boards. The use of these terms misleads the consumer into assuming
the physician's qualifications are more credible, according to the
CSPS and patients will sometimes choose a physician based on this
misleading information, believing the physician is truly "board
certified." This has resulted in patient injury, deformity, and
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even death.
The California Medical Association , the California Chapter of the
American College of Emergency Physicians , the California Chapter of
the American College of Cardiology , and the American Congress of
Obstetricians and Gynecologists argue that as Californians are being
asked to be more involved in their healthcare decisions,
understanding the training and education of healthcare practitioners
is becoming even more important. AB 916 protects the use of the
term board-certified and allows patients to better understand the
training and education of the healthcare practitioner whom they are
considering for their medical care.
The California Orthopaedic Association , supports the bill, stating that
some practitioners are skirting the law by using the terms "board"
"certified" or "certification" in their advertising, and contends
that AB 916 will close that loophole and protect consumers from
deceptive claims.
The Medical Board of California states that this bill will allow
patients to make informed decisions when choosing a health care
provider and tighten existing law related to advertising, which will
help to further the Board's mission of ensuring consumer protection.
The American Board of Medical Specialties (ABMS) writes in support that
the bill will clarify existing laws regarding advertising of board
certification by physicians, thus enabling patients to make informed
choices about their healthcare providers and protecting patient
safety by preventing fraud and deceptive practices.
5.Support if Amended. The Osteopathic Physicians and Surgeons of
California (OPSC) has taken a support if amended position, asking
that the bill be amended to clarify that the requirement apply to
osteopathic physicians and surgeons. OPSC states that it "shares
the concerns of the California Medical Association and the
California Society of Plastic Surgery that patients have been
deceived in the past by misleading advertising about the
qualifications of their physician. Board certification is the gold
standard for the specialty training of a physician. Utilizing this
term inappropriately misleads consumers about their physician's
qualifications."
6.Oppose Unless Amended. American Board of Cosmetic Surgery (ABCS)
states that under existing law, the terms "board certified,"
"certified," and "certification" in combination are already
reserved, for advertising purposes, to certain physicians and
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surgeons. However,
AB 916 would prohibit a physician from using or referencing the
isolated term "board" in advertising communications, unless that
word references a certifying board recognized in California. ABCS
states, "This would have the overreaching effect of barring a
physician who is a credentialed diplomate of the ABCS from including
that information in his/her letterhead, website, and even answering
patient questions regarding his/her training and education.
Ironically, then, the bill would result in patients receiving less
information about physicians they are considering for procedures,
rather than more."
ABCS questions whether the bill's provisions would withstand court
scrutiny, stating:
While advertising and other communications proposing commercial
transactions between the speaker and listener are not fully
protected by the First Amendment, the U.S. Supreme Court has
said that commercial speech may only be restrained if it is
false, misleading or advertises unlawful activity. Any
governmental restraint must advance a substantial public
interest and must not be more extensive than necessary to serve
that interest. California public policy limits claims of "board
certification," when certain criteria are not met, but we see
little "substantial public interest" served by eliminating all
references to a physician's training and education.
The court also stated that unless commercial speech regulations
target false, misleading or coercive advertising, or require
disclosure of information that will help avoid misleading
advertising, strict First Amendment scrutiny should apply.
Section 651 of the Business and Professions Code regulates
advertising, only, and has little to do with actual physician
skill sets, preparation and capabilities. Eliminating all
references to training and recognition by a number of
credentialing entities will likely invoke that level of scrutiny
[by the Court].
Finally, ABCS believes that consumers would benefit from more
information, and the bill may actually put consumers at more risk by
limiting access to important information about their physician, or
incentivizing ever more creative ways to circumvent proposed
limitations on physician communications with patients and
prospective patients.
ABCS asks that the bill be amended to add the following to BPC � 651
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(h) (5) (C):
"Nothing in this section shall be construed to bar, or in any way
limit, a physician and surgeon using the term "diplomate" to inform
the public of his or her status as the holder of a post-nominal
title used to indicate the physician and surgeon's education and
training."
California Academy of Cosmetic Surgery (CACS) argues that the bill
will "disavow patients of valuable information as it pertains to
knowing what specific credentials their physician and surgeon may
possess. For example, a dermatologist, ophthalmologist,
otolaryngologist (i.e. ears, nose and throat - ENT) would be
prohibited from advertising or disclosing to patients that they are
a diplomate, fellow (or any other derivative descriptor) of the
American Board of Cosmetic Surgery (ABCS). CACS feels strongly that
patients need more information regarding the credentials of their
healthcare providers, not less."
CACS requests the bill be amended to delete the term "board" on page
5, line 39 and on page 6, line 2 of the bill.
The American Board of Physician Specialties (ABPS) argues that by
prohibiting a physician from using or referencing the isolated term
"board" in advertising communications, unless that word references a
certifying board recognized in California, the bill would have an
"overreaching effect of barring a physician who is a credentialed
diplomate of the ABPS from including that information in his/her
letterhead, website, and even answering patient questions regarding
his/her training and education. Ironically, then, the bill would
result in patients
receiving less information about physicians they are considering for
procedures, rather than more."
The American Board of Phlebology (ABPh) contends: "Limiting the
ability to inform the public about expertise to only those certified
by an ABMS board would unfairly restrict well-trained physicians
from disclosing relevant and critical training as well as
objectively validated assessment of knowledge and competence."
7. Policy Issue. The Committee may wish to consider whether this
bill's prohibition of using the term "board" unless it is in
reference to a certifying board that meets the specified criteria
in law may be a significant broadening of the scope of BPC � 651.
Several boards such as the American Board of Cosmetic Surgery , the
American Board of Phlebology , and the American Board of Physician
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Specialties each contend that the bill would prohibit an affiliated
physician from listing the board name. The Committee may wish to
consider the following amendment to more clearly narrow the focus
and effect of the bill:
On page 5, line 39, strike out: "board,"
On page 6, line 2, strike out: "board,"
SUPPORT AND OPPOSITION:
Support:
California Society of Plastic Surgeons (Sponsor)
American Academy of Pediatrics
American Board of Medical Specialties
American Congress of Obstetricians and Gynecologists
CalDerm
California Chapter of the American College of Cardiology
California Chapter of the American College of Emergency Physicians
California Medical Association
California Orthopaedic Association
California Radiological Society
California Society of Facial Plastic Surgery
Medical Board of California
Support if Amended:
Osteopathic Physicians and Surgeons of California
Oppose :
American Board of Vascular Medicine
Oppose Unless Amended:
American Board of Cosmetic Surgery
American Board of Phlebology
American Board of Physician Specialties
American Board of Venous and Lymphatic Medicine
American College of Phlebology
California Academy of Cosmetic Surgery
Numerous Physician and Surgeons
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Consultant:G. V. Ayers