BILL ANALYSIS �
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|Hearing Date:June 23, 2014 |Bill No:AB |
| |1886 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Ted W. Lieu, Chair
Bill No: AB 1886Author:Eggman
As Amended:June 16, 2014 Fiscal: Yes
SUBJECT: Medical Board of California.
SUMMARY: Recasts and revises the law regarding Internet posting of
physician and surgeon license information by the Medical Board of
California (MBC); requires MBC to post indefinitely information
related to all physician and surgeon discipline, including revocation,
suspension, probation, surrender of a license or other equivalent
action taken by MBC or a board of another state or jurisdiction;
reduces the amount of time from ten years to three years for posting
citation information, and reduces the amount of time from ten years to
five years for posting settlement information.
Existing law:
1)Licenses and regulates physicians and surgeons under the Medical
Practice Act by the Medical Board of California (MBC) within the
Department of Consumer Affairs (DCA). (Business and Professions
Code (BPC) � 2000 et seq.)
2)Specifies that protection of the public shall be the highest priority
for the MBC in exercising its licensing, regulatory, and
disciplinary functions; and requires that whenever the protection of
the public is inconsistent with other interests sought to be
promoted, the protection of the public shall be paramount. (BPC �
2001.1)
3)Requires any complaint to the MBC against a physician and surgeon
determined to involve quality of care to meet the following criteria
before referral to a field office for further investigation: (BPC �
2220.08)
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a) The complaint must be reviewed by one or more medical experts
with the pertinent education, training, and expertise to evaluate
the specific standard of care issues in the complaint to
determine if further field investigation is required.
b) The complaint must include a review of the following:
i) Relevant patient records;
ii) The statement or explanation of the care and
treatment provided by the physician and surgeon;
iii) Any additional expert testimony or literature
provided by the physician and surgeon;
iv) Any additional facts or information requested by the
medical expert reviewers that may assist them in determining
whether the care rendered constitutes a departure from the
standard of care.
4)Requires an accusation to be filed against a licensee within three
years after MBC discovers the act or omission alleged as the ground
for disciplinary action, or within seven years after the act or
omission alleged as the ground for disciplinary action occurs,
whichever occurs first, as specified. (BPC � 2230.5)
5)Authorizes MBC to discipline a licensee by placing him or her on
probation, which may include, but is not limited to, the following:
(BPC � 2228)
a) Requiring the licensee to obtain additional professional
training and to pass an examination upon the completion of the
training;
b) Requiring the licensee to submit to a complete diagnostic
examination by one or more physicians and surgeons appointed by
MBC;
c) Restricting or limiting the extent, scope, or type of practice
of the licensee, including requiring notice to patients that the
licensee is unable to perform the indicated treatment, where
appropriate.
6)Authorizes MBC to issue to public letter of reprimand concurrently
with issuing a license to a physician and surgeon license applicant
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who has committed a minor violation. Requires that the public
letter of reprimand to be purged three years from the date it was
issued.
(BPC � 2221.05)
7)Authorizes MBC, instead of filing a formal accusation, to instead
issue a public letter of reprimand by stipulation or settlement with
a physician and surgeon after it has conducted an investigation or
inspection, subject to the following: (BPC � 2233)
a) The public letter of reprimand may include a requirement for
specified training or education;
b) Use of a public letter of reprimand shall be limited to minor
violations;
c) A public letter of reprimand may be disclosed to an inquiring
member of the public.
8)Declares as public information all civil judgments in any amount,
whether or not vacated by a settlement after entry of the judgment,
that were not reversed on appeal and arbitration awards in any
amount of a claim or action for damages for death or personal injury
caused by the physician and surgeon's negligence, error, or omission
in practice, or by his rendering of unauthorized professional
services. (BPC � 803.1 (b) (1))
9)Requires MBC to adopt regulations designating each specialty and
subspecialty practice area as either high risk or low risk. (BPC �
803.1 (f))
10)Requires the following information to be posted on MBC's Web site
for a period of ten years from the date MBC obtains possession,
custody, or control of the information, and after the end of that
period, be removed: (BPC � 2027)
a) Whether a license is subject to a temporary restraining order
(TRO) or interim suspension order (ISO);
b) Revocations, suspensions, probations, or limitations on
practice ordered by MBC, including those made as part of a
probationary order or stipulated agreement.
c) Public letters of reprimand;
d) Discipline from a board of another state or jurisdiction;
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e) Current accusations filed by the Attorney General (AG),
including those on appeal;
f) Any malpractice judgment or arbitration award reported to MBC
after January 1, 1993;
g) Any misdemeanor conviction that results in a disciplinary
action or an accusation that is not subsequently withdrawn or
dismissed.
11)Requires the following information to be posted on MBC's Web site
indefinitely: (BPC � 2027)
a) Whether a licensee is in good standing;
b) Any felony convictions reported to MBC after January 3, 1991;
c) Any hospital disciplinary actions that resulted in the
termination or revocation of a licensee's hospital staff
privileges for a medical disciplinary cause or reason, and any
additional explanatory or exculpatory information submitted by
the licensee, as specified.
12)If a licensee's hospital staff privileges are restored, and the
licensee notifies MBC of the restoration, the information pertaining
to the termination or revocation of those privileges, as specified,
shall remain posted for a period of ten years from the restoration
date of the privileges. (BPC � 2027 (c) (3))
This bill:
1)Recasts and revises current law regarding Internet posting of
physician and surgeon licensee information, to instead require MBC
to post on its Internet Web site, specified information on all
current and former licensees of the MBC, as detailed below.
2)Requires MBC to post the following information on the current status
of the license:
a) Whether or not the licensee is presently in good standing;
b) Current American Board of Medical Specialties certification or
board-equivalent as certified by MBC;
c) Any of the following enforcement actions or proceedings to
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which the licensee is actively subjected:
i) TROs;
ii) ISOs;
iii) Revocations, suspensions, probations, or limitations
on practice ordered by MBC or the board of another state or
jurisdiction, including those made part of a probationary order
or stipulated agreement;
iv) Current accusations filed by the AG, including
accusations on appeal. Defines a "current accusation" as an
accusation that has not been dismissed, withdrawn, or settled,
and has not been finally decided upon by an administrative law
judge and the MBC unless there is a pending appeal of the
decision;
v) Citations issued that have not been resolved or appealed
within 30 days.
1)Requires MBC to post historical information in MBC's possession,
custody, or control regarding all current and former licensees,
including:
a) Approved postgraduate training;
b) Any final revocations and suspensions, or other equivalent
actions, taken against the licensee by the MBC or the board of
another state or jurisdiction or the surrender of a license in
relation to a disciplinary action or investigation, including the
accusation which resulted in the license surrender or discipline;
c) Probation or other equivalent action ordered by MBC, or the
board of another state or jurisdiction, completed or terminated,
including the accusation which resulted in the discipline;
d) Any felony convictions. Upon receipt of a certified copy of
an expungement order granted, as specified, from a licensee, the
MBC shall post notification of the expungement order and date
within six months of receipt of the order;
e) Misdemeanor convictions resulting in a disciplinary action or
accusation that is not subsequently withdrawn or dismissed. Upon
receipt of a certified copy of an expungement order granted, as
specified, from a licensee, the MBC shall post notification of
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the expungement order and date within six months of receipt of
the order;
f) Civil judgments issued in any amount, whether or not vacated
by a settlement after entry of the judgment, that were not
reversed on appeal, and arbitration awards issued in any amount,
for a claim or action for damages for death or personal injury
caused by the physician and surgeon's negligence, error, or
omission in practice, or by his or her rendering of unauthorized
professional services;
g) A summary of any final hospital disciplinary actions that
resulted in the termination or revocation of a licensee's
hospital staff privileges for a medical disciplinary cause or
reason. Requires the posting to provide any additional
explanatory or exculpatory information submitted by the licensee,
as specified. Requires MBC to post a factsheet that explains and
provides information on the reporting requirements under Section
805.
i) Provides that if a licensee's hospital staff privileges
are restored and the licensee notifies the MBC, the information
pertaining to the termination or revocation of those privileges
shall remain posted for a period of 10 years from the
restoration date of the privileges, and at the end of that
period shall be removed.
ii) Provides that if a court finds, in a final judgment,
that peer review resulting in hospital disciplinary action was
conducted in bad faith and the licensee notifies MBC of the
finding, the information concerning that hospital disciplinary
action shall be immediately removed .
1)Requires posting for 10 years , public letters of reprimand by the MBC
or the board of another state or jurisdiction, including the
accusation, if any, which resulted in discipline.
2)Requires posting for 3 years , citations that have been resolved by
payment of the administrative fine or compliance with the order of
abatement.
3)Requires posting for 5 years , all settlements in the possession,
custody, or control of the MBC to be disclosed for a licensee in a
"low-risk category" of practice if there are three or more
settlements for that licensee within the last five years, and for a
licensee in the "high-risk category" of practice if there are four
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or more settlements for that licensee within the last five years.
Specifies that classification of a licensee in either a "high-risk
category" or a "low-risk" category depends upon the specialty or
subspecialty practiced by the licensee and the designation assigned
to that specialty or subspecialty by the MBC in regulations.
a) "Settlement" for this paragraph means a settlement in an
amount of $30,000 or more of any claim or action for damages for
death or personal injury caused by the physician and surgeon's
negligence, error, or omission in practice, or by his or her
rendering of unauthorized professional services.
b) "Settlement" for this paragraph does not include a settlement
by a licensee, regardless of the amount paid, when: (i) the
settlement is made as a part of the settlement of a class claim,
(ii) the amount paid in settlement of the class claim is the same
amount paid by the other licensees in the same class or similarly
situated licensees in the same class, and (iii) the settlement
was paid in the context of a case for which the complaint that
alleged class liability on behalf of the licensee also alleged a
products liability class action cause of action.
c) The MBC shall not disclose the actual dollar amount of a
settlement, but shall disclose settlement information in the same
manner and with the same disclosures required under BPC � 803.1
(b) (2) (B).
1)Requires MBC to post appropriate disclaimers and explanatory
statements to accompany the information posted as required above,
including an explanation of what types of information
are not disclosed. The disclaimers and statements shall be developed
by the MBC and shall be adopted by regulation.
2)Requires MBC to post links to other Internet Web sites that provide
information on board certifications that meet the advertising
requirements in existing law. Authorizes MBC to post links to any
other Internet Web sites that provide information on the
affiliations of licensed physicians and surgeons. Authorizes MBC to
provide links to other Internet Web sites that provide information
on health care service plans, health insurers, hospitals, or other
facilities.
FISCAL EFFECT: This measure has been keyed "fiscal" by Legislative
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Counsel. According to the Assembly Committee on Appropriations
analysis, this bill may result in potential one-time staff workload
and reprogramming costs to reconfigure information displayed on the
MBC's Web site and develop processes and procedures related to the
display and removal of information, not likely to exceed $50,000
(Contingent Fund of the MBC). Ongoing costs should be minor.
COMMENTS:
1.Purpose. This bill is sponsored by the Medical Board of California
(Sponsor) to recast and revise the law regarding Internet posting of
physician and surgeon license information. This bill will require
MBC to post indefinitely on its Web site certain information related
to all physician and surgeon discipline (a revocation, suspension,
probation, surrender of a license by the licensee in relation to a
disciplinary action or investigation, or other equivalent action
taken against the licensee by MBC or a board of another state or
jurisdiction). Under current law, information regarding these
actions are taken down after ten years. The bill reduces the amount
of time from ten years to three years for posting of citation
information, and reduces the amount of time from ten years to five
years for posting settlement information.
2.Removal of Public Disciplinary Records from MBC Web Site. In 2003,
the law was amended to require MBC to remove certain public
information from its Web site after 10 years, and MBC began removing
these documents in 2013. On January 1, 2013, MBC had to remove
approximately 6,900 records from its Web site due to this 10-year
limit, and continues to remove 30-40 records per month, which
equates to 350-400 records per year. MBC will return the applicable
records to its Web site should this bill be enacted.
3.Differences in Disclosure between Public Records and the MBC Web
Site. The approach taken by this bill is echoed in recommendations
from MBC's 2013 Sunset Review report, in which staff of this
Committee recommended that the 10-year posting requirement be
removed "in order to ensure transparency to the public." The
California Research Bureau (CRB) also recommended this change in
their 2008 report, "Physician Misconduct and Public Disclosure
Practices at the Medical Board of California."
Although MBC posts disclaimers about the availability and extent of
information on its Web site, consumers may reasonably believe that
the MBC Web site presents all the publicly available information on
a physician and surgeon's license. As a result, consumers may be
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misled into believing - incorrectly - that some physicians have no
record of discipline. This bill would help rectify that discrepancy
by putting more - but not all - public disciplinary information
online.
This bill, in conjunction with other provisions of current law, would
require information posted as follows:
a) Information posted as long as the information is public:
Whether or not a license is presently in good standing;
A licensee's current American Board of Medical Specialties
certification or MBC equivalent, as certified by MBC, and
approved postgraduate training;
A revocation, suspension, probation, surrender of a
license by the licensee in relation to a disciplinary action or
investigation, or other equivalent action taken against the
licensee by MBC or a board of another state or jurisdiction, as
specified;
A malpractice judgment or arbitration award;
Any misdemeanor conviction that results in a disciplinary
action or an accusation that is not subsequently withdrawn or
dismissed;
Any felony convictions;
Any hospital disciplinary actions that resulted in the
termination or revocation of a licensee's hospital staff
privileges for a medical disciplinary cause or reason, and
information about additional explanatory or exculpatory
information submitted by the licensee, as specified.
b) Information posted for as long as the licensee is subject to
the action:
Current accusations filed by the AG, including those on
appeal;
Temporary restraining orders;
Interim suspension orders.
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c) Information posted as described below:
Licensees will have a grace period of 30 days to resolve a
citation, and citations issued will be posted for 3 years ;
A public letter of reprimand will be posted for 10 years ;
Settlement information will be posted for 5 years , as
specified.
1.The Unclear Past of Public Disclosure. The 2002 Sunset Review of the
MBC revealed numerous and significant problems with the MBC's
enforcement and public disclosure practices, resulting in the
enactment of SB 1950 (Figueroa, Chapter 1085, Statutes of 2002),
which, among other things, required an independent enforcement
monitor to be appointed to evaluate the MBC's enforcement system.
The 2004 Initial Report: Medical Board of California Enforcement
Program Monitor identified serious deficiencies in the MBC's
enforcement program and in the MBC's "diversion" program. The
Report made 65 specific recommendations.
Among the findings in the report were noted problems with MBC's public
disclosure policy. The Monitor pointed out the complex,
overlapping, and dizzying laws (primarily BPC �� 803.1 and 2027),
supplemented by MBC regulations. Ultimately, the Monitor indicated
that together these laws create four categories of information on
physicians: (1) public information that must be posted on MBC's Web
site; (2) public information that must be disclosed upon request but
may not be posted on MBC's Web site; (3) public information that is
known to MBC but is not disclosed; and (4) non-public information
known to MBC that is not disclosed.
SB 1438 (Figueroa, Chapter 223, Statutes of 2006) made a number of
changes to the Act, recasting and clarifying the law as it relates
to the disclosure and reporting of information concerning
settlements, arbitration awards, judgments in medical malpractice
actions, and legal actions, for physicians, podiatrists and
osteopaths. The bill further required the CRB to conduct a study of
the role of public disclosure in the public protection mandate of
the MBC.
In its subsequent report, Physician Misconduct and Public Disclosure
Practices at the Medical Board of California (November 2008), the
CRB concluded that past disciplinary history of a physician is
predictive of future disciplinary troubles, stating "the largest
single predictive factor in the odds that a physician faces an
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accusation appears to be whether the physician has a history of past
disciplinary proceedings." CRB also noted that "malpractice payout
information has predictive power." Ultimately CRB recommended the
MBC improve and expand the information it discloses about physicians
on the Internet, stating: "Our statistical analysis of MBC
accusations suggests that 10-year availability of disciplinary
documents is a minimum period for which such documents likely are
informative to members of the public, rather than a maximum. Hence,
the current ten-year (or shorter) Internet disclosure limitations
are counter-productive for the goal of public protection."
Although this bill does not fully expand the MBC disclosures on the
Internet as broadly as what might be indicated by CRB, it appears to
move further in the direction of better public protection by giving
greater disclosures to the public.
2.Related Legislation. SB 304 (Lieu, Chapter 515, Statutes of 2013)
revises the Act to transfer investigators and medical consultants
from the MBC to the Division of Investigation (DOI) within the DCA;
extends the sunset date of MBC by four years to January 1, 2018.
This bill made a number of additional changes recommended by the
Senate and Assembly Business and Professions Committees relative to
the sunset review of the MBC.
SB 1950 (Figueroa, Chapter 1085, Statutes of 2002) established the
provision in current law requiring the disclosure of settlements of
$30,000 or more, including the current provision in BPC � 2027
requiring MBC to remove certain public disclosure information from
its Website after 10 years. The bill extended the sunset date for
the MBC to July 1, 2005, and made a number of other changes,
including requiring the DCA director to appoint an Enforcement
Program Monitor.
3.Arguments in Support. In sponsoring this measure the Medical Board
of California (MBC) states, "Currently, public disciplinary
information for licensed physicians can only be posted on the
Board's website for 10 years. AB 1886 would allow the Board to post
the most serious disciplinary information, which is already public
information, on the Board's website for as long as it remains
public."
MBC further states the bill was recently amended to address concerns
raised by the California Medical Association (CMA) and other
provider groups. According to MBC, the CMA raised concerns that
posting all public information indefinitely would be punitive,
especially for information that is a lesser form of discipline or is
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not considered discipline. CMA also raised concerns that the
existing statute was confusing and convoluted. MBC states that the
Author, sponsor, and CMA worked on amendments, and with these
amendments, CMA is now neutral on this bill.
MBC indicates that the amendments restructure the statute to reflect
the current and historical information that can be posted to the MBC
website related to physicians; require malpractice settlement
information to be posted over a 5-year period, instead of a 10-year
period (the posting would be in the same manner as specified in BPC
� 803.1); require public letters of reprimand to be posted for 10
years, instead of indefinite posting; and require citations to be
posted that have not been resolved or appealed within 30 days, and
once the citation has been resolved, to only be posted for 3 years,
instead of 5 years (citations are not considered discipline).
According to MBC, the bill does not change what information is
available to the public it simply allows consumers to more easily
access information that is already public. "Currently, a consumer
can call or come to Board offices and request any public documents
that have been removed from the Board's website due to the 10-year
restriction. However, requiring consumers to call or physically
come to the Board's office is burdensome to consumers. In addition,
the Board believes that not posting these public documents can be
misleading to consumers, as they may believe that the physician has
no history of discipline, when in fact the public documents have
only been removed from the Board's website. To increase
transparency and accessibility, the Board feels it is very
important, in the interest of consumer protection, to have the
serious disciplinary public information available for consumers on
the Board's website." The MBC believes that this bill will further
its mission of consumer protection.
The Center for Public Interest Law (CPIL) believes the bill enhances
the MBC's public disclosure policy - a centerpiece of its public
protection mandate. Under existing law, MBC is required to disclose
on its Web site indefinitely: felony criminal convictions and
hospital disciplinary actions that result in the permanent
termination of staff privileges, according to CPIL, and this bill
would also require MBC to post indefinitely other pieces of public
information: disciplinary actions against physicians taken by the
Board or by other state medical boards, medical malpractice
judgments and arbitration awards. CPIL argues the permanent posting
of this public information will help Californians to ensure that the
medical professionals to whom they entrust their lives and their
health are qualified.
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CPIL contends "the MBC Web site should disclose- truthfully and
accurately- complete public information about the disciplinary,
hospital privileges, medical malpractice, and criminal track record
of all physicians licensed in California. Adequate and accurate
public disclosure of adverse events in a physician's professional
life is especially important in light of the fact that it still
takes MBC an average of 2.36 years to complete an investigation and
take public disciplinary action against a license."
"AB 1886 would remove that arbitrary 10-year limitation on Internet
posting as to the Board's own disciplinary actions, disciplinary
actions taken against California-licensed physicians by other state
medical boards, and medical malpractice judgments (usually entered
by a jury after a public trial) and arbitration awards reported to
MBC after January 1, 1993 - thus allowing patients immediate access
to public, accurate, and complete information about a physician's
disciplinary history."
4.Technical Amendment. Committee staff recommends the following
technical amendment to correct a reference to BPC Section 651 (h).
On page 5, line 27, strike out " subdivision (b) of Section 851 "
and insert: " subdivision (h) of Section 651 "
SUPPORT AND OPPOSITION:
Support:
Medical Board of California (Sponsor)
Center for Public Interest Law
Opposition:
None received as of June 18, 2014
Consultant:G. V. Ayers