Bill Text: CA SB304 | 2013-2014 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Healing arts: boards.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2013-10-03 - Chaptered by Secretary of State. Chapter 515, Statutes of 2013. [SB304 Detail]
Download: California-2013-SB304-Amended.html
Bill Title: Healing arts: boards.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2013-10-03 - Chaptered by Secretary of State. Chapter 515, Statutes of 2013. [SB304 Detail]
Download: California-2013-SB304-Amended.html
BILL NUMBER: SB 304 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 16, 2013
INTRODUCED BY Senator Price
( Principal coauthor: Assembly Member
Gordon )
FEBRUARY 15, 2013
An act to amend Sections 2001, 2020, 2569, 3010.5, and
3014.6 of 651, 2021, 2177, 2220.08, 2225.5, 2334,
2514, and 2569 of, and to add Sections 2291.5 and 2403 to, the
Business and Professions Code, and to amend Sections 11529,
12529.6, and 12529.7 of, and to amend and repeal Sections 12529 and
12529.5 of, the Government Code, relating to healing arts.
LEGISLATIVE COUNSEL'S DIGEST
SB 304, as amended, Price. Healing arts: boards.
Existing law provides for the licensure and regulation of various
healing arts licensees by various boards, as defined, within the
Department of Consumer Affairs, including the Medical Board of
California. Existing law requires the Governor to appoint members to
the board, as provided. Existing law authorizes the board to employ
an executive director. Existing law provides that those provisions
will be repealed on January 1, 2014. Under existing law, the board is
subject to evaluation by the Joint Sunset Review Committee.
This bill would instead repeal those provisions on January 1,
2018, and subject the board to review by the appropriate policy
committees of the Legislature.
Existing law makes it unlawful for a healing arts practitioner to
disseminate, or cause to be disseminated, any form of public
communication containing a false, fraudulent, misleading, or
deceptive statement, claim, or image for the purpose of, or likely to
induce, the rendering of professional services or furnishing of
products in connection with the professional practice or business for
which he or she is licensed. Existing law provides for the licensure
of physicians and surgeons by the Medical Board of California.
Existing law prohibits a physician and surgeon's advertisements from
including a statement that he or she is certified or eligible for
certification by a private or public board or parent association,
including a multidisciplinary board or association, as defined,
unless that board or association meets at least one of several
standards, including being a board or association with equivalent
requirements approved by that physician and surgeon's licensing
board. A violation of these requirements is a crime.
This bill would limit the application of that exception to a board
or association with equivalent requirements approved by that
physician and surgeon's licensing board prior to January 1, 2014. The
bill would establish that the exception continues to apply to a
multidisciplinary board or association approved by the Medical Board
of California prior to January 1, 2014.
Because the bill would specify additional provisions regarding the
advertising practices of healing art practitioners, the violation of
which would be a crime, it would impose a state-mandated local
program.
Existing law authorizes the Medical Board of California, if it
publishes a directory, as specified, to require persons licensed, as
specified, to furnish specified information to the board for purposes
of compiling the directory.
This bill would require that an applicant and licensee who has an
electronic mail address report to the board that electronic mail
address no later than July 1, 2014. The bill would provide that the
electronic mail address is to be considered confidential, as
specified.
Existing law requires an applicant for a physician and surgeon's
certificate to obtain a passing score on step 3 of the United States
Medical Licensing Examination with not more than 4 attempts, subject
to an exception.
This bill would require an applicant to have obtained a passing
score on all parts of that examination with not more than 4 attempts,
subject to the exception.
Existing law requires that a complaint, with exceptions, received
by the board determined to involve quality of care, before referral
to a field office for further investigation, meet certain criteria.
This bill would expand the types of reports that are exempted from
that requirement.
Existing law provides for a civil penalty of up to $1,000 per day,
as specified, to be imposed on a health care facility that fails to
comply with a patient's medical record request, as specified, within
30 days.
This bill would shorten the time limit for compliance to 15 days
for those health care facilities that have electronic health records.
Under existing law, if a healing arts practioner may be unable to
practice his or her profession safely due to mental or physical
illness, the licensing agency may order the licentiate to be examined
by specified professionals.
This bill would require that a physician and surgeon's failure to
comply with an order related to these examination requirements shall
result in the issuance of notification from the board to cease the
practice of medicine immediately until the ordered examinations have
been completed and would provide that continued failure to comply
would be grounds for suspension or revocation of his or her
certificate.
Existing law prohibits a party from bringing expert testimony in a
matter brought by the board unless certain information is exchanged
in written form with counsel for the other party, as specified,
within 30 calendar days prior to the commencement of the hearing.
Existing law provides that the information exchanged include a brief
narrative statement of the testimony the expert is expected to bring.
This bill would instead require that information to be exchanged
within 90 days from the filing of a notice of defense and would
instead require the information to include a complete expert witness
report.
Existing law establishes that corporations and other artificial
legal entities have no professional rights, privileges, or powers.
This bill would provide that those provisions do not apply to
physicians and surgeons enrolled in approved residency postgraduate
training programs or fellowship programs.
Existing law, the Licensed Midwifery Practice Act of 1993,
licenses and regulates licensed midwives by the Medical Board of
California. Existing law specifies that a midwife student meeting
certain conditions is not precluded from engaging in the practice of
midwifery as part of his or her course of study, if certain
conditions are met, including, that the student is under the
supervision of a licensed midwife.
This bill would require that to engage in those practices, the
student is to be enrolled and participating in a midwifery education
program or enrolled in a program of supervised clinical training, as
provided. The bill would add that the student is permitted to engage
in those practices if he or she is under the supervision of a
licensed nurse-midwife.
Existing law provides for the regulation of registered dispensing
opticians by the Medical Board of California and requires that the
powers and duties of the board in that regard be subject to review by
the Joint Sunset Review Committee as if those provisions were
scheduled to be repealed on January 1, 2014.
This bill would instead make the powers and duties of the board
subject to review by the appropriate policy committees of the
Legislature as if those provisions were scheduled to be repealed on
January 1, 2018.
Existing law authorizes the administrative law judge of the
Medical Quality Hearing Panel to issue an interim order related to
licenses, as provided. Existing law requires that in all of those
cases in which an interim order is issued, and an accusation is not
filed and served within 15 days of the date in which the parties to
the hearing have submitted the matter, the order be dissolved.
This bill would extend the time in which the accusation must be
filed and served to 30 days from the date on which the parties to the
hearing submitted the matter.
Existing law establishes the Health Quality Enforcement Section
within the Department of Justice to carry out certain duties.
Existing law provides for the funding for the section, and for the
appointment of a Senior Assistant Attorney General to the section to
carry out specified duties. Existing law requires that all complaints
or relevant information concerning licensees that are within the
jurisdiction of the Medical Board of California, the California Board
of Podiatric Medicine, or the Board of Psychology be made available
to the Health Quality Enforcement Section. Existing law establishes
the procedures for processing the complaints, assisting the boards or
committees in establishing training programs for their staff, and
for determining whether to bring a disciplinary proceeding against a
licensee of the boards. Existing law provides for the repeal of those
provisions, as provided, on January 1, 2014.
This bill would extend the operation of those provisions
indefinitely.
Existing law establishes a vertical enforcement and prosecution
model for cases before the Medical Board of California. Existing law
requires that a complaint referred to a district office of the board
for investigation also be simultaneously and jointly assigned to an
investigator and to the deputy attorney general in the Health and
Quality Enforcement Section, as provided. Existing law provides for
the repeal of those provisions, as provided, on January 1, 2014.
Existing law requires the board to report to the Governor and
Legislature on the vertical prosecution model by March 1, 2012.
This bill would extend the operation of those provisions
indefinitely and would extend the date that report is due to March 1,
2015.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Existing law provides for the licensure and regulation of
optometrists by the State Board of Optometry. Existing law requires
that the board consist of specified members and authorizes the board
to appoint an executive officer. Existing law repeals those
provisions on January 1, 2014 and subjects the board to review by the
Joint Sunset Review Committee.
This bill would instead repeal those provisions on January 1,
2018, and require that the board be subject to review by the
appropriate policy committees of the Legislature.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2001 of the Business and
Professions Code is amended to read:
2001. (a) There is in the Department of Consumer Affairs a
Medical Board of California that consists of 15 members, seven of
whom shall be public members.
(b) The Governor shall appoint 13 members to the board, subject to
confirmation by the Senate, five of whom shall be public members.
The Senate Committee on Rules and the Speaker of the Assembly shall
each appoint a public member.
(c) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date. Notwithstanding any other law, the repeal of this section
renders the board subject to review by the appropriate policy
committees of the Legislature.
SEC. 2. Section 2020 of the Business and
Professions Code is amended to read:
2020. (a) The board may employ an executive director exempt from
the provisions of the Civil Service Act and may also employ
investigators, legal counsel, medical consultants, and other
assistance as it may deem necessary to carry this chapter into
effect. The board may fix the compensation to be paid for services
subject to the provisions of applicable state laws and regulations
and may incur other expenses as it may deem necessary. Investigators
employed by the board shall be provided special training in
investigating medical practice activities.
(b) The Attorney General shall act as legal counsel for the board
for any judicial and administrative proceedings and his or her
services shall be a charge against it.
(c) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SECTION 1. Section 651 of the Business
and Professions Code is amended to read:
651. (a) It is unlawful for any person licensed under this
division or under any initiative act referred to in this division to
disseminate or cause to be disseminated any form of public
communication containing a false, fraudulent, misleading, or
deceptive statement, claim, or image for the purpose of or likely to
induce, directly or indirectly, the rendering of professional
services or furnishing of products in connection with the
professional practice or business for which he or she is licensed. A
"public communication" as used in this section includes, but is not
limited to, communication by means of mail, television, radio, motion
picture, newspaper, book, list or directory of healing arts
practitioners, Internet, or other electronic communication.
(b) A false, fraudulent, misleading, or deceptive statement,
claim, or image includes a statement or claim that does any of the
following:
(1) Contains a misrepresentation of fact.
(2) Is likely to mislead or deceive because of a failure to
disclose material facts.
(3) (A) Is intended or is likely to create false or unjustified
expectations of favorable results, including the use of any
photograph or other image that does not accurately depict the results
of the procedure being advertised or that has been altered in any
manner from the image of the actual subject depicted in the
photograph or image.
(B) Use of any photograph or other image of a model without
clearly stating in a prominent location in easily readable type the
fact that the photograph or image is of a model is a violation of
subdivision (a). For purposes of this paragraph, a model is anyone
other than an actual patient, who has undergone the procedure being
advertised, of the licensee who is advertising for his or her
services.
(C) Use of any photograph or other image of an actual patient that
depicts or purports to depict the results of any procedure, or
presents "before" and "after" views of a patient, without specifying
in a prominent location in easily readable type size what procedures
were performed on that patient is a violation of subdivision (a). Any
"before" and "after" views (i) shall be comparable in presentation
so that the results are not distorted by favorable poses, lighting,
or other features of presentation, and (ii) shall contain a statement
that the same "before" and "after" results may not occur for all
patients.
(4) Relates to fees, other than a standard consultation fee or a
range of fees for specific types of services, without fully and
specifically disclosing all variables and other material factors.
(5) Contains other representations or implications that in
reasonable probability will cause an ordinarily prudent person to
misunderstand or be deceived.
(6) Makes a claim either of professional superiority or of
performing services in a superior manner, unless that claim is
relevant to the service being performed and can be substantiated with
objective scientific evidence.
(7) Makes a scientific claim that cannot be substantiated by
reliable, peer reviewed, published scientific studies.
(8) Includes any statement, endorsement, or testimonial that is
likely to mislead or deceive because of a failure to disclose
material facts.
(c) Any price advertisement shall be exact, without the use of
phrases, including, but not limited to, "as low as," "and up,"
"lowest prices," or words or phrases of similar import. Any
advertisement that refers to services, or costs for services, and
that uses words of comparison shall be based on verifiable data
substantiating the comparison. Any person so advertising shall be
prepared to provide information sufficient to establish the accuracy
of that comparison. Price advertising shall not be fraudulent,
deceitful, or misleading, including statements or advertisements of
bait, discount, premiums, gifts, or any statements of a similar
nature. In connection with price advertising, the price for each
product or service shall be clearly identifiable. The price
advertised for products shall include charges for any related
professional services, including dispensing and fitting services,
unless the advertisement specifically and clearly indicates
otherwise.
(d) Any person so licensed shall not compensate or give anything
of value to a representative of the press, radio, television, or
other communication medium in anticipation of, or in return for,
professional publicity unless the fact of compensation is made known
in that publicity.
(e) Any person so licensed may not use any professional card,
professional announcement card, office sign, letterhead, telephone
directory listing, medical list, medical directory listing, or a
similar professional notice or device if it includes a statement or
claim that is false, fraudulent, misleading, or deceptive within the
meaning of subdivision (b).
(f) Any person so licensed who violates this section is guilty of
a misdemeanor. A bona fide mistake of fact shall be a defense to this
subdivision, but only to this subdivision.
(g) Any violation of this section by a person so licensed shall
constitute good cause for revocation or suspension of his or her
license or other disciplinary action.
(h) Advertising by any person so licensed may include the
following:
(1) A statement of the name of the practitioner.
(2) A statement of addresses and telephone numbers of the offices
maintained by the practitioner.
(3) A statement of office hours regularly maintained by the
practitioner.
(4) A statement of languages, other than English, fluently spoken
by the practitioner or a person in the practitioner's office.
(5) (A) A statement that the practitioner is certified by a
private or public board or agency or a statement that the
practitioner limits his or her practice to specific fields.
(B) A statement of certification by a practitioner licensed under
Chapter 7 (commencing with Section 3000) shall only include a
statement that he or she is certified or eligible for certification
by a private or public board or parent association recognized by that
practitioner's licensing board.
(C) A physician and surgeon licensed under Chapter 5 (commencing
with Section 2000) by the Medical Board of California 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 that board
or association is (i) an American Board of Medical Specialties member
board, (ii) a board or association with equivalent requirements
approved by that physician and surgeon's licensing board,
board prior to January 1, 2014, or (iii) a board
or association with an Accreditation Council for Graduate Medical
Education approved postgraduate training program that provides
complete training in that specialty or subspecialty. A physician and
surgeon licensed under Chapter 5 (commencing with Section 2000) by
the Medical Board of California who is certified by an organization
other than a board or association referred to in clause (i), (ii), or
(iii) shall not use the term "board certified" in reference to that
certification, unless the physician and surgeon is also licensed
under Chapter 4 (commencing with Section 1600) and the use of the
term "board certified" in reference to that certification is in
accordance with subparagraph (A). A physician and surgeon licensed
under Chapter 5 (commencing with Section 2000) by the Medical Board
of California who is certified by a board or association referred to
in clause (i), (ii), or (iii) shall not use 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.
For purposes of this subparagraph, a "multidisciplinary board or
association" means an educational certifying body that has a
psychometrically valid testing process, as determined by the Medical
Board of California, for certifying medical doctors and other health
care professionals that is based on the applicant's education,
training, and experience.
A multidisciplinary board or association approved by the Medical
Board of California prior to January 1, 2014, shall retain that
approval.
For purposes of the term "board certified," as used in this
subparagraph, the terms "board" and "association" mean an
organization that is an American Board of Medical Specialties member
board, an organization with equivalent requirements approved by a
physician and surgeon's licensing board,
board prior to January 1, 2014, or an organization with an
Accreditation Council for Graduate Medical Education approved
postgraduate training program that provides complete training in a
specialty or subspecialty.
The Medical Board of California shall adopt regulations to
establish and collect a reasonable fee from each board or association
applying for recognition pursuant to this subparagraph. The fee
shall not exceed the cost of administering this subparagraph.
Notwithstanding Section 2 of Chapter 1660 of the Statutes of 1990,
this subparagraph shall become operative July 1, 1993. However, an
administrative agency or accrediting organization may take any action
contemplated by this subparagraph relating to the establishment or
approval of specialist requirements on and after January 1, 1991.
(D) A doctor of podiatric medicine licensed under Chapter 5
(commencing with Section 2000) by the Medical Board of California may
include a statement that he or she is certified or eligible or
qualified for certification by a private or public board or parent
association, including, but not limited to, a multidisciplinary board
or association, if that board or association meets one of the
following requirements: (i) is approved by the Council on Podiatric
Medical Education, (ii) is a board or association with equivalent
requirements approved by the California Board of Podiatric Medicine,
or (iii) is a board or association with the Council on Podiatric
Medical Education approved postgraduate training programs that
provide training in podiatric medicine and podiatric surgery. A
doctor of podiatric medicine licensed under Chapter 5 (commencing
with Section 2000) by the Medical Board of California who is
certified by a board or association referred to in clause (i), (ii),
or (iii) shall not use 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. A doctor
of podiatric medicine licensed under Chapter 5 (commencing with
Section 2000) by the Medical Board of California who is certified by
an organization other than a board or association referred to in
clause (i), (ii), or (iii) shall not use the term "board certified"
in reference to that certification.
For purposes of this subparagraph, a "multidisciplinary board or
association" means an educational certifying body that has a
psychometrically valid testing process, as determined by the
California Board of Podiatric Medicine, for certifying doctors of
podiatric medicine that is based on the applicant's education,
training, and experience. For purposes of the term "board certified,"
as used in this subparagraph, the terms "board" and "association"
mean an organization that is a Council on Podiatric Medical Education
approved board, an organization with equivalent requirements
approved by the California Board of Podiatric Medicine, or an
organization with a Council on Podiatric Medical Education approved
postgraduate training program that provides training in podiatric
medicine and podiatric surgery.
The California Board of Podiatric Medicine shall adopt regulations
to establish and collect a reasonable fee from each board or
association applying for recognition pursuant to this subparagraph,
to be deposited in the State Treasury in the Podiatry Fund, pursuant
to Section 2499. The fee shall not exceed the cost of administering
this subparagraph.
(6) A statement that the practitioner provides services under a
specified private or public insurance plan or health care plan.
(7) A statement of names of schools and postgraduate clinical
training programs from which the practitioner has graduated, together
with the degrees received.
(8) A statement of publications authored by the practitioner.
(9) A statement of teaching positions currently or formerly held
by the practitioner, together with pertinent dates.
(10) A statement of his or her affiliations with hospitals or
clinics.
(11) A statement of the charges or fees for services or
commodities offered by the practitioner.
(12) A statement that the practitioner regularly accepts
installment payments of fees.
(13) Otherwise lawful images of a practitioner, his or her
physical facilities, or of a commodity to be advertised.
(14) A statement of the manufacturer, designer, style, make, trade
name, brand name, color, size, or type of commodities advertised.
(15) An advertisement of a registered dispensing optician may
include statements in addition to those specified in paragraphs (1)
to (14), inclusive, provided that any statement shall not violate
subdivision (a), (b), (c), or (e) or any other section of this code.
(16) A statement, or statements, providing public health
information encouraging preventative or corrective care.
(17) Any other item of factual information that is not false,
fraudulent, misleading, or likely to deceive.
(i) Each of the healing arts boards and examining committees
within Division 2 shall adopt appropriate regulations to enforce this
section in accordance with Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2 of the Government Code.
Each of the healing arts boards and committees and examining
committees within Division 2 shall, by regulation, define those
efficacious services to be advertised by businesses or professions
under their jurisdiction for the purpose of determining whether
advertisements are false or misleading. Until a definition for that
service has been issued, no advertisement for that service shall be
disseminated. However, if a definition of a service has not been
issued by a board or committee within 120 days of receipt of a
request from a licensee, all those holding the license may advertise
the service. Those boards and committees shall adopt or modify
regulations defining what services may be advertised, the manner in
which defined services may be advertised, and restricting advertising
that would promote the inappropriate or excessive use of health
services or commodities. A board or committee shall not, by
regulation, unreasonably prevent truthful, nondeceptive price or
otherwise lawful forms of advertising of services or commodities, by
either outright prohibition or imposition of onerous disclosure
requirements. However, any member of a board or committee acting in
good faith in the adoption or enforcement of any regulation shall be
deemed to be acting as an agent of the state.
(j) The Attorney General shall commence legal proceedings in the
appropriate forum to enjoin advertisements disseminated or about to
be disseminated in violation of this section and seek other
appropriate relief to enforce this section. Notwithstanding any other
provision of law, the costs of enforcing this section to the
respective licensing boards or committees may be awarded against any
licensee found to be in violation of any provision of this section.
This shall not diminish the power of district attorneys, county
counsels, or city attorneys pursuant to existing law to seek
appropriate relief.
(k) A physician and surgeon or doctor of podiatric medicine
licensed pursuant to Chapter 5 (commencing with Section 2000) by the
Medical Board of California who knowingly and intentionally violates
this section may be cited and assessed an administrative fine not to
exceed ten thousand dollars ($10,000) per event. Section 125.9 shall
govern the issuance of this citation and fine except that the fine
limitations prescribed in paragraph (3) of subdivision (b) of Section
125.9 shall not apply to a fine under this subdivision.
SEC. 2. Section 2021 of the Business
and Professions Code is amended to read:
2021. (a) If the board publishes a directory pursuant to Section
112, it may require persons licensed pursuant to this chapter to
furnish any information as it may deem necessary to enable it to
compile the directory.
(b) Each licensee shall report to the board each and every change
of address within 30 days after each change, giving both the old and
new address. If an address reported to the board at the time of
application for licensure or subsequently is a post office box, the
applicant shall also provide the board with a street address. If
another address is the licensee's address of record, he or she may
request that the second address not be disclosed to the public.
(c) Each licensee shall report to the board each and every change
of name within 30 days after each change, giving both the old and new
names.
(d) Each applicant and licensee who has an electronic mail address
shall report to the board that electronic mail address no later than
July 1, 2014. The electronic mail address shall be considered
confidential and not subject to public disclosure.
(d)
(e) The board shall annually send an electronic notice
to each applicant and licensee who has chosen to receive
correspondence via electronic mail that requests
confirmation from the applicant or licensee that his or her
electronic mail address is current. An applicant or licensee
that does not confirm his or her electronic mail address shall
receive correspondence at a mailing address provided pursuant to
subdivision (b).
SEC. 3. Section 2177 of the Business
and Professions Code is amended to read:
2177. (a) A passing score is required for an entire examination
or for each part of an examination, as established by resolution of
the board.
(b) Applicants may elect to take the written examinations
conducted or accepted by the board in separate parts.
(c) (1) An applicant shall have obtained a passing score on
all parts of Step 3 of the United States Medical Licensing
Examination within not more than four attempts in order to be
eligible for a physician's and surgeon's certificate.
(2) Notwithstanding paragraph (1), an applicant who obtains a
passing score on all parts of Step 3 of the United States
Medical Licensing Examination in more than four attempts and who
meets the requirements of Section 2135.5 shall be eligible to be
considered for issuance of a physician's and surgeon's certificate.
SEC. 4. Section 2220.08 of the Business
and Professions Code is amended to read:
2220.08. (a) Except for reports received by the board pursuant to
Section 801.01 or 805 that may be treated as complaints
by the board and new complaints relating to a physician and surgeon
who is the subject of a pending accusation or investigation or who is
on probation, any complaint determined to involve quality of care,
before referral to a field office for further investigation, shall
meet the following criteria:
(1) It shall be reviewed by one or more medical experts with the
pertinent education, training, and expertise to evaluate the specific
standard of care issues raised by the complaint to determine if
further field investigation is required.
(2) It shall include the review of the following, which shall be
requested by the board:
(A) Relevant patient records.
(B) The statement or explanation of the care and treatment
provided by the physician and surgeon.
(C) Any additional expert testimony or literature provided by the
physician and surgeon.
(D) 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.
(b) If the board does not receive the information requested
pursuant to paragraph (2) of subdivision (a) within 10 working days
of requesting that information, the complaint may be reviewed by the
medical experts and referred to a field office for investigation
without the information.
(c) Nothing in this section shall impede the board's ability to
seek and obtain an interim suspension order or other emergency
relief.
SEC. 5. Section 2225.5 of the Business
and Professions Code is amended to read:
2225.5. (a) (1) A licensee who fails or refuses to comply with a
request for the certified medical records of a patient, that is
accompanied by that patient's written authorization for release of
records to the board, within 15 days of receiving the request and
authorization, shall pay to the board a civil penalty of one thousand
dollars ($1,000) per day for each day that the documents have not
been produced after the 15th day, up to ten thousand dollars
($10,000), unless the licensee is unable to provide the documents
within this time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to the board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 30 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 30th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this time period for good
cause. For health care facilities that have electronic health
records, failure to provide the authorizing patient's certified
medical records to the board within 15 days of receivin g
the request, authorization, and notice shall subject the health care
facility to a civil penalty, payable to the board, of up to one
thousand dollars ($1,000) per day for each day that the
documents have not been produced after the 15th day, up to ten
thousand dollars ($10,000), unless the health care facility is unable
to provide the documents within this time period for good cause.
This paragraph shall not require health care facilities to
assist the board in obtaining the patient's authorization. The board
shall pay the reasonable costs of copying the certified medical
records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board shall pay to the board a civil penalty of
one thousand dollars ($1,000) per day for each day that the documents
have not been produced after the date by which the court order
requires the documents to be produced, up to ten thousand dollars
($10,000), unless it is determined that the order is unlawful or
invalid. Any statute of limitations applicable to the filing of an
accusation by the board shall be tolled during the period the
licensee is out of compliance with the court order and during any
related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by the board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to the board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to the board is guilty of a misdemeanor
punishable by a fine payable to the board not to exceed five thousand
dollars ($5,000). Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000) and
shall be reported to the State Department of Public Health and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal of a licensee to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to the board constitutes unprofessional conduct and is
grounds for suspension or revocation of his or her license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code).
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
SEC. 6. Section 2291.5 is added to the
Business and Professions Code , to read:
2291.5. A physician and surgeon's failure to comply with an order
issued under Section 820 shall result in the issuance of
notification from the board to cease the practice of medicine
immediately upon the receipt of that notification. The physician and
surgeon shall cease the practice of medicine until the ordered
examinations have been completed. A physician and surgeon's continued
failure to comply with an order issued under Section 820 shall
constitute grounds for suspension or revocation of his or her
certificate.
SEC. 7. Section 2334 of the Business
and Professions Code is amended to read:
2334. (a) Notwithstanding any other provision of law, with
respect to the use of expert testimony in matters brought by the
Medical Board of California, no expert testimony shall be permitted
by any party unless the following information is exchanged in written
form with counsel for the other party, as ordered by the
Office of Administrative Hearings: party within 90
days from the filing of a notice of defense:
(1) A curriculum vitae setting forth the qualifications of the
expert.
(2) A brief narrative statement of the general substance
of the testimony that the expert is expected to give, including any
opinion testimony and its basis. A complete expert
witness report.
(3) A representation that the expert has agreed to testify at the
hearing.
(4) A statement of the expert's hourly and daily fee for providing
testimony and for consulting with the party who retained his or her
services.
(b) The exchange of the information described in subdivision (a)
shall be completed at least 30 calendar days prior to the
commencement date of the hearing.
(c)
(b) The Office of Administrative Hearings may adopt
regulations governing the required exchange of the information
described in this section.
SEC. 8. Section 2403 is added to the
Business and Professions Code , to read:
2403. The provisions of Section 2400 do not apply to physicians
and surgeons enrolled in approved residency postgraduate training
programs or fellowship programs.
SEC. 9. Section 2514 of the Business
and Professions Code is amended to read:
2514. (a) Nothing in this chapter shall be
construed to prevent a bona fide student who is enrolled or
participating in a midwifery education program or who is enrolled in
a program of supervised clinical training from engaging in
the practice of midwifery in this state, as part of his or her course
of study, if both of the following conditions are met:
(a)
(1) The student is under the supervision of a licensed
midwife, midwife or certified nurse-midwife,
who holds a clear and unrestricted license in this state, who
is present on the premises at all times client services are provided,
and who is practicing pursuant to Section 2507 or 2746.5
, or a physician and surgeon.
(b)
(2) The client is informed of the student's status.
(b) For the purposes of this section, a "bona fide student" means
an individual who is enrolled and participating in a midwifery
education program or who is enrolled in a program of supervised
clinical training as part of the instruction of a three year
postsecondary midwifery education program approved by the board.
SEC. 3. SEC. 10. Section 2569 of the
Business and Professions Code is amended to read:
2569. Notwithstanding any other law, the powers and duties of the
board, as set forth in this chapter, shall be subject to review by
the appropriate policy committees of the Legislature. The review
shall be performed as if this chapter were scheduled to be repealed
as of January 1, 2018.
SEC. 11. Section 11529 of the
Government Code is amended to read:
11529. (a) The administrative law judge of the Medical Quality
Hearing Panel established pursuant to Section 11371 may issue an
interim order suspending a license, or imposing drug testing,
continuing education, supervision of procedures, or other license
restrictions. Interim orders may be issued only if the affidavits in
support of the petition show that the licensee has engaged in, or is
about to engage in, acts or omissions constituting a violation of the
Medical Practice Act or the appropriate practice act governing each
allied health profession, or is unable to practice safely due to a
mental or physical condition, and that permitting the licensee to
continue to engage in the profession for which the license was issued
will endanger the public health, safety, or welfare.
(b) All orders authorized by this section shall be issued only
after a hearing conducted pursuant to subdivision (d), unless it
appears from the facts shown by affidavit that serious injury would
result to the public before the matter can be heard on notice. Except
as provided in subdivision (c), the licensee shall receive at least
15 days' prior notice of the hearing, which notice shall include
affidavits and all other information in support of the order.
(c) If an interim order is issued without notice, the
administrative law judge who issued the order without notice shall
cause the licensee to be notified of the order, including affidavits
and all other information in support of the order by a 24-hour
delivery service. That notice shall also include the date of the
hearing on the order, which shall be conducted in accordance with the
requirement of subdivision (d), not later than 20 days from the date
of issuance. The order shall be dissolved unless the requirements of
subdivision (a) are satisfied.
(d) For the purposes of the hearing conducted pursuant to this
section, the licentiate shall, at a minimum, have the following
rights:
(1) To be represented by counsel.
(2) To have a record made of the proceedings, copies of which may
be obtained by the licentiate upon payment of any reasonable charges
associated with the record.
(3) To present written evidence in the form of relevant
declarations, affidavits, and documents.
The discretion of the administrative law judge to permit testimony
at the hearing conducted pursuant to this section shall be identical
to the discretion of a superior court judge to permit testimony at a
hearing conducted pursuant to Section 527 of the Code of Civil
Procedure.
(4) To present oral argument.
(e) Consistent with the burden and standards of proof applicable
to a preliminary injunction entered under Section 527 of the Code of
Civil Procedure, the administrative law judge shall grant the interim
order where, in the exercise of discretion, the administrative law
judge concludes that:
(1) There is a reasonable probability that the petitioner will
prevail in the underlying action.
(2) The likelihood of injury to the public in not issuing the
order outweighs the likelihood of injury to the licensee in issuing
the order.
(f) In all cases where an interim order is issued, and an
accusation is not filed and served pursuant to Sections 11503 and
11505 within 15 30 days of the date in
which the parties to the hearing on the interim order have submitted
the matter, the order shall be dissolved.
Upon service of the accusation the licensee shall have, in
addition to the rights granted by this section, all of the rights and
privileges available as specified in this chapter. If the licensee
requests a hearing on the accusation, the board shall provide the
licensee with a hearing within 30 days of the request, unless the
licensee stipulates to a later hearing, and a decision within 15 days
of the date the decision is received from the administrative law
judge, or the board shall nullify the interim order previously
issued, unless good cause can be shown by the Division of Medical
Quality for a delay.
(g) Where an interim order is issued, a written decision shall be
prepared within 15 days of the hearing, by the administrative law
judge, including findings of fact and a conclusion articulating the
connection between the evidence produced at the hearing and the
decision reached.
(h) Notwithstanding the fact that interim orders issued pursuant
to this section are not issued after a hearing as otherwise required
by this chapter, interim orders so issued shall be subject to
judicial review pursuant to Section 1094.5 of the Code of Civil
Procedure. The relief which may be ordered shall be limited to a stay
of the interim order. Interim orders issued pursuant to this section
are final interim orders and, if not dissolved pursuant to
subdivision (c) or (f), may only be challenged administratively at
the hearing on the accusation.
(i) The interim order provided for by this section shall be:
(1) In addition to, and not a limitation on, the authority to seek
injunctive relief provided for in the Business and Professions Code.
(2) A limitation on the emergency decision procedure provided in
Article 13 (commencing with Section 11460.10) of Chapter 4.5.
SEC. 12. Section 12529 of the
Government Code , as amended by Section 112 of Chapter 332
of the Statutes of 2012, is amended to read:
12529. (a) There is in the Department of Justice the Health
Quality Enforcement Section. The primary responsibility of the
section is to investigate and prosecute proceedings against licensees
and applicants within the jurisdiction of the Medical Board of
California, the California Board of Podiatric Medicine, the Board of
Psychology, or any committee under the jurisdiction of the Medical
Board of California.
(b) The Attorney General shall appoint a Senior Assistant Attorney
General of the Health Quality Enforcement Section. The Senior
Assistant Attorney General of the Health Quality Enforcement Section
shall be an attorney in good standing licensed to practice in the
State of California, experienced in prosecutorial or administrative
disciplinary proceedings and competent in the management and
supervision of attorneys performing those functions.
(c) The Attorney General shall ensure that the Health Quality
Enforcement Section is staffed with a sufficient number of
experienced and able employees that are capable of handling the most
complex and varied types of disciplinary actions against the
licensees of the board.
(d) Funding for the Health Quality Enforcement Section shall be
budgeted in consultation with the Attorney General from the special
funds financing the operations of the Medical Board of California,
the California Board of Podiatric Medicine, the Board of Psychology,
and the committees under the jurisdiction of the Medical Board of
California, with the intent that the expenses be proportionally
shared as to services rendered.
(e) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 13. Section 12529 of the
Government Code , as amended by Section 113 of Chapter 332
of the Statutes of 2012, is repealed.
12529. (a) There is in the Department of Justice the Health
Quality Enforcement Section. The primary responsibility of the
section is to prosecute proceedings against licensees and applicants
within the jurisdiction of the Medical Board of California, the
California Board of Podiatric Medicine, the Board of Psychology, or
any committee under the jurisdiction of the Medical Board of
California, and to provide ongoing review of the investigative
activities conducted in support of those prosecutions, as provided in
subdivision (b) of Section 12529.5.
(b) The Attorney General shall appoint a Senior Assistant Attorney
General of the Health Quality Enforcement Section. The Senior
Assistant Attorney General of the Health Quality Enforcement Section
shall be an attorney in good standing licensed to practice in the
State of California, experienced in prosecutorial or administrative
disciplinary proceedings and competent in the management and
supervision of attorneys performing those functions.
(c) The Attorney General shall ensure that the Health Quality
Enforcement Section is staffed with a sufficient number of
experienced and able employees that are capable of handling the most
complex and varied types of disciplinary actions against the
licensees of the board.
(d) Funding for the Health Quality Enforcement Section shall be
budgeted in consultation with the Attorney General from the special
funds financing the operations of the Medical Board of California,
the California Board of Podiatric Medicine, the Board of Psychology,
and the committees under the jurisdiction of the Medical Board of
California, with the intent that the expenses be proportionally
shared as to services rendered.
(e) This section shall become operative January 1, 2014.
SEC. 14. Section 12529.5 of the
Government Code , as amended by Section 114 of Chapter 332
of the Statutes of 2012, is amended to read:
12529.5. (a) All complaints or relevant information concerning
licensees that are within the jurisdiction of the Medical Board of
California, the California Board of Podiatric Medicine, or the Board
of Psychology shall be made available to the Health Quality
Enforcement Section.
(b) The Senior Assistant Attorney General of the Health Quality
Enforcement Section shall assign attorneys to work on location at the
intake unit of the boards described in subdivision (d) of Section
12529 to assist in evaluating and screening complaints and to assist
in developing uniform standards and procedures for processing
complaints.
(c) The Senior Assistant Attorney General or his or her deputy
attorneys general shall assist the boards or committees in designing
and providing initial and in-service training programs for staff of
the boards or committees, including, but not limited to, information
collection and investigation.
(d) The determination to bring a disciplinary proceeding against a
licensee of the boards shall be made by the executive officer of the
boards or committees as appropriate in consultation with the senior
assistant.
(e) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 15. Section 12529.5 of the
Government Code , as amended by Section 115 of Chapter 332
of the Statutes of 2012, is repealed.
12529.5. (a) All complaints or relevant information concerning
licensees that are within the jurisdiction of the Medical Board of
California, the California Board of Podiatric Medicine, or the Board
of Psychology shall be made available to the Health Quality
Enforcement Section.
(b) The Senior Assistant Attorney General of the Health Quality
Enforcement Section shall assign attorneys to assist the boards in
intake and investigations and to direct discipline-related
prosecutions. Attorneys shall be assigned to work closely with each
major intake and investigatory unit of the boards, to assist in the
evaluation and screening of complaints from receipt through
disposition and to assist in developing uniform standards and
procedures for the handling of complaints and investigations.
A deputy attorney general of the Health Quality Enforcement
Section shall frequently be available on location at each of the
working offices at the major investigation centers of the boards, to
provide consultation and related services and engage in case review
with the boards' investigative, medical advisory, and intake staff.
The Senior Assistant Attorney General and deputy attorneys general
working at his or her direction shall consult as appropriate with the
investigators of the boards, medical advisors, and executive staff
in the investigation and prosecution of disciplinary cases.
(c) The Senior Assistant Attorney General or his or her deputy
attorneys general shall assist the boards or committees in designing
and providing initial and in-service training programs for staff of
the boards or committees, including, but not limited to, information
collection and investigation.
(d) The determination to bring a disciplinary proceeding against a
licensee of the boards shall be made by the executive officer of the
boards or committees as appropriate in consultation with the senior
assistant.
(e) This section shall become operative January 1, 2014.
SEC. 16. Section 12529.6 of the
Government Code is amended to read:
12529.6. (a) The Legislature finds and declares that the Medical
Board of California, by ensuring the quality and safety of medical
care, performs one of the most critical functions of state
government. Because of the critical importance of the board's public
health and safety function, the complexity of cases involving alleged
misconduct by physicians and surgeons, and the evidentiary burden in
the board's disciplinary cases, the Legislature finds and declares
that using a vertical enforcement and prosecution model for those
investigations is in the best interests of the people of California.
(b) Notwithstanding any other provision of law, as of January 1,
2006, each complaint that is referred to a district office of the
board for investigation shall be simultaneously and jointly assigned
to an investigator and to the deputy attorney general in the Health
Quality Enforcement Section responsible for prosecuting the case if
the investigation results in the filing of an accusation. The joint
assignment of the investigator and the deputy attorney general shall
exist for the duration of the disciplinary matter. During the
assignment, the investigator so assigned shall, under the direction
but not the supervision of the deputy attorney general, be
responsible for obtaining the evidence required to permit the
Attorney General to advise the board on legal matters such as whether
the board should file a formal accusation, dismiss the complaint for
a lack of evidence required to meet the applicable burden of proof,
or take other appropriate legal action.
(c) The Medical Board of California, the Department of Consumer
Affairs, and the Office of the Attorney General shall, if necessary,
enter into an interagency agreement to implement this section.
(d) This section does not affect the requirements of Section
12529.5 as applied to the Medical Board of California where
complaints that have not been assigned to a field office for
investigation are concerned.
(e) It is the intent of the Legislature to enhance the vertical
enforcement and prosecution model as set forth in subdivision (a).
The Medical Board of California shall do all of the following:
(1) Increase its computer capabilities and compatibilities with
the Health Quality Enforcement Section in order to share case
information.
(2) Establish and implement a plan to locate its enforcement staff
and the staff of the Health Quality Enforcement Section in the same
offices, as appropriate, in order to carry out the intent of the
vertical enforcement and prosecution model.
(3) Establish and implement a plan to assist in team building
between its enforcement staff and the staff of the Health Quality
Enforcement Section in order to ensure a common and consistent
knowledge base.
(f) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 17. Section 12529.7 of the
Government Code is amended to read:
12529.7. By March 1, 2012, 2015,
the Medical Board of California, in consultation with the Department
of Justice and the Department of Consumer Affairs, shall report and
make recommendations to the Governor and the Legislature on the
vertical enforcement and prosecution model created under Section
12529.6.
SEC. 18. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution because the only costs that may be incurred by a local
agency or school district will be incurred because this act creates a
new crime or infraction, eliminates a crime or infraction, or
changes the penalty for a crime or infraction, within the meaning of
Section 17556 of the Government Code, or changes the definition of a
crime within the meaning of Section 6 of Article XIII B of the
California Constitution.
SEC. 4. Section 3010.5 of the Business and
Professions Code is amended to read:
3010.5. (a) There is in the Department of Consumer Affairs a
State Board of Optometry in which the enforcement of this chapter is
vested. The board consists of 11 members, five of whom shall be
public members.
Six members of the board shall constitute a quorum.
(b) The board shall, with respect to conducting investigations,
inquiries, and disciplinary actions and proceedings, have the
authority previously vested in the board as created pursuant to
Section 3010. The board may enforce any disciplinary actions
undertaken by that board.
(c) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date. Notwithstanding any other law, the repeal of this section
renders the board subject to review by the appropriate policy
committees of the Legislature.
SEC. 5. Section 3014.6 of the Business and
Professions Code is amended to read:
3014.6. (a) The board may appoint a person exempt from civil
service who shall be designated as an executive officer and who shall
exercise the powers and perform the duties delegated by the board
and vested in him or her by this chapter.
(b) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
