Bill Text: CA AB120 | 2009-2010 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Healing arts: peer review.
Spectrum: Bipartisan Bill
Status: (Vetoed) 2010-01-14 - Consideration of Governor's veto stricken from file. [AB120 Detail]
Download: California-2009-AB120-Amended.html
Bill Title: Healing arts: peer review.
Spectrum: Bipartisan Bill
Status: (Vetoed) 2010-01-14 - Consideration of Governor's veto stricken from file. [AB120 Detail]
Download: California-2009-AB120-Amended.html
BILL NUMBER: AB 120 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 26, 2009
INTRODUCED BY Assembly Member Hayashi
JANUARY 15, 2009
An act to amend Sections 2234, 2761, and 3541 of, and to
add Section 686 809, 809.2, and 809.3 of, and to add
Sections 809.04, 809.07, and 809.08 to, the Business and
Professions Code, and to amend Section 123462 of the Health
and Safety Code, relating to the
healing arts.
LEGISLATIVE COUNSEL'S DIGEST
AB 120, as amended, Hayashi. Health care providers:
reasonable disclosure: reproductive choices. Healing
arts: peer review.
Existing law provides for the professional review of specified
healing arts licentiates through a peer review process conducted by
peer review bodies, as defined.
This bill would encourage a peer review body of a health care
facility to obtain external peer review, as defined, for the
evaluation or investigation of an applicant, privilege holder, or
member of the medical staff of the facility in specified
circumstances.
This bill would require a peer review body to respond to the
request of another peer review body and produce the records requested
concerning a licentiate under review. The bill would specify that
the records produced pursuant to this provision are not subject to
discovery, a subpoena, or a subpoena duces tecum, and are not
admissible as evidence in a civil action.
Existing law requires the governing body of acute care hospitals
to give great weight to the actions of peer review bodies and
authorizes the governing body to direct the peer review body to
investigate in specified instances. Where the peer review body fails
to take action in response to that direction, existing law authorizes
the governing body to take action against a licentiate.
This bill would prohibit a member of a medical or professional
staff from being required to alter or surrender staff privileges,
status, or membership solely due to the termination of a contract
between that member and a health care facility. The bill would
specify that a peer review body is entitled to review and make
recommendations to the governing body of a health care facility
regarding the quality implications of the selection, performance
evaluation, and any change in the retention or replacement of
licensees with whom the facility has a contract and would prohibit
the governing body from unreasonably withholding approval of those
recommendations, as specified.
Existing law provides various due process rights for licentiates
who are the subject of a final proposed disciplinary action of a peer
review body, including authorizing a licensee to request a hearing
concerning that action. Under existing law, the hearing must be held
before either an arbitrator mutually acceptable to the licensee and
the peer review body or a panel of unbiased individuals, as
specified. Existing law prohibits a hearing officer presiding at a
hearing held before a panel from, among other things, gaining direct
financial benefit from the outcome.
This bill would give the licensee the choice of having the hearing
before a mutually acceptable arbitrator or a panel of unbiased
individuals. The bill would require the hearing officer presiding at
a hearing before a panel to meet certain requirements and to disclose
all actual and potential conflicts. The bill would specify that the
hearing officer is entitled to determine the procedure for presenting
evidence and argument and would give the hearing officer authority
to make all rulings pertaining to law, procedure, or the
admissibility of evidence.
Existing law gives parties at the hearing certain rights,
including the right to present and rebut evidence. Existing law
requires the peer review body to adopt written provisions governing
whether a licensee may be represented by an attorney.
This bill would give both parties the right to be represented by
an attorney, except as specified.
Existing law provides that every person has the right to choose or
refuse birth control and that every woman has the right to choose to
bear a child or to obtain an abortion. Existing law provides for the
licensure and regulation of physicians and surgeons by the Medical
Board of California, nurse practitioners by the Board of Registered
Nursing, and physician assistants by the Physician Assistant
Committee of the Medical Board of California. Existing law specifies
conduct deemed unprofessional by physicians and surgeons, nurse
practitioners, and physician assistants and provides for
investigation and discipline of that conduct by the respective
licensing boards.
This bill would make legislative findings and declarations
regarding a patient's right to health care services and information.
This bill would provide that a patient is entitled to receive, and a
physician and surgeon, nurse practitioner, and physician assistant
are obligated to disclose, all information, including all available
medical choices, reasonably necessary for the patient to give
informed consent with respect to personal reproductive decisions.
This bill would provide that failure to fulfill this duty constitutes
unprofessional conduct, unless the licensee objects based on
ethical, moral, or religious grounds, as specified.
Because this bill would specify additional requirements under the
Medical Practice Act, and the Nursing Practice Act, the violation of
which would be a crime, this bill would create a state-mandated local
program.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes
no . State-mandated local program: yes
no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 809 of the Business
and Professions Code is amended to read:
809. (a) The Legislature hereby finds and declares the following:
(1) In 1986, Congress enacted the Health Care Quality Improvement
Act of 1986 (Chapter 117 (commencing with Section 11101) Title 42,
United States Code), to encourage physicians to engage in effective
professional peer review, but giving each state the opportunity to
"opt-out" of some of the provisions of the federal act.
(2) Because of deficiencies in the federal act and the possible
adverse interpretations by the courts of the federal act, it is
preferable for California to "opt-out" of the federal act and design
its own peer review system.
(3) Peer review, fairly conducted, is essential to preserving the
highest standards of medical practice.
(4) It is essential that California's peer review system generate
a culture of trust and safety so that health care practitioners will
participate robustly in the process by engaging in critically
important patient safety activities, such as reporting incidents they
believe to reflect substandard care or unprofessional conduct and
serving on peer review, quality assurance, and other committees
necessary to protect patients.
(5) It is the policy of the state that evaluation, corrective
action, or other forms of peer review only be conducted for patient
safety and the improvement of quality patient care.
(4)
(6) Peer review that is not conducted fairly results in
harm both to patients and healing arts practitioners by
wrongfully depriving patients of their ability to obtain care from
their chosen practitioner and by depriving practitioners of their
ability to care for their patients, thereby limiting much
needed access to care.
(5)
(7) Peer review, fairly conducted, will aid the
appropriate state licensing boards in their responsibility to
regulate and discipline errant healing arts practitioners.
(6)
(8) To protect the health and welfare of the people of
California, it is the policy of the State of California to exclude,
through the peer review mechanism as provided for by California law,
those healing arts practitioners who provide substandard care or who
engage in professional misconduct, regardless of the effect of that
exclusion on competition.
(7)
(9) It is the intent of the Legislature that peer
review of professional health care services be done efficiently, on
an ongoing basis, and with an emphasis on early detection of
potential quality problems and resolutions through informal
educational interventions. It is further the intent of the
Legislature that peer review bodies be actively involved in the
measurement, assessment, and improvement of quality and that there be
appropriate oversight by the peer review bodies to ensure
the timely resolution of issues.
(8)
(10) Sections 809 to 809.8, inclusive, shall not affect
the respective responsibilities of the organized medical staff or
the governing body of an acute care hospital with respect to peer
review in the acute care hospital setting. It is the intent of the
Legislature that written provisions implementing Sections 809 to
809.8, inclusive, in the acute care hospital setting shall be
included in medical staff bylaws that shall be adopted by a vote of
the members of the organized medical staff and shall be subject to
governing body approval, which approval shall not be withheld
unreasonably.
(9)
(11) (A) The Legislature thus finds and declares that
the laws of this state pertaining to the peer review of healing arts
practitioners shall apply in lieu of Chapter 117 (commencing with
Section 11101) of Title 42 of the United States Code, because the
laws of this state provide a more careful articulation of the
protections for both those undertaking peer review activity and those
subject to review, and better integrate public and private systems
of peer review. Therefore, California exercises its right to opt out
of specified provisions of the Health Care Quality Improvement Act
relating to professional review actions, pursuant to Section 11111(c)
(2)(B) of Title 42 of the United States Code. This election shall not
affect the availability of any immunity under California law.
(B) The Legislature further declares that it is not the intent or
purposes of Sections 809 to 809.8, inclusive, to opt out of any
mandatory national data bank established pursuant to Subchapter II
(commencing with Section 11131) of Chapter 117 of Title 42 of the
United States Code.
(b) For the purpose of this section and Sections 809.1 to 809.8,
inclusive, "healing arts practitioner" or "licentiate" means a
physician and surgeon, podiatrist, clinical psychologist, marriage
and family therapist, clinical social worker, or dentist; and "peer
review body" means a peer review body as specified in paragraph (1)
of subdivision (a) of Section 805, and includes any designee of the
peer review body.
SEC. 2. Section 809.04 is added to the
Business and Professions Code , to read:
809.04. (a) It is the public policy of the state that licentiates
who may be providing substandard care be subject to the peer review
hearing and reporting process set forth in this article.
(b) To ensure that the peer review process is not circumvented, a
member of a medical or professional staff, by contract or otherwise,
shall not be required to alter or surrender staff privileges, status,
or membership solely due to the termination of a contract between
that member and a health care facility.
(c) The peer review body of a health care facility shall be
entitled to review and make recommendations to the governing body of
the facility regarding the quality implications of the selection,
performance evaluation, and any change in the retention or
replacement of licentiates with whom the health care facility has a
contract. The governing body shall not unreasonably withhold approval
of those recommendations.
(d) This section shall not impair a governing body's ability to
take action against a licentiate pursuant to Section 809.05.
SEC. 3. Section 809.07 is added to the
Business and Professions Code , to read:
809.07. (a) It is the policy of the state that in certain
circumstances, external peer review may be necessary to promote and
protect patient care in order to eliminate perceived bias, obtain
needed medical expertise, or respond to other particular
circumstances.
(b) A peer review body is encouraged to obtain external peer
review for the evaluation or investigation of an applicant, privilege
holder, or member of the medical staff in the following
circumstances:
(1) Committee or department reviews that could affect an
individual's membership or privileges do not provide a sufficiently
clear basis for action or inaction.
(2) No current medical staff member can provide the necessary
expertise in the clinical procedure or area under review.
(3) To promote impartial peer review.
(4) Upon the reasonable request of the licentiate.
(c) Under no circumstances may any organization external to the
peer review body that provides quality improvement activities perform
any activities at the health care facility without the concurrence
of and input from the peer review body.
(d) For purposes of this section, the following definitions apply:
(1) "Peer review body" has the meaning provided in paragraph (1)
of subdivision (a) of Section 805.
(2) "External peer review" means peer review provided by an
external objective organization engaged in quality improvement
activities that has the ability to perform review by licentiates who
are not members of the peer review body.
SEC. 4. Section 809.08 is added to the
Business and Professions Code , to read:
809.08. (a) The Legislature hereby finds and declares that the
sharing of information between peer review bodies is essential to
protect the public health.
(b) A peer review body shall respond to the request of another
peer review body and produce the records requested concerning a
licentiate under review to the extent not otherwise prohibited by
state or federal law. The records produced pursuant to this section
shall not be subject to discovery, a subpoena, or a subpoena duces
tecum, and shall not be admissible as evidence in a civil action. The
peer review body responding to the request shall be entitled to all
other confidentiality protections and privileges otherwise provided
by law as to the information and records disclosed pursuant to this
section.
SEC. 5. Section 809.2 of the Business
and Professions Code is amended to read:
809.2. If a licentiate timely requests a hearing concerning a
final proposed action for which a report is required to be filed
under Section 805, the following shall apply:
(a) The hearing shall be held , as determined by the peer
review body, before a trier of fact, which shall
be an and the licentiate shall have the choice of
hearing by either of the following:
(1) An arbitrator or arbitrators
selected by a process mutually acceptable to the licentiate and the
peer review body, or before a body.
(2) A panel of unbiased
individuals who shall gain no direct financial benefit from the
outcome, who have not acted as an accuser, investigator, factfinder,
or initial decisionmaker in the same matter, and which shall include,
where feasible, an individual practicing the same specialty as the
licentiate.
(b) (1) If a hearing officer is selected to
preside at a hearing held before a panel, the hearing officer shall
gain no direct financial benefit from the outcome, shall
disclose all actual and potential conflicts of interest, shall
not act as a prosecuting officer or advocate, and shall not be
entitled to vote. The hearing officer shall also meet both of
the following requirements:
(A) Be mutually acceptable to the licentiate and the peer review
body. If the licentiate and peer review body are unable to agree,
they shall utilize the services of the American Arbitration
Association or other mutually agreed upon dispute resolution
organization.
(B) Be an attorney licensed to practice law in the State of
California and qualified to preside over a quasi-judicial hearing.
Attorneys from a firm utilized by the hospital, the medical staff, or
the involved licentiate within the preceding two years shall not be
eligible.
(2) The hearing officer shall endeavor to ensure that all parties
maintain proper decorum and have a reasonable opportunity to be heard
and present all relevant oral and documentary evidence. The hearing
officer shall be entitled to determine the order of, or procedure
for, presenting evidence and argument during the hearing and shall
have the authority and discretion to make all rulings on questions
pertaining to matters of law, procedure, or the admissibility of
evidence. The hearing officer shall also take all appropriate steps
to ensure a timely resolution of the hearing, but may not terminate
the hearing process.
(c) The licentiate shall have the right to a reasonable
opportunity to voir dire the panel members and any hearing officer,
and the right to challenge the impartiality of any member or hearing
officer. Challenges to the impartiality of any member or hearing
officer shall be ruled on by the presiding officer, who shall be the
hearing officer if one has been selected.
(d) The licentiate shall have the right to inspect and copy at the
licentiate's expense any documentary information relevant to the
charges which the peer review body has in its possession or under its
control, as soon as practicable after the receipt of the licentiate'
s request for a hearing. The peer review body shall have the right to
inspect and copy at the peer review body's expense any documentary
information relevant to the charges which the licentiate has in his
or her possession or control as soon as practicable after receipt of
the peer review body's request. The failure by either party to
provide access to this information at least 30 days before the
hearing shall constitute good cause for a continuance. The right to
inspect and copy by either party does not extend to confidential
information referring solely to individually identifiable
licentiates, other than the licentiate under review. The arbitrator
or presiding officer shall consider and rule upon any request for
access to information, and may impose any safeguards the protection
of the peer review process and justice requires.
(e) When ruling upon requests for access to information and
determining the relevancy thereof, the arbitrator or presiding
officer shall, among other factors, consider the following:
(1) Whether the information sought may be introduced to support or
defend the charges.
(2) The exculpatory or inculpatory nature of the information
sought, if any.
(3) The burden imposed on the party in possession of the
information sought, if access is granted.
(4) Any previous requests for access to information submitted or
resisted by the parties to the same proceeding.
(f) At the request of either side, the parties shall exchange
lists of witnesses expected to testify and copies of all documents
expected to be introduced at the hearing. Failure to disclose the
identity of a witness or produce copies of all documents expected to
be produced at least 10 days before the commencement of the hearing
shall constitute good cause for a continuance.
(g) Continuances shall be granted upon agreement of the parties or
by the arbitrator or presiding officer on a showing of good cause.
(h) A hearing under this section shall be commenced within 60 days
after receipt of the request for hearing, and the peer review
process shall be completed within a reasonable time, after a
licentiate receives notice of a final proposed action or an immediate
suspension or restriction of clinical privileges, unless the
arbitrator or presiding officer issues a written decision finding
that the licentiate failed to comply with subdivisions (d) and (e) in
a timely manner, or consented to the delay.
SEC. 6. Section 809.3 of the Business
and Professions Code is amended to read:
809.3. (a) During a hearing concerning a final proposed action
for which reporting is required to be filed under Section 805, both
parties shall have all of the following rights:
(1) To be provided with all of the information made available to
the trier of fact.
(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 preparation thereof.
(3) To call, examine, and cross-examine witnesses.
(4) To present and rebut evidence determined by the arbitrator or
presiding officer to be relevant.
(5) To submit a written statement at the close of the hearing.
(6) To be represented by an attorney of the party's choice at the
party's expense, subject to subdivision (c).
(b) The burden of presenting evidence and proof during the hearing
shall be as follows:
(1) The peer review body shall have the initial duty to present
evidence which supports the charge or recommended action.
(2) Initial applicants shall bear the burden of persuading the
trier of fact by a preponderance of the evidence of their
qualifications by producing information which allows for adequate
evaluation and resolution of reasonable doubts concerning their
current qualifications for staff privileges, membership, or
employment. Initial applicants shall not be permitted to introduce
information not produced upon request of the peer review body during
the application process, unless the initial applicant establishes
that the information could not have been produced previously in the
exercise of reasonable diligence.
(3) Except as provided above for initial applicants, the peer
review body shall bear the burden of persuading the trier of fact by
a preponderance of the evidence that the action or recommendation is
reasonable and warranted.
(c) The peer review body shall adopt written provisions
governing whether a licentiate shall have the option of being
represented by an attorney at the licentiate's expense. No
peer review body shall be represented by an attorney if the
licentiate is not so represented, except dental professional society
peer review bodies may be represented by an attorney
provided that the peer review body grants each licentiate the option
of being represented by an attorney at the licentiate's expense
, even if the licentiate declines to be represented by an
attorney.
SECTION 1. Section 686 is added to the Business
and Professions Code, to read:
686. The Legislature hereby finds and declares that a
professional or vocational license represents a privilege to practice
in California. While the state respects the right of an individual
licensee to refuse to perform health care services to which he or she
objects on ethical, moral, or religious grounds, there are limits on
these rights when they conflict with the superior right of patients
to access health care services. Accordingly, the Legislature finds
and declares that persons licensed under this division should not
abandon a patient or otherwise withhold health care service or
information from a patient without providing reasonable accommodation
of the patient's right to access health care services and
information. For purposes of this section, "reasonable accommodation"
shall have the same meaning as applied to that term pursuant to
subdivision (l) of Section 12940 of the Government Code.
SEC. 2. Section 2234 of the Business and
Professions Code is amended to read:
2234. The Division of Medical Quality shall take action against
any licensee who is charged with unprofessional conduct. In addition
to other provisions of this article, unprofessional conduct includes,
but is not limited to, the following:
(a) Violating or attempting to violate, directly or indirectly,
assisting in or abetting the violation of, or conspiring to violate
any provision of this chapter.
(b) Gross negligence.
(c) Repeated negligent acts. To be repeated, there must be two or
more negligent acts or omissions. An initial negligent act or
omission followed by a separate and distinct departure from the
applicable standard of care shall constitute repeated negligent acts.
(1) An initial negligent diagnosis followed by an act or omission
medically appropriate for that negligent diagnosis of the patient
shall constitute a single negligent act.
(2) When the standard of care requires a change in the diagnosis,
act, or omission that constitutes the negligent act described in
paragraph (1), including, but not limited to, a reevaluation of the
diagnosis or a change in treatment, and the licensee's conduct
departs from the applicable standard of care, each departure
constitutes a separate and distinct breach of the standard of care.
(d) Incompetence.
(e) The commission of any act involving dishonesty or corruption
which is substantially related to the qualifications, functions, or
duties of a physician and surgeon.
(f) Any action or conduct which would have warranted the denial of
a certificate.
(g) The practice of medicine from this state into another state or
country without meeting the legal requirements of that state or
country for the practice of medicine. Section 2314 shall not apply to
this subdivision. This subdivision shall become operative upon the
implementation of the proposed registration program described in
Section 2052.5.
(h) Failure to fulfill the duty of reasonable disclosure to a
patient pursuant to subdivision (e) of Section 123462 of the Health
and Safety Code.
SEC. 3. Section 2761 of the Business and
Professions Code is amended to read:
2761. The board may take disciplinary action against a certified
or licensed nurse or deny an application for a certificate or license
for any of the following:
(a) Unprofessional conduct, which includes, but is not limited to,
the following:
(1) Incompetence, or gross negligence in carrying out usual
certified or licensed nursing functions.
(2) A conviction of practicing medicine without a license in
violation of Chapter 5 (commencing with Section 2000), in which event
the record of conviction shall be conclusive evidence thereof.
(3) The use of advertising relating to nursing which violates
Section 17500.
(4) Denial of licensure, revocation, suspension, restriction, or
any other disciplinary action against a health care professional
license or certificate by another state or territory of the United
States, by any other government agency, or by another California
health care professional licensing board. A certified copy of the
decision or judgment shall be conclusive evidence of that action.
(5) Failure of a nurse practitioner to fulfill the duty of
reasonable disclosure to a patient pursuant to subdivision (e) of
Section 123462 of the Health and Safety Code.
(b) Procuring his or her certificate or license by fraud,
misrepresentation, or mistake.
(c) Procuring, or aiding, or abetting, or attempting, or agreeing,
or offering to procure or assist at a criminal abortion.
(d) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violating of, or conspiring to violate
any provision or term of this chapter or regulations adopted pursuant
to it.
(e) Making or giving any false statement or information in
connection with the application for issuance of a certificate or
license.
(f) Conviction of a felony or of any offense substantially related
to the qualifications, functions, and duties of a registered nurse,
in which event the record of the conviction shall be conclusive
evidence thereof.
(g) Impersonating any applicant or acting as proxy for an
applicant in any examination required under this chapter for the
issuance of a certificate or license.
(h) Impersonating another certified or licensed practitioner, or
permitting or allowing another person to use his or her certificate
or license for the purpose of nursing the sick or afflicted.
(i) Aiding or assisting, or agreeing to aid or assist any person
or persons, whether a licensed physician or not, in the performance
of, or arranging for, a violation of any of the provisions of Article
12 (commencing with Section 2220) of Chapter 5.
(j) Holding oneself out to the public or to any practitioner of
the healing arts as a "nurse practitioner" or as meeting the
standards established by the board for a nurse practitioner unless
meeting the standards established by the board pursuant to Article 8
(commencing with Section 2834) or holding oneself out to the public
as being certified by the board as a nurse anesthetist, nurse
midwife, clinical nurse specialist, or public health nurse unless the
person is at the time so certified by the board.
(k) Except for good cause, the knowing failure to protect patients
by failing to follow infection control guidelines of the board,
thereby risking transmission of blood-borne infectious diseases from
licensed or certified nurse to patient, from patient to patient, and
from patient to licensed or certified nurse. In administering this
subdivision, the board shall consider referencing the standards,
regulations, and guidelines of the State Department of Public Health
developed pursuant to Section 1250.11 of the Health and Safety Code
and the standards, guidelines, and regulations pursuant to the
California Occupational Safety and Health Act of 1973 (Part 1
(commencing with Section 6300), Division 5, Labor Code) for
preventing the transmission of HIV, hepatitis B, and other
blood-borne pathogens in health care settings. As necessary, the
board shall consult with the Medical Board of California, the Board
of Podiatric Medicine, the Dental Board of California, and the Board
of Vocational Nursing and Psychiatric Technicians, to encourage
appropriate consistency in the implementation of this subdivision.
The board shall seek to ensure that licentiates and others
regulated by the board are informed of the responsibility of
licentiates to minimize the risk of transmission of blood-borne
infectious diseases from health care provider to patient, from
patient to patient, and from patient to health care provider, and of
the most recent scientifically recognized safeguards for minimizing
the risks of transmission.
SEC.
4. Section 3541 of the Business and Professions
Code is amended to read:
3541. The following shall constitute unprofessional conduct and a
violation of this chapter for any person licensed under this
chapter:
(a) Violating, attempting to violate, directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate
any provision or term of this article, the Moscone-Knox Professional
Corporation Act, or any regulations duly adopted under those laws.
(b) Failing to fulfill the duty of reasonable disclosure to a
patient pursuant to subdivision (e) of Section 123462 of the Health
and Safety Code.
SEC. 5. Section 123462 of the Health and Safety
Code is amended to read:
123462. The Legislature finds and declares that every individual
possesses a fundamental right of privacy with respect to personal
reproductive decisions. Accordingly, it is the public policy of the
State of California that:
(a) Every individual has the fundamental right to choose or refuse
birth control.
(b) Every woman has the fundamental right to choose to bear a
child or to choose and to obtain an abortion, except as specifically
limited by this article.
(c) The state shall not deny or interfere with a woman's
fundamental right to choose to bear a child or to choose to obtain an
abortion, except as specifically permitted by this article.
(d) Each person who seeks health care treatment, consultation, or
information pertaining to the person's personal reproductive
decisions from a physician and surgeon licensed pursuant to Chapter 5
(commencing with Section 2000) of Division 2 of the Business and
Professions Code, a nurse practitioner licensed pursuant to Article 8
(commencing with Section 2834) of Chapter 6 of Division 2 of the
Business and Professions Code, or a physician assistant licensed
pursuant to Chapter 7.7 (commencing with Section 3500) of Division 2
of the Business and Professions Code shall be entitled to receive all
information reasonably necessary for the patient to give informed
consent in determining whether to submit to medical treatment,
including disclosure of all available medical choices.
(e) Each physician and surgeon, nurse practitioner, and physician
assistant described in subdivision (d) has an affirmative duty of
reasonable disclosure to his or her patient of all available medical
choices with respect to the patient's personal reproductive
decisions. Failure of a physician and surgeon, nurse practitioner, or
physician assistant to fulfill this duty shall constitute
unprofessional conduct, unless all of the following circumstances
exists:
(1) The licensee refuses on ethical, moral, or religious grounds
to provide disclosure pertaining to an available medical choice.
(2) The licensee has previously notified his or her employer, in
writing, of the medical choice or choices of which he or she objects
to disclosing, and the licensee's employer can, without creating
undue hardship, provide a reasonable accommodation of the licensee's
objection. For purposes of this section, "reasonable accommodation"
and "undue hardship" shall have the same meaning as applied to those
terms, respectively, pursuant to subdivision (l) of Section 12940 of
the Government Code.
(3) The licensee's employer shall have established protocols that
ensure that the patient has timely access to reasonable disclosure of
all medical choices pursuant to subdivision (d) despite the licensee'
s refusal to disclose the specified medical choice.
SEC. 6. 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.
