Bill Text: CA AB120 | 2009-2010 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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

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BILL NUMBER: AB 120	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 13, 2009
	AMENDED IN ASSEMBLY  MARCH 26, 2009

INTRODUCED BY   Assembly Member Hayashi

                        JANUARY 15, 2009

   An act to amend Sections 809, 809.2, and 809.3 of, and to add
Sections 809.04, 809.07, and 809.08 to, the Business and Professions
Code, relating to healing arts.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 120, as amended, Hayashi. 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  as
specified  .
   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.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: 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.
   (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.
   (7) Peer review, fairly conducted, will aid the appropriate state
licensing boards in their responsibility to regulate and discipline
errant healing arts practitioners.
   (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.
   (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.
   (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.
   (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   a licentiate'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.   to the extent provided in Section 1157
of the   Evidence Code.  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 before a trier of fact, 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.
   (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) 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, even if the
licentiate declines to be represented by an attorney.