California Assembly Bill AB1070 Amended / Bill

 BILL NUMBER: AB 1070AMENDED BILL TEXT AMENDED IN ASSEMBLY APRIL 22, 2009 AMENDED IN ASSEMBLY MARCH 31, 2009 INTRODUCED BY Assembly Member Hill FEBRUARY 27, 2009 An act to amend Sections 801.01, 2008, 2225.5, 2227, and 2425.3 of  , and to add Section 804.5 to,  the Business and Professions Code, relating to healing arts. LEGISLATIVE COUNSEL'S DIGEST AB 1070, as amended, Hill. Healing arts. (1) Existing law provides for the licensure and regulation of osteopathic physicians and surgeons by the Osteopathic Medical Board of California,  of  physicians and surgeons by the Medical Board of California, and  of  podiatrists by the California Board of Podiatric Medicine. Existing law requires those licensees, insurers providing professional liability insurance to those licensees, and governmental agencies that self-insure those licensees to report specified settlements, arbitration awards, or civil judgments to the licensee's board if based on the licensee's alleged negligence, error, or omission in practice or his or her rendering of unauthorized professional services. This bill would specify that  those reports must be sent whether or not the licensee was a named party in the underlying claim or action and would limit reports regarding claims or actions to those based on the licensee's alleged negligence, error, or omission in practice in California. The bill would also specify that  the reporting requirements apply to the University of California, as specified. Existing law requires licensees  obligated   and insurers required  to make these reports to send a copy of the report to the claimant or his or her counsel and requires a claimant or his or her counsel who does not receive a copy of the report within a specified time period to make the report to the appropriate board. Existing law makes a failure of a licensee, claimant, or counsel to comply with these requirements a public offense punishable by a specified fine. This bill would require any entity or person  obligated   required  to make a report to send a copy of the report to the claimant or his or her counsel  . The bill would also require an entity that makes a report to notify the licensee within 15 days of the filing of the report  . The bill would also make a failure to comply with any of the reporting requirements an infraction punishable by a specified fine. By expanding the scope of a crime, the bill would impose a state-mandated local program.  Existing law requires these reports to include certain information, including the name and address of every physician and surgeon or podiatrist who was alleged to have acted improperly.   This bill would require the reports to include that information with respect to every physician and surgeon or podiatrist who participated in the care or professional services provided to the patient.  Existing law  also  requires  the   these  reports to include  certain information, including  a brief description of the facts of each claim, charge, or allegation  , and the amount of the judgment or award and the date of its entry or service  . This bill would eliminate the requirement that this description be brief and would require the description to also include the role of each physician and surgeon or podiatrist in the care or professional services provided to the patient, as specified  , and a list of the dates of treatment rendered by those persons  .  The bill would also require the report to include a copy of the judgment or award.   (2) The Medical Practice Act provides for the regulation of physicians and surgeons by the Medical Board of California, and provides that the protection of the public is the highest priority for the board in exercising its licensing, regulatory, and disciplinary functions.   This bill would prohibit any entity that provides early intervention, patient safety, or risk management programs to patients, or contracts for those programs for patients, from requiring that a patient waive his or her rights to contact or cooperate with the board, or to file a complaint with the board.   (2)   (3)  Existing law authorizes the Medical Board of California to appoint panels from its members for the purposes of fulfilling specified obligations and prohibits the president of the board from serving as a member of a panel. This bill would allow the president of the board to serve as a member of a panel if there is a vacancy in the membership of the board.  (3)   (4)  Under existing law, a physician and surgeon or podiatrist who fails to comply with a patient's medical record request, as specified, within 15 days, or who fails or refuses to comply with a court order mandating release of records, is required to pay a civil penalty of $1,000 per day, as specified. This bill would place a limit of $10,000 on those civil penalties and would make other related changes  , including providing a definition of "certified medical records," as specified  .  (4)   (5)  Existing law prescribes the disciplinary action that may be taken against a physician and surgeon or podiatrist. Among other things, existing law authorizes the licensee to be publicly reprimanded. This bill would authorize the public reprimand to include a requirement that the licensee complete educational courses approved by the board.  (5)   (6)  Existing law requires the board to request a licensed physician and surgeon to report, at the time of license renewal, any specialty board certification he or she holds, as specified. Existing law also authorizes a licensed physician and surgeon to report to the board, at the time of license renewal, information regarding his or her cultural background and foreign language proficiency. This bill would instead require licensees to provide that information at the time of license renewal and immediately upon issuance of an initial license. Existing law requires a licensed physician and surgeon to also report, at the time of license renewal, his or her practice status, as specified. This bill would also require that this information be provided immediately upon issuance of an initial license.  The bill would also require a licensed physician and surgeon to report to the board, at the time of license renewal, if any civil action has been filed or criminal conviction has occurred, as specified, since his or her last renewal or initial licensure, as specified.   (6)   (7)  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. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 801.01 of the Business and Professions Code is amended to read: 801.01. The Legislature finds and declares that the filing of reports with the applicable state agencies required under this section is essential for the protection of the public. It is the intent of the Legislature that the reporting requirements set forth in this section be interpreted broadly in order to expand reporting obligations. (a) A complete report shall be sent to the Medical Board of California, the Osteopathic Medical Board  of California  , or the California Board of Podiatric Medicine, with respect to a licensee of the board as to the following: (1) A settlement over thirty thousand dollars ($30,000) or arbitration award of any amount or a civil judgment of any amount, whether or not vacated by a settlement after entry of the judgment, that was not reversed on appeal, of a claim or action for damages for death or personal injury caused by the licensee's alleged negligence, error, or omission in practice  in California  , or by his or her rendering of unauthorized professional services  , whether or not the licensee was a named party in the claim or action.   .  (2) A settlement over thirty thousand dollars ($30,000)  of a claim or action, whether or not the licensee was a named party in the claim or action  , if the settlement is based on the licensee's alleged negligence, error, or omission in practice  in California  , or on the licensee's rendering of unauthorized professional services, and a party to the settlement is a corporation, medical group, partnership, or other corporate entity in which the licensee has an ownership interest or that employs or contracts with the licensee. (b) The report shall be sent by the following: (1) The insurer providing professional liability insurance to the licensee. (2) The licensee, or his or her counsel, if the licensee does not possess professional liability insurance. (3) A state or local governmental agency that self-insures the licensee. For purposes of this section "state governmental agency" includes, but is not limited to, the University of California. (c) The entity, person, or licensee obligated to report pursuant to subdivision (b) shall send the complete report if the judgment, settlement agreement, or arbitration award is entered against or paid by the employer of the licensee and not entered against or paid by the licensee. "Employer," as used in this paragraph, means a professional corporation, a group practice, a health care facility or clinic licensed or exempt from licensure under the Health and Safety Code, a licensed health care service plan, a medical care foundation, an educational institution, a professional institution, a professional school or college, a general law corporation, a public entity, or a nonprofit organization that employs, retains, or contracts with a licensee referred to in this section. Nothing in this paragraph shall be construed to authorize the employment of, or contracting with, any licensee in violation of Section 2400. (d) The report shall be sent to the Medical Board of California, the Osteopathic Medical Board of California, or the California Board of Podiatric Medicine, as appropriate, within 30 days after the written settlement agreement has been reduced to writing and signed by all parties thereto, within 30 days after service of the arbitration award on the parties, or within 30 days after the date of entry of the civil judgment.  (e) If an insurer is required under subdivision (b) to send the report, the insurer shall notify the claimant, or if the claimant is represented by counsel, the claimant's counsel, that the insurer has sent the report to the Medical Board of California, the Osteopathic Medical Board of California, or the California Board of Podiatric Medicine. If the claimant, or his or her counsel, has not received this notice within 45 days after the settlement was reduced to writing and signed by all of the parties or the arbitration award was served on the parties or the date of entry of the civil judgment, the claimant or the claimant's counsel shall make the report to the appropriate board.   (f)   (e)  The entity, person, or licensee  obligated   required  to report under subdivision (b) shall send a copy of the report to the claimant or to his or her counsel if he or she is represented by counsel. If the claimant or his or her counsel has not received a copy of the report within 45 days after the settlement was reduced to writing and signed by all of the parties or the arbitration award was served on the parties or the date of entry of the civil judgment, the claimant or the claimant's counsel shall make the report to the appropriate board.  (g)  (f)  Failure to comply with this section is a public offense punishable by a fine of not less than five hundred dollars ($500) and not more than five thousand dollars ($5,000).  (h)   (g)  (1) The Medical Board of California, the Osteopathic Medical Board of California, and the California Board of Podiatric Medicine may develop a prescribed form for the report. (2) The report shall be deemed complete only if it includes the following information: (A) The name and last known business and residential addresses of every plaintiff or claimant involved in the matter, whether or not the person received an award under the settlement, arbitration, or judgment. (B) The name and last known business and residential address of every licensee who  participated in the care or professional services provided to the patient   was alleged to have acted improperly  , whether or not that person was a named defendant in the action and whether or not that person was required to pay any damages pursuant to the settlement, arbitration award, or judgment. (C) The name, address, and principal place of business of every insurer providing professional liability insurance to any person described in subparagraph (B), and the insured's policy number. (D) The name of the court in which the action or any part of the action was filed, and the date of filing and case number of each action. (E) A description or summary of the facts of each claim, charge, or allegation, including the date of occurrence  , each   and the  licensee's role in the care or professional services provided to the patient with respect to those services at issue in the claim  , charge, or allegation, and a list of the dates of treatment rendered by each licensee   or action  . (F) The name and last known business address of each attorney who represented a party in the settlement, arbitration, or civil action, including the name of the client he or she represented. (G) The amount of the judgment  and   ,  the date of its entry , and a copy of the judgment  ; the amount of the arbitration award, the date of its service on the parties, and a copy of the award document; or the amount of the settlement and the date it was reduced to writing and signed by all parties. If an otherwise reportable settlement is entered into after a reportable judgment or arbitration award is issued, the report shall include both the settlement and  a copy of  the judgment or award. (H) The specialty or subspecialty of the licensee who  participated in the care or professional services provided to the patient.   was the subject of the claim or action.  (I) Any other information the Medical Board of California, the Osteopathic Medical Board of California, or the California Board of Podiatric Medicine may, by regulation, require. (3) Every professional liability insurer, self-insured governmental agency, or licensee or his or her counsel that makes a report under this section and has received a copy of any written or electronic patient medical or hospital records prepared by the treating physician and surgeon or podiatrist, or the staff of the treating physician and surgeon, podiatrist, or hospital, describing the medical condition, history, care, or treatment of the person whose death or injury is the subject of the report, or a copy of any deposition in the matter that discusses the care, treatment, or medical condition of the person, shall include with the report, copies of the records and depositions, subject to reasonable costs to be paid by the Medical Board of California, the Osteopathic Medical Board of California, or the California Board of Podiatric Medicine. If confidentiality is required by court order and, as a result, the reporter is unable to provide the records and depositions, documentation to that effect shall accompany the original report. The applicable board may, upon prior notification of the parties to the action, petition the appropriate court for modification of any protective order to permit disclosure to the board. A professional liability insurer, self-insured governmental agency, or licensee or his or her counsel shall maintain the records and depositions referred to in this paragraph for at least one year from the date of filing of the report required by this section.  (i)   (h)  If the board, within 60 days of its receipt of a report filed under this section, notifies a person named in the report, that person shall maintain for the period of three years from the date of filing of the report any records he or she has as to the matter in question and shall make those records available upon request to the board to which the report was sent.  (j)   (i)  Notwithstanding any other provision of law, no insurer shall enter into a settlement without the written consent of the insured, except that this prohibition shall not void any settlement entered into without that written consent. The requirement of written consent shall only be waived by both the insured and the insurer.  (j) Any entity that makes a report pursuant to this section shall, within 15 days after filing the report, notify the licensee that the report was filed with the appropriate licensing board.  (k) For purposes of this section, "licensee" means a licensee of the Medical Board of California, the Osteopathic Medical Board  of California  , or the California Board of Podiatric Medicine.  SEC. 2.   Section 804.5 is added to the   Business and Professions Code   , to read:   804.5. The Legislature recognizes that various types of entities are creating, implementing, and maintaining patient safety and risk management programs that encourage early intervention in order to address known complications and other unanticipated events requiring medical care. The Legislature recognizes that some entities even provide financial assistance to individual patients to help them address these unforeseen health care concerns. It is the intent of the Legislature, however, that such financial assistance not limit a patient's interaction with, or his or her rights before, the Medical Board of California. Any entity that provides early intervention, patient safety, or risk management programs to patients, or contracts for those programs for patients, shall not include, as part of any of those programs or contracts, any of the following: (a) A provision that prohibits a patient or patients from contacting or cooperating with the board. (b) A provision that prohibits a patient or patients from filing a complaint with the board. (c) A provision that requires a patient or patients to withdraw a complaint that has been filed with the board.   SEC. 2.   SEC. 3.  Section 2008 of the Business and Professions Code is amended to read: 2008. The board may appoint panels from its members for the purpose of fulfilling the obligations established in subdivision (c) of Section 2004. Any panel appointed under this section shall at no time be comprised of less than four members and the number of public members assigned to the panel shall not exceed the number of licensed physician and surgeon members assigned to the panel. The president of the board shall not be a member of any panel unless there is a vacancy in the membership of the board. Each panel shall annually elect a chair and a vice chair.  SEC. 3.   SEC. 4.  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. 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  Health Services   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.   (f)   (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. 4.   SEC. 5.  Section 2227 of the Business and Professions Code is amended to read: 2227. (a) A licensee whose matter has been heard by an administrative law judge of the Medical Quality Hearing Panel as designated in Section 11371 of the Government Code, or whose default has been entered, and who is found guilty, or who has entered into a stipulation for disciplinary action with the board, may, in accordance with the provisions of this chapter: (1) Have his or her license revoked upon order of the board. (2) Have his or her right to practice suspended for a period not to exceed one year upon order of the board. (3) Be placed on probation and be required to pay the costs of probation monitoring upon order of the board. (4) Be publicly reprimanded by the board. The public reprimand may include a requirement that the licensee complete relevant educational courses approved by the board. (5) Have any other action taken in relation to discipline as part of an order of probation, as the board or an administrative law judge may deem proper. (b) Any matter heard pursuant to subdivision (a), except for warning letters, medical review or advisory conferences, professional competency examinations, continuing education activities, and cost reimbursement associated therewith that are agreed to with the board and successfully completed by the licensee, or other matters made confidential or privileged by existing law, is deemed public, and shall be made available to the public by the board pursuant to Section 803.1. SEC. 5.   SEC. 6.  Section 2425.3 of the Business and Professions Code is amended to read: 2425.3. (a) A licensed physician and surgeon shall report to the board, immediately upon issuance of an initial license and at the time of license renewal, any specialty board certification he or she holds that is issued by a member board of the American Board of Medical Specialties or approved by the Medical Board of California. (b) A licensed physician and surgeon shall also report to the board, immediately upon issuance of an initial license and at the time of license renewal, his or her practice status, designated as one of the following: (1) Full-time practice in California. (2) Full-time practice outside of California. (3) Part-time practice in California. (4) Medical administrative employment that does not include direct patient care. (5) Retired. (6) Other practice status, as may be further defined by the  Division of Licensing   board  . (c) (1) A licensed physician and surgeon shall report to the board, immediately upon issuance of an initial license and at the time of license renewal, and the board shall collect, information regarding his or her cultural background and foreign language proficiency. (2) Information collected pursuant to this subdivision shall be aggregated on an annual basis based on categories utilized by the board in the collection of the data, and shall be aggregated into both statewide totals and ZIP  Code   code  of primary practice location totals. (3) Aggregated information under this subdivision shall be compiled annually and reported on the board's Internet Web site on or before October 1 of each year.  (d) A licensed physician and surgeon shall report to the board, at the time of license renewal, if either of the following have occurred since his or her last renewal, or if this is the licensee's first renewal, since his or her initial license was issued:   (1) He or she has been convicted of a felony or misdemeanor.   (2) The filing of a civil action alleging unlawful conduct by the licensee, whether or not the licensee was a named party in the action.   (e)   (d)  The information collected pursuant to subdivisions (a) and (b) may also be placed on the board's Internet Web site.  SEC. 6.   SEC. 7.  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.