SB 304, as amended, Price. Healing arts: boards.
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 onbegin delete stepend deletebegin insert Stepend insert 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 artsbegin delete practionerend deletebegin insert
practitionerend insert may be unable to practice his or her profession safely due to mental or physical illness,begin delete theend deletebegin insert his or herend insert
licensing agency may order thebegin delete licentiateend deletebegin insert practitionerend insert 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 establishesbegin insert,
until January 1, 2014,end insert a vertical enforcement and prosecution model for cases before the Medical Board ofbegin delete 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 lawend deletebegin insert
California andend insert requires the board to report to the Governor and Legislature onbegin delete the vertical prosecutionend deletebegin insert thatend insert model by March 1, 2012.
This bill wouldbegin delete extend the operation of those provisions indefinitely and wouldend delete extend the date that report is due to March 1, 2015.
Existing law authorizes the Medical Board of California and the Dental Board of California to employ individuals who have the authority of peace officers to perform investigative services.
end insertbegin insertThis bill would transfer all investigators employed by the Medical Board of California and their staff to the Department of Justice on January 1, 2014, and would provide that the transfer would not affect the status, position, or rights of those transferred. The bill would specify that individuals performing investigations would retain their status as peace officers.
end insertThe 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 651 of the Business and Professions Code
2 is amended to read:
(a) It is unlawful for any person licensed under this
4division or under any initiative act referred to in this division to
5disseminate or cause to be disseminated any form of public
6communication containing a false, fraudulent, misleading, or
7deceptive statement, claim, or image for the purpose of or likely
8to induce, directly or indirectly, the rendering of professional
9services or furnishing of products in connection with the
10professional practice or business for which he or she is licensed.
11A “public communication” as used in this section includes, but is
12not limited to, communication by means of mail, television, radio,
13motion picture, newspaper, book, list or directory of healing arts
14practitioners, Internet, or other electronic
communication.
15(b) A false, fraudulent, misleading, or deceptive statement,
16claim, or image includes a statement or claim that does any of the
17following:
18(1) Contains a misrepresentation of fact.
19(2) Is likely to mislead or deceive because of a failure to disclose
20material facts.
21(3) (A) Is intended or is likely to create false or unjustified
22expectations of favorable results, including the use of any
23photograph or other image that does not accurately depict the
24results of the procedure being advertised or that has been altered
25in any manner from the image of the actual subject depicted in the
26photograph or image.
27(B) Use of any photograph or other image of a model without
28clearly stating in a prominent location in easily readable type the
P6 1fact that the photograph or image is of a model is a violation of
2subdivision (a). For purposes of this paragraph, a model is anyone
3other than an actual patient, who has undergone the procedure
4being advertised, of the licensee who is advertising for his or her
5services.
6(C) Use of any photograph or other image of an actual patient
7that depicts or purports to depict the results of any procedure, or
8presents “before” and “after” views of a patient, without specifying
9in a prominent location in easily readable type size what procedures
10were performed on that patient is a violation of subdivision (a).
11Any “before” and “after” views (i) shall be comparable in
12presentation
so that the results are not distorted by favorable poses,
13lighting, or other features of presentation, and (ii) shall contain a
14statement that the same “before” and “after” results may not occur
15for all patients.
16(4) Relates to fees, other than a standard consultation fee or a
17range of fees for specific types of services, without fully and
18specifically disclosing all variables and other material factors.
19(5) Contains other representations or implications that in
20reasonable probability will cause an ordinarily prudent person to
21misunderstand or be deceived.
22(6) Makes a claim either of professional superiority or of
23performing services in a superior manner, unless that claim is
24relevant to the service being performed and can
be substantiated
25with objective scientific evidence.
26(7) Makes a scientific claim that cannot be substantiated by
27reliable, peer reviewed, published scientific studies.
28(8) Includes any statement, endorsement, or testimonial that is
29likely to mislead or deceive because of a failure to disclose material
30facts.
31(c) Any price advertisement shall be exact, without the use of
32phrases, including, but not limited to, “as low as,” “and up,”
33“lowest prices,” or words or phrases of similar import. Any
34advertisement that refers to services, or costs for services, and that
35uses words of comparison shall be based on verifiable data
36substantiating the comparison. Any person so advertising shall be
37prepared to provide
information sufficient to establish the accuracy
38of that comparison. Price advertising shall not be fraudulent,
39deceitful, or misleading, including statements or advertisements
40of bait, discount, premiums, gifts, or any statements of a similar
P7 1nature. In connection with price advertising, the price for each
2product or service shall be clearly identifiable. The price advertised
3for products shall include charges for any related professional
4services, including dispensing and fitting services, unless the
5advertisement specifically and clearly indicates otherwise.
6(d) Any person so licensed shall not compensate or give anything
7of value to a representative of the press, radio, television, or other
8communication medium in anticipation of, or in return for,
9professional publicity unless the fact of compensation is made
10known in that publicity.
11(e) Any person so licensed may not use any professional card,
12professional announcement card, office sign, letterhead, telephone
13directory listing, medical list, medical directory listing, or a similar
14professional notice or device if it includes a statement or claim
15that is false, fraudulent, misleading, or deceptive within the
16meaning of subdivision (b).
17(f) Any person so licensed who violates this section is guilty of
18a misdemeanor. A bona fide mistake of fact shall be a defense to
19this subdivision, but only to this subdivision.
20(g) Any violation of this section by a person so licensed shall
21constitute good cause for revocation or suspension of his or her
22license or other disciplinary action.
23(h) Advertising by any person so licensed may include the
24following:
25(1) A statement of the name of the practitioner.
26(2) A statement of addresses and telephone numbers of the
27offices maintained by the practitioner.
28(3) A statement of office hours regularly maintained by the
29practitioner.
30(4) A statement of languages, other than English, fluently spoken
31by the practitioner or a person in the practitioner’s office.
32(5) (A) A statement that the practitioner is certified by a private
33or public board or agency or a statement
that the practitioner limits
34his or her practice to specific fields.
35(B) A statement of certification by a practitioner licensed under
36Chapter 7 (commencing with Section 3000) shall only include a
37statement that he or she is certified or eligible for certification by
38a private or public board or parent association recognized by that
39practitioner’s licensing board.
P8 1(C) A physician and surgeon licensed under Chapter 5
2(commencing with Section 2000) by the Medical Board of
3California may include a statement that he or she limits his or her
4practice to specific fields, but shall not include a statement that he
5or she is certified or eligible for certification by a private or public
6board or parent association, unless that board or association is (i)
7an American Board of
Medical Specialties member board, (ii) a
8board or association with equivalent requirements approved by
9that physician and surgeon’s licensing board prior to January 1,
102014, or (iii) a board or association with an Accreditation Council
11for Graduate Medical Education approved postgraduate training
12program that provides complete training in that specialty or
13subspecialty. A physician and surgeon licensed under Chapter 5
14(commencing with Section 2000) by the Medical Board of
15California who is certified by an organization other than a board
16or association referred to in clause (i), (ii), or (iii) shall not use the
17term “board certified” in reference to that certification, unless the
18physician and surgeon is also licensed under Chapter 4
19(commencing with Section 1600) and the use of the term “board
20certified” in reference to that certification is in accordance with
21subparagraph (A). A physician and
surgeon licensed under Chapter
225 (commencing with Section 2000) by the Medical Board of
23California who is certified by a board or association referred to in
24clause (i), (ii), or (iii) shall not use the term “board certified” unless
25the full name of the certifying board is also used and given
26comparable prominence with the term “board certified” in the
27statement.
28A multidisciplinary board or association approved by the Medical
29Board of California prior to January 1, 2014, shall retain that
30approval.
31For purposes of the term “board certified,” as used in this
32subparagraph, the terms “board” and “association” mean an
33organization that is an American Board of Medical Specialties
34member board, an organization with equivalent requirements
35approved by a physician and surgeon’s licensing board prior to
36January 1,
2014, or an organization with an Accreditation Council
37for Graduate Medical Education approved postgraduate training
38program that provides complete training in a specialty or
39subspecialty.
P9 1(D) A doctor of podiatric medicine licensed under Chapter 5
2(commencing with Section 2000) by the Medical Board of
3California may include a statement that he or she is certified or
4eligible or qualified for certification by a private or public board
5or parent association, including, but not limited to, a
6multidisciplinary board or association, if that board or association
7meets one of the following requirements: (i) is approved by the
8Council on Podiatric Medical Education, (ii) is a board or
9association with equivalent requirements approved by the
10California Board of Podiatric Medicine, or (iii) is a board or
11association with the Council on
Podiatric Medical Education
12approved postgraduate training programs that provide training in
13podiatric medicine and podiatric surgery. A doctor of podiatric
14medicine licensed under Chapter 5 (commencing with Section
152000) by the Medical Board of California who is certified by a
16board or association referred to in clause (i), (ii), or (iii) shall not
17use the term “board certified” unless the full name of the certifying
18board is also used and given comparable prominence with the term
19“board certified” in the statement. A doctor of podiatric medicine
20licensed under Chapter 5 (commencing with Section 2000) by the
21Medical Board of California who is certified by an organization
22other than a board or association referred to in clause (i), (ii), or
23(iii) shall not use the term “board certified” in reference to that
24certification.
25For purposes of this
subparagraph, a “multidisciplinary board
26or association” means an educational certifying body that has a
27psychometrically valid testing process, as determined by the
28California Board of Podiatric Medicine, for certifying doctors of
29podiatric medicine that is based on the applicant’s education,
30training, and experience. For purposes of the term “board certified,”
31as used in this subparagraph, the terms “board” and “association”
32mean an organization that is a Council on Podiatric Medical
33Education approved board, an organization with equivalent
34requirements approved by the California Board of Podiatric
35Medicine, or an organization with a Council on Podiatric Medical
36Education approved postgraduate training program that provides
37training in podiatric medicine and podiatric surgery.
38The California Board of Podiatric Medicine shall adopt
39regulations to establish
and collect a reasonable fee from each
40board or association applying for recognition pursuant to this
P10 1subparagraph, to be deposited in the State Treasury in the Podiatry
2Fund, pursuant to Section 2499. The fee shall not exceed the cost
3of administering this subparagraph.
4(6) A statement that the practitioner provides services under a
5specified private or public insurance plan or health care plan.
6(7) A statement of names of schools and postgraduate clinical
7training programs from which the practitioner has graduated,
8together with the degrees received.
9(8) A statement of publications authored by the practitioner.
10(9) A statement of teaching positions currently or
formerly held
11by the practitioner, together with pertinent dates.
12(10) A statement of his or her affiliations with hospitals or
13clinics.
14(11) A statement of the charges or fees for services or
15commodities offered by the practitioner.
16(12) A statement that the practitioner regularly accepts
17installment payments of fees.
18(13) Otherwise lawful images of a practitioner, his or her
19
physical facilities, or of a commodity to be advertised.
20(14) A statement of the manufacturer, designer, style, make,
21trade name, brand name, color, size, or type of commodities
22advertised.
23(15) An advertisement of a registered dispensing optician may
24include statements in addition to those specified in paragraphs (1)
25to (14), inclusive, provided that any statement shall not violate
26subdivision (a), (b), (c), or (e) or any other section of this code.
27(16) A statement, or statements, providing public health
28information encouraging preventative or corrective care.
29(17) Any other item of factual information that is not false,
30fraudulent, misleading, or likely
to deceive.
31(i) Each of the healing arts boards and examining committees
32within Division 2 shall adopt appropriate regulations to enforce
33this section in accordance with Chapter 3.5 (commencing with
34Section 11340) of Part 1 of Division 3 of Title 2 of the Government
35Code.
36Each of the healing arts boards and committees and examining
37committees within Division 2 shall, by regulation, define those
38efficacious services to be advertised by businesses or professions
39under their jurisdiction for the purpose of determining whether
40advertisements are false or misleading. Until a definition for that
P11 1service has been issued, no advertisement for that service shall be
2disseminated. However, if a definition of a service has not been
3issued by a board or committee within 120 days of receipt of a
4request
from a licensee, all those holding the license may advertise
5the service. Those boards and committees shall adopt or modify
6regulations defining what services may be advertised, the manner
7in which defined services may be advertised, and restricting
8advertising that would promote the inappropriate or excessive use
9of health services or commodities. A board or committee shall not,
10by regulation, unreasonably prevent truthful, nondeceptive price
11or otherwise lawful forms of advertising of services or
12commodities, by either outright prohibition or imposition of
13onerous disclosure requirements. However, any member of a board
14or committee acting in good faith in the adoption or enforcement
15of any regulation shall be deemed to be acting as an agent of the
16state.
17(j) The Attorney General shall commence legal proceedings in
18the
appropriate forum to enjoin advertisements disseminated or
19about to be disseminated in violation of this section and seek other
20appropriate relief to enforce this section. Notwithstanding any
21other provision of law, the costs of enforcing this section to the
22respective licensing boards or committees may be awarded against
23any licensee found to be in violation of any provision of this
24section. This shall not diminish the power of district attorneys,
25county counsels, or city attorneys pursuant to existing law to seek
26appropriate relief.
27(k) A physician and surgeon or doctor of podiatric medicine
28licensed pursuant to Chapter 5 (commencing with Section 2000)
29by the Medical Board of California who knowingly and
30intentionally violates this section may be cited and assessed an
31administrative fine not to exceed ten thousand dollars ($10,000)
32per
event. Section 125.9 shall govern the issuance of this citation
33and fine except that the fine limitations prescribed in paragraph
34(3) of subdivision (b) of Section 125.9 shall not apply to a fine
35under this subdivision.
Section 2021 of the Business and Professions Code is
37amended to read:
(a) If the board publishes a directory pursuant to Section
39112, it may require persons licensed pursuant to this chapter to
P12 1furnish any information as it may deem necessary to enable it to
2compile the directory.
3(b) Each licensee shall report to the board each and every change
4of address within 30 days after each change, giving both the old
5and new address. If an address reported to the board at the time of
6application for licensure or subsequently is a post office box, the
7applicant shall also provide the board with a street address. If
8another address is the licensee’s address of record, he or she may
9request that the second address not be disclosed to the public.
10(c) Each licensee shall report to the board each and every change
11of name within 30 days after each change, giving both the old and
12new names.
13(d) Each applicant and licensee who has an electronic mail
14address shall report to the board that electronic mail address no
15later than July 1, 2014. The electronic mail address shall be
16considered confidential and not subject to public disclosure.
17(e) The board shall annually send an electronic notice to each
18applicant and licensee
that requests confirmation from the applicant
19or licensee that his or her electronic mail address is current.
Section 2177 of the Business and Professions Code is
21amended to read:
(a) A passing score is required for an entire examination
23or for each part of an examination, as established by resolution of
24the board.
25(b) Applicants may elect to take the written examinations
26conducted or accepted by the board in separate parts.
27(c) (1) An applicant shall have obtained a passing score on all
28parts of Step 3 of the United States Medical Licensing Examination
29within not more than four attempts in order to be eligible for a
30physician’s and surgeon’s certificate.
31(2) Notwithstanding paragraph (1), an applicant who obtains
32a
passing score on all parts of Step 3 of the United States Medical
33Licensing Examination in more than four attempts and who meets
34the requirements of Section 2135.5 shall be eligible to be
35considered for issuance of a physician’s and surgeon’s certificate.
Section 2220.08 of the Business and Professions Code
37 is amended to read:
(a) Except for reports received by the board pursuant
39to Section 801.01 or 805 that may be treated as complaints by the
40board and new complaints relating to a physician and surgeon who
P13 1is the subject of a pending accusation or investigation or who is
2on probation, any complaint determined to involve quality of care,
3before referral to a field office for further investigation, shall meet
4the following criteria:
5(1) It shall be reviewed by one or more medical experts with
6the pertinent education, training, and expertise to evaluate the
7specific standard of care issues raised by the complaint to determine
8if further field investigation is
required.
9(2) It shall include the review of the following, which shall be
10requested by the board:
11(A) Relevant patient records.
12(B) The statement or explanation of the care and treatment
13provided by the physician and surgeon.
14(C) Any additional expert testimony or literature provided by
15the physician and surgeon.
16(D) Any additional facts or information requested by the medical
17expert reviewers that may assist them in determining whether the
18care rendered constitutes a departure from the standard of care.
19(b) If the board does not receive
the information requested
20pursuant to paragraph (2) of subdivision (a) within 10 working
21days of requesting that information, the complaint may be reviewed
22by the medical experts and referred to a field office for
23investigation without the information.
24(c) Nothing in this section shall impede the board’s ability to
25seek and obtain an interim suspension order or other emergency
26relief.
Section 2225.5 of the Business and Professions Code
28 is amended to read:
(a) (1) A licensee who fails or refuses to comply with
30a request for the certified medical records of a patient, that is
31accompanied by that patient’s written authorization for release of
32records to the board, within 15 days of receiving the request and
33authorization, shall pay to the board a civil penalty of one thousand
34dollars ($1,000) per day for each day that the documents have not
35been produced after the 15th day, up to ten thousand dollars
36($10,000), unless the licensee is unable to provide the documents
37within this time period for good cause.
38(2) A health care facility shall comply with a request for the
39certified medical records of a patient that is
accompanied by that
40patient’s written authorization for release of records to the board
P14 1together with a notice citing this section and describing the
2penalties for failure to comply with this section. Failure to provide
3the authorizing patient’s certified medical records to the board
4within 30 days of receiving the request, authorization, and notice
5shall subject the health care facility to a civil penalty, payable to
6the board, of up to one thousand dollars ($1,000) per day for each
7day that the documents have not been produced after the 30th day,
8up to ten thousand dollars ($10,000), unless the health care facility
9is unable to provide the documents within this time period for good
10cause. For health care facilities that have electronic health records,
11failure to provide the authorizing patient’s certified medical records
12to the board within 15 days of receiving the request, authorization,
13
and notice shall subject the health care facility to a civil penalty,
14payable to the board, of up to one thousand dollars ($1,000) per
15day for each day that the documents have not been produced after
16the 15th day, up to ten thousand dollars ($10,000), unless the health
17care facility is unable to provide the documents within this time
18period for good cause. This paragraph shall not require health care
19facilities to assist the board in obtaining the patient’s authorization.
20The board shall pay the reasonable costs of copying the certified
21medical records.
22(b) (1) A licensee who fails or refuses to comply with a court
23order, issued in the enforcement of a subpoena, mandating the
24release of records to the board shall pay to the board a civil penalty
25of one thousand dollars ($1,000) per day for each day that the
26documents have not
been produced after the date by which the
27court order requires the documents to be produced, up to ten
28thousand dollars ($10,000), unless it is determined that the order
29is unlawful or invalid. Any statute of limitations applicable to the
30filing of an accusation by the board shall be tolled during the period
31the licensee is out of compliance with the court order and during
32any related appeals.
33(2) Any licensee who fails or refuses to comply with a court
34order, issued in the enforcement of a subpoena, mandating the
35release of records to the board is guilty of a misdemeanor
36punishable by a fine payable to the board not to exceed five
37thousand dollars ($5,000). The fine shall be added to the licensee’s
38renewal fee if it is not paid by the next succeeding renewal date.
39Any statute of limitations applicable to the filing of an accusation
P15 1by
the board shall be tolled during the period the licensee is out
2of compliance with the court order and during any related appeals.
3(3) A health care facility that fails or refuses to comply with a
4court order, issued in the enforcement of a subpoena, mandating
5the release of patient records to the board, that is accompanied by
6a notice citing this section and describing the penalties for failure
7to comply with this section, shall pay to the board a civil penalty
8of up to one thousand dollars ($1,000) per day for each day that
9the documents have not been produced, up to ten thousand dollars
10($10,000), after the date by which the court order requires the
11documents to be produced, unless it is determined that the order
12is unlawful or invalid. Any statute of limitations applicable to the
13filing of an accusation by the board against a licensee
shall be
14tolled during the period the health care facility is out of compliance
15with the court order and during any related appeals.
16(4) Any health care facility that fails or refuses to comply with
17a court order, issued in the enforcement of a subpoena, mandating
18the release of records to the board is guilty of a misdemeanor
19
punishable by a fine payable to the board not to exceed five
20thousand dollars ($5,000). Any statute of limitations applicable to
21the filing of an accusation by the board against a licensee shall be
22tolled during the period the health care facility is out of compliance
23with the court order and during any related appeals.
24(c) Multiple acts by a licensee in violation of subdivision (b)
25shall be punishable by a fine not to exceed five thousand dollars
26($5,000) or by imprisonment in a county jail not exceeding six
27months, or by both that fine and imprisonment. Multiple acts by
28a health care facility in violation of subdivision (b) shall be
29punishable by a fine not to exceed five thousand dollars ($5,000)
30and shall be reported to the State Department of Public Health and
31shall be considered as grounds for disciplinary action with respect
32to
licensure, including suspension or revocation of the license or
33certificate.
34(d) A failure or refusal of a licensee to comply with a court
35order, issued in the enforcement of a subpoena, mandating the
36release of records to the board constitutes unprofessional conduct
37and is grounds for suspension or revocation of his or her license.
38(e) Imposition of the civil penalties authorized by this section
39shall be in accordance with the Administrative Procedure Act
P16 1(Chapter 5 (commencing with Section 11500) of Division 3 of
2Title 2 of the Government Code).
3(f) For purposes of this section, “certified medical records”
4means a copy of the patient’s medical records authenticated by the
5licensee or health care facility, as appropriate,
on a form prescribed
6by the board.
7(g) For purposes of this section, a “health care facility” means
8a clinic or health facility licensed or exempt from licensure
9pursuant to Division 2 (commencing with Section 1200) of the
10Health and Safety Code.
Section 2291.5 is added to the Business and Professions
12Code, to read:
A physician and surgeon’s failure to comply with an
14order issued under Section 820 shall result in the issuance of
15notification from the board to cease the practice of medicine
16immediately upon the receipt of that notification. The physician
17and surgeon shall cease the practice of medicine until the ordered
18examinations have been completed. A physician and surgeon’s
19continued failure to comply with an order issued under Section
20820 shall constitute grounds for suspension or revocation of his
21or her certificate.
Section 2334 of the Business and Professions Code is
23amended to read:
(a) Notwithstanding any other provision of law, with
25respect to the use of expert testimony in matters brought by the
26Medical Board of California, no expert testimony shall be permitted
27by any party unless the following information is exchanged in
28written form with counsel for the other party within 90 days from
29the filing of a notice of defense:
30(1) A curriculum vitae setting forth the qualifications of the
31expert.
32(2) A complete expert witness report.
33(3) A representation that the expert has agreed to testify at the
34hearing.
35(4) A statement of the expert’s hourly and daily fee for providing
36testimony and for consulting with the party who retained his or
37her services.
38(b) The Office of Administrative Hearings may adopt regulations
39governing the required exchange of the information described in
40this section.
Section 2403 is added to the Business and Professions
2Code, to read:
The provisions of Section 2400 do not apply to
4physicians and surgeons enrolled in approved residency
5postgraduate training programs or fellowship programs.
Section 2514 of the Business and Professions Code is
7amended to read:
(a) Nothing in this chapter shall be construed to prevent
9a bona fide student from engaging in the practice of midwifery in
10this state, as part of his or her course of study, if both of the
11following conditions are met:
12(1) The student is under the supervision of a licensed midwife
13or certified nurse-midwife, who holds a clear and unrestricted
14license in this state, who is present on the premises at all times
15client services are provided, and who is practicing pursuant to
16Section 2507 or 2746.5, or a physician and surgeon.
17(2) The client is informed of the student’s status.
18(b) For the purposes of this section, a “bona fide student” means
19an individual who is enrolled and participating in a midwifery
20education program or who is enrolled in a program of supervised
21clinical training as part of the instruction of a three year
22postsecondary midwifery education program approved by the
23board.
Section 2569 of the Business and Professions Code
25 is amended to read:
Notwithstanding any other law, the powers and duties
27of the board, as set forth in this chapter, shall be subject to review
28by the appropriate policy committees of the Legislature. The review
29shall be performed as if this chapter were scheduled to be repealed
30as of January 1, 2018.
Section 11529 of the Government Code is amended
32to read:
(a) The administrative law judge of the Medical Quality
34Hearing Panel established pursuant to Section 11371 may issue
35an interim order suspending a license, or imposing drug testing,
36continuing education, supervision of procedures, or other license
37restrictions. Interim orders may be issued only if the affidavits in
38support of the petition show that the licensee has engaged in, or
39is about to engage in, acts or omissions constituting a violation of
40the Medical Practice Act or the appropriate practice act governing
P18 1each allied health profession, or is unable to practice safely due to
2a mental or physical condition, and that permitting the licensee to
3continue to engage in the profession for which the license
was
4issued will endanger the public health, safety, or welfare.
5(b) All orders authorized by this section shall be issued only
6after a hearing conducted pursuant to subdivision (d), unless it
7appears from the facts shown by affidavit that serious injury would
8result to the public before the matter can be heard on notice. Except
9as provided in subdivision (c), the licensee shall receive at least
1015 days’ prior notice of the hearing, which notice shall include
11affidavits and all other information in support of the order.
12(c) If an interim order is issued without notice, the administrative
13law judge who issued the order without notice shall cause the
14licensee to be notified of the order, including affidavits and all
15other information in support of the order by a 24-hour delivery
16service.
That notice shall also include the date of the hearing on
17the order, which shall be conducted in accordance with the
18requirement of subdivision (d), not later than 20 days from the
19date of issuance. The order shall be dissolved unless the
20requirements of subdivision (a) are satisfied.
21(d) For the purposes of the hearing conducted pursuant to this
22section, the licentiate shall, at a minimum, have the following
23rights:
24(1) To be represented by counsel.
25(2) To have a record made of the proceedings, copies of which
26may be obtained by the licentiate upon payment of any reasonable
27charges associated with the record.
28(3) To present written evidence in the form of
relevant
29declarations, affidavits, and documents.
30The discretion of the administrative law judge to permit
31testimony at the hearing conducted pursuant to this section shall
32be identical to the discretion of a superior court judge to permit
33testimony at a hearing conducted pursuant to Section 527 of the
34Code of Civil Procedure.
35(4) To present oral argument.
36(e) Consistent with the burden and standards of proof applicable
37to a preliminary injunction entered under Section 527 of the Code
38of Civil Procedure, the administrative law judge shall grant the
39interim order where, in the exercise of discretion, the administrative
40law judge concludes that:
P19 1(1) There is a
reasonable probability that the petitioner will
2prevail in the underlying action.
3(2) The likelihood of injury to the public in not issuing the order
4outweighs the likelihood of injury to the licensee in issuing the
5order.
6(f) In all cases where an interim order is issued, and an
7accusation is not filed and served pursuant to Sections 11503 and
811505 within 30 days of the date in which the parties to the hearing
9on the interim order have submitted the matter, the order shall be
10dissolved.
11Upon service of the accusation the licensee shall have, in addition
12to the rights granted by this section, all of the rights and privileges
13available as specified in this chapter. If the licensee requests a
14hearing on the accusation, the board shall provide
the licensee with
15a hearing within 30 days of the request, unless the licensee
16stipulates to a later hearing, and a decision within 15 days of the
17date the decision is received from the administrative law judge, or
18the board shall nullify the interim order previously issued, unless
19
good cause can be shown by the Division of Medical Quality for
20a delay.
21(g) Where an interim order is issued, a written decision shall be
22prepared within 15 days of the hearing, by the administrative law
23judge, including findings of fact and a conclusion articulating the
24connection between the evidence produced at the hearing and the
25decision reached.
26(h) Notwithstanding the fact that interim orders issued pursuant
27to this section are not issued after a hearing as otherwise required
28by this chapter, interim orders so issued shall be subject to judicial
29review pursuant to Section 1094.5 of the Code of Civil Procedure.
30The relief which may be ordered shall be limited to a stay of the
31interim order. Interim orders issued pursuant to this section are
32final interim
orders and, if not dissolved pursuant to subdivision
33(c) or (f), may only be challenged administratively at the hearing
34on the accusation.
35(i) The interim order provided for by this section shall be:
36(1) In addition to, and not a limitation on, the authority to seek
37injunctive relief provided for in the Business and Professions Code.
38(2) A limitation on the emergency decision procedure provided
39in Article 13 (commencing with Section 11460.10) of Chapter 4.5.
Section
12529 of the Government Code, as amended
2by Section 112 of Chapter 332 of the Statutes of 2012, is amended
3to read:
(a) There is in the Department of Justice the Health
5Quality Enforcement Section. The primary responsibility of the
6section is to investigate and prosecute proceedings against licensees
7and applicants within the jurisdiction of the Medical Board of
8California, the California Board of Podiatric Medicine, the Board
9of Psychology, or any committee under the jurisdiction of the
10Medical Board of California.
11(b) On January 1, 2014, all persons employed by the Medical
12Board of California who are performing investigations and those
13person’s staff shall be transferred to, and shall become employees
14of, the Department of Justice. The status, position, and
rights of
15those persons shall, upon transfer, be the same as employees of
16the Department of Justice holding similar positions, and for those
17persons transferred who are performing investigations shall
18include the status of peace officer provided for in Section 830.1
19of the Penal Code. Nothing in this section affects or diminishes
20the duty of the Medical Board of California to preserve the
21confidentiality of records as otherwise required by law. On and
22after January 1, 2014, any reference in this code to an investigation
23conducted by the Medical Board of California shall be deemed to
24refer to an investigation conducted by employees of the Department
25of Justice.
26(b)
end delete
27begin insert(end insertbegin insertc)end insert The Attorney General shall appoint a Senior Assistant
28Attorney General of the Health Quality Enforcement Section. The
29Senior Assistant Attorney General of the Health Quality
30Enforcement Section shall be an attorney in good standing licensed
31to practice in the State of California, experienced in prosecutorial
32or administrative disciplinary proceedings and competent in the
33management and supervision of attorneys performing those
34functions.
35(c)
end delete
36begin insert(end insertbegin insertd)end insert The Attorney General shall ensure that
the Health Quality
37Enforcement Section is staffed with a sufficient number of
38experienced and able employees that are capable of handling the
39most complex and varied types of disciplinary actions against the
40licensees of the board.
P21 1(d)
end delete
2begin insert(end insertbegin inserte)end insert Funding for the Health Quality Enforcement Section shall
3be budgeted in consultation with the Attorney General from the
4special funds financing the operations of the Medical Board of
5California, the California Board of Podiatric Medicine, the Board
6of
Psychology, and the committees under the jurisdiction of the
7Medical Board of California, with the intent that the expenses be
8proportionally shared as to services rendered.
Section 12529 of the Government Code, as amended
10 by
Section 113 of Chapter 332 of the Statutes of 2012, is repealed.
Section 12529.5 of the Government Code, as amended
12by
Section 114 of Chapter 332 of the Statutes of 2012, is amended
13to read:
(a) All complaints or relevant information concerning
15licensees that are within the jurisdiction of the Medical Board of
16California, the California Board of Podiatric Medicine, or the
17Board of Psychology shall be made available to the Health Quality
18Enforcement Section.
19(b) The Senior Assistant Attorney General of the Health Quality
20Enforcement Section shall assign attorneys to work on location at
21the intake unit of the boards described in subdivision (d) of Section
2212529 to assist in evaluating and screening complaints and to assist
23in developing uniform standards and procedures for processing
24complaints.
25(c) The Senior Assistant Attorney General or his or her deputy
26attorneys general shall assist the boards or committees in designing
27and providing initial and in-service training programs for staff of
28the boards or committees, including, but not limited to, information
29collection and investigation.
30(d) The determination to bring a disciplinary proceeding against
31a licensee of the boards shall be made by the executive officer of
32the boards or committees as appropriate in consultation with the
33senior assistant.
Section 12529.5 of the Government Code, as amended
35by
Section 115 of Chapter 332 of the Statutes of 2012, is repealed.
Section 12529.6 of the
Government Code is amended
37to read:
(a) The Legislature finds and declares that the
39Medical Board of California, by ensuring the quality and safety
40of medical care, performs one of the most critical functions of state
P22 1government. Because of the critical importance of the board’s
2public health and safety function, the complexity of cases involving
3alleged misconduct by physicians and surgeons, and the evidentiary
4burden in the board’s disciplinary cases, the Legislature finds and
5declares that using a vertical enforcement and prosecution model
6for those investigations is in the best interests of the people of
7California.
8(b) Notwithstanding any other provision of law, as of January
91, 2006, each complaint that is referred to a district office of the
10board for investigation shall be simultaneously
and jointly assigned
11to an investigator and to the deputy attorney general in the Health
12Quality Enforcement Section responsible for prosecuting the case
13if the investigation results in the filing of an accusation. The joint
14assignment of the investigator and the deputy attorney general
15shall exist for the duration of the disciplinary matter. During the
16assignment, the investigator so assigned shall, under the direction
17but not the supervision of the deputy attorney general, be
18responsible for obtaining the evidence required to permit the
19Attorney General to advise the board on legal matters such as
20whether the board should file a formal accusation, dismiss the
21complaint for a lack of evidence required to meet the applicable
22burden of proof, or take other appropriate legal action.
23(c) The Medical Board of California, the Department of
24Consumer Affairs, and the Office of the Attorney General shall,
25if necessary, enter into an interagency
agreement to implement
26this section.
27(d) This section does not affect the requirements of Section
2812529.5 as applied to the Medical Board of California where
29complaints that have not been assigned to a field office for
30investigation are concerned.
31(e) It is the intent of the Legislature to enhance the vertical
32enforcement and prosecution model as set forth in subdivision (a).
33The Medical Board of California shall do all of the following:
34(1) Increase its computer capabilities and compatibilities with
35the Health Quality Enforcement Section in order to share case
36information.
37(2) Establish and implement a plan to locate its enforcement
38staff and the staff of the Health Quality Enforcement Section in
39the same offices, as appropriate, in order to carry out
the intent of
40the vertical enforcement and prosecution model.
P23 1(3) Establish and implement a plan to assist in team building
2between its enforcement staff and the staff of the Health Quality
3Enforcement Section in order to ensure a common and consistent
4knowledge base.
Section 12529.7 of the
Government Code is amended
7to read:
By March 1, 2015, the Medical Board of California,
9in consultation with the Department of Justice and the Department
10of Consumer Affairs, shall report and make recommendations to
11the Governor and the Legislature on the vertical enforcement and
12prosecution model created under Section 12529.6.
No reimbursement is required by this act pursuant to
15Section 6 of Article XIII B of the California Constitution because
16the only costs that may be incurred by a local agency or school
17district will be incurred because this act creates a new crime or
18infraction, eliminates a crime or infraction, or changes the penalty
19for a crime or infraction, within the meaning of Section 17556 of
20the Government Code, or changes the definition of a crime within
21the meaning of Section 6 of Article XIII B of the California
22Constitution.
O
97