California Attorney General Issues Opinion Clarifying Term ‘Effective Date’ For Mandatory Reporting After Disciplinary Actions for Healthcare Professionals

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By Jonathan Padua

On April 17, 2020, at the request of the Medical Board of California (MBC), the Office of the Attorney General of California (AG) published an opinion clarifying the time by which certain peer review bodies, such as hospitals, must file a report with a California healing arts licensing agency, including MBC, when they take certain actions against medical professionals. Specifically, the opinion clarified that “effective date,” as it is used in section 805 of the Business and Professions Code, is defined as “the date on which the triggering decision becomes final, following the conclusion of any appeal by the licentiate to the peer review body, except where expressly provided otherwise.”

Section 805 applies to physicians, podiatrists, clinical psychologists, marriage and family therapists, clinical social workers, professional clinical counselors, dentists, and physician assistants. Within their respective medical institutions, peer bodies are formed to review the quality of professional care and to take actions against a licentiate for “medical disciplinary cause or reason.” When taking such an action, a peer review body must file an “805 report” with their respective licensing agency whenever “the peer review body, for medical disciplinary cause or reason, denies or rejects a licentiate’s application for membership or staff privileges; terminates or revokes a licentiate’s membership, staff privileges, or employment; or imposes restrictions (or restrictions are voluntarily accepted) on staff privileges, membership, or employment for a cumulative total of 30 days or more in a 12-month period.” The statute requires that the institution must file an 805 report “with the relevant agency within 15 days after the effective date” of any of the actions taken against a licentiate mentioned above.

The question MBC presented to the AG was whether the phrase “effective date” means the date of the peer body’s initial decision, or rather, the resolution of the peer body’s appeal process in the event that a licentiate chooses to appeal the peer body’s initial decision.

After conducting a statutory interpretation analysis, the AG concluded that the 805 report “must be filed within 15 days of the decision’s finality,” and that “[s]uch a decision becomes final after the peer review body’s appeals process is completed.” Under Business and Professions Code section 809.1, before the proposed decision becomes final, a licentiate “is entitled to written notice of: the final proposed action; the fact that the action, ‘if adopted,’ will be reported under section 805; the right to request a hearing; and the time limit in which to request a hearing.” According to the AG opinion, section 809.1 “distinguishes between a proposed action and one that has been adopted, and calls for the filing of an 805 report only after the action is adopted, or, in other words, becomes final.”

The AG found further support for its definition of “effective date” in section 805.1 of the Business and Professions Code, which the legislature added in 2010, and requires an 805 report to be filed before a proposed action becomes final when the decision is based on acts of serious misconduct, such as “gross or repeated deviation from the standard of care involving death or serious bodily injury to one or more patients,” or “[s]exual misconduct with one or more patients during a course of treatment or an examination.” According to the AG, the legislature’s addition of section 805.01 indicated its intent to balance “licensing agencies’ ability to investigate and take prompt action against troublesome, and potentially dangerous, licentiates” by carving out exceptions requiring immediate reporting concurrent with a licentiate’s appeal under particularly concerning or dangerous circumstances with “the fair process rights of licentiates by generally allowing licentiates to pursue their right to appeal before an 805 report is filed.”

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