Medical Board of California Extended Two More Years after Undergoing Substantial Sunset Review and Major Reform Discussion

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By Tala Hughes

On October 7, 2021, Governor Newsom signed the Medical Board of California’s (MBC) sunset extension bill, SB 806 (Roth) (Chapter 649, Statutes of 2021), which extends the Board’s sunset date for just two years, to January 1, 2024 (see LEGISLATION). The bill extends the provisions establishing the Osteopathic Medical Board of California (OMBC), the Podiatric Medical Board of California (PMBC), and the Physician Assistant Board (PAB) to January 1, 2026. The Senate Committee on Business, Professions and Economic Development and the Assembly Committee on Business and Professions held two Joint Sunset Review Oversight Hearings (Joint Hearings) on March 19, 2021, and May 5, 2021, to discuss issues raised by MBC in its Sunset Review Report.

On April 30, 2021, MBC issued a response to questions posed during the joint hearing on March 19, 2021. In its response, the Board gave a detailed overview of the Board’s disciplinary process, including how it investigates complaints, the benefits of settling a case, communication with complainants, and initiation of complaints by the Board. The Board provided data from recent fiscal years to answer questions from the March Joint Hearing, such as the percentage of stipulated settlements that followed disciplinary guidelines, percentage of stipulated settlements that used public reprimand as penalty, number of cases that resulted in licensed revocation, and the quantity of medical experts the Board has for each specialty. The Board goes into further detail on the disciplinary process in its responses on the complaint process (Issue #16); the impact of settlements (Issue #18); and the enforcement enhancements, disclosures, and delays (Issues #19, #20, and #21 respectively).

During the second joint hearing on May 5, 2021, the discussion lasted almost three hours and focused on various issues set forth by the Legislative Committee in the background paper regarding MBC in areas other than enforcement, which was covered during the first joint hearing on March 19, 2021. [26:2 CRLR 48–50] There was discussion on implementing the Physician and Surgeon Health and Wellness Program (PSHWP) (Issue #5) that the Board is working on with the Director of Consumer Affairs (DCA) Regulations Unit. The Board’s Staff Counsel, Kerrie Webb, emphasized that PSHWP is not a diversion program and that it is a priority of the Board to create an effective program to assist physicians without creating risk to patients and public safety. The Board and Legislative Committee also discussed at length licensed midwives (LMs) and the Board’s position set forth in the sunset report that a new licensed midwife board would be more appropriate to handle licensing and disciplinary responsibilities of LMs. Although SB 806 does not create a new LM board within the DCA, it does add section 2519.5 to the Business and Professions Code that requires experts with education, training, and expertise in midwifery to review midwifery complaints (Issue #7). There was also discussion on postgraduate training license (PTL), which are considered a restricted license under federal law and are unable to qualify for payment of Medi-Cal services. The Board plans on continuing to work with stakeholders, including the California Department of Healthcare Services (DHCS) and the California Academy of Family Physicians (CAFP), as well as reaching out to other states with licenses similar to PTLs. The Board anticipates returning to these issues in further discussions at a later date.

During its August 19, 2021 meeting, the Board maintained its position to support the bill if amended to include a public member majority on the Board (Issue #1), to increase the fees to the originally requested amount in the Sunset Report (Issue #9), and to have a four-year sunset extension rather than a two-year extension. Although these proposals were not included, other key points discussed during the sunset process that were included in the final version of the bill are set forth below.

Section 125.3 of the Business and Professions Code is amended to include a cost recovery provision, allowing MBC to recover the costs of investigation and prosecution for a successful disciplinary proceeding against a physician licensee (Issue #8). The Board believes this provision will help offset costs and incentivize licensees to settle cases, allowing for quicker discipline and less cost for administrative hearings.

The bill amends various sections of the Business and Professions Code to increase fees for all MBC-regulated licenses starting on January 1, 2022 (Issue #9). The legislature is required to review the fees again in 2022 to decide whether to increase the fees more to ensure the adequacy of the Board’s contingent funds. At the August 19, 2021 meeting, Executive Director, William Prashifka, stated that the Board was disappointed to see the fund increase lowered because insufficient operation funds will render the Board ineffective. The Board estimates that its funds will go negative during FY 2022–23 with the fee levels set forth in SB 806.

Section 2097 updates the PTL program (Issue #11) by renaming it to “postgraduate license” and allowing these licensees to qualify for a physician’s license if they receive credit for 36 months of postgraduate training. This provision changes the current law which required PTL holders to complete 24 continuous months in the same program out of the 36 months of training, which prevented them from qualifying if they took a leave of absence during training.

Section 2220.01 requires the DCA to appoint an independent enforcement monitor by March 1, 2022, to evaluate the Board’s enforcement processes, such as the handling and processing of complaints and timely application discipline imposed upon licensees. The monitor would report its findings to the Legislator and MBC and would give the Board the opportunity to reply to the report on any findings it disagrees with.

Section 2227.3 is added to allow the executive director to resolve complaints for minor violations of the Medical Practice Act by issuing a confidential letter of advice to be complied with (Issue #17). The Board anticipates implementing this provision through the rulemaking process to decide how the confidential letter mechanism will work.

All of the new amendments to the Business and Professions Code in SB 806 become effective January 1, 2022. The Board will release information on its website as soon as possible regarding new licensing fees and renewals, as well as other information that could impact the public, applicants, and licensees. The Legislature will review the Board again in 2024.

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