Mandated Reporting of Sexual Misconduct Allegations against California Licensed Physicians by Healthcare Facilities

The Medical Board of California and other healthcare licensing boards hold licensed physicians and other healthcare licensees to an extremely high standard regarding sexual misconduct allegations. Every day physicians, and other healthcare licensees, who communicate with hundreds of patients each week, face the possibility of patients reporting unprofessional conduct, which can trigger a license investigation and license discipline.

Existing laws require the Medical Board of California, and other licensing boards, to monitor, regulate, and discipline licensed health care practitioners. When licensed physicians face sexual or inappropriate misconduct allegations, the health care facility’s administrative staff or executive member may conduct a peer review. Upon review of the allegation, the facility can choose to take disciplinary action against the licensed practitioner, including denial or revocation of privileges, which must then be reported to the Medical Board of California. The licensing agency is authorized to conduct disciplinary action, including revoking a physician’s license or issuing probation.

However, Senate Bill 425 now requires health care facilities to report any allegation of sexual abuse or misconduct against a licensee by a patient, if the patient or patient’s representative makes the allegation in writing, to the Medical Board of California or relevant licensing agency within 15 days.  This new reporting requirement is found in Business and Professions Code section 805.8.  Failure to report these allegations is punishable by a civil fine of up to $100,000 per violation. This applies to all health care facilities, which now include post-secondary educational institutions and facilities that are contracting a licensed practitioner to care for patients.  Additionally, California licensing agencies are now also required to conduct an investigation of the licensed physician or practitioner. 

Sexual and unprofessional misconduct allegations pose a serious threat to a practitioner or physician’s license, regardless of a licensee’s innocence. Mere allegations – even threadbare complaints – from a discontent patient can pressure the Medical Board other licensing board to take firm measures against a licensed practitioner.  In these sensitive circumstances, healthcare licensees must act quickly and consult an attorney to avoid permanent consequences.

More information about Ray & Bishop’s services for California physicians is available here.

More Practice-Level Guidelines for Physician Assistants

The Physician Assistant Practice Act sets forth supervision requirements for licensed physician assistants (PAs) in California. These requirements set statewide standards for supervision, agreements, and protocols mostly under the delegation of physicians and surgeons.

Signed by Governor Newsom on October 9, 2019, and effective January 1, 2020, Senate Bill 697 relaxes chart review and physician signature requirements allowing decisions to be made at the practice level. All references to “delegation of services agreements” have been changed to “practice agreements”, the most notable change to recognize physician assistants as independent and capable health care workers.

Practice Agreements and Redefining Supervision

Under the new law, the practice agreement can be a collaboration among one or more physicians and one or more physician assistants, offering greater flexibility. This allows one or more physicians, instead of one under the previous law, to have an agreement supervising one or more physician assistants.

The act previously required medical records to identify the physician responsible for supervising the physician assistant, with written guidelines regarding adequate supervision. This established specific and constant supervision over physician assistants. 

SB 697 removed these requirements and instead authorized physicians and surgeons to create their own practice agreement to determine necessary levels of supervision over physician assistants. The practice agreement can establish policies, procedures, and meet any other requirements set forth between these practitioners. If these requirements are met, the physician assistant can perform any medical service authorized by the Physician Assistant Practice Act that they are competent to perform. 

The bill also redefines “supervision” to not require the supervising physician to be physically present. The bill only requires that the physician be available by an electronic communication method at the time the physician assistant examines the patient. “Adequate supervision” will be defined and agreed upon in the practice agreement as well.

Physician Assistant and Drug Administering

Physician assistants were previously required to be physically supervised by a physician and surgeon while administering medication to a patient or in a drug order.

Physician assistants may now administer medication to a patient or drug order in accordance with the practice agreement. The bill also authorizes a physician assistant to order or provide Schedule II or III controlled substances to the treated patient in accordance with the practice agreement or if approved by the treating supervising physician and surgeon. However, physician assistants must first complete a course that covers Schedule II controlled substances based on the standards developed by the licensing board.

While creating a practice agreement is more flexible for physicians and physician assistants within an organized health care system, this can also lead to complications and miscommunication. Organizations must ensure physicians and surgeons create precise practice agreements for physician assistants to have a smooth transition into greater independence. If you are a physician assistant or a supervising physician or surgeon  in need of assistance regarding practice agreements or legal issues within your practice,  contact Ray & Bishop, PLC to consult with one of our experienced medical license defense attorneys.

To see how we can help physician assistants, click here.

The Department of Business Oversight (DBO) changed its name to the Department of Financial Protection and Innovation (DFPI) effective September 29, 2020.  Along with this name change, effective January 1, 2021, the new California Consumer Financial Protection Law (CCFPL) grants the Department of Financial Protection and Innovation new powers to investigate previously unregulated businesses, such as debt collectors, rent to own contracts and other point of sale financing, consumer credit reporting agencies and credit repair agencies.

The Department of Financial Protection and Innovation’s primary role will continue to be the licensing and license regulation of California finance lender licensees (CFLs), California Deferred Deposit lender licenses under the CDTTL (also known as payday lenders), mortgage loan originator licenses (MLOs), state securities law regulations, and the regulation of certain state-chartered financial institutions such as credit unions.

This is the second major name change for this agency.  Until 2013, it was called the California Department of Corporations.  In 2013, the State of California combined the California Department of Corporations and the California Department of Financial Institutions into the Department of Business Oversight.  With the addition of new powers including expanded reach of regulation into fintech areas, this year DBO has been renamed DFPI.

Cases that the Department of Business Oversight has brought as DBO against a licensee before the name change will not be affected by the name change of this license regulator from DBO to DFPI.  However, moving forward, license discipline actions against California finance lenders, California payday lenders, mortgage loan originators and others will be brought by the DFPI.  Common DFPI actions will include cease and desist orders, or C&D orders, notices of intention to revoke a license, accusations and license denials.  DFPI will also carry out regulatory examinations of regulated businesses such as California finance lender licenses.

If you have a legal issue with the DFPI, Ray & Bishop, PLC can help.  For more information, please see the DBO – DFPI page on our website.

Tweaks to C.U.R.E.S. Database Reporting and Access

The Controlled Substance Utilization Review and Evaluation System (C.U.R.E.S.) is a prescription monitoring program maintained by California’s licensed physicians, licensed physician assistants, licensed pharmacies, licensed pharmacists, and any other prescribing California health care professionals. On October 2, 2018, the California Department of Justice (DOJ) certified the mandatory statewide use of the C.U.R.E.S. database, consisting of all DEA Schedule II, III, and IV controlled substance prescriptions dispensed in California. 

California lawmakers amended Assembly Bill 528 to expand on California pharmacy prescription reporting requirements and to increase access to the C.U.R.E.S. database for licensed physicians, pharmacists, and other practitioners who are not even authorized to prescribe or dispense controlled substances.

Tighter C.U.R.E.S. Reporting Requirements

Beginning January 1, 2021, any California licensed dispenser of prescription drugs must report the required information to the C.U.R.E.S. database within one working day after the controlled substance is released to the prescribed patient or the prescribed patient’s representative. The Department of Justice previously allowed California’s pharmacists and other dispensers to report this required information within seven working days. The bill also now requires dispensed Schedule V controlled substances to be reported to C.U.R.E.S. as well.

Consulting with the C.U.R.E.S. Database

Authorized health care licensees will only be required to review a California patient’s controlled substance history through the CURES database at least once every six months. Previously, the law required licensed practitioners and licensed pharmacists to consult with the C.U.R.E.S. database once every four months. Additional review and documentation are now required for a health care practitioner who receives the C.U.R.E.S. database information from another authorized user.

Increased Access to C.U.R.E.S. Information

Initially, only health care practitioners with a DEA registration, such as physicians and pharmacists authorized to prescribe and dispense controlled substances, could request and obtain approval to access information in the C.U.R.E.S. database. This bill will now permit licensed physicians, surgeons, and other practitioners without a DEA registration to request and obtain approval to access information in the C.U.R.E.S. database.

While patients and licensed health care practitioners must await approval to access the C.U.R.E.S. database, the Medical Board of California has unlimited and immediate access to these database records. Under these new measures and stricter reporting requirements, the C.U.R.E.S. database will be an even more powerful tool to monitor licensed physicians, nurse practitioners, pharmacists, and other authorized prescribing practitioners.  If you are a medical professional under investigation or concerned about your license, contact Ray & Bishop, PLC for assistance.

 

Senate Bill (SB) 798 has made changes to postgraduate training and licensing requirements for all residents applying for a Physician’s and Surgeon’s Certificate with the Medical Board of California, effective January 1, 2020.  Previously, the Medical Board of California (MBC) only required international medical graduates (IMGs) to obtain a Postgraduate Training Authorization Letter (PTAL) to apply for residency and to train in California. SB 798 revisions no longer require international applicants to obtain a PTAL. Effective 2020, all domestic and international medical graduates must acquire a Postgraduate Training License (PTL) to train in California.

New California Physician Training Requirements

For a license applicant to qualify for a full physician’s license in California, the Medical Board of California previously required US medical graduates to complete 12 months of postgraduate training and for international medical graduates to complete 24 months of postgraduate training. All California physician license applicants must now complete 36 months of accredited postgraduate training at a residency program accredited by the Accreditation Council for Graduate Medical Education (AGME), Royal College of Physicians and Surgeons of Canada (RCPSC), or College of Family Physicians of Canada (CFPC).  Trainees must complete at least 24 consecutive months of physician training within the same program – within the first 36 months – to be eligible for a California Medical Board Physician’s and Surgeon’s license.

Critical Requirements and Timeline for Obtaining the Postgraduate Training License

  • PTL license applicants must obtain the Postgraduate Training License within 180 days of enrollment in the accredited program in California. License applicants are encouraged to submit the Postgraduate Training License application immediately upon acceptance into the program.
  • The Postgraduate Training License remains valid for 90 days after completing a 36-month training program. Within the 90 days, trainees must apply for a full and unrestricted California physician’s license to continue practicing medicine in California. Physician trainees must cease all clinical activities upon completing training until they obtain the unrestricted license.
  • To be eligible for a Postgraduate Training License, applicants must have graduated from a Medical Board of California approved medical school and have successfully completed at least Steps 1 and 2CK of the USMLE Exams.
  • For current residents in training, the deadline to obtain a Postgraduate Training License in 2020 has been extended to August 31, 2020 from the previous June 30, 2020 deadline.

To be eligible for a Postgraduate Training License in California, a license applicant’s medical school education must meet specific requirements set forth by the Medical Board of California. License applicants need to provide transcripts and certifications, and complete various application forms to provide extensive personal and educational information. The Postgraduate Training License Application and the Physician’s License Application forms request detailed explanations for an applicant’s personal and professional activities following medical school graduation, any leaves of absence during training, disciplinary history, practice impairments, and other “unusual circumstances.”

If you are a current or potential resident facing a possible denial of the Postgraduate Training License application or the full Physician’s License application, or you are concerned about a license denial due to an adverse event disclosure, contact Ray & Bishop for a consultation with one of our experienced physician license defense attorneys.

Related Post: Understanding the “Unusual Circumstances” Background Questions on the Medical Board of California License Application

Click here for more information about how the license defense lawyers at Ray & Bishop defend medical doctors and physician license applicants. 

In 2019, we represented a licensee of the Department of Insurance who had previously held a restricted license due to a criminal conviction.  After the initial restrictions were lifted, the client was disciplined twice by FINRA, revoked in another state, and had an application denied in yet another state. The client failed to notify DOI about either of the out-of-state matters as required by the Insurance Code, and one of the FINRA disciplinary actions.  The Department issued a summary revocation, meaning the client would lose his license in 30 days and would not be entitled to even present evidence at an administrative hearing.  We filed a Petition for Reconsideration directly to the Department after gathering evidence of rehabilitation from the client.  That petition was granted, which allowed the client an opportunity to defend the case in hearing.  However, with our experience and using sound factual and legal arguments, we were able to negotiate a restricted license so that the client could continue in business.

Our office represented a registered nurse in 2019 who had suffered discipline from a registered nursing state agency outside of California.  The allegations were that the nurse had admitted to a substance abuse dependency and was subject to five years of monitoring in the other state due to that admission.  The California Board of Registered Nursing brought an Accusation against the client, attempting to revoke the client’s license.  After careful consideration of our client’s credibility, the evidence the client would be able to present, and the availability of witnesses to testify on behalf of our client, we proceeded to an administrative hearing in front of the Office of Administrative Hearings in San Diego.  The Proposed Decision from the Administrative Law Judge dismissed the Accusation, and the Board of Registered Nursing adopted the Decision.  The client was not disciplined in California at all.  This case highlights the importance of experienced trial counsel in professional licensing matters, so that every licensee can make an informed decision about whether or not settlement is appropriate under the circumstances, or whether an administrative hearing is necessary to protect the licensee from discipline.

A licensed vocational nurse functioning as a supervisor of other LVNs in a care facility was accused by the facility of failing to report an incident of a patient falling in the facility.  With our guidance, the nurse admitted to the DCA investigator that the fall had occurred and it had not been properly reported.  We assisted the nurse in presenting evidence of rehabilitation as well as the context for the incident, including the nurse’s working conditions and the impact of a personal trauma on the day of the alleged failure to report.  The Department of Consumer Affairs concluded its investigation and sent it to the LVN Board for review.  The Board of Vocational Nursing and Psychiatric Technicians elected not to file a disciplinary action, and closed the case with no adverse reporting, disciplinary action, or consequences for our nursing client.  This case highlights the importance of having experienced counsel manage all disclosures and information between an accused nurse and the licensing board, since even cases where fault is admitted can end with a dismissal or a lack of discipline.

As part of the State of California’s ongoing battle against the spread of COVID-19, Governor Gavin Newsom announced the formation of the California Health Corps, a measure designed to dramatically expand the health care workforce and staff the additional hospital beds necessary to treat COVID-19 patients.  The breadth of the health corps encompasses nearly all professional licensees, including:

–          Physicians, including residents

–          Pharmacists

–          Dentists

–          Nurse practitioners

–          Physical assistants

–          Nurses (RNs, LVNs, and CNAs), including nursing students

–          All behavioral health professionals

–          Respiratory therapists

–          Paramedics, EMTS, medical assistants, and more

According to the information provided by the state, participants will be paid and given malpractice insurance.  Details about deployment are still vague, but the state has indicated that it will try to match the geographic preferences of applicants.

However, the requirements for participation in the Health Corps may exclude professional licensees with any measure of discipline.  The state’s guidance so far indicates only that those eligible must “have no negative licensure/certification actions”.  It is unclear whether this means currently or historically—in other words, whether probation or a reproval/reprimand from ten years ago would preclude a licensee from joining the Health Corps today, or whether the disciplinary action must be ongoing.  It is also unclear what the definition of “actions” is, at this stage.  For example, licensees who have been cited previously by a state agency, but informed that the action was not disciplinary, could be eligible or ineligible depending on how this requirement is interpreted.

The final, most pressing question is how the state will interpret the presence of an ongoing disciplinary action, such as an Accusation, or investigation against a licensee.  If the state will accept licensees with Accusations as part of the Health Corps, it would be prudent to explore this option immediately if possible.

Right now, California is calling for professionals to register through an online sign up.  When licensees follow the online signup, questions are asked about the status of the responder’s license, such as whether or not it is good standing and “free of adverse actions and restrictions”.  If you are eligible and interested in signing up for the California Health Corps, you should discuss your options with an experienced licensing attorney to determine how this question should be answered, depending on the facts of your licensing and/or disciplinary history.

This article was written March 31, 2020, and all information contained within may be rendered obsolete by the rapid pace of change in California due to COVID-19.

The worldwide spread of COVID-19 is placing unprecedented stress and demand on California physicians, registered nurses, nurse practitioners, physician assistants, and other medical professionals.  However, despite these urgent demands, the administrative disciplinary system continues to investigate claims of unprofessional conduct, and hearings for nurses and doctors are still being scheduled, prepared, and settled, despite the temporary court closure (which we have written about in a separate article).

As doctors and nurses make sacrifices to protect the public interest, it is essential for those nurses and doctors who are under investigation or facing a disciplinary matter to carefully document their workload, conditions, and sacrifices during the pandemic.  The burden of caring for an entire state during this crisis is thankless, and doctors and nurses often do so with humility and courage.  However, medical professionals facing discipline should take care to do the following:

–          Make a detailed log of shifts worked and working conditions

–          Establish contact information for their supervisors and colleagues

–          Document the presence of, or substitution for (if any), protective equipment

–          Carefully monitor their own health during the crisis

All of this information will be relevant when the pandemic subsides, and could be used to positively reflect on the character of a doctor or nurse whose professional fitness is being questioned by a state agency.  Additionally, this may be an ideal time to reach a stipulated settlement to allow professionals to continue working without the cloud of license discipline affecting their employment future.

We urge any medical professionals who face a threat to their license to contact experienced professional license defense counsel for assistance.