BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  July 7, 2015


                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS


                                Susan Bonilla, Chair


                       SB 396(Hill) - As Amended June 29, 2015


          SENATE VOTE:  40-0


          SUBJECT:  Health care: outpatient settings and surgical clinics:  
          facilities: licensure and enforcement.


          SUMMARY:  Requires a Medicare-certified clinic and an accredited  
          outpatient setting, as specified, to request a report from the  
          appropriate healthcare regulatory board regarding the filing of  
          a peer review report; requires licensees who perform procedures  
          in outpatient settings to be subject to peer review every two  
          years and the accrediting body to review the findings of those  
          reports; and, further specifies that inspections of accredited  
          outpatient surgical centers may be unannounced with a 60-day  
          warning to the surgical center of the pending inspection.  


          EXISTING LAW:   


          1)Defines an "outpatient setting" to mean any facility, clinic,  
            unlicensed clinic, center, office, or other setting that is  
            not part of a general acute care facility, as specified, and  
            where anesthesia or peripheral nerve blocks, or both, is used  
            when in compliance with the community standard of practice, in  
            doses that, when administered have the probability of placing  








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            a patient at risk for loss of the patient's life-preserving  
            protective reflexes; and, specifies that "outpatient setting"  
            also means facilities that include in vitro fertilization.   
            (Health and Safety Code (HSC) Section 1248(b).


          2)Defines an "accreditation agency" to mean a public or private  
            organization that is approved to issue certificates of  
            accreditation to outpatient settings by the Medical Board of  
            California (MBC), as specified.  (HSC Section 1248(c))
          3)Requires the MBC to adopt standards for accreditation and, in  
            approving accreditation agencies to perform accreditation of  
            outpatient settings, must ensure that the certification  
            program meet specified standards and requirements.  (HSC  
            Section 1248.15)


          4)Specifies that any outpatient setting may apply to an  
            accreditation agency for a certificate of accreditation, and  
            accreditation must be issued by the accreditation agency  
            solely on the basis of compliance with its standards approved  
            by the MBC.  (HSC Section 1248.2(a))


          5)Requires the MBC to obtain and maintain a list of accredited  
            outpatient settings from the information provided by the  
            accreditation agencies and the MBC to notify the public, by  
            placing the information on its Internet website, whether an  
            outpatient setting is accredited or the setting's  
            accreditation has been revoked, suspended, or placed on  
            probation, or the setting has received a reprimand by the  
            accrediting agency.  (HSC Section 1248.2(b))


          6)Specifies that if an outpatient setting does not meet the  
            standards approved by the MBC, accreditation must be denied by  
            the accreditation agency, which must provide the outpatient  
            setting notification of the reasons for the denial, and that  
            an outpatient setting may reapply for accreditation at any  








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            time after receiving notification of the denial.  (HSC Section  
            1248.25)


          7)Provides that certificates of accreditation issued to  
            outpatient settings are valid for three years.  (HSC Section  
            1248.3)


          8)Requires the MBC to inspect every outpatient setting which is  
            accredited and ensure that accreditation agencies inspect  
            outpatient settings.  (HSC Section 1248.35(a))


          9)Provides the following requirements for MBC inspections of  
            outpatient settings:  (HSC Section 1248.35(b)(1),(2))  


             a)   The frequency of inspections depends upon the type and  
               complexity of the outpatient setting to be inspected; and, 
             b)   Inspections must be conducted no less often than once  
               every three years by the accreditation agency and as often  
               as necessary to ensure the quality of care provided.


          10)Specifies that before an accrediting agency suspends or  
            revokes a certificate of accreditation, the accreditation  
            agency must provide the outpatient setting with notice of any  
            deficiencies, and the outpatient setting must agree with the  
            accreditation agency on a plan of correction that will give  
            the outpatient setting reasonable time to supply information  
            demonstrating compliance with the standards of the  
            accreditation agency, as specified.  (HSC Section  
            1248.35(d)(1))
          11)Provides that if an outpatient setting does not comply with a  
            corrective action within a timeframe specified by the  
            accrediting agency, the accrediting agency must issue a  
            reprimand, and may either place the outpatient setting on  
            probation or suspend or revoke the accreditation of the  








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            outpatient setting and notify the MBC of its action.  (HSC  
            Section 1248.35(d)(2))


          12)Specifies that if an outpatient setting's certification of  
            accreditation has been suspended or revoked, or if the  
            accreditation has been denied, the accreditation agency is  
            required to do the following: 1) notify the MBC of the action,  
            2) send a notification letter to the outpatient setting of the  
            action and provide specified information, and 3) require the  
            outpatient setting to remove its accreditation certification  
            and post the notification letter in a conspicuous location  
            that is accessible to the public.  (HSC Section 1248.35(i))


          13)Defines "peer review" to mean a process in which a peer  
            review body reviews the basic qualifications, staff  
            privileges, employment, medical outcomes, or professional  
            conduct of licentiates to make recommendations for quality  
            improvement and education, if necessary, in order to determine  
            whether a licentiate may practice or continue to practice in a  
            health care facility, clinic, or other setting providing  
            medical services, and, if so, to determine the parameters of  
            that practice and assess and improve the quality of care  
            rendered in a health care facility, clinic, or other setting  
            providing medical services.  (Business and Professions Code  
            (BPC) Section 805(a)(1)(A))


          14)Requires the chief of staff of a medical or professional  
            staff or other chief executive officer, medical director, or  
            administrator of any peer review body and the chief executive  
            officer or administrator of any licensed health care facility  
            or clinic to file an "805 report" with the relevant agency  
            within 15 days after the effective date on which any of the  
            following occurs as a result of an action of a peer review  
            body:  (BPC Section 805(b))










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             a)   A licentiate's application for staff privileges or  
               membership is denied or rejected for a medical disciplinary  
               cause or reason;
             b)   A licentiate's membership, staff privileges, or  
               employment is terminated or revoked for a medical  
               disciplinary cause or reason; or, 


             c)   Restrictions are imposed, or voluntarily accepted, on  
               staff privileges, membership, or employment for a  
               cumulative total of 30 days or more for any 12 month  
               period, for a medical disciplinary cause or reason.  


          15)Requires that prior to granting or renewing staff privileges  
            for any physician and surgeon, psychologist, podiatrist, or  
            dentist, any health facility licensed, as specified, or any  
            health care service plan or medical care foundation, or the  
            medical staff of the institution, request a report from the  
            MBC, the Board of Psychology, the Osteopathic Medical Board,  
            or the Dental Board of California to determine if any 805  
            report indicating that the applying physician and surgeon,  
            psychologist, podiatrist, or dentist has been denied staff  
            privileges, been removed from a medical staff, or had his or  
            her staff privileges restricted, as specified.  (BPC Section  
            805.5(a))

          THIS BILL: 


          16)Adds an ambulatory surgery center or an accredited outpatient  
            setting, which are certified to participate in the Medicare  
            program, to the list of entities required to request a report  
            from the MBC, the Board of Psychology, the Osteopathic Medical  
            Board, or the Dental Board of California prior to granting or  
            renewing staff privileges for any licentiate, to determine if  
            any 805 report has been made indicating that the licensee has  
            had staff privileges revoked or restricted elsewhere, as  
            specified.








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          17)Extends the date by one year, from March 1, 2015, to March 1,  
            2016 for the MBC to submit a report and make recommendations  
            to the Governor and the Legislature on vertical enforcement.


          18)Requires each licensee, who performs procedures in an  
            outpatient setting that requires the outpatient setting to be  
            accredited to be peer reviewed at least every two years, and  
            that the peer review process must be a process in which the  
            basic qualifications, staff privileges, employment, medical  
            outcomes, or professional conduct of a licensee is reviewed to  
            make recommendations for quality improvement and education,  
            including an outpatient setting with only one licensee. 


          19)Requires peer review to be performed by licensees who are  
            qualified by education and experience to perform the same  
            types of, or similar, procedures, and the findings of the peer  
            review to be reported to the governing body who will determine  
            if the licensee continues to meet the requirements, as  
            specified.


          20)Requires the process that resulted in the findings of the  
            peer review to be reviewed by the accrediting agency at the  
            next survey to determine if the outpatient setting meets  
            applicable accreditation standards, as specified.


          21)Provides that after the initiation inspection for  
            accreditation, subsequent inspections may be unannounced, and  
            for unannounced routine inspections, accreditation agencies  
            must notify the outpatient setting that the inspection will  
            occur within 60 days.  


          22)Makes other minor and technical changes.  








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          FISCAL EFFECT:  According to the Senate Appropriations Committee  
          analysis dated May 18, 2015, this bill will likely result in  
          one-time costs of about $125,000 over two years for the adoption  
          of regulations by the Department of Public Health (DPH) The  
          projected initial licensing costs may be approximately $800,000  
          to review license application information and conduct initial  
          site inspections of surgical clinics. This cost estimate assumes  
          that the number of licensed surgical clinics under the bill will  
          increase to approximately 500, the number that were previously  
          licensed by the Department. These costs would be incurred once  
          the DPH completed the required regulations. After the initial  
          increase in licensing activity due to the new ability for  
          surgical clinics to be licensed, the ongoing costs should be  
          substantially reduced. There are also unknown costs for data  
          collection and analysis by the Office of Statewide Health  
          Planning and Development (OSHPD). Any costs incurred by the  
          OSHPD under the bill would be reimbursed by fees paid by  
          licensed surgical clinics.



          COMMENTS:  

          Purpose.  This bill is sponsored by the author.  According to  
          the author, "This bill would also allow an accredited outpatient  
          setting or "Medicare certified ambulatory surgical center" (i.e.  
          Ambulatory Surgery Center) to access reports from the [MBC] to  
          ensure patient protection when credentialing, granting or  
          renewing  staff privileges for providers at that facility.  This  
          measure will require that current outpatient settings are also  
          subject to peer review and that any peer review findings be  
          reported to their appropriate accrediting agency? [L]astly, this  
          bill would allow for unannounced inspections of an accredited  
          outpatient setting facility by Accreditation Agencies or the  
          [MBC]."










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          Background.  The recent June 29, 2015 amendments to this bill  
          significantly narrow the scope of the bill to require an  
          accredited outpatient setting or Medicare-certified ambulatory  
          surgery center to access peer review reports from the MBC when  
          credentialing, granting or renewing staff privileges in an  
          effort to enhance consumer protection.  This bill also specifies  
          that peer review evaluations are to be conducted every two years  
          for physicians and surgeons working in accredited outpatient  
          settings in order for recommendations to be made regarding  
          quality improvement and education, if necessary, for each  
          licensee in the outpatient settings.  Lastly, this bill  
          specifies that routine inspections of accredited outpatient  
          settings may be unannounced with a 60-day window after  
          notification that an unannounced inspection will occur.  This  
          bill is intended to strengthen the current accreditation process  
          and ensure that peer review reports are considered as part of  
          the accreditation process, as well as the process for granting  
          staff privileges. 


          Peer Review.  Peer review is a process where physicians evaluate  
          their colleagues' work to determine compliance with the standard  
          of care.  Peer reviews are intended to detect incompetent or  
          unprofessional physicians early and terminate, suspend, or limit  
          their practice if necessary.  According to the MBC, a "peer  
          review report" also referred to as an "805" report, is the  
          mechanism in which peer review bodies are required to report  
          certain information regarding licensees to the MBC.  The 805  
          reports must be filed if specified actions occur, which include:  
          1) a peer review body denies or rejects a licensee's  
          applications for staff privileges or membership for a medical  
          disciplinary cause or reason; 2) a licensee's staff privileges,  
          membership, or employment are revoked for a medical disciplinary  
          cause or reason; 3) restrictions are imposed, or voluntarily  
          accepted, on staff privileges, membership, or employment for a  
          total of 30 days or more within any 12 month period for medical  
          disciplinary reasons; 4) if the resignation, leave of absence,  
          withdrawal or abandonment of application or for renewal of  
          privileges occurs after receiving notice of a pending  








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          investigation initiated for a medical disciplinary cause or  
          reason; and, 5) a summary suspension of staff privileges,  
          membership, or employment is imposed for a period in excess of  
          14 days.  BPC Section 805 defines who the peer review body  
          consists of, including the licensed medical or professional  
          staff of any health facility, or clinic or an ambulatory surgery  
          center that is Medicare certified.  


          The peer review process helps to review the basic  
          qualifications, staff privileges, employment, medical outcome,  
          or professional conduct of a licensee to make recommendations  
          for quality improvement and education. In addition, the peer  
          review process aids in the determination of whether a licensee  
          may practice, or continue to practice in a healthcare facility,  
          clinic, or other settings providing medical services.  


          As detailed above, an 805 report is required to be filed with  
          the MBC (and other health related boards) within 15 days if a  
          licensee's application for staff privileges or membership is  
          rejected, on the effective date of an action to revoke or impose  
          restrictions on privileges, membership, or employment, or if the  
          licensee resigns, takes a leave of absence, withdraw or abandons  
          an application for privileges.  The 805 reports are not publicly  
          available to consumers; however, copies may be requested by  
          certain health care facilities.  Prior to granting or renewing  
          staff privileges for any physician and surgeon (and other health  
          care licensees as specified), it is also required that any  
          health care facility or the medical staff of the institution  
          request from the MBC (or other related health board) a report to  
          determine if any 805 report has been made indicating the  
          applying physician and surgeon (or other health care licensee,  
          as specified) has been denied staff privileges, been removed  
          from a medical staff, or had his or her staff privileges  
          restricted as provided in Section 805.  A failure to file an 805  
          report could be punishable by a fine of up to $100,000 per  
          violation, and for negligent or unintentional reporting, a fine  
          up to $50,000 per violation.  








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          This bill will expand the list of entities which must request an  
          805 report to include a facility certified to participate in the  
          Medicare program as an ambulatory surgical setting or an  
          accredited outpatient setting, as specified, to determine if a  
          report has been made indicating that a licensee has had staff  
          privileges revoked or restricted elsewhere.   


          In addition, this bill will require physicians and surgeons  
          working in accredited outpatient settings to be subjected to the  
          peer review process every two years, and requires the findings  
          from those reports to be reported to the accreditation agency  
          who would use the information as a tool to for the governing  
          body of the facility to determine if the licensee who was  
          subject to the peer review report continues to meet professional  
          qualification standards and is professionally credentialed for  
          the privileges to practice for which he or she is granted.  This  
          additional peer review requirement aims to help accrediting  
          agencies determine whether the outpatient setting meets  
          applicable accreditation standards.  


          Accredited healthcare facilities.  Outpatient surgery care  
          centers are facilities which provide surgery services in  
          out-of-hospital settings.  Under current law, physicians and  
          surgeons may not perform outpatient surgeries unless they are  
          performed in an accredited, licensed, or certified setting.   
          According to the MBC, if the surgical procedure requires  
          anesthesia to be administered in doses that have the probability  
          of placing a patient at risk for loss of the patient's  
          life-preserving protective reflexes, then the surgery must be  
          performed in an accredited, licensed, or certified setting.   
          However, if the surgery only requires local anesthesia or a  
          peripheral nerve block, or administers anti- anxiety medications  
          or pain killers in doses that do not place the patient at risk  
          for loss of life-preserving protective reflexes, then the  
          surgery does not have to be performed in an accredited,  








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          licensed, or certified setting.



          Outpatient surgery may take place in the following settings: 1)  
          an outpatient setting that is accredited by an accreditation  
          agency approved by the MBC; 2) a surgical clinic licensed by the  
          California Department of Public Health; or, 3) an ambulatory  
          surgical center certified by the Center for Medicare and  
          Medicaid Services to participate in the Medicare program.  In  
          addition to the outpatient settings above, there are specific  
          settings which are recognized in HSC 1248.1.  The MBC only has  
          jurisdiction over those outpatient settings which are accredited  
          through MBC approved accreditation agencies.  The MBC notes that  
          MBC approved accreditation agencies verify that each setting  
          meets specified standards before being awarded accreditation.   
          Each MBC approved accreditation agency is required to inspect  
          each setting at least once every three years.  HSC Section  
          1248.15 specifies the requirements necessary for an outpatient  
          center to meet accreditation standards.  As part of the  
          accreditation process, accreditation agencies are required to be  
          inspected once every three years, at a minimum.  This bill will  
          require that after the initiation inspection for accreditation,  
          all subsequent inspections may be unannounced and for those that  
          are unannounced, the accrediting body must provide a 60-day  
          window after notification for when the inspection might occur.  
          If the results of the inspection conclude that the setting is  
          out of compliance with the standards, the accreditation agency  
          must issue a deficiency report and may require correction, issue  
          a reprimand, place the setting on probation, or suspend or  
          revoke the accreditation.  The accreditation agency must issue a  
          report to the MBC within 24 hours if the setting has been issued  
          a reprimand, been placed on probation, or had its accreditation  
          suspended or revoked. This information is then posted on the  
          MBC's website where it is available to the public.  


          The MBC currently recognizes five accrediting agencies which  
          include: Accreditation Association for Ambulatory Health Care,  








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          Inc. (AAAHC), American Association for Accreditation of  
          Ambulatory Surgery Facilities, Inc. (AAAASF), The Joint  
          Commission, The Institute for Medical Quality (IMQ), and  
          American Osteopathic Association / Healthcare Facilities  
          Accreditation Program (HFAP). 


          Prior Related Legislation.  SB 100 (Price), Chapter 645,  
          Statutes of 2011, required the MBC to adopt regulations on or  
          before January 1, 2013, on the appropriate level of physician  
          availability necessary within clinics using laser or intense  
          pulse light devices for elective cosmetic surgery.  Made a  
          number of changes regarding the approval, oversight and  
                   inspection of outpatient settings, as defined, by MBC and  
          accreditation agencies approved by the MBC, and in developing a  
          plan of corrective action for any deficiencies found by the  
          accreditation agencies or the MBC during inspections, or  
          otherwise.  Revised the existing definition of "outpatient  
          settings" to include fertility clinics that offer in vitro  
          fertilization.



          SB 1150 (Negrete McLeod) of 2010, would have required license  
          designations on health care provider advertising; required the  
          MBC to adopt regulations regarding the appropriate level of  
          physician availability needed within clinics or other settings  
          using laser or intense pulse light devices; required the MBC to  
          post a factsheet on cosmetic surgery; required the MBC to adopt  
          standards for settings that offer in vitro fertilization; and  
          made changes to the MBC's oversight of accreditation agencies.   
          STATUS:  This bill was held in the Assembly Appropriations  
          Committee.

          SB 674 (Negrete McLeod) of 2009, would have required a health  
          care practitioner, as specified, to include specific  
          professional designation following the health care  
          practitioner's name in advertisements; required the MBC to adopt  
          regulations on the appropriate level of physician availability  








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          necessary within clinics or other settings using laser or  
          intense pulse light devices for elective cosmetic surgery;  
          required certain healing arts licensees to include in  
          advertisements certain words or designations following their  
          names indicating the particular educational degree they hold or  
          healing art they practice, as specified; and, authorized the MBC  
          to issue an accreditation agency a citation, including an  
          administrative fine, in accordance with a specified system  
          established by the MBC if the agency is not meeting the criteria  
          set by the MBC.  STATUS:  This bill was vetoed by Governor  
          Schwarzenegger.  The Governor's veto message stated, "While some  
          provisions may provide marginal improvements to consumer  
          protection, I cannot support this bill when it fails to address  
          the need for stronger licensing and oversight of outpatient  
          surgical centers.   The continued reliance by the medical  
          community on external accreditation agencies without enforcement  
          capability is an insufficient solution for protecting patients.   
          As outpatient surgeries continue to increase in number and  
          complexity, surgical centers cannot continue to perform  
          procedures in an unregulated and unenforced environment."

          AB 2122 (Plescia) of 2008, would have established the California  
          Outpatient Surgery Patient Safety and Improvement Act, which  
          would have required surgical clinics to meet prescribed  
          licensing requirements and standards, including compliance with  
          Medicare Conditions of Participation.  STATUS:  This bill was  
          held in the Assembly Appropriations Committee. 

          AB 543 (Plescia) of 2007, would have established licensing  
          requirements for surgical clinics and would have required,  
          effective January 1, 2008, that all surgical clinics meet  
          specified operating and staffing standards.  STATUS:  This bill  
          was vetoed by Governor Schwarzenegger.  The Governor's veto  
          message stated, "While I support the intent of this legislation,  
          I am unable to sign it as it lacks critical patient safety  
          protections. This bill doesn't establish appropriate time limits  
          for performing surgery under general anesthesia. Further, it  
          inappropriately restricts administrative flexibility and creates  
          state fiscal pressure during ongoing budget challenges.   I am  








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          directing the Department of Public Health to pursue legislation  
          that establishes licensure standards for these facilities that  
          are consistent with federal requirements and protect the health  
          and safety of patients."
          ARGUMENTS IN SUPPORT: 


          The  Medical Board of California  writes in support, "[This bill]  
          would require peer review evaluations every two years for  
          physicians and surgeons working in ambulatory surgery centers  
          and would allow the accredited outpatient setting facility  
          inspections performed by accreditation agencies to be  
          unannounced (after the initial inspection) and would require at  
          least a 60 day window to be given to facilities for unannounced  
          inspections?The [MBC] believes that for consumer protection,  
          physicians working in [ambulatory surgery centers] should be  
          subject to peer review evaluations, which would be given to the  
          governing body of the outpatient setting and be reviewed by the  
          accreditation agency at the next inspection of the outpatient  
          setting"  


          ARGUMENTS IN OPPOSITION:


          None on file to reflect the current version of the bill. 


          REGISTERED SUPPORT:


          Medical Board of California

          REGISTERED OPPOSITION:


          None on file to reflect the current version of the bill. 










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          Analysis Prepared by:Elissa Silva / B. & P. / (916)  
          319-3301