2008 New Laws

The 2007 legislative session produced ample, and at times, significant changes to laws affecting physicians. Below is a summary of the most significant legislation, along with references to the ON-CALL documents that discuss the topic more fully.

ON-CALL documents are available free to members at CMA’s members-only website. Nonmembers can purchase ON-CALL documents for $2 per page in the CMA Bookstore.

ADA/Discrimination

California law has long subjected physicians (and other licensed health care providers) to disciplinary action in the event they violate the antidiscrimination provisions set forth in the Unruh Civil Rights Act (Civil Code §51) with respect to a patient. (Business & Professions Code §125.6.) This law has been clarified to provide that this basis for discipline does not prevent a physician from (1) considering any of those characteristics defined in the Unruh Civil Rights Act (that is, race, color, sex, religion, ancestry, disability, marital status, national origin, medical condition or sexual orientation) if that consideration is medically necessary and for the sole purpose of determining the appropriate diagnosis or treatment, or (2) refusing to perform an activity for which he or she is not qualified to perform. (Id.) For more information, see CMA ON-CALL document #0814, " Disabled Patients: Provision of Health Care Services."

(A.B. 14, Ch. 568, Stats. 2007.)

AIDS & HIV

Consent

Prior California law, passed in the 1980s, required informed consent before a patient could be tested for HIV. This proved to be a barrier to routine screening for HIV in populations that were not at obvious risk but may still have been infected.

In order to achieve routine screening in California, a new statute, co-sponsored by CMA (A.B. 682), now establishes a simpler standard of consent for the general population, as well as for pregnant women. With this law, health care providers will comply with Centers for Disease Control guidelines and make HIV screening a routine part of their health care delivery. (Health & Safety Code §120990.)

Pursuant to this law, prior to ordering a test that identifies infection with HIV, a physician (or other "medical care provider") must inform the patient:

the test is planned;
about the test;
that there are numerous treatment options available for a patient who tests positive for HIV;
a person who tests negative for HIV should continue to be routinely tested; and
that he or she has a right to decline the test.

If the patient declines the test, the physician must note that fact in the patient's medical file. (Id.)

This law and other laws related to consent for HIV tests are discussed in full in the revised ON-CALL document #0414, "Consent for HIV Tests."

(A.B. 682, Ch. 550, Stats. 2007.)

Name-Based Reporting

After several years of advocating for name-based reporting, in April 2006, California passed legislation to allow confidential name-based reporting to the Department of Health Services (DHS). This legislation was supported by CMA and was essential to California's continued eligibility for federal money for the treatment of AIDS patients. As a result, California's code-based system for reporting HIV-related information has been replaced by a name-based reporting system. (Health & Safety Code § 121022.) That section provides that:

To ensure knowledge of current trends in the HIV epidemic and to assure that California remains competitive for federal HIV and AIDS funding, health care providers and laboratories shall report cases of HIV infection to the local health officer using patient names.

Regulations implementing this law were adopted in 2007 and are set forth in 17 C.C.R. §§2641 et seq. These regulations require that within seven (7) calendar days of receipt from a laboratory of a patient's confirmed HIV test, health care providers must report the confirmed HIV test, including the patient's name, to the local health officer from the jurisdiction where the health care provider facility is located. This reporting form, available at www.dhs.ca.gov/ps/ooa/HIVReporting, should be sent to the local health department, not the California Department of Health Services. The report must be sent by traceable mail or person to person transfer and it must not be sent by electronic facsimile transmission, electronic mail or by non-traceable mail. (17 C.C.R. §2643.5.)

Notwithstanding this duty to report to the local health officer, reported cases of HIV infection must not be disclosed, discoverable or compelled to be produced in a civil, criminal, administrative or other proceeding. (Health & Safety Code §121022.) For more information on this law and other laws related to confidentiality of AIDS/HIV information, see CMA ON-CALL document #1112, "Confidentiality of HIV/AIDS Information."

Allied Health Professions

Optometrists

The scope of practice of optometrists has been amended to clarify that an optometrist may treat primary open-angle glaucoma only in persons over 18 years of age, and that an optometrist must be supervised for a specified number of procedures by a "collaborating ophthalmologist." A "collaborating ophthalmologist" is now defined as a physician and surgeon who is licensed in California and in the active practice of ophthalmology. For more information concerning the scope of practice for optometrists, see CMA ON-CALL document #1617, "Optometrists."

Optometrists are also now included within the definition of "health care practitioner" for the purposes of the informed consent requirements when health care is delivered by telemedicine. (Business & Professions Code §2290.5.) For more information on telemedicine, see CMA ON-CALL document #0435, "Telemedicine."

(A.B. 1124, Ch. 507, Stats. 2007.)

Physician Assistants

No Medical Board Approval Required. The Physician Assistant Practice Act (Business & Professions Code §3500) was amended to, among other things, eliminate completely the requirement that the supervising physician be approved by the Medical Board of California (MBC). It instead now specifies that a physician may supervise a Physician Assistant if he/she is not "subject to a disciplinary condition imposed by the board prohibiting that supervision or prohibiting the employment of a physician assistant." (Business & Professions Code §3502.)

Supervision Requirements. A physician assistant (PA) and his or her supervising physician and surgeon must also establish written guidelines for the adequate supervision of the physician assistant. This requirement may be satisfied by the supervising physician and surgeon adopting protocols for some or all of the tasks performed by the physician assistant. With the new law, these protocols must comply with the following requirements:

protocol governing diagnosis and management must, at a minimum, include the presence or absence of symptoms, signs, and other data necessary to establish a diagnosis or assessment, any appropriate tests or studies to order, drugs to recommend to the patient, and education to be provided to the patient.
A protocol governing procedures must set forth the information to be provided to the patient, the nature of the consent to be obtained from the patient, the preparation and technique of the procedure, and the follow-up care.
Protocols must be developed by the supervising physician and surgeon or adopted from, or referenced to, texts or other sources.
Protocols must be signed and dated by the supervising physician and surgeon and the physician assistant.

Under the revised law, the supervising physician and surgeon must review, countersign, and date a sample consisting of, at a minimum, 5 percent (as opposed to all) of the medical records of patients treated by the physician assistant functioning under the protocols within 30 days of the date of treatment by the physician assistant. The physician and surgeon must also select for review those cases that by diagnosis, problem, treatment, or procedure represent, in his or her judgment, the most significant risk to the patient. However, notwithstanding these requirements, the Medical Board or Physician Assistant Committee may establish other mechanisms for the adequate supervision of the physician assistant. (Id.) (Business & Professions Code §3502.)

Four PAs to One Physician Allowed. While the limit was at one time two, the law was also amended to provide no physician may supervise more than four (4) PAs at any one time. (Business & Professions Code §3516.)

Controlled Substances. A physician assistant may now administer, provide, or issue a drug order to a patient for Schedule II through Schedule V controlled substances without advance approval by a supervising physician and surgeon for that particular patient so long as the physician assistant has completed an education course that covers controlled substances and that meets standards, including pharmacological content, approved by the Physician Assistant Committee. The education course must be provided either by an accredited continuing education provider or by an approved physician assistant training program. If the physician assistant will administer, provide, or issue a drug order for Schedule II controlled substances, the course must contain a minimum of three hours exclusively on Schedule II controlled substances. Completion of these requirements must be verified and documented in the manner established by the Committee prior to the physician assistant's use of a registration number issued by the United States Drug Enforcement Administration to the physician assistant to administer, provide, or issue a drug order to a patient for a controlled substance without advance approval by a supervising physician and surgeon for that particular patient. (Business & Professions Code §3502.1.) For more information on physician assistants, see CMA ON-CALL document #1620, "Physician Assistants."

(A.B. 3, Ch. 376, Stats. 2007.)

Dental Assistants

Senate Bill 1049 repeals the expiration date for certain licensure requirements applicable to dental assistants under prior law. As a result of the changes made by Senate Bill 1049, the Dental Board (”Board”) is required, until January 1, 20011, to license as a registered dental assistant a person who files an application prior to September 1, 2009, and submits specified written evidence of either graduation from a specified educational program or specified work experience that is satisfactory tothe Board.

On and after September 1,2009, a person may apply for and be issued a license as a registered dental assistant by providing evidence of either completion of a specified educational program or specified work experience and the completion of three Board-approved specialty registration courses. This is urgency legislation and became effective October 13, 2007, amending Business and Professions Code Sections 1752.1, 1752.2, 1752.5 and 2607.5.

Family Therapists

Assembly Bill 234, among other things, limits the number of hours that an applicant for licensure as a marriage and family therapist (“MFT”) may apply to experience earned in furnishing personal psychotherapy services if the applicant performed the services via telemedicine, as defined. It also provides that education gained while residing outside California applies toward MFT licensure requirements, and revises the educational and experience requirements required for licensure as an educational psychologist. (Amends Business and Professions Code Sections 4980.03, 4980.43, 4980.45, 4980.90, 4989.34 and 4989.44.)

Clinical Laboratories

To further prevent the possibility of "marking up" clinical laboratory fees, the law requires, effective January 1, 2008, that a clinical laboratory or a physician who provides anatomic pathology services, as defined, to bill directly the responsible payor—either the patient or third party payor. Further, the law prohibits physicians from charging, billing or otherwise soliciting payment, directly or indirectly, for anatomical pathology services if those services were not actually rendered by that physician or under his or her supervision. (Business & Professions Code §655.7.) (Prior to January 1, 2008, a similar law applied to cytologic services "relating" to the examination of gynecologic slides which has been superseded by Section 655.7.)

The law defines "anatomic pathology services" as follows:

Histopathology, meaning the gross and microscopic examination of organ tissue performed by a physician and surgeon or under the supervision of a physician and surgeon.
Cytopathology, meaning the examination of cells from fluids, aspirates, washings, brushings, or smears, including the Pap test examination, performed by a physician and surgeon or under the supervision of a physician and surgeon.
Hematology, meaning the microscopic evaluation of bone marrow aspirates and biopsies performed by a physician and surgeon or under the supervision of a physician and surgeon, and peripheral blood smears when the attending or treating physician and surgeon or technologist requests that a blood smear by reviewed by a pathologist.
Subcellular pathology and molecular pathology, when required to be reviewed by a pathologist.
Surgical pathology, meaning the gross and microscopic examination of organ tissue performed by a physician and surgeon or under the supervision of a physician and surgeon.
Transfusion medicine or blood banking services performed by a pathologist.

As can be seen, this law does not apply to other forms of clinical laboratory services such as chemical pathology that typically encompasses the analysis of blood and other body fluids by the use of automated laboratory equipment. Further, given the way "anatomic pathology services" was defined, the reach of the bill can be fairly narrow, depending on the service involved. For example, with respect to histopathology, the direct billing requirement and prohibition applies only when the referring physician performs no examination of the referred specimen.

In all cases, physicians may still bill for the technical component of the clinical laboratory service as well as for all services actually rendered, such as a reasonable drawing and processing fee and fees for interpretation. Similarly, with respect to physician office laboratories (POL), the law does not apply to the technical component. Further, they may continue to bill for services provided directly or through arrangements with physicians or where they sent the sample for specialized testing.

Further, this statute does not apply when these anatomic pathology services are provided (1) under contract to members of prepaid Knox-Keene plans; (2) for free or on a sliding scale payment basis which reflects the patient's ability to pay; (3) by public entities (including colleges and universities); (4) by private educational institutions serving their students; or (5) under contract with an employer to that employer's employees if the anatomic pathology services relating to the examination of gynecologic slides are provided under the contract.

Finally, it must be remembered that any billings by physicians pursuant to this section must not only be consistent with current CPT codes governing reimbursement for these services, but also the disclosure and anti-markup requirement of Business & Professions Code §655.5. Further, this statute is far from a model of clarity and is open to multiple interpretations. Physicians unsure of their obligations pursuant to this law are urged to contact their personal attorney. For more information on clinical laboratories, see CMA ON-CALL document #0305, "Clinical Laboratories: Disclosure, Payment, Billing, Record Retention, and Storage."

(S.B. 661, Ch. 656, Stats. 2007.)

Consent

Blood Transfusions

Whenever there is a reasonable possibility, as determined by a physician and surgeon (or podiatrist), that a blood transfusion may be necessary as a result of a medical or surgical procedure, the law now allows that a nurse practitioner, certified nurse midwife, or a physician assistant, who is California licensed and authorized to order a blood transfusion, inform the patient of the benefits and risks of receiving various types of blood transfusion options, i.e., autologous and directed and non-directed homologous transfusions from volunteers. (Health & Safety Code § 1645.) For more information on blood transfusions, see CMA ON-CALL document #0407, "Consent for Blood Transfusions."

(S.B. 102, Ch. 88, Stats. 2007.)

Subcutaneous Implanting of Identification Device

With the recent development and marketing of subcutaneous devices, the Legislature adopted an explicit prohibition against the forced implanting of such identification devices. No person, including a physician, may require, coerce or compel any individual to undergo the subcutaneous implanting of an identification device. (Civil Code §52.7.) An "identification device" means any item, application, or product that is passively or actively capable of transmitting personal information, including, but not limited to, devices using radio frequency technology. "Personal information" includes any of the following data elements to the extent they are used alone or in conjunction with any other information used to identify an individual:

First or last name.
Address.
Telephone number.
E-mail, Internet Protocol, or Web site address.
Date of birth.
Driver's license number or California identification card number.
Any unique personal identifier number contained or encoded on a driver's license or identification card issued pursuant to Section 13000 of the Vehicle Code.
Bank, credit card, or other financial institution account number.
Any unique personal identifier contained or encoded on a health insurance, health benefit, or benefit card or record issued in conjunction with any government-supported aid program.
Religion.
Ethnicity or nationality.
Photograph.
Fingerprint or other biometric identifier.
Social security number.
Any unique personal identifier.

Persons who violate this law face civil monetary penalties, and can be held liable for damages, including punitive damages, among other things. (Id.) For more information, see CMA ON-CALL document #0415, "Informed Consent."

(S.B. 362, Ch. 538, Stats. 2007.)

Legal Liability of Certain Hospitals Involved in §5150 Holds

To address the problems that arise when hospitals do not have the current capacity or capability to provide appropriate mental health treatment for a patient, the Legislature extended and broadened the conditions under which immunities relating to 5150 holds will be granted. A general acute care hospital or acute psychiatric hospital (provided that they are not a county-designated facility under Welfare & Institutions Code §5150), licensed professional staff of those hospitals, or any physician providing emergency medical services in any department of those hospitals to a person at the hospital cannot be civilly or criminally liable for detaining the person who is subject to detention if the following conditions exist during the detention:

The person cannot be safely released form the hospital because, in the opinion of the treating physician, the person, as a result of a mental disorder, presents a danger to himself or herself or others or is gravely disabled. "Gravely disabled" is defined to mean "an inability to provide for his or her basic personal needs for food, clothing, or shelter";
The hospital staff or treating physician have made, and documented, repeated unsuccessful efforts to find appropriate mental health treatment for the person; and
The person is not detained beyond twenty-four (24) hours.
There is probable cause for the detention.
If the person is detained beyond eight hours, but less than 24 hours, all of the following additional conditions must be met:
A transfer for appropriate mental health treatment for the person has been delayed because of the need for continuous and ongoing care, observation, or treatment that the hospital is providing.

ii) In the opinion of the treating physician and surgeon, or a clinical psychologist with medical staff privileges or professional responsibilities, the person, as a result of a mental disorder, is still a danger to himself or herself, or others, or is gravely disabled, as defined above.

Hospitals covered under this law cannot be civilly or criminally liable for the actions of a person detained up to 24 hours in those hospitals who is subject to detention pursuant to Section 5150 of the Welfare and Institutions Code after that person's release from the detention at the hospital, if all of the following conditions exist during the detention:

The person has not been admitted to a licensed general acute care hospital or a licensed acute psychiatric hospital for evaluation and treatment pursuant to Section 5150 of the Welfare and Institutions Code.
The release from the licensed general acute care hospital or the licensed acute psychiatric hospital is authorized by a physician and surgeon or a clinical psychologist with the medical staff privileges or professional responsibilities who determines, based on a face-to-face examination of the person detained, that the person does not present a danger to himself or herself or others and is not gravely disabled, as defined above.

In order for this immunity to apply to a clinical psychologist, the clinical psychologist must have a collaborative treatment relationship with the physician and surgeon. The clinical psychologist may authorize the release of the person from the detention, but only after he or she has consulted with the physician and surgeon. In the event of a clinical or professional disagreement regarding the release of a person subject to the detention, the detention must be maintained unless the hospital's medical director overrules the decision of the physician and surgeon opposing the release. Both the physician and surgeon and the clinical psychologist must enter their findings, concerns, or objections in the person's medical record. (Health & Safety Code §1799.111.) For more information, see CMA ON-CALL document #0405, "Mental Health: §5150 Holds/72-Hour Detention."

(S.B. 916, Ch. 308, Stats. 2007.)

Death/Organ Donation

Death Certification

In order to recognize the process of a birth experienced by a mother who gives birth to a stillborn baby, the law, effective January 1, 2008, mandates the issuance of such a certificate at the request of the mother or father of the fetus. (Health & Safety Code § 103040.1.) This certificate must be issued upon request regardless of the date on which the certificate of fetal death was issued.

According to this law, the local registrar of births and deaths of the county in which a fetal death, in which the fetus has advanced beyond the 20th week of uterogestation, is registered, will issue, upon the request of the mother or father of the fetus, a Certificate of Still Birth, on a form approved by the State Registrar of Vital Statistics for each naturally occurring intrauterine fetal death after a gestational age of not less than 20 completed weeks. This Certificate of Still Birth must comply with the requirements governing a certificate for a live birth discussed and will be in addition to and will not replace the fetal death certificate. The request for a Certificate of Still Birth will be on a form prescribed by the State Registrar of Vital Statistics and may only contain the following information taken from the fetal death certificate:

The date of the stillbirth.
The county in which the stillbirth occurred.
The name of and sex of the stillborn fetus, as provided on the original or amended fetal death certificate.
The time and place of stillbirth, including the street address and city, and, if applicable, the name of the hospital.
The names, date of birth, and state of birth of the mother and father.
The corresponding file number of the final fetal death certificate.
A title at the top of the Certificate of Still Birth that reads: Certificate of Still Birth.
A statement at the bottom of the Certificate of Still Birth that states: This Certificate of Still Birth is not proof of a live birth.

The State Registrar of Vital Statistics may not use the information included on a Certificate of Still Birth for any governmental purpose other than to respond to the request for the certificate from the parents of the fetus.

"Stillbirth" as recorded in the Certificate of Still Birth means the delivery of a fetus where there was a naturally occurring intrauterine fetal death after a gestational age of not less than 20 completed weeks. (Id.) For more information on death certificates, see CMA ON-CALL document #1305.

(S.B. 850, CH. 661, Stats. 2007.)

Organ and Tissue Donations

In 2006, the National Conference of Commissioners on Uniform State Laws proposed revisions to the Act to help address the critical need for donated organs by providing additional ways in which individuals may make organ, eye, and tissue donations. Accordingly, in 2007, California's Legislature repealed the 1970 Act and reenacted a substantially different one to be consistent with the proposed revisions. These new laws are set forth at Health & Safety Code §§7150-7151.40. For more information, see CMA ON-CALL document #1307, "Organ and Tissue Donations."

(A.B. 1689, Ch. 629, Stats. 2007.)

Drug Prescribing/Dispensing

Dispensing Opioid Antagonists

To address provider concerns about liability for a patient's overdosing from certain medications, a licensed health care provider who is permitted by law to prescribe an opioid antagonist may, if acting with reasonable care, prescribe and subsequently dispense or distribute an opioid antagonist in conjunction with an opioid overdose prevention and treatment training program, without being subject to civil liability or criminal prosecution. This immunity applies to the licensed health care provider even when the opioid antagonist is administered by and to someone other than the person to whom it is prescribed. (Civil Code § 1714.22.) For the purposes of this law, an "opioid antagonist" means naloxone hydrochloride that is approved by the federal Food and Drug Administration for the treatment of a drug overdose. An "opioid overdose prevention and treatment training program" or "program" means any program operated by a local health jurisdiction or that is registered by a local health jurisdiction to train individuals to prevent, recognize, and respond to an opiate overdose, and that provides, at a minimum, training in all of the following:

The causes of an opiate overdose.
Mouth to mouth resuscitation.
How to contact appropriate emergency medical services.
How to administer an opioid antagonist.

This law remains in effect only until January 1, 2011, and as of that date will be repealed, unless a later enacted statute, that is enacted on or before January 1, 2011, deletes or extends that date. (Id.) For more information on this law and controlled substances generally, see CMA ON-CALL documents #0508, "Controlled Substances: Dispensing" and #0509, "Controlled Substances: Prescribing."

(S.B. 767, Ch. 477, Stats. 2007.)

Drug Labeling

Pursuant to the California Patient Medication Safety Act, the California State Board of Pharmacy must promulgate regulations that require, on or before January 1, 2011, a standardized, patient-centered, prescription drug label on all prescription medicine dispensed to patients in California. To ensure maximum public comment, the board will hold public meetings statewide that are separate from its normally scheduled hearings in order to seek information from groups representing consumers, seniors, pharmacists or the practice of pharmacy, other health care professionals, and other interested parties.

When developing the requirements for prescription drug labels, the board will consider all of the following factors:

Medical literacy research that points to increased understandability of labels.
Improved directions for use.
Improved font types and sizes.
Placement of information that is patient-centered.
The needs of patients with limited English proficiency.
The needs of senior citizens.
Technology requirements necessary to implement the standards. (Business & Professions Code §4076.5.)

On or before January 1, 2010, the board must report to the Legislature on its progress under this law as of the time of the report. On or before January 1, 2013, the board must report to the Legislature the status of implementation of the prescription drug label requirements adopted pursuant to this law. (Id.) For more information, see CMA ON-CALL document #0505, "Drug Dispensing (Not Schedule II-V Drugs)."

(S.B. 472, Ch. 470, Stats. 2007.)

E-Medicine/HIPAA

The Medical Board of California (MBC) is authorized to establish a pilot program to expand the practice of telemedicine in this state. To implement this program, the MBC may convene a working group of interested parties from the public and private sectors, including, but not limited to, state health-related agencies, health care providers, health plan administrators, information technology groups, and groups representing health care consumers. The purpose of the program is to develop methods, using a telemedicine model, to deliver throughout the state health care to persons with chronic diseases as well as information on the best practices for chronic disease management services and techniques and other health care information as deemed appropriate,

The MBC is required to make a report with its recommendations regarding its findings to the Legislature within one calendar year of the commencement date of the pilot program. The report must include an evaluation of the improvement and affordability of health care services and the reduction in the number of complications achieved by the pilot program. (Business & Professions Code §2028.5.)

Further, as mentioned above, optometrists are now included in the definition of "health care practitioner" for the purposes of the laws governing telemedicine. (Business & Professions Code §2290.5.) For more information, see CMA ON-CALL document #0435, "Telemedicine."

(A.B. 1224, Ch. 507, Stats. 2007.)

Managed Care

Disclosure Requirements

Mandatory Public Health Reporting Requirements. Health plans are required to include in their contracts with a physician who provides service to an enrollee in Mexico, a provision regarding the reporting of specified diseases and conditions, as mandated by law. (Health & Safety Code §1379.5.) At the time a contract between a plan and a physician is signed, health plans must notify physicians of their legal and contractual obligation in a writing that states the following: This contract contains specific requirements regarding reporting of actual or suspected diseases or conditions to California health officers. (Id.) For more information, see CMA ON-CALL document #1506, "Reporting Communicable Diseases, Including Tuberculosis and Diseases Related to Bioterrorism," and #1020, "Disclosure by Managed Care Plans (and Their Contracting Medical Groups/IPAs)."

(A.B. 328, Ch. 385, Stats. 2007.)

Disclosure of Enrollee Assistance Information. DMHC regulations adopted in 2007 require that plans inform contracting providers that informational notices explaining how enrollees may contact their plan, file a complaint with their plan, obtain assistance from the Department and seek an independent medical review are available in non-English languages through the Department's web site. The notice and translations can be obtained online at www.hmohelp.ca.gov for downloading and printing. In addition, hard copies may be requested by submitting a written request to: Department of Managed Health Care, Attention: HMO Help Notices, 980 9th Street, Suite 500, Sacramento, CA 95814. With the adoption of this regulation, the DMHC also formally repealed the regulation that would have required physicians to post "waiting room" notices containing this information. For more information, see CMA ON-CALL document #1020, "Disclosure by Managed Care Plans (and Their Contracting Medical Groups/IPAs)."

(28 C.C.R. §1300.67.04(c)(2)(D)(ii).)

Hospital Discharges

Hospitals must now provide every patient anticipated to be in need of long-term care at the time of discharge with contact information for at least one public or nonprofit agency or organization dedicated to providing information or referral services relating to community-based long-term care options in the patient's county of residence and appropriate to the needs and characteristics of the patient. At a minimum, this information must include contact information for the area agency on aging serving the patient's county of residence, local independent living centers, or other information appropriate to the needs and characteristics of the patient. (Health & Safety Code §1262.5.) For more information, see CMA ON-CALL document #1039, "Hospital Stay and Discharge Requirements."

(S.B. 633, Ch. 472, Stats. 2007.)

Medical Records: Confidentiality

Authorization to Disclose When Warning Others

The Confidentiality of Medical Information Act has been clarified to clearly allow "Tarasoff” warnings, that is, the disclosure of medical information when, consistent with applicable law and standards of ethical conduct, by a psychotherapist who in good faith believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health or safety of a reasonably foreseeable victim or victims, to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat. (Civil Code §56.10.) For more information, see CMA ON-CALL document #0815, "Physician's Duty to Warn," and CMA ON-CALL document #1101, "Request by Other Third Parties: CMIA, IIPPA and the HIPAA Privacy Rules."

(A.B. 1727, Ch. 553, Stats. 2007.)

Businesses That Maintain Medical Information

The Confidentiality of Medical Information Act has been expanded to include any business organized for the purpose of maintaining medical information in order to make the information available to an individual or a health care provider for the purposes of managing health care information or for treatment or diagnosis, even if the business is not organized for the primary (former law) purpose of maintaining medical information. (Civil Code §56.06.) The rationale for this amendment was that any business that stores and potentially disseminates medical information poses a threat whether it is the only service provided or whether it is just one of many services provided. For more information, see CMA ON-CALL document #1101, "Request by Other Third Parties: CMIA, IIPPA and the HIPAA Privacy Rules."

(A.B. 1298, Ch. 699, Stats. 2007.)

Breach Notification Laws

The law has been clarified to include medical and health information within the definition of "personal information" as that term is defined in California's data breach notification law. (Civil Code § 1798.29.) For more information, see CMA ON-CALL document #1607, "HIPAA Security Rule.”

(A.B. 1298, Ch. 699, Stats. 2007.)

Sharing of Medical Information Concerning Minors in the State's Care

The Legislature found and declared, among other things, that a lack of clarity about who may be authorized to share health care and mental health records with caregivers of children and youth in the state's care often results in inadequate health care information being available to caregivers, which jeopardizes the health of the children and youth in the state's care. See Sec. 1 of A.B. 1687, Ch. 552, Stats. 2007. To improve the sharing of health and mental information concerning minors in the state's care, if a provider of health care determines that the disclosure of medical information concerning the diagnosis and treatment of a mental health condition of a minor is reasonably necessary for the purpose of assisting in coordinating the treatment and care of the minor, that information may be disclosed to a county social worker, probation officer, or any other person who is legally authorized to have custody or care of the minor. "Minors" for the purpose of this law means a minor who has been taken into temporary custody or care, waiting to be adjudged, or has been declared a dependent child or ward of the state.

Social workers, probation officers, or custodial caregivers have no greater rights than a parent regarding access to medical information controlled by the minor, and "psychotherapy notes: remain subject to more stringent HIPAA Privacy Rules. For more information, see CMA ON-CALL document #1101, "Request by Other Third Parties: CMIA, IIPPA and the HIPAA Privacy Rules."

(A.B. 1687, Ch. 552, Stats. 2007.)

Peer Review

The conditional peer review immunity set forth in Civil Code §43.8 has been extended to any person whose communications to a psychology school are intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a health care practitioner. For more information, see CMA ON-CALL document #1425, "Peer Review Protections - Executive Summary."

Reimbursement

Post Authorization Denials

Since 1994, CMA-sponsored law prohibited a Knox-Keene plan (all HMOs in California) or insurance company that authorizes treatment from rescinding or modifying the authorization after the physician renders the service in good faith. (Health & Safety Code §1371.8; Insurance Code §796.04.) The purpose of this law was to ensure that physicians were made whole after the plan authorized care but later claimed the authorization was invalid. Unfortunately, both physicians and their patients were increasingly faced with unpaid medical bills for preauthorized services for various reasons, including because the patient's coverage had been cancelled. To remedy this situation, CMA sponsored legislation with A.B. 1324 (2007) to clarify that the authorization to the provider cannot be rescinded for any reason, including but not limited to, the plan's subsequent rescission, cancellation, or modification of the health insurance/plan contract or the plan/insurer's subsequent determination that it did not make an accurate determination of eligibility. Based on the recent amendments to this law, there is now no question that it includes instances where the payor has verified eligibility or even where a policy was cancelled due to a problem with the patient's application for coverage. For more information, see ON-CALL document #0145, "Payment Denial After Treatment Authorization or Verification of Eligibility."

(A.B. 1324, Ch. 702, Stats. 2007.)

Reporting Abuse

Child Abuse or Neglect

The Legislature added "death inflicted by other than accidental means" to the definition of "Child Abuse or Neglect" for the purpose of the child abuse reporting laws. (Penal Code §11165.6.) Further, the Legislature clarified that a mandated reporter, not acting in his or her professional capacity or within the scope of his or her employment, but rather in her or her private capacity may report instances of known or suspected child abuse. (Penal Code § 11166(g).) In these cases, the immunity against civil or criminal liability for the report applies unless it can be proven that a false report was made and the person knew that the report was false or was made with reckless disregard of the truth or falsity of the report. (Penal Code §11172(a).) For more information, see CMA ON-CALL document #1505, "Child Abuse or Neglect."

(A.B. 673, Ch. 393, Stats. 2007.)

Reporting Diseases, Conditions, and Events

Communicable Diseases

To protect the public from the spread of infectious, contagious and communicable diseases, physicians have long been required by law to report such diseases to the local health officer. It should be noted that the list of reportable diseases, and the timing for such reporting, changes frequently and are found in the CMA ON-CALL document and on the DHS's website at: www.cdph.ca.gov/healthinfo/Documents/Title17_Rportable_Diseases _and_Conditions.pdf

It is important to continually check the DHS website to see if any additions may have been made to this list.

Further, as noted above, the obligation has been extended to physicians who contract with a Knox-Keene plan and provide services to a health plan enrollee in Mexico. For more information, see CMA ON-CALL document #1506, "Reporting Communicable Diseases, Including Tuberculosis and Diseases Related to Bioterrorism."

Tuberculosis Cases

For many years, the tuberculosis skin test has been the basic screening test for detecting TB in health care workers, and many laws referenced only that test as the only test that could be used to satisfy the mandatory testing/reporting obligations. As recently amended, the initial disease notification report must include, among other things, tuberculin skin test results, or the results of any other test for tuberculosis infection recommended by the federal Centers for Disease Control and Prevention and licensed by the federal Food and Drug Administration. (Health & Safety Code §121362.) For more information, see CMA ON-CALL document #1506, "Reporting Communicable Diseases, Including Tuberculosis, and Diseases Related to Bioterrorism."

(A.B. 1323, Ch. 24, Stats. 2007.)

Reproductive Issues

Infertility Treatment: Licensing and Disease Screening Requirements

Generally speaking, tissue may not be transplanted into a person unless the donor has been found to be non-reactive to tests for evidence of HIV, viral hepatitis (HBV and HCV), human Tlymphotropic virus-1 (HTLV-1) and syphilis. Due to the advancement of medical treatment and the evolution of public health policies, the law now authorizes the use of sperm from a donor who tested positive for HIV or HTLV-1 for the purposes of insemination or advanced reproductive technology. (Health & Safety Code § 1644.5.)

Sperm whose donor has tested reactive for HIV or HTLV-1 may be used for the purposes of insemination or advanced reproductive technology for a recipient testing negative for HIV or HTLV-1 only after the donor's sperm has been effectively processed to minimize the infectiousness of the sperm for that specific donation and where informed and mutual consent has occurred. (The Department of Health Services must adopt regulations by January 1, 2010, regulating facilities that perform sperm processing that prescribe standards for the handling and storage of sperm samples of carriers of HIV, HTLV-1, or any other virus as deemed appropriate by the department. Until the Department adopts these regulations, facilities that perform sperm processing must follow facility and sperm processing guidelines developed by the American Society of Reproductive Medicine.)

Prior to insemination or other advanced reproductive technology services, the physician must inform the recipient of sperm from a donor who has tested reactive for HIV or HTLV-1 that sperm processing may not eliminate all risks of transmission, and that the sperm may be tested to determine whether or not it is free of HIV or HTLV-1. The physician must also inform the recipient of potential adverse effects the testing may have on the processed sperm.

The physician providing insemination or advanced reproductive technology services must provide, as appropriate, prophylactic treatments, including, but not limited to, antiretroviral treatments, to the recipient to reduce the risk of acquiring infection during, and subsequent to, insemination or advanced reproductive technology. The physician must also treat, as appropriate, the donor of sperm that tests reactive for HIV or HTLV-1 with antiretroviral treatments prior to insemination or advanced reproductive technology services. The physician must also perform appropriate follow-up testing of the recipient for HIV or HTLV-1 following the insemination or other advanced reproductive technology, and recommend ongoing monitoring by a physician during treatment and pregnancy. The physician must also recommend in the sperm recipient's medical record that the recipient be monitored during treatment and pregnancy.

In the event that the recipient tests reactive for HIV or HTLV-1 following insemination or other advanced reproductive technology, the physician must inform the recipient of appropriate treatments during and after pregnancy, and of treatments or procedures that may reduce the risk of transmission to the offspring. For more information, see CMA ON-CALL document #1313, "Infertility Treatment: Licensing and Disease Screening Requirements." (Health & Safety Code §1644.5.)

Umbilical Cord Research

Primary prenatal care providers may, but are not required to, provide Department of Public Health (DPH) material on the "Umbilical Cord Community Awareness Campaign" to their patients during the first prenatal visit. (Health & Safety Code §§123370, 123371.) The law was amended to provide that this information must enable a pregnant woman to be informed of her option to do any of the following:

Discard umbilical cord blood.
Donate umbilical cord blood to a public umbilical cord blood bank.
Store the umbilical cord blood in a family umbilical cord blood bank for the use by immediate and extended family members.
Donate umbilical cord blood to research.

This information must include all of the following:

The current and potential future medical uses of stored umbilical cord blood.
The benefits and risks involved in umbilical cord blood banking.
The medical process involved in umbilical cord blood banking.
Medical or family history criteria that can impact a family's consideration of umbilical cord banking.
An explanation of the differences between public and private umbilical cord blood banking.
The availability and costs of public or private umbilical cord blood banks.
Medical or family history criteria that can impact a family's consideration of umbilical cord blood banking.
An explanation that the practices and policies of blood banks may vary with respect to accreditation, cord blood processing and storage methods, costs, and donor privacy.
An explanation that pregnant women are not required to donate their umbilical cord blood for research purposes. (Health & Safety Code §123371.)

Further, with respect to umbilical cord blood samples DPH receives under the law, DPH, health care providers, and local health departments must maintain the confidentiality of patient information in accordance with existing law and in the same manner as other medical record information with patient identification that they possess, and may use the information only for the following purposes:

Research to identify risk factors for children's and women's diseases.
Research to develop and evaluate screening tests.
Research to develop and evaluate prevention strategies.
Research to develop and evaluate treatments. (Health & Safety Code §124991.)

For more information, see CMA ON-CALL document #1303, "Tests of Pregnant Women, Newborns and Young Children."

(S.B. 443, Ch. 207, Stats. 2007.)

Retaliation

CMA sponsored legislation to strengthen Health & Safety Code §1278.5, the law that sets forth whistleblower protections for physicians and others who complain to a health facility, or a governmental or accrediting agency about unsafe hospital conditions, or who have initiated, participated in or cooperated in an investigation carried out by a governmental or accrediting agency.

If a health facility or its owner takes action against a medical staff member or health care worker or an employee within 120 days of such a complaint, the law creates a rebuttable presumption that the action was retaliatory.

The law also provides that the medical staff of the health facility may petition the court to protect a peer review committee from an evidentiary demand if it believes a legitimate peer review hearing will be impeded. CMA believes that the intent of this section is not to create an inference that the statute creates a new exception to the exhaustion of remedies doctrine, but rather to ensure that good faith peer review proceedings are not impeded.

Health & Safety Code § 1278.5 is not the only section of law that grants protection to medical staff members when they raise concerns over the delivery of patient care beyond their own patients. Business & Professions Code §2056 continues to provide protection against retaliation for physicians who "advocate for medically appropriate health care" for their own patients.

A violation of Health & Safety Code §1278.5 law is subject to a civil penalty of not more than twenty-five thousand dollars ($25,000). Any person who willfully violates this law is guilty of a misdemeanor punishable by a fine of not more than twenty thousand dollars ($20,000). For more information, see CMA ON-CALL document #1050, "Retaliation by Managed Care Plans or Others."

(A.B. 632, Ch. 683, Stats. 2007.)

Outpatient Facilities

Dentist Offices

The laws concerning physician administration of general anesthesia in a dentist's office were set to expire on January 1, 2008. However, S.B.620 (2007) deleted the repeal date, thereby extending the operation of this law indefinitely. Pursuant to this law, a physician may administer general anesthesia in a dentist's office, provided that the physician has: (1) a license in good standing; and (2) a permit for general anesthesia from the Dental Board of California (Business & Professions Code §1646.9.) To get a permit, the physician must have completed a postgraduate residency-training program in anesthesiology recognized by the American Council on Graduate Medical Education. The physician must also (1) document that all equipment and drugs required by the Dental Board of California are possessed by the physician and will be available for use in any dental office in which the physician administers general anesthesia; and (2) must document hospital staff membership. The prior requirement that the dentist have a permit has been repealed. The physician also has to submit a copy of the application to the Medical Board of California that verifies license status and specialty training. (Business & Professions Code §2079.) For more information, see CMA ON-CALL document #0202, "Surgicenters and Other Outpatient Facilities."

(S.B. 620, Ch. 210, Stats. 2007.)

As noted above, the law allows a "Tarasoff” warning to be disclosed without violating the Confidentiality of Medical Information Act, consistent with applicable law and standards of ethical conduct, by a psychotherapist who in good faith believes the disclosure is necessary to prevent or lessen a serious and imminent threat to the health and safety of a reasonably foreseeable victim or victims, and the disclosure is made to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat. (Civil Code §56.10(c)(19).) For more information, see CMA ON-CALL document #0815, "Physician's Duty to Warn."

(A.B. 1727, Ch. 553, Stats. 2007.)

Workers' Compensation

The 24-visit cap on chiropractic, physical therapy, and occupational therapy treatments in the workers' compensation system no longer applies to visits for postsurgical physical medicine and postsurgical rehabilitation services provided in compliance with a postsurgical treatment utilization schedule established by the Administrative Director of the Division of Workers' Compensation. (Labor Code §4604.5.) For more information, see CMA ON-CALL document #1950, "Utilization Review."

(A.B. 1073, Ch. 621, Stats. 2007.)

Medi-Cal Provider Enrollment

CMA sponsored Assembly Bill 1226 establishes that, as of July 1, 2008, a physician and surgeon who is enrolled and in good standing in the Medi-Cal; program, and is changing the location of his or her individual physician practice (as defined) within the same county, will be eligible to continue enrollment at the new location by filing a change of location form in lieu of resubmitting a complete enrollment application. The new law also provides, as of July 1, 2008, for the expedited enrollment in the Medi-Cal program of any physician and surgeon licensed by the Medical Board of California or the Osteopathic Medical Board of California who meets specified conditions and submits a short form application to be developed by the Department of Health Care Services (the “Department”). Commencing July 1, 2008, Assembly Bill 1226 grants an applicant provisional provider status for twelve months. It also establishes various deadlines regarding notice from the Department of the status of an enrollment application and granting of provisional status. The legislation also precludes reapplication for three years following the denial of an application for enrollment, and specifies that the three-year bar against reapplication commences on the date the application was denied. Under prior law, the three-year bar did not commence until the date of final administrative action. (Amends Welfare & Institutions Code Sections 14043.1, 14043.26, and 14043.65.) For more information, see CMA ON-CALL document #0610, “Fraud and Abuse.”

Medical Board of California

Assembly Bill 253 reduces the number of members of the Medical Board of California (“MBC”) from twenty-one to fifteen. It abolishes the MBC’s Division of Licensing and Division of Medical Quality and provides that the MBC, as a whole, shall perform the functions previously undertaken by the two former divisions. Also requires the MBC to delegate to its executive director the authority to adopt default decisions and certain stipulations in disciplinary proceedings. (Amends and repeals Sections of the Health and Safety Code, and repeals and adds Business and Professions Code Section 2008.)

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