805. (a) As used in this section, the following terms have the following definitions:
(1) "Peer review body" includes:
(A) A medical or professional staff of any health care facility or
clinic licensed under Division 2 (commencing with Section 1200) of
the Health and Safety Code or of a facility certified to participate
in the federal Medicare Program as an ambulatory surgical center.
(B) A health care service plan registered under Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code or a disability insurer that contracts with licentiates to
provide services at alternative rates of payment pursuant to Section
10133 of the Insurance Code.
(C) Any medical, psychological, marriage and family therapy,
social work, dental, or podiatric professional society having as
members at least 25 percent of the eligible licentiates in the area
in which it functions (which must include at least one county), which
is not organized for profit and which has been determined to be
exempt from taxes pursuant to Section 23701 of the Revenue and
Taxation Code.
(D) A committee organized by any entity consisting of or employing
more than 25 licentiates of the same class that functions for the
purpose of reviewing the quality of professional care provided by
members or employees of that entity.
(2) "Licentiate" means a physician and surgeon, doctor of
podiatric medicine, clinical psychologist, marriage and family
therapist, clinical social worker, or dentist. "Licentiate" also
includes a person authorized to practice medicine pursuant to Section
2113.
(3) "Agency" means the relevant state licensing agency having
regulatory jurisdiction over the licentiates listed in paragraph (2).
(4) "Staff privileges" means any arrangement under which a
licentiate is allowed to practice in or provide care for patients in
a health facility. Those arrangements shall include, but are not
limited to, full staff privileges, active staff privileges, limited
staff privileges, auxiliary staff privileges, provisional staff
privileges, temporary staff privileges, courtesy staff privileges,
locum tenens arrangements, and contractual arrangements to provide
professional services, including, but not limited to, arrangements to
provide outpatient services.
(5) "Denial or termination of staff privileges, membership, or
employment" includes failure or refusal to renew a contract or to
renew, extend, or reestablish any staff privileges, if the action is
based on medical disciplinary cause or reason.
(6) "Medical disciplinary cause or reason" means that aspect of a
licentiate's competence or professional conduct that is reasonably
likely to be detrimental to patient safety or to the delivery of
patient care.
(7) "805 report" means the written report required under
subdivision (b).
(b) 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 shall file an 805 report
with the relevant agency within 15 days after the effective date of
any of the following that occur as a result of an action of a peer
review body:
(1) A licentiate's application for staff privileges or membership
is denied or rejected for a medical disciplinary cause or reason.
(2) A licentiate's membership, staff privileges, or employment is
terminated or revoked for a medical disciplinary cause or reason.
(3) 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.
(c) 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 shall file an 805 report
with the relevant agency within 15 days after any of the following
occur after notice of either an impending investigation or the denial
or rejection of the application for a medical disciplinary cause or
reason:
(1) Resignation or leave of absence from membership, staff, or
employment.
(2) The withdrawal or abandonment of a licentiate's application
for staff privileges or membership.
(3) The request for renewal of those privileges or membership is
withdrawn or abandoned.
(d) For purposes of filing an 805 report, the signature of at
least one of the individuals indicated in subdivision (b) or (c) on
the completed form shall constitute compliance with the requirement
to file the report.
(e) An 805 report shall also be filed within 15 days following the
imposition of summary suspension of staff privileges, membership, or
employment, if the summary suspension remains in effect for a period
in excess of 14 days.
(f) A copy of the 805 report, and a notice advising the licentiate
of his or her right to submit additional statements or other
information pursuant to Section 800, shall be sent by the peer review
body to the licentiate named in the report.
The information to be reported in an 805 report shall include the
name and license number of the licentiate involved, a description of
the facts and circumstances of the medical disciplinary cause or
reason, and any other relevant information deemed appropriate by the
reporter.
A supplemental report shall also be made within 30 days following
the date the licentiate is deemed to have satisfied any terms,
conditions, or sanctions imposed as disciplinary action by the
reporting peer review body. In performing its dissemination functions
required by Section 805.5, the agency shall include a copy of a
supplemental report, if any, whenever it furnishes a copy of the
original 805 report.
If another peer review body is required to file an 805 report, a
health care service plan is not required to file a separate report
with respect to action attributable to the same medical disciplinary
cause or reason. If the Medical Board of California or a licensing
agency of another state revokes or suspends, without a stay, the
license of a physician and surgeon, a peer review body is not
required to file an 805 report when it takes an action as a result of
the revocation or suspension.
(g) The reporting required by this section shall not act as a
waiver of confidentiality of medical records and committee reports.
The information reported or disclosed shall be kept confidential
except as provided in subdivision (c) of Section 800 and Sections
803.1 and 2027, provided that a copy of the report containing the
information required by this section may be disclosed as required by
Section 805.5 with respect to reports received on or after January 1,
1976.
(h) The Medical Board of California, the Osteopathic Medical Board
of California, and the Dental Board of California shall disclose
reports as required by Section 805.5.
(i) An 805 report shall be maintained by an agency for
dissemination purposes for a period of three years after receipt.
(j) No person shall incur any civil or criminal liability as the
result of making any report required by this section.
(k) A willful failure to file an 805 report by any person who is
designated or otherwise required by law to file an 805 report is
punishable by a fine not to exceed one hundred thousand dollars
($100,000) per violation. The fine may be imposed in any civil or
administrative action or proceeding brought by or on behalf of any
agency having regulatory jurisdiction over the person regarding whom
the report was or should have been filed. If the person who is
designated or otherwise required to file an 805 report is a licensed
physician and surgeon, the action or proceeding shall be brought by
the Medical Board of California. The fine shall be paid to that
agency but not expended until appropriated by the Legislature. A
violation of this subdivision may constitute unprofessional conduct
by the licentiate. A person who is alleged to have violated this
subdivision may assert any defense available at law. As used in this
subdivision, "willful" means a voluntary and intentional violation of
a known legal duty.
(l) Except as otherwise provided in subdivision (k), any failure
by the administrator of any peer review body, the chief executive
officer or administrator of any health care facility, or any person
who is designated or otherwise required by law to file an 805 report,
shall be punishable by a fine that under no circumstances shall
exceed fifty thousand dollars ($50,000) per violation. The fine may
be imposed in any civil or administrative action or proceeding
brought by or on behalf of any agency having regulatory jurisdiction
over the person regarding whom the report was or should have been
filed. If the person who is designated or otherwise required to file
an 805 report is a licensed physician and surgeon, the action or
proceeding shall be brought by the Medical Board of California. The
fine shall be paid to that agency but not expended until appropriated
by the Legislature. The amount of the fine imposed, not exceeding
fifty thousand dollars ($50,000) per violation, shall be proportional
to the severity of the failure to report and shall differ based upon
written findings, including whether the failure to file caused harm
to a patient or created a risk to patient safety; whether the
administrator of any peer review body, the chief executive officer or
administrator of any health care facility, or any person who is
designated or otherwise required by law to file an 805 report
exercised due diligence despite the failure to file or whether they
knew or should have known that an 805 report would not be filed; and
whether there has been a prior failure to file an 805 report. The
amount of the fine imposed may also differ based on whether a health
care facility is a small or rural hospital as defined in Section
124840 of the Health and Safety Code.
(m) A health care service plan registered under Chapter 2.2
(commencing with Section 1340) of Division 2 of the Health and Safety
Code or a disability insurer that negotiates and enters into a
contract with licentiates to provide services at alternative rates of
payment pursuant to Section 10133 of the Insurance Code, when
determining participation with the plan or insurer, shall evaluate,
on a case-by-case basis, licentiates who are the subject of an 805
report, and not automatically exclude or deselect these licentiates.
805.1. (a) The Medical Board of California, the Osteopathic Medical
Board of California, and the Dental Board of California shall be
entitled to inspect and copy the following documents in the record of
any disciplinary proceeding resulting in action that is required to
be reported pursuant to Section 805:
(1) Any statement of charges.
(2) Any document, medical chart, or exhibits in evidence.
(3) Any opinion, findings, or conclusions.
(b) The information so disclosed shall be kept confidential and
not subject to discovery, in accordance with Section 800, except that
it may be reviewed, as provided in subdivision (c) of Section 800,
and may be disclosed in any subsequent disciplinary hearing conducted
pursuant to the Administrative Procedure Act (Chapter 5 (commencing
with Section 11500) of Part 1 of Division 3 of Title 2 of the
Government Code).
805.2. (a) It is the intent of the Legislature to provide for a
comprehensive study of the peer review process as it is conducted by
peer review bodies defined in paragraph (1) of subdivision (a) of
Section 805, in order to evaluate the continuing validity of Section
805 and Sections 809 to 809.8, inclusive, and their relevance to the
conduct of peer review in California.
(b) The Medical Board of California shall contract with an
independent entity to conduct this study that is fair, objective, and
free from bias that is directly familiar with the peer review
process and does not advocate regularly before the board on peer
review matters or on physician and surgeon disciplinary matters.
(c) The study by the independent entity shall include, but not be
limited to, the following components:
(1) A comprehensive description of the various steps of and
decisionmakers in the peer review process as it is conducted by peer
review bodies throughout the state, including the role of other
related committees of acute care health facilities and clinics
involved in the peer review process.
(2) A survey of peer review cases to determine the incidence of
peer review by peer review bodies, and whether they are complying
with the reporting requirement in Section 805.
(3) A description and evaluation of the roles and performance of
various state agencies, including the State Department of Health
Services and occupational licensing agencies that regulate healing
arts professionals, in receiving, reviewing, investigating, and
disclosing peer review actions, and in sanctioning peer review bodies
for failure to comply with Section 805.
(4) An assessment of the cost of peer review to licentiates and
the facilities which employ them.
(5) An assessment of the time consumed by the average peer review
proceeding, including the hearing provided pursuant to Section 809.2,
and a description of any difficulties encountered by either
licentiates or facilities in assembling peer review bodies or panels
to participate in peer review decisionmaking.
(6) An assessment of the need to amend Section 805 and Sections
809 to 809.8, inclusive, to ensure that they continue to be relevant
to the actual conduct of peer review as described in paragraph (1),
and to evaluate whether the current reporting requirement is yielding
timely and accurate information to aid licensing boards in their
responsibility to regulate and discipline healing arts practitioners
when necessary, and to assure that peer review bodies function in the
best interest of patient care.
(7) Recommendations of additional mechanisms to stimulate the
appropriate reporting of peer review actions under Section 805.
(8) Recommendations regarding the Section 809 hearing process to
improve its overall effectiveness and efficiency.
(9) An assessment of the role of medical professionals, using
professionals who are experts and are actively practicing medicine in
this state, to review and investigate for the protection of
consumers, allegations of substandard practice or professional
misconduct.
(10) An assessment of the process to identify and retain a medical
professional with sufficient expertise to review allegations of
substandard practice or professional misconduct by a physician and
surgeon, if the peer review process is discontinued.
(d) The independent entity shall exercise no authority over the
peer review processes of peer review bodies. However, peer review
bodies, health care facilities, health care clinics, and health care
service plans shall cooperate with the independent entity in
providing raw data, information, and case files as requested in a
mutually agreeable timeframe.
(e) The case files and other information obtained by the
independent entity shall be confidential. The independent entity
shall not release the case files or other information it obtains to
any individual, agency, or entity, including the board, except as
aggregate data, examples, or in the final report submitted to the
board and the Legislature, but in no case shall information released
under these exemptions be identifiable in any way or associated with,
or related to, a specific facility, individual, or peer review body.
(f) Notwithstanding any other provision of law, information
obtained by the independent entity from a peer review body or from
any other person or entity and information otherwise generated by the
independent entity, including, but not limited to, raw data, patient
information, case files or records, interviews and records of
interviews, proceedings of a peer review body, and analyses or
conclusions of the independent entity, shall not be subject to
discovery or to a subpoena or a subpoena duces tecum and shall not be
admissible as evidence in any court of law in this state. The
information described in this subdivision shall be subject to all
other confidentiality protections and privileges otherwise provided
by law. The independent entity and its employees and contractors
shall assert all of the protections for the information described in
this subdivision that may apply in order to protect the information
from disclosure. However, nothing in this section shall affect
provisions of law relating to otherwise admissible material
obtainable from sources other than the independent entity.
(g) The independent entity shall report to the peer review body
any information it obtains from the peer review body that the
independent entity determines should have been reported pursuant to
Section 805. The independent entity shall include with the report a
clear explanation of the reasons it determined that the information
warrants a report under Section 805. If the peer review body agrees
with the independent entity's determination, the peer review body
shall report the information pursuant to Section 805 without being
subject to penalties under subdivision (k) or (l) of Section 805, if
the peer review body makes the report to the board within 30 days of
the date the independent entity reported its determination to the
peer review body, unless additional time is required to afford due
process or fair hearing rights to the subject of the report as
required by Section 805 and Sections 809.1 and following.
(h) The independent entity shall work in cooperation with and
under the general oversight of the Executive Director of the Medical
Board of California and shall submit a written report with its
findings and recommendations to the board and the Legislature no
later than July 31, 2008.
(i) Completion of the peer review study pursuant to this section
shall be among the highest priorities of the Medical Board of
California, and the board shall ensure that it is completed no later
than July 31, 2008.
805.5. (a) Prior to granting or renewing staff privileges for any
physician and surgeon, psychologist, podiatrist, or dentist, any
health facility licensed pursuant to Division 2 (commencing with
Section 1200) of the Health and Safety Code, or any health care
service plan or medical care foundation, or the medical staff of the
institution shall request a report from the Medical Board of
California, the Board of Psychology, the Osteopathic Medical Board of
California, or the Dental Board of California to determine if any
report has been made pursuant to Section 805 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 provided in Section
805. The request shall include the name and California license
number of the physician and surgeon, psychologist, podiatrist, or
dentist. Furnishing of a copy of the 805 report shall not cause the
805 report to be a public record.
(b) Upon a request made by, or on behalf of, an institution
described in subdivision (a) or its medical staff, which is received
on or after January 1, 1980, the board shall furnish a copy of any
report made pursuant to Section 805. However, the board shall not
send a copy of a report (1) if the denial, removal, or restriction
was imposed solely because of the failure to complete medical
records, (2) if the board has found the information reported is
without merit, or (3) if a period of three years has elapsed since
the report was submitted. This three-year period shall be tolled
during any period the licentiate has obtained a judicial order
precluding disclosure of the report, unless the board is finally and
permanently precluded by judicial order from disclosing the report.
In the event a request is received by the board while the board is
subject to a judicial order limiting or precluding disclosure, the
board shall provide a disclosure to any qualified requesting party as
soon as practicable after the judicial order is no longer in force.
In the event that the board fails to advise the institution within
30 working days following its request for a report required by this
section, the institution may grant or renew staff privileges for the
physician and surgeon, psychologist, podiatrist, or dentist.
(c) Any institution described in subdivision (a) or its medical
staff that violates subdivision (a) is guilty of a misdemeanor and
shall be punished by a fine of not less than two hundred dollars
($200) nor more than one thousand two hundred dollars ($1,200).
805.6. (a) The Medical Board of California, the Osteopathic Medical
Board, and the Dental Board of California shall establish a system
of electronic notification that is either initiated by the board or
can be accessed by qualified subscribers, and that is designed to
achieve early notification to qualified recipients of the existence
of new reports that are filed pursuant to Section 805.
(b) The State Department of Health Services shall notify the
appropriate licensing agency of any reporting violations pursuant to
Section 805.
(c) The Department of Managed Health Care shall notify the
appropriate licensing agency of any reporting violations pursuant to
Section 805.
805.7. (a) The Medical Board of California shall work with
interested parties in the pursuit and establishment of a pilot
program, similar to those proposed by the Citizens Advocacy Center,
of early detection of potential quality problems and resolutions
through informal educational interventions.
(b) The Medical Board of California shall report to the
Legislature its evaluation and findings and shall include
recommendations regarding the statewide implementation of this pilot
program before April 1, 2004.
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