California Medical Board Sunset Legislation—Senate Bill 304 (Price)

The Medical Board issues medical licenses and investigates doctors for misconduct, including negligence and criminal charges.  The Board can file accusations leading to administrative law hearings.  Citations, license revocation, suspension, or probation for physicians and physician assistants can result.  As California medical license defense attorneys, we are concerned when the rules that govern Medical Board investigations and administrative law proceedings are subject to change. 

The statute that authorizes the Board to regulate physicians and physician assistants has been set to expire every ten years. This is a so-called “sunset law”, which allows the Legislature to scrutinize Medical Board programs while considering extension of the Board’s authority.  It is a time when the Board draws more than the usual attention from the media and public interest groups.

Senate Bill 304 (Price) extends the current sunset on the Medical Board of California’s authority to January 1, 2018, only a five year extension.  The recent public climate has been critical of the Board, with much of the criticism focused on a perceived lack of enforcement against doctors.  Board President Sharon Levine, M.D., has defended the Board’s record, arguing that the Board always acts to protect the health and safety of the public.  She admits, however, that staff shortages may have reduced the ability of the Board to fully enforce its rules and regulations.   The Legislature seems intent on changing the status quo, which may increase the burden on doctors and physician assistants and the lawyers who defend them against California medical license discipline.

Besides extending the sunset on the Medical Board’s authority, SB 304 would make other very significant changes to the Board’s enforcement program.  For example, under current law physicians facing a Medical Board accusation must provide the Attorney General’s Office with the name of any expert who may testify for the defense and a summary of that testimony at least thirty (30) days prior to an administrative law hearing.  SB 304 would require that this information be provided 90 days after the filing of a Notice of Defense and would require submission of a complete expert report.  Failure to comply would result in exclusion of the expert’s testimony.

Another major change in SB 304 is the transfer of the Medical Board’s enforcement program and investigative staff from the Department of Consumer Affairs to the Department of Justice (under the Attorney General).  This change was previously considered at enactment of the so-called “Vertical Prosecution” model with the passage of SB 231 (Figueroa) in 2005, following a legislatively mandated study and public criticism of the Medical Board’s enforcement program.  

The Vertical Prosecution Program placed authority for the supervision and management of Medical Board investigations with the Attorney General while maintaining the Board’s investigative staff separately under the Department of Consumer Affairs.  The general consensus has been that this bifurcated model of authority has been cumbersome if not ineffective.  

Because the current Governor is a former Attorney General, the proposal to shift Medical Board enforcement to the Department of Justice apparently now has legs.  He perhaps sees the efficiency to be gained by the proposed consolidation at DOJ, despite losing budgeted positions to another constitutional officer and her department.

As far as physicians and their attorneys are concerned, placing the Medical Board’s investigators directly within the Department of Justice might possibly be beneficial.  The investigators will presumably receive more and better training and have clearer lines of authority under the Attorney General than existed previously.  On the other hand, consolidation of power in a single entity may bring its own problems in terms of overreaching authority or abuses of power. 

Because these proposed changes appear to be more or less “revenue neutral” and impose only additional fees on medical licensees rather than hammering the taxpayer, passage of SB 304 would seem likely.  There will be some increased costs due to its transfer of Medical Board investigators to the Department of Justice (where they will likely be reclassified as DOJ Special Agents with higher pay and benefits as well as additional training.) These costs are estimated to run $2.9 million, with $2.5 million in ongoing costs funded by licensing fees.