Existing law, the Medical Practice Act, establishes the Medical Board of California within the Department of Consumer Affairs and sets forth its powers and duties relating to the licensure and regulation of physicians and surgeons.

Existing law requires medical school graduates to obtain a physicians and surgeons postgraduate training license, and, for purposes of obtaining that license, to submit an application form and required primary source documents to the board. Existing law requires applicants for a physicians and surgeons certificate to include specified information in their application, including other information concerning the professional instruction and preliminary education of the applicant as the board may require.

This bill would prohibit the board from requiring an applicant for a physicians and surgeons license or a physicians and surgeons postgraduate training license to disclose specified information, including a condition or disorder that does not impair the applicants ability to practice medicine safely. The bill would provide that its provisions do not prohibit the board from requiring an applicant to disclose participation in a mental health or substance use disorder treatment program, as specified. If an applicant discloses that they currently have a condition or disorder that impairs their ability to practice medicine safely, the bill would require the board to provide the applicant with information on the availability of a probationary or limited practice license.

Existing law authorizes the board to prepare and provide electronically or mail to every licensed physician at the time of license renewal a questionnaire containing any questions as are necessary to establish that the physician currently has no disorder that would impair the physicians ability to practice medicine safely. Existing law requires each licensed physician to complete, sign, and return the questionnaire to the board as a condition of renewing their license.

This bill would require each licensed physician to complete, sign, and return the questionnaire either electronically or by mail. The bill would prohibit the questionnaire from requiring the disclosure of any prohibited information, as described above.

Existing law, the Medical Practice Act, establishes the Medical Board of California within the Department of Consumer Affairs and sets forth its powers and duties relating to the licensure and regulation of physicians and surgeons.

Existing law requires medical school graduates to obtain a physicians and surgeons postgraduate training license, and, for purposes of obtaining that license, to submit an application form and required primary source documents to the board. Existing law requires applicants for a physicians and surgeons certificate to include specified information in their application, including other information concerning the professional instruction and preliminary education of the applicant as the board may require.

This bill would prohibit the board from requiring an applicant for a physicians and surgeons license or a physicians and surgeons postgraduate training license to disclose specified information, including a condition or disorder that does not impair the applicants ability to practice medicine safely. The bill would provide that its provisions do not prohibit the board from requiring an applicant to disclose participation in a mental health or substance use disorder treatment program, as specified. If an applicant discloses that they currently have a condition or disorder that impairs their ability to practice medicine safely, the bill would require the board to provide the applicant with information on the availability of a probationary or limited practice license.

Existing law authorizes the board to prepare and provide electronically or mail to every licensed physician at the time of license renewal a questionnaire containing any questions as are necessary to establish that the physician currently has no disorder that would impair the physicians ability to practice medicine safely. Existing law requires each licensed physician to complete, sign, and return the questionnaire to the board as a condition of renewing their license.

This bill would require each licensed physician to complete, sign, and return the questionnaire either electronically or by mail. The bill would prohibit the questionnaire from requiring the disclosure of any prohibited information, as described above.

Existing law, the Medical Practice Act, establishes the Medical Board of California within the Department of Consumer Affairs and sets forth its powers and duties relating to the licensure and regulation of physicians and surgeons. Existing

Existing law authorizes the board to prepare and provide electronically or mail to every licensed physician at the time of license renewal a questionnaire containing any questions as are necessary to establish that the physician currently has no disorder that would impair the physicians ability to practice medicine safely. Existing law requires each licensed physician to complete, sign, and return the questionnaire to the board as a condition of renewing their license.

This bill would require each licensed physician to complete, sign, and return the questionnaire either electronically or by mail. The bill would prohibit the questionnaire from requiring the disclosure of any prohibited information, as described above.

Existing law, the Medical Practice Act, establishes the Medical Board of California within the Department of Consumer Affairs and sets forth its powers and duties relating to the licensure and regulation of physicians and surgeons. Existing law authorizes the board to prepare and provide electronically or mail to every licensed physician at the time of license renewal a questionnaire containing any questions as are necessary to establish that the physician currently has no disorder that would impair the physicians ability to practice medicine safely. Existing law requires each licensed physician to complete, sign, and return the questionnaire to the board as a condition of renewing their license.

This bill would require each licensed physician to complete, sign, and return the questionnaire either electronically or by mail.

 THIRD READING  

Bill No: AB 2164

Author: Berman (D)

Amended: 4/16/24 in Assembly

Vote: 21

SENATE BUS., PROF. & ECON. DEV. COMMITTEE: 13-0, 7/1/24

AYES: Ashby, Nguyen, Alvarado-Gil, Archuleta, Becker, Dodd, Eggman, Glazer, Menjivar, Niello, Roth, Smallwood-Cuevas, Wilk

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 71-0, 5/16/24 (Consent) - See last page for vote

SUBJECT: Physicians and surgeons: licensure requirements: disclosure

SOURCE: California Medical Association

SEIU State Council

DIGEST:

This bill prohibits the Medical Board of California (MBC) from requiring an applicant to disclose information about certain conditions or disorders.

ANALYSIS:

Existing law:

1. Enacts the Medical Practice Act, which provides for the licensure and regulation of physicians and surgeons. (Business and Professions Code (BPC) §§ 2000 et seq.)
2. Establishes the MBC to administer and enforce the Medical Practice Act. (BPC § 2001)
3. Declares that protection of the public shall be the highest priority for the MBC in exercising its licensing, regulatory, and disciplinary functions. (BPC § 2001.1)
4. Provides the MBC with responsibility for various duties and functions, including issuing licenses and certificates under the board’s jurisdiction. (BPC § 2004)
5. Requires applicants for licensure under the MBC to submit an application on a form provided by the MBC that contains a legal verification by the applicant certifying under penalty of perjury that the information provided by the applicant is true and correct. (BPC § 2081)
6. Authorizes the MBC to either deny an application for licensure as a physician and surgeon or issue a probationary license, subject to specified conditions and limitations. (BPC § 2221)
7. Authorizes the MBC to establish a Physician and Surgeon Health and Wellness Program for the early identification of, and appropriate interventions to support a physician and surgeon in their rehabilitation from, their substance use to ensure that the physician and surgeon remains able to practice medicine in a manner that will not endanger the public health and safety and that will maintain the integrity of the medical profession; if established, the MBC must contract for the program’s administration with a private third-party independent administering entity pursuant to a request for proposals. (BPC §§ 2340 – 2340.8)
8. Authorizes the MBC’s Division of Licensing to prepare and provide electronically or mail to every licensed physician at the time of license renewal a questionnaire containing any questions as are necessary to establish that the physician currently has no disorder that would impair the physician’s ability to practice medicine safely. (BPC § 2425)
9. Authorizes, whenever it appears that any person holding a healing arts license, certificate, or permit may be unable to practice their profession safely because the licensee’s ability to practice is impaired due to mental illness, or physical illness affecting competency, the licensing agency may order the licentiate to be examined by one or more physicians and surgeons or psychologists designated by the agency. (BPC § 820)
10. Provides that a licensee’s failure to comply with an order to undergo an examination shall constitute grounds for the suspension or revocation of the licensee’s certificate or license. (BPC § 821)

This bill:

1. Prohibits MBC from requiring an applicant for a physician’s and surgeon’s license or a physician’s and surgeon’s postgraduate training license to disclose the following, but specifies that MBC is not prohibiting from requiring an applicant to disclose participation in a mental health or substance use disorder treatment program, including an impaired practitioner program, resulting from an accusation or disciplinary action brought by a licensing board in or outside of California:
2. A condition or disorder that does not impair the applicant’s ability to practice medicine safely.
3. A condition or disorder for which the applicant is receiving appropriate treatment and which, as a result of the treatment, does not impair the applicant’s ability to practice medicine safely.
4. Specifies if an applicant discloses that they currently have a condition or disorder that impairs their ability to practice medicine safely, MBC must provide the applicant with information on the availability of a probationary or limited practice license.
5. Specifies that the MBC questionnaire may be returned either electronically or by mail and shall not require disclosure of the information in a) and b) above.

Background

The MBC is primarily responsible for licensing and regulating physicians and surgeons, whose certificates authorize the plenary practice of all recognized fields of medicine. The MBC also has jurisdiction over special program registrants and organizations and special faculty permits, which allow those who are not MBC licensees but who meet certain licensure exemption criteria to perform duties in specified settings. The MBC also has authority over licensed midwives, medical assistants, and registered polysomnographic professionals. The MBC additionally approves accreditation agencies that accredit outpatient surgery settings and issues fictitious name permits to physicians practicing under a name other than their own.

The MBC is responsible for issuing licenses and certificates to physicians and surgeons. The MBC’s licensing program ensures licenses are issued to applicants who meet legal and regulatory requirements and who are not precluded from licensure based on past incidents or activities. Over the four years preceding its last full sunset review, the MBC received over 29,000 new physician and surgeon applications.

All applicants must obtain fingerprint criminal record background checks from both the DOJ and the FBI prior to the issuance of a physician’s medical license in California from the MBC. The MBC also queries the National Practitioner Databank, a confidential information clearinghouse created by Congress to improve health care quality, protect the public, and reduce health care fraud and abuse in the United States, which contains a record of disciplinary actions taken by other states and jurisdictions. Over the four years preceding the board’s most recent full sunset review, the MBC denied nine applications for licensure as a physician and surgeon based on criminal history that the MBC determined was substantially related to the qualifications, functions, or duties of the profession.

In addition to verifying that an applicant meets the requirements for licensure and is not eligible for disqualification based on a prior criminal conviction or disciplinary action, the MBC includes three yes-or-no questions on its application form relating to practice impairment or limitations. Prior to presenting applicants with those questions, the application form provides applicants with the following information:

An affirmative answer to any of the questions below will not automatically disqualify you from licensure. The Board will make an individualized assessment of the nature, the severity and the duration of the risks associated with an ongoing medical condition to determine whether an unrestricted license should be issued, whether conditions should be imposed, or whether you are eligible for licensure. Please note that a limited practice license may be available.

The three questions asked on the application are then as follows:

• Are you currently enrolled in, or participating in any drug, alcohol, or substance abuse recovery program or impaired practitioner program?
• Do you currently have any condition (including, but not limited to emotional, mental, neurological or other physical, addictive, or behavioral disorder) that impairs your ability to practice medicine safely?
• Do you currently have any other condition that impairs or limits your ability to practice medicine safely?

If the applicant answers “yes” to any of the above questions, the applicant is required to provide a written explanation as part of their application. This written explanation, as with the rest of the application form, must be signed and dated under penalty of perjury. The application form also provides a link to more information about obtaining a limited practice license.

Comments

The Osteopathic Medical Board of California (OMBC) requests clarification to ensure that the provisions of this bill apply to both OMBC and MBC and requests to clarify that the OMBC does not need to provide information about a probationary or limited practice license since one is not an option for OMBC applicants.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/5/24)

Medical Board of California

SEIU State Council

California Medical Association
California Orthopedic Association
California Radiological Society
Medical Board of California
San Francisco Marin Medical Society
University of California

OPPOSITION: (Verified 8/5/24)

None received

ARGUMENTS IN SUPPORT: Supporters write that the application for physician licensure discourages physicians from seeking mental health services. The process perpetuates stigma around mental health and can exacerbate issues of burnout and depression within the medical community. There is no evidence that physicians who seek mental health services are more likely to harm a patient than a physician who has not sought treatment. The potential for punitive actions creates added stigma around physician mental health and potentially causes physicians to forgo necessary treatment in an era where physician burnout, depression, and suicide are all reaching alarming rates. By supporting AB 2164, California can protect physicians’ rights to receive care while, ultimately, improving patient care across California.

Supporters also write that a study from 2017 reported that nationwide nearly 40% of physicians would be reluctant to seek mental health services due to concerns of repercussions to their medical licensure. Physicians, like everyone else, can experience stress, burnout and mental health challenges due to the demanding nature of their work. Resident physicians have twice the rate of suicide than the general population. Seeking mental health services can be crucial for maintaining balance, resilience, and overall well-being, benefiting both physicians and their patients. Removing the requirement to disclose their mental health services on physician and surgeon licensure applications alleviates concerns of repercussions and allows physicians to seek mental health services, to the benefit of both themselves and their patients.

ASSEMBLY FLOOR: 71-0, 5/16/24

AYES: Aguiar-Curry, Alanis, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Chen, Connolly, Davies, Dixon, Essayli, Mike Fong, Friedman, Gabriel, Gallagher, Garcia, Grayson, Haney, Hart, Holden, Hoover, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Rendon, Reyes, Luz Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Robert Rivas

NO VOTE RECORDED: Addis, Alvarez, Cervantes, Megan Dahle, Flora, Vince Fong, Gipson, Irwin, Mathis

Prepared by: Sarah Mason / B., P. & E.D. /

8/6/24 16:10:47

**** END ****

SENATE COMMITTEE ON

BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT

Senator Angelique Ashby, Chair

2023 - 2024 Regular

Bill No: Hearing Date: July 1, 2024

Subject:

SUMMARY:

Prohibits the Medical Board of California from requiring an applicant to disclose information about certain conditions or disorders.

Existing law:

1. Enacts the Medical Practice Act, which provides for the licensure and regulation of physicians and surgeons. (Business and Professions Code (BPC) §§ 2000 et seq.)
2. Establishes the MBC to administer and enforce the Medical Practice Act. (BPC § 2001)
3. Declares that protection of the public shall be the highest priority for the MBC in exercising its licensing, regulatory, and disciplinary functions. (BPC § 2001.1)
4. Provides the MBC with responsibility for various duties and functions, including issuing licenses and certificates under the board’s jurisdiction. (BPC § 2004)
5. Requires applicants for licensure under the MBC to submit an application on a form provided by the MBC that contains a legal verification by the applicant certifying under penalty of perjury that the information provided by the applicant is true and correct. (BPC § 2081)
6. Authorizes the MBC to either deny an application for licensure as a physician and surgeon or issue a probationary license, subject to specified conditions and limitations. (BPC § 2221)
7. Authorizes the MBC to establish a Physician and Surgeon Health and Wellness Program for the early identification of, and appropriate interventions to support a physician and surgeon in their rehabilitation from, their substance use to ensure that the physician and surgeon remains able to practice medicine in a manner that will not endanger the public health and safety and that will maintain the integrity of the medical profession; if established, the MBC must contract for the program’s administration with a private third-party independent administering entity pursuant to a request for proposals. (BPC §§ 2340 – 2340.8)
8. Authorizes the MBC’s Division of Licensing to prepare and provide electronically or mail to every licensed physician at the time of license renewal a questionnaire containing any questions as are necessary to establish that the physician currently has no disorder that would impair the physician’s ability to practice medicine safely. (BPC § 2425)
9. Authorizes, whenever it appears that any person holding a healing arts license, certificate, or permit may be unable to practice their profession safely because the licensee’s ability to practice is impaired due to mental illness, or physical illness affecting competency, the licensing agency may order the licentiate to be examined by one or more physicians and surgeons or psychologists designated by the agency. (BPC § 820)
10. Provides that a licensee’s failure to comply with an order to undergo an examination shall constitute grounds for the suspension or revocation of the licensee’s certificate or license. (BPC § 821)

This bill:

1. Prohibits MBC from requiring an applicant for a physician’s and surgeon’s license or a physician’s and surgeon’s postgraduate training license to disclose the following, but specifies that MBC is not prohibiting from requiring an applicant to disclose participation in a mental health or substance use disorder treatment program, including an impaired practitioner program, resulting from an accusation or disciplinary action brought by a licensing board in or outside of California:
2. A condition or disorder that does not impair the applicant’s ability to practice medicine safely.
3. A condition or disorder for which the applicant is receiving appropriate treatment and which, as a result of the treatment, does not impair the applicant’s ability to practice medicine safely.
4. Specifies if an applicant discloses that they currently have a condition or disorder that impairs their ability to practice medicine safely, MBC must provide the applicant with information on the availability of a probationary or limited practice license.
5. Specifies that the MBC questionnaire may be returned either electronically or by mail and shall not require disclosure of the information in a) and b) above.

FISCAL EFFECT:

This bill is keyed fiscal. According to the Assembly Committee on Appropriations, this bill will result in minor and absorbable costs to MBC.

COMMENTS:

1. Purpose. This bill is sponsored SEIU State Council and the California Medical Association. According to the Author, “for years there has been discussion about the mental and physical well-being of California frontline health workers, including physicians. During the MBC’s most recent full sunset review oversight, the background paper published by the Senate Committee on Business, Professions, and Economic Development and the Assembly Committee on Business and Professions highlighted the following under Issue #6: “Under ordinary circumstances, frontline healthcare providers and first responders often face difficult situations that are mentally and emotionally challenging. Are there new issues arising from, or ongoing issues being worsened by, the extreme conditions of the COVID-19 pandemic?”

As discussed by the committees during the MBC’s sunset review oversight process, many physicians are susceptible to developing substance use disorders and other behavioral health conditions as a result of their profession. The Legislature has historically attempted to address this issue, including through the enactment of laws allowing the MBC to establish a Physician and Surgeon Health and Wellness Program. However, concerns have been raised that physicians are strongly disincentivized from taking advantage of opportunities for support out of fear that it could impact their ability to continue practicing medicine.

In recognition of these concerns, the MBC’s most recent sunset bill made changes to statute authorizing the MBC to provide a questionnaire to physicians as part of the license renewal process. Under prior law, this questionnaire was intended to specifically contain questions “necessary to establish that the physician currently has no mental, physical, emotional, or behavioral disorder that would impair the physician’s ability to practice medicine safely.” The MBC’s sunset bill struck the words “mental, physical, emotional, or behavioral” from the types of disorders, which was intended to clarify the intent of the law. However, stakeholders continued to raise concerns that this was not sufficiently restrictive.

While it appears that the MBC does not currently ask the questions relating to disorders impairing practice as part of the renewal process, as previously discussed, it does ask questions relating to that topic on the application form for initial licensure. This bill would provide the MBC with clear direction about the scope of these questions, with the goal of prohibiting required disclosure of participation in specified recovery programs. The MBC would still be authorized to require applicants to disclose any disorder or condition that impacts their ability to practice safely, as well as any program they have entered into as a result of disciplinary action.”

1. Background. The MBC is primarily responsible for licensing and regulating physicians and surgeons, whose certificates authorize the plenary practice of all recognized fields of medicine. The MBC also has jurisdiction over special program registrants and organizations and special faculty permits, which allow those who are not MBC licensees but who meet certain licensure exemption criteria to perform duties in specified settings. The MBC also has authority over licensed midwives, medical assistants, and registered polysomnographic professionals. The MBC additionally approves accreditation agencies that accredit outpatient surgery settings and issues fictitious name permits to physicians practicing under a name other than their own.

The MBC is responsible for issuing licenses and certificates to physicians and surgeons. The MBC’s licensing program ensures licenses are issued to applicants who meet legal and regulatory requirements and who are not precluded from licensure based on past incidents or activities. Over the four years preceding its last full sunset review, the MBC received over 29,000 new physician and surgeon applications.

All applicants must obtain fingerprint criminal record background checks from both the DOJ and the FBI prior to the issuance of a physician’s medical license in California from the MBC. The MBC also queries the National Practitioner Databank, a confidential information clearinghouse created by Congress to improve health care quality, protect the public, and reduce health care fraud and abuse in the United States, which contains a record of disciplinary actions taken by other states and jurisdictions. Over the four years preceding the board’s most recent full sunset review, the MBC denied nine applications for licensure as a physician and surgeon based on criminal history that the MBC determined was substantially related to the qualifications, functions, or duties of the profession.

In addition to verifying that an applicant meets the requirements for licensure and is not eligible for disqualification based on a prior criminal conviction or disciplinary action, the MBC includes three yes-or-no questions on its application form relating to practice impairment or limitations. Prior to presenting applicants with those questions, the application form provides applicants with the following information:

An affirmative answer to any of the questions below will not automatically disqualify you from licensure. The Board will make an individualized assessment of the nature, the severity and the duration of the risks associated with an ongoing medical condition to determine whether an unrestricted license should be issued, whether conditions should be imposed, or whether you are eligible for licensure. Please note that a limited practice license may be available.

The three questions asked on the application are then as follows:

• Are you currently enrolled in, or participating in any drug, alcohol, or substance abuse recovery program or impaired practitioner program?
• Do you currently have any condition (including, but not limited to emotional, mental, neurological or other physical, addictive, or behavioral disorder) that impairs your ability to practice medicine safely?
• Do you currently have any other condition that impairs or limits your ability to practice medicine safely?

If the applicant answers “yes” to any of the above questions, the applicant is required to provide a written explanation as part of their application. This written explanation, as with the rest of the application form, must be signed and dated under penalty of perjury. The application form also provides a link to more information about obtaining a limited practice license.

1. Arguments in Support. Supporters write that the application for physician licensure discourages physicians from seeking mental health services. The process perpetuates stigma around mental health and can exacerbate issues of burnout and depression within the medical community. There is no evidence that physicians who seek mental health services are more likely to harm a patient than a physician who has not sought treatment. The potential for punitive actions creates added stigma around physician mental health and potentially causes physicians to forgo necessary treatment in an era where physician burnout, depression, and suicide are all reaching alarming rates. By supporting AB 2164, California can protect physicians’ rights to receive care while, ultimately, improving patient care across California.

Supporters also write that a study from 2017 reported that nationwide nearly 40% of physicians would be reluctant to seek mental health services due to concerns of repercussions to their medical licensure. Physicians, like everyone else, can experience stress, burnout and mental health challenges due to the demanding nature of their work. Resident physicians have twice the rate of suicide than the general population. Seeking mental health services can be crucial for maintaining balance, resilience, and overall well-being, benefiting both physicians and their patients. Removing the requirement to disclose their mental health services on physician and surgeon licensure applications alleviates concerns of repercussions and allows physicians to seek mental health services, to the benefit of both themselves and their patients.

1. Comments. The Osteopathic Medical Board of California (OMBC) requests clarification to ensure that the provisions of this bill apply to both OMBC and MBC and requests to clarify that the OMBC does not need to provide information about a probationary or limited practice license since one is not an option for OMBC applicants.

SUPPORT AND OPPOSITION:

Support:

California Medical Association
California Orthopedic Association
California Radiological Society
Medical Board of California
San Francisco Marin Medical Society
University of California

Opposition:

None received

-- END --

Date of Hearing: May 8, 2024

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:AB 2164

Author:(Berman) – As Amended Ver:April 16, 2024

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill prohibits the Medical Board of California (MBC) from requiring an applicant for a physician’s and surgeon’s license or a licensee to disclose a condition or disorder that inherently, or as a result of the physician receiving appropriate treatment, does not impair the physician’s ability to practice medicine safely.

The bill clarifies that it does not prohibit MBC from requiring an applicant to disclose participation in a mental health or substance use disorder treatment program, including an impaired practitioner program, resulting from an accusation or disciplinary action brought by a licensing board in or outside of California.

FISCAL EFFECT:

Minor and absorbable costs to MBC.

COMMENTS:

1. Purpose. This bill is co-sponsored by Service Employees International Union (SEIU) California State Council and the California Medical Association. According to the author:

When our health care providers struggle with substance use disorder and other conditions, we want them to seek out help. During the Medical Board’s most recent sunset review, it was brought to my attention that doctors and medical students sometimes feel that they cannot participate in counseling or recovery programs for fear that they would be jeopardizing their license, even if they are confident that they can still practice medicine safely. AB 2164 will make it clear that applicants and licensees only need to disclose disorders or conditions that pose a risk to their patients, and that they will not be punished for getting the assistance they need.”

1. Background.

MBC. MBC issues licenses and certificates to physicians and surgeons who meet legal and regulatory requirements and are not precluded from licensure based on past incidents or activities. All applicants must obtain fingerprint criminal record background checks from both the Department of Justice and the Federal Bureau of Investigation prior to the issuance of a physician’s medical license in California by the MBC. MBC also queries the National Practitioner Databank, a confidential information clearinghouse created by Congress to improve health care quality, protect the public, and reduce health care fraud and abuse in the U.S., which contains a record of disciplinary actions taken by other states and jurisdictions. Over the four years preceding the board’s most recent full sunset review, MBC received over 29,000 new physician and surgeon applications and denied nine applications for licensure based on criminal history that MBC determined was substantially related to the qualifications, functions, or duties of the profession.

Questions Regarding Practice Impairment. In addition to verifying that an applicant meets the requirements for licensure and is not eligible for disqualification based on a prior criminal conviction or disciplinary action, MBC includes on its application form three yes-or-no questions relating to practice impairment or limitations; prior to those questions, the application form provides applicants with the following information:

An affirmative answer to any of the questions below will not automatically disqualify you from licensure. The Board will make an individualized assessment of the nature, the severity and the duration of the risks associated with an ongoing medical condition to determine whether an unrestricted license should be issued, whether conditions should be imposed, or whether you are eligible for licensure. Please note that a limited practice license may be available.

The three questions on the application then ask whether the applicant: (a) is enrolled or participating in any drug, alcohol, or substance abuse recovery program or impaired practitioner program; (b) currently has any condition (including, but not limited to, emotional, mental, neurological or other physical, addictive, or behavioral disorder) that impairs their ability to practice medicine safely; and (c) currently has any other condition that impairs or limits their ability to practice medicine safely. If the applicant answers “yes” to any of the above questions, the applicant is required to provide a written explanation, which must be signed and dated under penalty of perjury. The application form also provides a link to more information about obtaining a limited practice license.

The Assembly Business and Professions Committee analysis of this bill notes physicians are susceptible to developing substance use disorders and other behavioral health conditions as a result of their profession. However, physicians may be strongly disincentivized from taking advantage of opportunities for support out of fear that it could prevent them from being able to continue practicing medicine. While MBC does not appear to ask questions relating to disorders impairing practice as part of the renewal process, it does ask questions relating to that topic on the application for initial licensure.

1. Related Legislation. SB 815 (Roth), Chapter 294, Statutes of 2023, extended the sunset for MBC and narrowed the scope of the questions that MBC may ask of physicians as part of the renewal questionnaire, among other things.

Analysis Prepared by: Allegra Kim / APPR. / (916) 319-2081

Date of Hearing:

ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS

Marc Berman, Chair

ABPCA Bill Id:AB 2164

Author:(Berman) – As Amended Ver:April 16, 2024

SUBJECT: Physicians and surgeons: licensure requirements: disclosure.

SUMMARY: Restricts the authority of the Medical Board of California (MBC) to require applicants and licensees to self-disclose conditions or disorders that do not impair their ability to practice medicine safely, including disorders for which they are receiving appropriate treatment.

EXISTING LAW:

1. Enacts the Medical Practice Act, which provides for the licensure and regulation of physicians and surgeons. (Business and Professions Code (BPC) §§ 2000 et seq.)
2. Establishes the MBC, a regulatory board within the Department of Consumer Affairs (DCA) to administer and enforce the Medical Practice Act. (BPC § 2001)
3. Declares that protection of the public shall be the highest priority for the MBC in exercising its licensing, regulatory, and disciplinary functions. (BPC § 2001.1)
4. Provides the MBC with responsibility for various duties and functions, including issuing licenses and certificates under the board’s jurisdiction. (BPC § 2004)
5. Requires applicants for licensure under the MBC to submit an application on a form provided by the MBC that contains a legal verification by the applicant certifying under penalty of perjury that the information provided by the applicant is true and correct. (BPC § 2081)
6. Authorizes the MBC to either deny an application for licensure as a physician and surgeon or issue a probationary license, subject to specified conditions and limitations. (BPC § 2221)
7. Authorizes the MBC to establish a Physician and Surgeon Health and Wellness Program for the early identification of, and appropriate interventions to support a physician and surgeon in their rehabilitation from, their substance use to ensure that the physician and surgeon remains able to practice medicine in a manner that will not endanger the public health and safety and that will maintain the integrity of the medical profession; if established, the MBC must contract for the program’s administration with a private third-party independent administering entity pursuant to a request for proposals. (BPC §§ 2340 – 2340.8)
8. Establishes diversion evaluation committees within the Osteopathic Medical Board of California, as a voluntary alternative approach to traditional disciplinary actions, to identify and rehabilitate osteopathic physicians and surgeons whose competency may be impaired due to the use of drugs and alcohol, so that the licensees may be treated and safely returned to the practice of medicine. (BPC §§ 2360 – 2370).
9. Authorizes the MBC’s Division of Licensing to prepare and provide electronically or mail to every licensed physician at the time of license renewal a questionnaire containing any questions as are necessary to establish that the physician currently has no disorder that would impair the physician’s ability to practice medicine safely. (BPC § 2425)
10. Authorizes, whenever it appears that any person holding a healing arts license, certificate, or permit may be unable to practice their profession safely because the licensee’s ability to practice is impaired due to mental illness, or physical illness affecting competency, the licensing agency may order the licentiate to be examined by one or more physicians and surgeons or psychologists designated by the agency. (BPC § 820)
11. Provides that a licensee’s failure to comply with an order to undergo an examination shall constitute grounds for the suspension or revocation of the licensee’s certificate or license. (BPC § 821)

THIS BILL:

1. Prohibits the MBC from requiring an applicant for a physician’s and surgeon’s license or a physician’s and surgeon’s postgraduate training license to disclose either of the following:
   1. A condition or disorder that does not impair the applicant’s ability to practice medicine safely.
   2. A condition or disorder for which the applicant is receiving appropriate treatment and which, as a result of the treatment, does not impair the applicant’s ability to practice medicine safely.
2. Allows the MBC to require an applicant to disclose participation in a mental health or substance use disorder treatment program, including an impaired practitioner program, resulting from an accusation or disciplinary action brought by a licensing board in or outside of California.
3. Requires the MBC to provide an applicant with information on the availability of a probationary or limited practice license if the applicant discloses that they currently have a condition or disorder that impairs their ability to practice medicine safely.
4. Prohibits the MBC from requiring a licensed physician to disclose any of the information prohibited for applicants for an initial physician’s and surgeon’s license or postgraduate training license.

FISCAL EFFECT: Unknown; this bill is keyed fiscal by the Legislative Counsel.

COMMENTS:

Purpose. This bill is co-sponsored by Service Employees International Union California (SEIU) State Council and the California Medical Association. According to the author:

“When our health care providers struggle with substance use disorder and other conditions, we want them to seek out help. During the Medical Board’s most recent sunset review, it was brought to my attention that doctors and medical students sometimes feel that they cannot participate in counseling or recovery programs for fear that they would be jeopardizing their license, even if they are confident that they can still practice medicine safely. AB 2164 will make it clear that applicants and licensees only need to disclose disorders or conditions that pose a risk to their patients, and that they will not be punished for getting the assistance they need.”

Background.

Medical Board of California. The first Medical Practice Act in California was enacted in 1876. Early iterations of the MBC consisted of members either appointed directly by professional medical societies or who were appointed from lists of names provided by these societies. In 1901, the Act was completely rewritten and a Board of Examinations was established, comprised of nine members; the membership was increased to 11 in 1907. In 1976, significant changes were made to the Act to create MBC much as it exists today, as well as adjustments to MBC’s composition. The prior board’s 11 members originally included only one non-physician member; the MBC’s membership was increased to 19 members, including seven public members. The MBC underwent more structural change in 2008 with the elimination of its Divisions of Licensing and Medical Quality and the creation of a unified board.

The MBC has jurisdiction over physicians and surgeons, as well as special program registrants/organizations and special faculty permits which allow those who are not MBC licensees but meet licensure exemption criteria outlined in the Medical Practice Act to perform duties in specified settings. The MBC also has statutory and regulatory authority over licensed midwives, medical assistants, registered polysomnographic trainees, registered polysomnographic technicians, and registered polysomnographic technologists. The MBC also approves accreditation agencies that accredit outpatient surgery settings and issues Fictitious Name Permits to physicians practicing under a name other than their own.

The MBC is responsible for issuing licenses and certificates to physicians and surgeons. The MBC’s licensing program ensures licenses are only issued to applicants who meet legal and regulatory requirements and who are not precluded from licensure based on past incidents or activities. Over the four years preceding its last full sunset review, the MBC received over 29,000 new physician and surgeon applications.

All applicants must obtain fingerprint criminal record background checks from both the Department of Justice and the Federal Bureau of Investigation prior to the issuance of a physician’s medical license in California from the MBC. The MBC also queries the National Practitioner Databank, a confidential information clearinghouse created by Congress to improve health care quality, protect the public, and reduce health care fraud and abuse in the United States, which contains a record of disciplinary actions taken by other states and jurisdictions. Over the four years preceding the board’s most recent full sunset review, the MBC denied nine applications for licensure as a physician and surgeon based on criminal history that the MBC determined was substantially related to the qualifications, functions, or duties of the profession.

Questions Regarding Practice Impairment. In addition to verifying that an applicant meets the requirements for licensure and is not eligible for disqualification based on a prior criminal conviction or disciplinary action, the MBC includes three yes-or-no questions on its application form relating to practice impairment or limitations. Prior to presenting applicants with those questions, the application form provides applicants with the following information:

An affirmative answer to any of the questions below will not automatically disqualify you from licensure. The Board will make an individualized assessment of the nature, the severity and the duration of the risks associated with an ongoing medical condition to determine whether an unrestricted license should be issued, whether conditions should be imposed, or whether you are eligible for licensure. Please note that a limited practice license may be available.

The three questions asked on the application are then as follows:

• Are you currently enrolled in, or participating in any drug, alcohol, or substance abuse recovery program or impaired practitioner program?
• Do you currently have any condition (including, but not limited to emotional, mental, neurological or other physical, addictive, or behavioral disorder) that impairs your ability to practice medicine safely?
• Do you currently have any other condition that impairs or limits your ability to practice medicine safely?

If the applicant answers “yes” to any of the above questions, the applicant is required to provide a written explanation as part of their application. This written explanation, as with the rest of the application form, must be signed and dated under penalty of perjury. The application form also provides a link to more information about obtaining a limited practice license.

Efforts to Address Physician Wellness and Burnout. For years there has been discussion about the mental and physical well-being of California frontline health workers, including physicians. During the MBC’s most recent full sunset review, the background paper published by the Senate Committee on Business, Professions, and Economic Development and the Assembly Committee on Business and Professions highlighted the following under Issue #6: “Under ordinary circumstances, frontline healthcare providers and first responders often face difficult situations that are mentally and emotionally challenging. Are there new issues arising from, or ongoing issues being worsened by, the extreme conditions of the COVID-19 pandemic?”

As discussed by the committees during the MBC’s sunset review process, many physicians are susceptible to developing substance use disorders and other behavioral health conditions as a result of their profession. The Legislature has historically attempted to address this issue, including through the enactment of laws allowing the MBC to establish a Physician and Surgeon Health and Wellness Program. However, concerns have been raised that physicians are strongly disincentivized from taking advantage of opportunities for support out of fear that it could impact their ability to continue practicing medicine.

In recognition of these concerns, the MBC’s most recent sunset bill made changes to statute authorizing the MBC to provide a questionnaire to physicians as part of the license renewal process. Under prior law, this questionnaire was intended to specifically contain questions “necessary to establish that the physician currently has no mental, physical, emotional, or behavioral disorder that would impair the physician’s ability to practice medicine safely.” The MBC’s sunset bill struck the words “mental, physical, emotional, or behavioral” from the types of disorders, which was intended to clarify the intent of the law. However, stakeholders continued to raise concerns that this was not sufficiently restrictive.

While it appears that the MBC does not currently ask the questions relating to disorders impairing practice as part of the renewal process, as previously discussed, it does ask questions relating to that topic on the application form for initial licensure. This bill would provide the MBC with clear direction about the scope of these questions, with the goal of prohibiting required disclosure of participation in specified recovery programs. The MBC would still be authorized to require applicants to disclose any disorder or condition that impacts their ability to practice safely, as well as any program they have entered into as a result of disciplinary action.

Prior Related Legislation.

SB 815 (Roth) extended the sunset for the MBC and narrowed the scope of the questions that the MBC may ask of physicians as part of the renewal questionnaire.

ARGUMENTS IN SUPPORT:

The Service Employees International Union California State Council (SEIU) and the California Medical Association (CMA) are co-sponsoring this bill. SEIU and the CMA write in a joint letter: “Physicians, like everyone else, can experience stress, burnout and mental health challenges due to the demanding nature of their work. Resident physicians have twice the rate of suicide then the general population. Seeking mental health services can be crucial for maintaining balance, resilience, and overall well-being, benefiting both physicians and their patients. Removing the requirement to disclose their mental health services on physician and surgeon licensure applications alleviates concerns of repercussions and allows physicians to seek mental health services, to the benefit of both themselves and their patients.”

ARGUMENTS IN OPPOSITION:

None on file.

REGISTERED SUPPORT:

California Medical Association (Co-Sponsor)

SEIU State Council (Co-Sponsor)

California Orthopedic Association

San Francisco Marin Medical Society

REGISTERED OPPOSITION:

None on file.

Analysis Prepared by: Robert Sumner / B. & P. / (916) 319-3301