Senate Standing Committee on Business, Professions and Economic Development

Economic Development and the Assembly Business and Professions Committee will come to order. The Senate continues to welcome the public and has provided access both in person and teleconference participation for public comment.

For individuals wishing to provide public comment via the teleconference service, the participant toll free number is 8772-226-8216 and the access code is 621-7161 again, the access code 621-7161. For today's hearing, public comment may be provided on each program upon the conclusion of questions from Members of the Committees.

Today is the second in our series of Sunset review oversight hearings this year. The hearings allow for the opportunity to evaluate the effectiveness of regulatory programs and to determine whether changes in the law or operation or function are necessary.

Today we will be reviewing specific issues regarding the Bureau of Household Goods and Services, the Professional Fiduciaries Bureau, the Dental Hygiene Board of California, and the Medical Board of California. These programs expire on January 1, 2024 unless extended.

Our conversations today and moving forward will inform our collective work to determine necessary improvements or statutory changes should the Legislature decide to continue the operations of each of the entities we will be talking about today.

To assist in the review and evaluation of each agency, Committee staff prepared background papers which identify issues and make staff recommendations for each of the programs. These papers have been posted on the Committee's websites and made available to interested parties. Each program will provide a very brief overview of their functions.

Members of the Committees will have an opportunity then to raise any other issues or questions which they may have. We will also have the opportunity to hear from consumer groups, professional organizations and members of the public for each portion of today's hearing.

I would like to invite the Chair of the Assembly Business and Professions Committee, my friend Mark Berman, to make any opening remarks he desires to make.

Thank you, Chair Roth. Just want to thank you for hosting us for these hearings today. I thought we had a great conversation on Tuesday with the other four boards and thought colleagues asked great questions and look forward to today's conversation as well.

Thank you, sir. Thanks for joining us. We will now hear from Kimberly Kirchmeyer, director Department of Consumer Affairs and Justin Paddock bureau chief as we begin our discussion of Bureau of Household Goods and Services.

Welcome everyone please proceed.

Thank you. Good after Chairman Roth and Chairman Berman and Commitee Members. I'm Kimberly Kirchmeyer, director Department of Consumer Affairs and thank you for the opportunity to explain the structure and functions of the bureau and answer any questions you may have. I also want to thank Committee staff for the time they have spent on the background papers.

The Bureau of Household Goods and Services mission is to protect consumers. The scope of the bureau's activity has grown over the years to adjust to the changing marketplace. The bureau started with the regulation of manufacturers, wholesalers and retailers of mattresses upholstered furniture and bedding products.

It now includes thermal insulation, repairs to personal electronics and appliances, service contracts, and, the most recent addition, household movers. The bureau has an advisory council that meets on a regular basis, which is composed of industry and public volunteers who serve as subject matter experts and provide feedback on the bureau's operations.

The bureau is unique in that not only does it have office space here in Sacramento and special investigators that work out of their homes throughout the state, but it also has a nationally accredited laboratory where it tests the products of the licensees that it oversees. I'm also happy to report that the bureau's outreach presentations that were suspended due to COVID-19 have commenced again in 2023.

Bureau's staff attended the California District Attorneys Association Fraud Symposium in February and gave a presentation on household movers issues and how they can partner with the bureau to pursue criminal cases against unscrupulous movers, including those who hold consumers' belongings hostage.

More outreach and speaking events are planned for April and May, including the International Association of Bedding and Furniture Law Officials annual meeting and the California Moving and Storage Association's 105th annual convention.

With me here today is bureau chief Justin Paddock, who will provide brief remarks about the bureau and will be available to answer questions.

Good afternoon, Chairman and Members of the Committee. Thank you so much for having me today. My name is Justin Paddock. I'm chair of the bureau. I just had a few brief remarks before we begin. Since I've joined the bureau in January of last year, I've worked with our advisory council members and our staff to develop a five year strategic plan to help us guide us through the next coming years.

I've also worked with staff to formalize enforcement procedures, and I've been working with DCA's information technology office to essentially create a new platform for our IT system known as Connect, and I look forward to that launching in spring.

Additionally, we are also ramping up the bureau's disciplinary actions. In the last few months, I've submitted four potential actions to the Attorney General's Office, two for the Household Movers program, one for the Electronic Appliance Repairs program, and one for the Home Furnishings and Thermal Insulation program.

Also, as Director Kirchmeyer pointed out, we are expanding outreach. Recently, the bureau hired a new deputy chief. Her name is Claire Goldstein. She comes with extensive experience in public affairs at both the contractors board as well as the Department of Real Estate, and we're looking forward to her leading up our outreach at the bureau. Finally, I'd like to highlight our focus in the household mover space.

I know that many of you have heard of experiences where consumers are separated from their belongings for months and sometimes even for years. These are known as hold hostage cases or recovery cases. Hold hostage are our most egregious cases.

That's when essentially a consumer is being extorted before they can get their goods back. It's incredibly traumatic, and there are times where people have even been separated from loved ones. We've actually been able to reconnect one individual with their mother's ashes.

In addition, we also have recovery cases. These are cases where actually the household goods were essentially abandoned, so they're not being extorted anymore, but these can be just as traumatic for a consumer. I'm happy to report in the last few years, we've essentially been able to reconnect over 100 consumers with their goods.

It's very rewarding work, and we hope to continue to keep doing those sort of hold hostage and recovery efforts. With that, we'll also be performing sting operations.

We found that these sorts of cases, both of these cases hold hostage and recovery, are typically in the unlicensed mover space. And we're going to start ramping up our sting operations to essentially catch people at houses. We're going to ask them to come give us a bid, and then we're actually going to file a notice to appear where they're going to actually have to go to court. And with that, I thank you for the opportunity to testify today and look forward to your questions.

Well, thank you. Why don't I kick it off with a couple and then turn it over to my colleagues? You administer three separate programs, correct?

Yes, sir.

And that includes three separate program fund accounts. Does that create particular problems for you that need to be addressed?

It certainly does. I think a classic example is I specifically am paid out of what's called a home furnishings and thermal insulation account. On any given day, I'm working in all three practice acts, and it's exceedingly difficult for me at the end of a week or a month to sort of tell you how I've spent my time unless I do some sort of billables. A more extreme example is our special investigators who work out of their homes but also have vehicles.

In the morning, they could be visiting an appliance repair shop. Then they could be going to a mover storage facility, and then after that, they could be going to a furniture retailer in the evening. It's exceedingly hard to figure out. Okay, how are we going to split up the gas bill for the car that day their IT needs. So it gets exceedingly complicated. When we had two accounts, now we have three, and it is exceedingly complicated.

There have been discussions about merging the three programs, and particularly the three funds, into one fund. How would that work, and are there issues associated with that?

So that's essentially what we're asking this body to consider, is to merge the three funds. And what we would want to do is some sort of periodic review, similar to something that was done by a vendor of ours recently. CPSHR called a workload analysis.

Essentially, it would be some form of audit that periodically occurs to figure out how much time staff are spending in the various practice acts and then accordingly adjust whatever our fee schedule is for those three different practice acts.

Well, the three funds have varying degrees of reserve balances, varying degrees of success in terms of building up reserves. How does that work when you merge them into one?

Again, what we would be seeking is essentially that sort of workload analysis to make sure that there's equal footing. And one thing to point out, we'll be providing the Committee in the coming weeks, the CPSHR report, with its workload analysis.

That report actually discovered that the ear and hufty, that's the shorthand. The electronic appliance repair and the home furnishings accounts and staff have been contributing roughly about eight people a year to the household mover program. So essentially they're owed.

We would want to periodically review how staff are spending their time to make sure that we are properly balancing where we're actually getting our resources from, from the various licensees. Again, for the household movers, we're very much still in the implementation phase, as we've remarked in our report. And so we want to do this assessment once that implementation phase is over.

And one of the things that we should be concerned about as legislators is how we make sure that one licensing group, one group of licensees is not subsidizing the work of the others. And you've talked about trying to do a workload analysis, but obviously, I think it's, the Household Goods Fund is rather robust, and the other two household furnishings and equipment and appliance repair, not so much.

So what guardrails would you build into any sort of merger to make sure that the licensees can feel certain that they're not paying for somebody else's enforcement for example.

As I mentioned previously, at this point, the guardrail I would like is essentially some form of audit, because at the moment, ear and hufty have already given staff to the household movers program, and are essentially owed from the Household Movers program for the staff that they've contributed.

And Senator Roth, I think really what they would look at is they would go in and see how much, because usually for, like, an application fee, it's how much you're supposed to pay for your application fee. It's based on what the actual cost was to perform that application review and issue a license. So that group would come in and study that.

And is the ear, the hufty and the household movers, are they all paying the correct fee, and then if not, adjust those fees accordingly. And then making sure that they're also looking at the work that's performed based on the amount of work that is done for each different unit and do that analysis to identify if then the renewal fees are accurate for the work that's being performed for each one.

Well, thank you. And then since you referenced applications and issue number nine deals with criminal background checks, perhaps you could touch on those issues for us and tell us what the issue really is.

Absolutely. What's consistent throughout most DCA programs is individuals who are going to be coming into your home or individuals who are going to have access to very sensitive information from you are typically background checked. So, for example, household movers at the moment have a fingerprint review as part of their application process.

What the bureau is seeking is that this occur for the electronic and appliance repair space because there are two sets of individuals who are going to have essentially intimate contact with consumers.

The appliance repair individuals will be coming into your home to be making repairs. And when it comes to the electronic appliance repair space, these are individuals who are going to be repairing your child's laptop, your cell phone, things of that nature, and will have access to a lot of personal identifying information. So we're seeking that those individuals have a background check prior to their registration.

And have you been in contact with the Department of Justice in terms of the kind of the language that will need to be embedded in statute to authorize you to secure background check information?

I have not been in contact with the Department of Justice. I'm happy to do that. What we would typically do is adopt statutory language for our other programs, and we would also work with the Department of Justice on getting what's called subsequent arrest information for household movers that were licensed under the Public Utilities Commission.

And Senator Ruth, that is something we're working on on another board. And so we would have that language that we could use.

Then, obviously, it was a different context, and maybe the issues aren't the same. But then you know that we've had some difficulty with language in the past, so we'd like to try to not have that. We'd like to try to get it right the first time as opposed to the second or third. So whatever you can do to help us. One last question. In terms of your enforcement efforts.

Are there things that we need to do as a Legislature to help you improve your enforcement process?

I don't see any need to update any statutes at this time, Senator. The bureau for a long time has had a proven track record of issuing citations. My role and my goal in the coming years is to increase disciplinary action. So the citations have actually been going at a fairly good clip. But my priority with my enforcement staff and what I've clearly communicated with them is I want you to start identifying the individuals with multiple complaints against them.

And we need to find creative ways to make sure that those complaints stop. So the individual who's got eight complaints against them, whether we go for a revocation or a suspension, whether we seek injunctive relief and start working with local District Attorney's offices, that's my priority and a success for my team is when we actually stop seeing complaints from that particular business. And that's my focus.

Okay, maybe I'll ask one more. Fee increases for equipment and appliance repair and household furnishings. The two funds that seem to have the lowest reserve balance. Do you see fee increases as being necessary now or in the future?

Yes. What we're recommending is very modest fee increases. Again, we'll release the CPS HR report with our formal responses to the committees in the coming weeks. We're seeking much more modest increases compared to what the report was recommending. In addition, with the fund consolidation that we're requesting.

Thank you, sir. And let me turn it over to my colleagues on the dais. Sir. Senator Archuleta.

Okay, thank you, Mr. Chair. Thank you for appearing before us. And I thank you for your work. Obviously, protecting the consumer is your umbrella, and under that umbrella, I've got a couple of questions. Obviously, you have people who are inspectors per se, and yet you have enforcement side of it all.

Is that the same individual who will go out and inspect, obviously, what took place and also write up the violation and then enforce it? Or is it different layers of people that will come together as a team?

Explain to me how that would go. And I'm talking about, right off the bat, the home furnishings, the washer dryer. It was falsely sold to them. The regulations of contract, the service contract was wrong. And it goes on and on. It's a nightmare. Walk me through that one, and then I'll turn over into the moving part of it all.

For the most part, our enforcement team is comprised of sort of two groups, one of which conducts desk investigations in our compliance unit. And the second group are special investigators, for the most part, that handle field work. We do actually have one inspector who is solely devoted to home furnishings and thermal insulation that conducts compliance inspections and also trains a lot of our special investigators to do that during the day.

But for the most part, the field staff are composed of special investigators, and that's what they're doing. So, for example, they can be going in the morning to an electronic repair facility to discuss a complaint that a consumer filed, collect evidence, and they actually would do a compliance check as well based on what they're seeing is the registration and ready view. Are the proper tools on site? Are they doing proper invoicing and estimates according to the act?

But then that individual, the very next stop could be at a furniture retailer where they're pulling a piece of furniture that our lab will test, as well as doing a compliance inspection there. And then they could be going to a household mover after that and doing an interview based on a complaint.

And it's the first 2nd talk about the nightmare of moving, and you get to the other end, your furniture is damaged, it's only half delivered, and you're fighting for the insurance, you're fighting with the company, and then, like you said, they're held hostage. Where does the expert come in?

Where does the communications between your Department and that consumers finally take hold to actually do something? What's the time frame? What are the steps that are taken on that to satisfy the consumer, obviously?

Absolutely. So the number one priority is to do our best to make the consumer in their particular circumstance whole right away. What would happen is they would call our number 916992041 and they would be able to talk with someone immediately in our household movers unit. They would get some background, they would collect some information, and then it would be referred to one of our special investigators.

Typically, those conversations are happening within a couple of weeks of the complaint, but no matter what, they can actually talk to a human being. The same hour they call, really, it's about usually three minutes, unless those individuals are on another line. But everyone's spoken to the same day, and we get familiar with their case. Depending on the circumstances, we could be looking at a mediation where the mover says, here, let's arrange a time and a place for pickup.

And then that's a different conversation that we have with the mover after about if we saw anything that may be a violation of the max for tariff or something of that nature. And then there are additional movers who you just can't find anymore. And then we start playing a mystery game. One of the recent ones we've done, we found a storage facility in Victorville where we were able to reunite 60 consumers with their goods.

And it's sort of a bit of an investigative puzzle because while you have some consumers who have come forward, you have others where you're going through family albums trying to find who the individual was. A lot of these people may have moved out of state, and it does take a couple of months.

And thankfully, we've gotten some really good partnership with a lot of storage facilities throughout the state to be patient, to hold it while we're trying to essentially pair up these consumers.

And my final question is, if any of these individuals are licensed in any way, shape, or form, how quickly do you go in there and take action? Remove them from the public so they're no longer damaging NOL license, removal, fines, even working with the DA's office to prosecute? I'm talking about the really egregious things that are done to some of these families.

So the most extreme example we have, we partnered with the Federal Bureau of Investigation, and that case is ongoing at the moment, but there's serious action happening at the federal level. In addition, there's parts of that case that are in Oregon as well as here, and that's an ongoing conversation with essentially my federal counterpart, which is known as the Federal Motor Safety Administration. FMCSA. I just forgot to see.

I apologize, but FMCSA is essentially my federal counterpart, and we have a partnership with them on that particular egregious case. But what I would say is that is what the bureau is working on. Again, we've been very successful at citations, minor offenses. My role in the coming years is really to increase our disciplinary action, seeking revocations, taking administrative action, working with DA's offices for criminal violations. And that is my priority.

And so you talked about maybe some of the other violations, but I wonder how do you track and address those sorts of wage and pay? And I say that because I have worked with movers who did the work and then at the end of the day they didn't get the wages that were promised. So just could you share how that works?

Good. Thank you, Mr. Chair.

Just, Senators, just so you know, the average number of days for investigations is 140 days right now. And that's for all cases, no matter what it would be. And we don't have it all the way through prosecution because we haven't got to that stage yet. But that's what it is for investigation.

Thank you.

Thank you, Senator Smallwood-Cuevas.

Thank you, Mr. Chair. And thank you for the information that you provided on your role. I have a question about how the bureau tracks things like labor violations for your licensees. In my experience of working in labor and community work, when you have an employer that is committing wage theft, they typically have been involved in a lot of other violations.

Certainly what I would say is at the moment, what we track better would be workers compensation violations. And that's because we work with a lot of local District Attorney's offices that essentially are looking at that angle of there are employees on site because it's incredibly rare for a mover to be working alone. That's just not the kind of work you can do. You're always going to have employees.

We work with local District Attorney's offices and that's how we sort of enter that partnership is seeking workers comp violations. With regards to labor violations, I do plan to speak with my sister state agency DIR, but I have not done.

That in the workers comp. And I'm glad you're going to talk to DIR about it because I think that it's an important thing to track. And particularly when you mentioned no one mover does this work by themselves. On the worker's comp, do you provide information? Is a licensee required to inform workers about those protections and laws as part of your oversight?

And would that also extend, once you're done with your conversations with DIR, to ensuring that the workers actually know what the protections are and how to address some violation that may occur on the job.

Got it. With my particular oversight, there wouldn't be a lot of communication with employees. But the dialogue I hope to have with DIR is where we can establish that. If there's brochures that I can hand out while we're doing those sorts of actions with DA's offices, I'm perfectly happy to do that. I lack the expertise, but I'm happy to put them in contact with someone where they can have a conversation of that nature.

It just seems that as consumer protections, part of the opportunity of these industries is that they're providing resources that help to support community. And when there are violations within that sector, I think that oversight should extend to making sure that the employees and the workers are protected and have that information.

So please, is there a way to get back to us on how the outcome of those conversations with DIR happen and how we can inform on how you will incorporate that into your work moving forward?

Absolutely. I'll make sure that staff is aware when I've scheduled it as well as the outcome after I've met.

And, Senator, I think it would be just from hearing you. I think another good thing is their website is a great resource. And it's not just a resource for consumers, but also licensees and individuals that may work for those companies. So if we can put contacts for the DIR and workers comp, even on their website, like as a quick link, that would help them get the information they need so we can do that as well.

Yeah, I appreciate that. And direct sharing resources, it just protects against liability in that space. So thank you for that.

Thank you, Senator. Assemblymember Corey Jackson.

Thank you very much, Mr. Chair. Obviously, you have an internal performance target of 30 days to be able to complete the application process, know that you're working on a couple of things, increasing staff and all those things. Do you have what you need to be able to make that 30 day performance target?

What I would say is we're consistently meeting that performance target for electronic appliance repair and home furnishings and thermal insulation. When it comes to household movers, that gets trickier because of the nature of the application. It's a far more detailed application.

One of the issues that we presented to the Committee, and thankfully the Committee has also written about is some of the financial disclosures that can be a bit confusing. In addition, these individuals have to take an exam, and these individuals are fingerprinted.

And in the initial application phase, there is typically a bit of back and forth. You're missing this piece of information, we need that. But what I would say is when the application is essentially in the staff's hands, I'd have to track it, but I'm fairly confident we're fairly quick with it.

So does that constitute a need to change your internal performance on that particular application process, or you still believe that it's sufficient to keep it at 30 days?

Let me underline. I believe it's sufficient, but it's also why I'm really excited about the connect system that I referenced, which is our IT system, because then I can actually see for lack of a better term, how long was the hot potato on our plate versus the applicant's plate? So we needed a particular document and they took a week to get back to us versus. Okay, the minute we got that document back.

How many days did it take us to process it to move the application to the next step? The connect system is going to be able to show me that.

Do people still play hot potato?

I do.

Sorry, that was an extra question. My next real question is in regards to the examination being offered in English only, and of course, you provide interpreters for that to happen. But have we done any examination of feedback from those who have taken it who speak a different language? Is that sufficient? Should we actually be offering it in other languages, since California's population is so diverse?

It's an interesting question, I would say, because we're currently still implementing the Household Movers program, it would be a question I'd want to ask in a year or two. But what I would also point out is our exam vendor is known as PSI exams, and we don't offer the translator.

You're able to pick a translator, so any individual, typically it's a family member that's over 18 that has an ID, and they just have to promise not to apply with us for one year, and they serve as your translator on test day for that specific exam.

However, I know that other DCA entities are looking at translating the exam, and I'm happy to go down that road as well. I would just ask a bit more time as we're implementing other aspects of the Household Movers program still.

And what are you using to determine whether that change is necessary?

It would actually be feedback from examinees. So anyone who's identified as being a translator, what I would want to do.

Is survey type of thing, trying to get their opinion on the process.

That's exactly what I would do. Again, I don't have the specific translator numbers in front of me. Roughly about 120 people are taking an exam a year. So it's relatively easy for me to just basically do a follow up call afterwards once I'm in that space.

Thank you very much, Mr. Chair.

Thank you, sir. Let me thank you for your IT improvement project. One of my frustrations in this position is we see a lot of boards and bureaus, and the systems across the board, frankly, are not really as detailed as I would like them to be. So we can track processing of such things as applications and find out where log jams are.

We get a report that says, well, from the time the application is completed, it takes us 10 days to do X, Y, and Z. Well, what we don't know from that is what happens from the day that the applicant sends the first piece of paper in and how long it takes at various stages, because we know that there are stages from the first piece of paper to the time the application gets complete. And so we don't have visibility over the process.

And it sounds like your system is going to provide visibility over the process. So maybe we can take you and clone you on a few of the other boards and bureaus that we have to deal with here.

Understood? Happy to do that, sir.

Colleagues, we clone very well. Colleagues, any other questions?

I just have one clarifying question. In your service sector work, are you all where home warranty services actually come to you to get their license and to provide the services that they provide?

Yes, predominantly it's to me and that's known as a service contract. There are a few home warranty plans which would go to a different entity, but most often 9 times out of 10, what you're referring to when you see something like that, it is coming to me and they're registering as what's called a service contract administrator. If they're offering the plan, if they're selling the plan, then they're registered with me as a service contract seller.

The reason I asked that question, and this came out of a conversation with the homeowners association in my district, in the View Park, Baldwin Hills area, where there are a number of local plumbers and home repair roofers that are in communities that are low income homeowners, but homeowners just the same.

And a lot of the service providers are not practicing diversity, equity and inclusion in terms of who they are contracting with to provide those services, particularly in that community.

Do you all have a policy around diversity, inclusion of contractors who would be part of these home warranty programs, and how do you check that? What is the way that you work with those service providers, contract providers? How do you work with them and ensure that there is no exclusion of contractors participating in their programs, particularly in certain communities and zip codes?

What I would say is, because we're the regulator, we are essentially waiting for an applicant to register with us who is going to provide those services, so we wouldn't do an analysis of that type. However, I think what I would want to reference here is the Department of Consumer affairs is actually starting a DEI initiative which is looking at doing some expansion in our essentially workplace inclusion, doing training for all of our staff, as well as essentially updating our communications plan.

And this is certainly something we would look at, but again, it would be our evaluation of an existing registrant who chooses to register with us we don't have control over.

And if a contractor or a company was denied opportunity to be part of a service contract, would they contact you? Is that information made available? So if a service contractor is excluding contractors based on race, gender, whatever it is, could they come to you and lodge that concern?

I think for the most part it would be a civil matter. It would not be something that comes to me.

You don't track those sorts of.

It wouldn't be something that we would typically track. But if we were to get some sort of call like that, one of our primary goals is even if something falls outside our jurisdiction, we're still trying to help the consumer. We're still trying to mediate the issue and give them as much information as we could. My guess, but I think the facts would really dictate.

It is I would advise them of sort of their civil remedies, but I would really need to see the specifics on a case by case basis.

Okay. We'll follow up and find out more about how to figure out where to direct those kinds of concerns. Okay, thanks.

Senator Archuleta?

Yeah. I'm thinking of the severity of the issue, and I'm looking here, the violation and the penalty. Is that $2,500 is that the max?

For household movers?

Yes.

It depends. I don't want to misquote myself, so I'll put an asterisk. In certain instances, it can be $10,000. But the most egregious thing here is you also have to remember it's counts. So, for example, if I find an individual who's just done one bad thing, I'd find that almost very suspicious. I'd be looking for other customers. So that $2,500 can add up pretty quickly.

Based on the counts of violations.

Okay.

Yeah. I really think that you have to realize you're the protector of the consumer and whatever punitive action you can take is for the overall protection. And I think with a large moving company to be fined a mere $10,000 when they're making millions over the years, I think we all need to take another look at that.

The one thing I would highlight is that is an administrative remedy. The Household Movers Act allows us to partner with local district attorney's offices for criminal. And so if you're looking at really egregious acts, we're talking about jail time.

Okay, good. Go get them.

Thank you, Senator. Colleagues, any other questions or comments? Okay, let's turn to members of the public. We'll now accept testimony from members of the public. This is the Bureau of Household Goods and Services. Let's begin with any witnesses here in room 2100. Sir, please step up. Give us your name and affiliation, please.

Yeah, good afternoon, I'm Steve Weitekamp. I'm the President of the California Moving and Storage Association. We're 105 year old trade Association that represents licensed and permitted movers as well as helping consumers make prudent and educated decisions in the selection of a mover. We're here in support of the bureau.

The bureau has regulated us for the last five years. Prior to that, we were with the Public Utilities Commission for over 70. So I'm still a little shell shocked from that experience.

But I would tell you that the bureau has been very responsive and proactive in everything that we look for. And before I talk about any individual issues, I have to comment that I've been in the moving and storage space in California for 45 years.

And I would tell you that the very vast majority of the problems lie with the unlicensed and illegal operators. That there's very few companies that have made $1.0 million legally that are doing anything outside the bounds.

In fact, I conduct seminars on a regular basis. These people come, I do educational training to both the state and my members on the rules and regulations. And we take it very seriously and we support the licensed community and the regulation of this industry.

So I would tell you that the people that are doing damage to the consumers, to the regulated industry, and to the taxpayers of state are the people that have yet to get involved with the permitting program because they run completely underground.

It's a huge issue. It will continue to be an issue because there's no moat around our business. But we would say anything that you can do to support the regulators activities and going after those people first and foremost, that's where the damage is.

So with that, I would tell you that there are five administrative issues that I want to discuss, or at least make comment about. And the first one is the fund consolidation and limited fee increases.

I just want to say that we look forward to working in cooperation with the bureau on language and the details to make this item workable for both the state, the bureau and permitted movers. The next issue, which you have listed as issue number five, is the path to licensure for out of state household good movers. Again, we want to work with the bureau on language. It's all in the details. We have the most successful enforcement program in the country.

Even the feds don't have as good a program as California currently has. And we don't want to see that deteriorate by allowing people to operate without any controls. So any new people that come in on the interstate side for interstate work need to be a part of the program in some fashion, and we want to be a part of that. What you have listed as item six is a licensing of limited liability companies.

We are 100% in support of that that exists currently for people licensed historically, a good number of them are LLCs. It is a very common method for people to deal with their businesses. And we concur that there should be an unblocked path for LLCs to at least apply to become permitted movers.

Number 11, the authority to auto suspend household movers. We definitely want to work with the bureau on that. There has been IT issues that would make that a problem, up to date.

I've been told that those items are being resolved. If they are, we would have some comfort with that. And the final item that I would discuss would be to remove household good movers financial requirements. This is an absolute yes. I don't know that when the last time this was actually done.

I mean, it's in the rules and regulations, but I know that neither the Public Utilities Commission nor the bureau have the resources to dedicate economists to check people's ability to operate a business for some period of time. So I think that that needs to be done away with, with that. That concludes my remarks. If there's any way that I can be supportive to you or your staff in this process, I would make myself available. Thank you.

Thank you for your comments, sir. Thanks for taking the time to be with us. Any other public comment in room 2100? Okay, seeing none, let's move to witnesses waiting to testify via the teleconference service moderator. If you would, please prompt any such individuals waiting to provide public comment about the Bureau of Household Goods and Services, we will begin with them.

Thank you, Mr. Chair. And if you wish to speak on this comment, please press one, then zero at this time. In just a moment, Mr. Chair. One, then zero at this time. Mr. Chair, we have no one in queue at this time.

That is fine, colleagues. Any other questions or comments? No questions but comments about the Bureau of Household Goods and Services. Yes, ma'am.

I just have a follow up question to one of the speakers for my own edification.

Well, which the panelists, ma'am?

One of the public speakers.

We don't do questions.

No, I know, but I spurred my question.

You can ask the question.

No, we'll ask you for the answer. What do we do for the unlicensed portion of the industry?

That's something that we will all get to debate and discuss during the sunset review process. The sunset review process results in a bill presented in both the Assembly and the Senate to not only in this case, extend the bureau, but make any changes to the act that the bureau operates under. And so if that's an issue of concern, that's certainly something you should bring forward, and we should discuss it and see how it fits into our overall efforts.

No problem. Let's move now to the Professional Fiduciaries Bureau, and we will hear again from Kimberly Kirchmeyer, the Director, and Rebecca May, bureau chief.

Sure. Very good. Thank you.

Thank you. I don't think I need to say good afternoon again, so I'll skip that. But I would like to actually thank you again for your staff's hard work and preparation, as evidenced again by the hearing today and just by the great materials that have been put together, and especially on this bureau that sometimes can be very complicated.

So established in 2006, the bureau licenses and regulates professional fiduciaries who are nonfamily Member guardians, conservators, trustees, agents of durable power for health care and or finances, and personal representatives of a decedent's estate. Since the bureau's last sunset review, it completed a new strategic plan in the fall of 2022 that spans from 2023 to 2026. The bureau has also completed six regulation packages since the last sunset, including codifying new cultural competency, educational requirements, and establishing criteria for license denials and rehabilitation.

I'm happy to report that the bureau's application processing time has decreased significantly since its last sunset, from 50 days for completion of applications in 1718 to 13 days in 2122. The decrease in processing time is a result of the bureau's increased use of email to communicate with applicants and licensees, and these are just a few of the strides the bureau has made since the last sunset review.

Here with me to talk about the bureau and answer any questions you may have is Bureau chief Rebecca May, and at this time she's going to continue with some more information about the bureau.

Thank you. Please proceed.

Thank you, Director Kirchmeyer. Good afternoon, chair Roth, chair Berman and Committee Members. As the Director stated, my name is Rebecca May and I'm the bureau chief of the Professional Fiduciaries Bureau. Thank you for allowing me to speak with you today. Professional fiduciary licensees provide essential services to seniors, persons with disabilities and children, ensuring day to day personal needs are met, and providing estate management. A professional fiduciary makes decisions on behalf of their client and has a responsibility to ensure appropriate and adequate care is provided.

The bureau's authority is limited to the licensure and regulation of professional fiduciaries only. It does not have the authority to remove a professional fiduciary from an appointed position, such as conservator or trustee, or to alter the terms of those appointments. The bureau also does not have the authority does not have any authority over the probate court or the public guardian. Please allow me to share some of the bureau's successes since its last sunset review.

As the Director shared, the bureau has successfully promulgated several regulations most notably establishing a retired and inactive license status. The bureau began offering retired and inactive license statuses to licensees who qualify in January. The bureau has also implemented several efficiencies, resulting in lowered processing times for applications and renewals. Implementation of AB 1194, the 2021 Bill, which made significant changes to the Professional Fiduciaries act, is also underway.

AB 1194 requires the bureau to sanction licensees under certain specific circumstances and requires licensees to provide their fee schedules upon request or on their websites. Bureau staff have contacted all 58 county courts to remind them of the new requirements and to establish communication so that the courts will begin to notify the Bureau of Sanctions levied against licensees. The bureau has also done outreach about the new requirements regarding posting the fee schedules.

I'm pleased to report that sending non compliance letters to licensees who have not posted fee schedules to their websites have resulted in most of them quickly coming into compliance. Though the bureau is very limited in staffing and financial resources, this small and mighty team is hardworking and determined to protect our most vulnerable consumers. I'm happy to respond to any questions you might have. Thank you.

Thank you, Ms. May. Let me just kick it off. One of the questions that comes immediately to mind in reviewing the background are the question centers around the Fund balance and the Reserve account that this particular bureau continues to exist with, and negative 3.2 months in Reserve, which is a little bit of a concern given the license fees. Now, how do you view the long term viability in terms of financial viability of the bureau?

And should we be looking at combining the bureau with another board or bureau to make it a little easier to attain financial sustainability? Is that a fair question?

That's a very fair question, and I appreciate you asking. Historically, the bureau has had a very, very small licensing population. As of today, it's roughly 850 licensees. And because it's such a small population and the bureau's funding source is essentially through licensing fees, the fees are high. They are $700 a year for an annual renewal. That being said, these fees, which are in regulation, have not been increased since the inception of the bureau in 2007. The bureau began issuing licenses in 2008.

And this is, of course, despite the ever growing costs of business. As everyone knows, salaries, benefits have increased over the years. Prorata rent, attorney general's fees, all those costs have gone up, the fees have not. We are working with the Department to determine a fee increase due to AB 1194 being passed in 2021. We're anticipating that the workload is going to increase significantly for the bureau, including enforcement costs.

And so in order for the bureau to adequately implement the new legislation, we are seeking a fee increase. At this time.

And in your planning process, it seems to me you're going to have to factor in the reality, which is you can expect expenses to probably increase depending on where we are in the economy, but anywhere from 3% to 10% per year. I guess the ultimate question is, is that type of a fee increase, whether it's annual or biannual or every four or five years, sustainable by those who are licensed by you and who depend on the bureau for what you do?

That's ultimately the big question is, is the profession able to sustain its regulation? The fees, they are high, and the bureau has not advocated for raising them in the past. Acknowledging that that's the reality, a fee increase does present the possibility it will perhaps encourage folks that are licensed now to retire and present a barrier for new folks coming into the profession.

But that also reduces your pool of licensees to Fund your operation. Yeah, it's a dilemma.

There's no simple solution.

Look forward to hearing from you on that. Chair, any questions?

You touched on the one main issue I wanted to touch upon, so I think I'm all set.

Assembly Member Jackson, fire away.

Thank you, Mr. Chair. Obviously, our population is aging more, and we have quite a huge number of those who might fit in the category that might increase workload. You mentioned AB 1194 as one of your cost pressures as well. Are there any other cost pressures that you see coming in the future?

I suppose there's always a chance that new statutes will come forward.

Well, that's given. I'm writing them right now for you. Okay. But in terms of obviously having a growing, aging population, do you anticipate that increasing cost pressures?

The licensing pool has steadily increased, but it's just been a slow rate of increase. And I think that there are certainly seniors, or as the population of California ages, I think there's more need for this profession. Anec.ally, when I talk with licensees, they sound like they've got plenty of work. I think that maybe there's not a lot of knowledge of this as a career choice or a career pathway for younger folks coming into the workforce.

But, yeah, if this is the funding structure that the bureau is under, the long term financial sustainability of the bureau is dependent upon its licensing population.

And any change, obviously, any increase in salary and wages that may happen or benefits or any future increase in any of the costs is because they're such a small bureau, those have significant impacts. So that's one thing we always have to look at with all of our boards and bureaus, but the smaller ones, it definitely has a larger hit to their funds.

Okay, thank you.

Thank you, sir. Senator Archuleta.

Thank you, Madam Chair. Welcome back. Okay. Fiduciary responsibility. That professional has a fiduciary responsibility to that senior, to that child, to the estate. And they sometimes have the power of attorney. They have access to the books, and they have access to daily care. They have access to the housing. I mean, they are in control of that senior, that child, whatever it may be.

And does that also spill over into access to the bank account where some of these seniors have worked all their lives and have money in the bank, and this so called professional can actually go into the account for personal gain? That's what I'm concerned about. And what do you do about that when you find out when some of the family Members, anyone, complains? And of course, we have laws protecting seniors. But what is your course of action under your umbrella?

Our professional fiduciaries, it depends on the role that they take with the client. If they're a conservator or a trustee or power of attorney, that's usually spelled out in how that appointment is, the terms of responsibilities that that individual has. Yes, they can. Oftentimes they do estate management. They pay bills. They pay their own bills. There's decision making that is made essentially on behalf of the client. So the oversight of this profession is just so incredibly needed because it's such a vulnerable population.

And without oversight, there's certainly a lot of risk for consumer harm as you've touched upon.

Well, that's just my question. The oversight. Do you audit these individuals and see and interview and find out what's going on in the family there and if there's any potential thievery?

Yes. And fraud and so on. Obviously, a big part of our work is investigations. We take complaints from the public. Usually. Sometimes another professional fiduciary will complain about, a professional fiduciary will get an information from another government agency. We will look into the complaint, gather evidence, conduct interviews. And if we find that there has been a violation of the Professional Fiduciaries act, then we can sanction that license.

There isn't an ongoing system where you would audit that particular professional meeting with the client, where somebody goes out, the third party saying, how you doing, Mrs. Jones, with your professional, how's your books? I mean, just to see something before it happens.

We don't have that authority unless somebody calls way.

Yeah, it's very reactive and a lot of our boards and bureaus are this way. You waiting for the complaint to come in, someone to bring it to our attention. I mean, I think one thing that has come up because it was in the recent legislation that was passed is that everybody understands that this could be an issue.

And I think that's why ethics was added as continuing education for this profession, because there is definitely, I know it's just a training course, but we're hoping that that will help those individuals making sure that they're doing the right things. And then when the complaints do come in, we investigate all the way up investigation and then forward the case to the Attorney General's Office so they can prosecute any wrongdoing and then take action. And I have seen this.

It's a lot of them are like revocation and surrenders of those individuals licenses.

So you do partnership with other law enforcement agencies, the DA, District Attorney, and obviously consumer laws and protections of seniors. And you would be that guiding force to protect that consumer, I'm assuming?

Yes.

Okay. Thank you, Mr. Chair.

Thank you, Senator Archuleta, Senator Smallwood-Cuevas, and then my chair, Berman so good afternoon.

Thank you for the information shared so far. I just had a couple questions. One, with the limited budget and going back to the assemblyman's question about pressures with the growing population, how do you inform folks about this protection? Is it a network? I mean, clearly you have a website, but you don't have a robust budget to do public information for. The fact, I forget, it's like every minute someone turns 70 or, you know, here in the State of California, don't quote that.

But there is the growing of our aging population. So how do you communicate these protections? Do you partner with convalescent homes, with hospitals? I'm just curious, how do folks learn about it? That's number one. And number two, implementation of AB 465. Just wanted to get a sense of how that cultural competency implementation plan is going. And are there additional efforts in terms of thinking about ways to address the needs of the diversity of our population that requires these services? Okay.

And particularly around those who are seeking licenses, too. I took notes, but please, if I miss anything, please ask me again. But we are small. There's three full time staff. We do do outreach. We try to go to senior events and talk to the public about the bureau, explain what professional fiduciaries do, what they don't do, and then always advise folks to check to make sure that somebody's actively licensed. That's just information that we really try to push. We do have a website.

We have put out a newsletter. The bureau has also an Advisory Committee that meets four times a year. And so that's a really good way for us to get the message out to the public that is watching to see the stuff that the work that the bureau is conducting and how we're trying to help seniors. For AB 465 that was recently implemented, the bureau promulgated regulations to codify the requirements of 465 into our existing educational regulations. We have sent out notices to our licensees.

We've updated our website. We updated our forms. So we've done a lot of internal work on making sure that we can implement that. I know that course providers are starting to provide more courses in that area.

And for diversity, the Department of Consumer affairs has been, they formed a steering Committee on DEI initiatives to help the programs under the Department to look and see, make sure that our understanding, not just in our own workplace, celebrates DEi, but also in our outreach efforts with the public and with our licensees. There'll be trainings. I'm attending one next week. I'm just going to make sure that we learn and then update our strategic plan.

Our Director mentioned that we just finished our strategic planning process, so we will update that, make sure that the DEI initiatives are incorporated into that. So we have real, tangible things that we look to do to incorporate that into the work that we do. No, thank you for that.

I think that our LGBTQAI families really do have a unique way of addressing family issues and caring for those who would fall under those services and important to have folks with that cultural competency to be able to support those families. So thank you for that update.

And, Senator, I'm just going to put in the shameless plug as well. One other way that we really like to do outreaches with town halls, with you all, all the Legislature when you go out. So if there's any opportunity for us to join you, we've offered that to those that we meet with and giving information about not only the professional fiduciary bureaus, but any of the other departments.

Thank you for that. We'll take you up on it. We hope so.

Thank you, Senator, chair Berman.

Thank you, Mr. Chair. So I know that the bureau was humming along just fine, and then the Legislature dropped 1194 in your lap, and that's created some kind of fiscal challenges. Given that, is there anything we in the Legislature can do statutorily to help alleviate some of the fiscal issues that you're dealing with?

And then also, I know you're talking a little bit about this in response to some of rejection's question, but are there any ways to help increase the fiduciary's workforce that the Legislature could play a role in helping with that?

Well, I think ultimately it's the funding structure of the bureau that puts it at a disadvantage in making sure that we meet all of our enforcement and our licensing functions. I think that you could potentially bring other people into the profession and require other groups to be licensed that aren't required. Now there could be possibly another funding source outside of, or a supplemental funding source outside of just licensing fees floated, consolidating the bureau into something else.

So talk a little bit more about that.

I think ultimately the bureau's concern, and from the standpoint here is that this is a profession that needs to be regulated. And because the individuals that they serve are hugely are very vulnerable. And so as long as that's the guiding principle, then whatever the outcome from sunset review is working with the Legislature and with stakeholders and with the Department of Consumer affairs and with the bureau, as long as we're putting the needs of the consumer first, then that's got to be the guiding principle. I think.

I think as far as AB 1194, I think there were great things in there that brought to the attention. There's the posting of fees. There's also the requirement to report from the court to the bureau. So I think those are great for enforcement. So it's hard to say, zero, yeah, just take it all back. Right. Because of consumer protection. Right. So that's where we're kind of in this weird go between. Right. Like we need to have the regulation, but how do we pay for it?

One of the things with consolidation, you have to remember is we still want those licensees to pay for their profession. So even if we consolidate, there's obviously. What is that? I can't think of the word, but you have mass. Right. So if they join another board or bureau, they're going to have some things that are easier.

Right.

You're just sharing everything. Right. So there might be some very small savings, but at the end of the day, you also don't want another profession paying for that license. So you'd still kind of have how we were talking about Bureau of Household Goods and Services. You want to make sure that those licensees are paying for those costs. And we're always looking at ways to keep the cost down as well.

So that's something that we're looking at and we'll continue to look for and also just working with you to see what are the next steps for this bureau?

Perfect. Thank you.

Thank you.

The chair referenced workforce. Obviously, attorneys and accountants are not subject to licensure if they're engaging in these activities within the permitted scope of practice in their field, respective fields. Is there a need for more professional fiduciaries, and if so, perhaps as a bureau, you have some outreach to do in terms of college programs or whatever the credentials are that you deem appropriate in order to properly perform as a professional fiduciary to try to build the profession. Right.

I agree. I think that there is a need for this profession. I think that there are more consumers that probably need to be, or need the help of a professional fiduciary can provide. We just finished our strategic planning, and within that, we're looking at leveraging the expertise of the Advisory Committee to see how we can do more targeted outreach into perhaps increasing the licensure pool.

Perhaps you should consider or at least discuss with the various district attorneys in the state to partner with the District Attorney. Offices of the district attorneys, the offices of adult protective services. I assume that's one of your target populations. Yes. Offices of aging. To inform those folks like me who you are and what you do. Because I confess, before I took over this job a couple of years ago, I probably never would have thought that there was a bureau of professional fiduciaries.

And I'm a lawyer, or at least I once was.

That's a common response that I receive when I start talking about what it is that I do.

Good for you. Good for what you're doing. Further questions, colleagues?

No? Okay. Now let's accept testimony from Members of the public about the Professional Fiduciaries Bureau, beginning with witnesses here in room 2100. Please step up to the MiC name and affiliation and try to keep it to about two minutes, if we could.

Members Jerry Desmond with the Professional Fiduciary Association of California PFAC. We would like to address a few of the issues that are brought up in the Sunset report and the background paper, and address some of the questions that you have raised with the Department and the bureau in terms of what are the challenges to its budget and how do we increase the population. But first, we have about eight recommendations that are in the sunset reported background paper that we support.

The first is the enrolled agent issue. There is a question raised in the background paper as to whether the enrolled agent exemption from the fiduciary act should be continued, and we believe that it is something that should be eliminated at this time while it was in the original act with the idea that there could be some overlapping.

What we note since then is that enrolled agents are registered with the Eternal Revenue Service to provide tax preparation, representation activities, but they're not overseen by California in any way. So if there were to be an enrolled agent that is providing a service required for licensure, there would be no way for the state to enforce that if they even identified it. So we think that might also increase, I don't know how many, but it might increase the licensed population as we talk about the workforce.

So that's one recommendation I think would address one of the questions in some way, in some respect. We also support a number of the other specific sort of easy housekeeping almost, but improve the act. One is to include case names, eliminate the requirement to include case names, circumstances and court locations as part of the public record, to to include as a criminal act somebody who holds himself out as a fiduciary without having a license, realizing there might be some stresses on enforcement there.

Supporting the recommendation to exempt licensees that hold a retired license from annual reporting to limit the term, the use of the term licensed professional fiduciary to those that actually have a license to remove punitively from the enforcement statute, because that is a word that's not used throughout the acts anymore. And to provide that failure to cooperate would be a criminal activity. We think those are great improvements. Also, there is a mention in issue 10 in the background paper of whether there would be.

We support it to revise the AB 1194 provision to make it clear that a fiduciary could have their own employees acting under their license without having to go to court to hire them because they're already structured that way. There's one that, as I close to say, we have some exception with. It's the issue that suggests that a licensee that aids or abets somebody in providing services that they have been subject to revocation or suspension.

We think that as worded, it causes a problem for those that used to have a license but might be working and providing services under a licensee. So we wonder whether the existing statutes that provide for unprofessional activity or unlicensed activity are adequate to address that. Thank you.

Excellent. Thank you very much, sir. Next, please.

Hello, my name is Patricia Garcia. I'm a licensed professional fiduciary and I'm also sit on the PFAC's Legislative Committee. So I'm here to make just a couple of comments in support of the Professional Fiduciary Bureau. I wanted to make just two short comments with respect to the presentation that was made as a licensed professional fiduciary, just to comment with respect to how we become licensed, we have to make an application.

We have to go through a testing process, we have to go through an extensive background check, and we have to go through a specific educational process. So we do go through kind of a process in order to become and become licensed as a professional fiduciary. And the second comment to make before we provide our support comments is a lot of the information that's being disseminated with respect to the aging population.

You'll see that licensed professional fiduciaries are in great need because what happens is you see that through the court system where they're bringing in matters really affecting not licensed professional fiduciaries, but unlicensed people, family Members that are taking advantage of other family Members, unlicensed other persons that are not subject to the bureau.

So I wanted to point that out because for the most part, licensed professional fiduciaries come in when that happens, or they come in at the onset and we as professionals come in and do our job, whether that be scrutinized by the court, where we follow the court process, whether that be appointed as a conservator or a trustee or an executor, or pursuant to the terms of a document, whether that be a trust or a power of attorney.

With respect to PFAC support, we support the bureau's assessment that allowing professional fiduciaries to organize as an entity would benefit the consumer. Appointment as an entity would enable continuity of services and care for consumers. It would eliminate the need for the consumer to incur expense and replacing the professional fiduciary should that person resign, retire, become incapacitated, or pass away.

The bureau's stated hesitation to pursue licensing as a corporation is said or not in its concern that as an entity, the fiduciary would be shielded from personal liability. However, as a professional corporation, the fiduciary would continue to be personally liable for accident omissions. Additionally, registering or licensing of professional corporations in addition to individual licensing would provide an additional much needed revenue source to Fund the bureau. PFAC urges the Legislature to revise the Moscow Knox Professional Corporations act to allow professional fiduciaries to organize as professional corporations.

Second, PFAC supports a modest fee increase. PFAC shares the bureau's concern that a sizable fee increase will increase barriers to entry into this profession, with a resulting decline in the overall licensing population. We believe the options are either increase license fees to a modest extent, reduce the budget or a combination of the two.

As stated here, the bureau is concerned that mandates established by AB 1194, which references elder abuse claims submitted by the public, posting a fee schedule and referrals from the court due to the court having imposed a penalty, or making a finding that a professional judiciary has abused an adult will result in a substantial increase in complaints and investigations.

Though the bureau was and continues to be charged with investigating all complaints without restriction, this concern suggests that the infractions specifically called out in AB 1194 are not already reported to the bureau.

Ma'am, you're approaching four minutes, so I'm going to ask you to one last comment.

Perfect. Thank you. PFAC does not agree that the mandates of AB 1194 will result in a substantial increase in complaints and objects to a fee increase based on the perceived potential but unknown increase in complaints and my last, last comments thank you for your time. I will say if you look at the statistics, out of the past three years, there have only been nine disciplinary outcomes out of a licensing population of over 800. Thank you.

Thank you for your time and your comments. Next, please name an affiliation and let's try to do two minutes.

I'm going to do my best.

I know you will. I can tell.

And just so much to say.

We just have two more boards that are lengthier than this.

My name is Marilyn Krebel. I have served and worked as a professional fiduciary since 1984, long before licensing came into effect, and I want to point out just a few things about professional fiduciaries and important role they play. Professional fiduciaries are supervised by the court and regulated by the board in that they are probably the most regulated and supervised of the professions.

A fiduciary license merely qualifies a licensee to be appointed by the court to serve in various representative capacities and throughout the tenure of that appointment. The court supervises everything, anything and everything that a fiduciary does, whether or not that's opening or closing a bank account, selling a piece of real estate, or making healthcare decisions. All fiduciary actions are regularly reviewed by the court, and as part of that process, interested parties are invited to convey their concerns to the court.

Under business Professions Code 326, the Director is instructed to transmit any valid complaint to the agency whose authority provides the most effective means to secure relief sought by the consumer. 100% of consumers that responded to the bureau's 2019 survey indicated they did not believe the bureau resolved their complaint. Their bureau's 2122 survey apparently did not include the question.

We believe the public's dissatisfaction in the handling of their complaints is largely due to the fact that consumers file complaints with the bureau seeking relief that the bureau cannot provide. BFAC urges the Legislature to revise the Licensure act to clarify that in instances where the relief sought extends beyond license discipline, the bureau should make consumers aware of the most appropriate means available to them to secure the relief they're seeking at the breach of fiduciary duty.

The court is the agency that provides the most effective means to secure consumer relief. Determinations such as negligence or elder abuse and imposition of surcharge require judicial determination and are not appropriate issues for the bureau to consider.

Specifically, PFAC urges the Legislature to amend the Licensure act to provide that where the subject matter of a complaint filed with the bureau has either been adjudicated or is in the process of being adjudicated by the court, the bureau should be directed to defer to court determinations, thereby eliminating useless investigations where court determination has already been made. The bureau can then act as the fiduciary's license based on those court findings.

Not only would this eliminate the expense of an investigation as to an issue adjudicated by the court, but would eliminate the possibility of parallel investigations which have the potential for conflicting outcomes. This structure is supported by the separation of powers clause of the California Constitution, under which the judicial branch of the government is charged with interpreting the laws of the State of California. Thank you for your time.

Thank you for your comments. I will, ma'am, before you start, I'm being pretty lenient. Most of my colleagues who chair committees impose a 1 minute or a two minute rule. I try to allow people to speak. I know you're going to be short. This is for those who were coming later. I may have to start imposing time limits for lengthy presentations.

It would be helpful if you hit the highlights and then submitted your comments in writing to both committees on our websites or directly here at the O Street building, and we will make sure that they are incorporated in the record and that your comments are fully considered when we deliberate. What, if any, changes need to be made through the sunset process? I'm not speaking to you, ma'am, because I know you're going to set the record. Name and affiliation, please.

I am Jennifer Tannehill with Aaron Reed and associates on behalf of the California Society of enrolled agents. Enrolled agents, as mentioned previously, have significant oversight by the Department of the Treasury, and they also have a high standard of ethics. They're required to meet to stay enrolled with the IRS, with the Department and be able to represent people before the IRS. And so we would absolutely oppose any attempt to double regulate them by having them be part of the fiduciary bureau.

And this issue came up a few years ago, and we thought it was resolved at that point also because of financial reasons. But we are totally open to working with the Committee as it discusses this issue further. Thank you.

Thank you, ma'am. Any other individuals in room 2100 who wish to make public comment? Seeing none, let's move to witnesses waiting to provide public comment via the teleconference service. Moderator please prompt any such individuals waiting to provide public comment about the Professional Fiduciaries Bureau, and we will begin with them.

And if you do wish to speak on this issue, please press one, then zero at this time. And just a moment, Mr. Chair, and we'll go with line 49. Please go ahead.

So, Mr. Chair, Members of the Committee, good afternoon. I'm Judge Glen Reiser. I am a retired California judge. I was an attorney for 20 plus years. I was a California judge for more than 20 years. Most of my work as a judge was exclusively in trust probates and conservatorships.

I'm in my fifth year as a neutral, doing exclusively trust probate and conservatorship mediations. I know the Committee appreciates the time honored systems that are in place in the judiciary to closely supervise virtually every aspect of the performance of a private professional fiduciary. And that includes every single conservatorship case in California. As most of you know, perhaps all of you, every county has a probate judge.

In Los Angeles County, there are nine most probate judges, and all of them in the mid to large size counties have their own research attorneys and or examiners. All probate departments have a probate investigation unit, which does field investigations across each county, and there are cross referrals across county lines. Those investigators report confidentially and directly to the judge. So in conservatorship proceedings, the Judges act in parents Patriot, which effectively means they're acting as a super fiduciary.

To be certain, a conservative's life and finances are being properly managed at every turn, and very often that's a private, professional fiduciary. There are statutorily required periodic status hearings in all of those cases with very detailed full accountings, which include all the income disbursements, distributions, changes in the form of assets, liabilities, which, of course, we review line for line. Those reports and accountings are widely distributed and set for open court hearing in probates, trust and conservatorships.

Anybody who's an interested party can appear in court on the day of the hearing and be heard. You don't have to lawyer up. You can just walk in and probate and object. In probates and trust, there are often accountings when required or when at issue, and those are just as complex and detailed as the conservatorship accounts.

So in those disciplines, right, probates, trusted conservatorships, it's the only legal field in which a judge can receive a private letter or an email from any interested party, could be a relative, could be a friend, it could be a neighbor, and read it and refer it either to the investigation unit for a report or straight up schedule in order to show cause. So, to summarize, there is constant oversight of private professional fiduciaries within the court system.

There is a protocol for dealing with them, reviewing their work, reviewing their conduct, listening to objections to their performance, sending matters over to the investigation unit, setting hearings. So my pitch, if there is such a thing, is to ask the Committee to be very cautious, to try not to replicate the established process through duplicative administrative oversight and especially where the judge has conclusively weighed in on the issue. So thank you very much for your time.

Thank you, judge. Next, please.

And Mr. Chair, we have no one else in queue at this time.

Thank you very much. Let's now begin the presentation on the Dental Hygiene Board of California.

I think I'm going to ask you all to introduce yourselves. Starting my left, your right, ma'am. That's you. When you're ready.

Good afternoon. I'm Carmen Dones, President of the Dental Hygiene Board.

Dr. Dones, good to have you here.

And I am Anthony Lum, the Executive officer of the Dental Hygiene Board.

Mr. Lum, thank you for joining us. Please.

Thank you so much.

Please proceed when you're ready.

Okay. Just to give you some background, I don't know if my microphone is on.

It's on.

Okay. In the early 2000's, the Joint Legislative Sunset Review Committee determined that dental hygienists had reached a point where the responsibilities warranted an independent regulatory body that was separate from the dental board of California. With the passage of Senate Bill 853 in 2008, the Dental Hygiene Committee of California was created and established on July 1st, 2009. Although titled a Committee, it operated as an independent board.

In 2019, after its 2018 sunset review and the passage of SB 1482 the Committee became the Dental Hygiene Board of California, identifying us as a separate, autonomous government agency. The board is mandated to oversee the California dental hygiene licensee, population, and educational programs that prepare students for entrance into the profession. Also, the board is the only independent dental hygiene regulatory board of its kind in the United States.

The board has statutory responsibility within the business and professions code for the oversight of three licensing categories of dental hygienists. Those are the registered dental hygienist, the registered dental hygienist in alternative practice, and registered dental hygienist in extended functions.

Unique to California is the registered dental hygienist in alternative practice who provide dental hygiene services in nursing home to homebound patients, schools, residential facilities, and in federally established underserved areas called Dental Health Professional Shortage Areas, or DHPSA, where individuals residing in these places have difficulty accessing and obtaining dental care.

We found that a majority of dental practitioners migrate to more populated areas of the state where jobs are available and have better salaries, while RDHAPs provide much needed dental care in rural areas where dental practices are sparse. The board is also responsible for the oversight and approval of all dental hygiene educational programs in California, which consist of 29 programs. Most of these programs are located within community colleges, but many are privately owned as well.

We've been very proactive over the last seven years in reviewing the programs to ensure they are compliant of the law. To date, all 29 programs have been reviewed through site visits, and those that are identified as being deficient of the law are working towards compliance. As a self regulating agency, we have the authority over all aspects of licensure. This includes the approval of applications for licensure, law and ethics examination, license renewals, enforcement and continuing education audits.

The board performs these functions to ensure entry level competency of its applicants and continued competency of its licensees for consumer protection. We are responsible for the regulation and oversight of over 36,000 licenses and permits issued in all three licensure categories. Of the issued licenses, there is an overall average of 19,000 to 20,000 active licenses. The board is committed to carry out its vision to provide access to quality dental hygiene care for all Californians while continuing its mission of consumer protection.

Consumer protection is also vital to ensure applicants entering the profession are qualified and existing licensees are competent to provide safe dental hygiene services to the public. Again, we'd like to thank you and your staff for the opportunity to provide information about our board, and we welcome any questions.

Thank you. Dr. Dones. Let me just kick it off with a couple. On issue number three, it talks about restrictive temporary licenses for military spouses. The background says you haven't received any applicants attempting to use military education or training. The majority of applications for licensure are from active duty military spouses. I guess my question is this. Do you track how long it takes an application from a military spouse to be processed and a temporary license awarded?

I'll defer to. Yeah.

Yes, we do, Chairman Ross, and the information that I have here, it is. So we don't receive a whole lot of them, but of the ones that we have received, in accumulating the totals from last year, it was 17 in total.

17 military spouse applications, yes.

And the time to take to process those from the initial time, depending upon if the applicant provides all of the requirements that are needed to process that application and they get first priority, of course, they get put into the front for a complete application, it was about eight days. For incomplete applications, the average was about 17 days.

And you can see this is the same issue I raised with the first panel, I think, on trying to track. So is it 17 days from the date, the initial application paperwork, whatever that is? Hey, I want to apply to something more formal. It's 17 days from the date you receive that to the date the temporary license is issued.

That is the average that we've. The average, yes. Because our applications, when we receive them, they're so reliant on the applicant to provide all of the requirements that are needed. So sometimes there's quite a bit of back and forth communication in order to get those requirements submitted to us for review.

Well, listen, I think 17 days is great. I just want to make sure that with you or any other board or bureau that we're able to identify where the log jam is, if there is a log jam, and I can assure you that there are some that take way more than 17 days to generate anything. So that was just my question on that.

You raise the issue of practice in dental health professional shortage areas, and issue number five raises a further issue about what happens when you have a standalone dental hygiene practice in one of those areas and the designation goes away. Can you comment on that? And what do we need to do?

Sure. So the way the dental hygiene RDHAP, as we call it, alternative practice works is that they can open their own practice in an area that's designated as underserved. The problem is that right now, if the area was to be undesignated, then they could lose their practice. They would have to move out of the area. And so they are providing this care. They've built this practice to serve the underserved.

But if another dentist would move into the area and all of a sudden it gets changed, they lose their business, basically. And so this is an issue for the RDHAP.

And if I may, just to add on top of that, the HAP license category could be, if they open up a business, it could be self detrimental for them. They go into an area that's identified as an underserved area or DHPSA, and they start providing their services, then all of a know when the Federal Government reevaluates whether it's an underserved area because the dental hygienist has been providing those services, it may recategorize it as no longer underserved area.

And under the current law, if it's changed, then that licensee would have to close that practice.

Certainly not an incentive to pick up and move into one of those areas and open a practice. Colleagues questions.

Chair Berman, quick follow up on that. So should we. Grandfather, Grandmother and I just love these acronyms. An RDAP in a DHPSA, that's no longer a DHPSA because the feds changed the designation.

I believe that would be the ideal because they've put their life savings into these potential practices.

Would you think a permanent grandfather mothering in or for a limited amount of time? Any thoughts on duration?

My personal thought is that there shouldn't be a time limit. I mean, these individuals go in there, it's like starting up a small business. They get their clientele and their client bases to where they're receiving the dental care that they need. But if that designation goes away and they have to close the business, well, then again, three years later, if it gets recategorized back into an underserved area, will that licensee come back to provide services?

I highly doubt it if they're forced to close the first time.

Have you been in discussions with the other stakeholders in this space and you know who they are?

Thanks.

We've had a couple of conversations, informal conversations, I might add. But the main reason that I wanted to bring this to the Committee's attention is because I've heard from numerous licensees who would love to open up a practice in an underserved area, but they're afraid to because of this law.

I see. Colleagues, any questions? Senator Archuleta?

Yes, thank you. And thank you for recognizing our veterans who are married to a spouse, that is, a civilian, who is looking to continue providing and contributing to the family. And so, of course, being the chair of the Military and Veterans Committee and my Committee Member also sits to my right.

And we're also very concerned about bringing added income to the family when they're not accustomed to our high cost of living here in California, and they'll come in from Texas or some of the part of the country, and that wife or husband, whatever it might be, or partner, needs to get that license as quickly as possible.

So I would appreciate that minute you see that it's a spouse of a veteran, active duty member, that you quickly expedite that as quickly as possible so they don't miss a beat. Because 30 days, that's rent, that's family, that's children and success on the other side, how long does it take to get that temporary into a permanent? Because sometimes now the veteran is stationed for three years at a shot, how long does that take to get rolled over?

And is that retesting again to go from temporary to permanent?

At the current time we haven't looked into that aspect of it because with this temporary license and the regulations that we're proposing being so new that it's something that we can look at to see how they can maybe be expedited into rolling into a permanent license as opposed to just a temporary. Because the way that the current regulations are set up is that that temporary license would only last so long and then they would be forced to roll into a permanent license.

But it's an aspect that I will notate and we will research and get back to you on that.

And with the understanding that the military bases right now, they're asking the non commissioned officers and above to be prepared to stay at that location for three years or longer if they reenlist. So to quickly roll over into permanent would be greatly appreciated. Thank you.

Well, what are the steps? If I have a temporary license and I'm practicing in an underserved area, for example, what happens at the end of three years? What do I have to do?

Well, the RDH license.

I'm licensed in the State of Georgia and I've practiced in Georgia for three years or four or five or 10. And so it's not like I don't have a track record. I come here with my military Member spouse and I send my paperwork to you, and within 17 days I get my temporary license and my military member spouse is at 29 palms and I go out to somewhere in Coachella or desert center and set up my dental hygiene practice.

Now I'm rolling through three years and I'm about to roll into four. What do I have to do here?

Prior to the way the current law is set up, prior to that temporary license expiring, say six months prior to, they would probably need to use the normal pathways to licensure for a permanent license, meaning that they would have to submit the. Well, we would have the proof of education and everything for the temporary license.

So a notification that that individual has a temporary license and would like to transition to the permanent license, they would need to fill out the application, identify that that's what their intent is, and then the normal licensure process would occur. If they have examination results that they would like to use, we can still use those in regards to rolling that over into the permanent license according to the current law.

So examination results are required?

Currently, yes.

But you don't review those for the temporary license.

The temporary license, because that person is already licensed in another state or jurisdiction. That's what we would base the temporary license off of.

And would you use the examination results from, in my case, the State of Georgia to admit me here with a permanent license?

According to the current laws, I would have to. We have two licensure pathways. One is the examination pathway where we use a clinical exam result. In using your example of being licensed for three years, there is another pathway for licensed individuals from another state to come into California to work, and that's a licensure by credential. And what we base that off of is their work experience. However, there's two parts to the licensure by credential aspect.

One is if the individual has worked in their State of jurisdiction for a minimum of five years at 750 hours per year. Then we can use that work experience to come into California to obtain a permanent license.

How long does that take on the average to process?

Again, because we don't break it down by that, and it's reliant on the applicant to submit all of their requirements. It varies, but right now I believe we're at about six weeks from the initial to being able to issue the license. Not too bad, because the law says we have 90 days to initially contact the applicant. So we're doing pretty good as far as processing applications.

And then the other caveat with the licensure by credential is that licensee from out of state could only have three years of work experience. However, if they sign a contract to work in a public health agency, then that contract would make up for those additional two years.

And then one final question, and I'll go back to my colleagues. I apologize. Are the military spouse applicants, applicants for the temporary license informed at the time that they apply, or at least at the time that they receive the temporary license, are they informed of the additional steps or processes that need to be followed in order to convert the temporary to permanent? If they figure out that they're going to be here more than three years.

At the current time, because the temporary license is brand new, it's information that we can disseminate out to them in moving forward. But because the temporary license has been actually not even initiated yet, that's something that we would take into consideration in the information that we would send to them.

I would think it would be very helpful to the military spouse who receives a temporary license at some point to be told that reminded that this lasts three years, and the process for obtaining, converting the temporary to a permanent license can take up to x whatever x is.

Sounds like you all are pretty fast and sort of outline generally the pathway and provide a contact number or website so the military spouse can go get a head start on this process before they run out of gas in the gas tank. Colleagues, further questions?

Let me follow up on that. The military and the veterans are so important to all of us. Someone's in the military active duty and they're a dental assistant or they've been doing work with a dentist. Whatever it is, the time, the training, the military training they've received, does that spill over into helping them with the license in their process to get a license in the State of California?

Well, these are the hygienists. With respect to hygienists, yes, hygienists.

Unfortunately, the current law doesn't have any provision for us to accept that RDA training that they receive in the military. Our laws are pretty specific in that an individual would need to graduate from a dental hygiene program that's nationally accredited and board approved. So military aspects, because we have no way of knowing exactly what they've done, it's difficult to give them that credit to apply towards a California license.

So I can see we have to bridge that together. So you will be aware of what. Because we have hygienists in the military, we have to. So they've got to have done work.

And if they've been doing it for three years or mean we should find a way to roll that education over into the State of California because I'm assuming we can use all the people in the medical field, dental field and everyone else, and if we can reach over and grab some of our personnel, military personnel that are about to get out, they can walk right into a profession. I think it's a great opportunity. Would you look into that for me?

Sure.

Very good. Thank you.

I assume if they're hygienist and there's a licensing requirement in a state, they're licensed in another state. So then they would qualify under the process that you've been speaking about, which is coming in either with a credential or with an exam.

Into California as a

Correct.

Yeah. And there is one clarification that I wanted to bring up as far as the RDA military training. If they're receiving the training that's specific, just like it's outlined in California of the procedures that they do. Those are totally different than what a dental hygienist services are, which is probably an issue that can be discussed and deliberated about, but they're totally different aspects as far as what the training is.

Okay. Thank you, Senator.

Assemblymember Jackson.

Thank you, Mr. Chair. In prior reviews, you had struggled to meet statutory mandates due to staffing shortages, which precipitated you gaining approval for budget changes to have new staff. Did that solve the problem? Are you still struggling to meet statutory mandates?

No. As far as the staffing issue was concerned, I like to say was because it's in the past, since that time of our last sunset and with the help of this Committee, at the time we were able to obtain staff, and since the last sunset, we have been able to submit budget change proposals for additional staff that have been approved. So our staffing is moving along nicely.

And in terms of you meeting your statutory mandates, has that solved the problem?

Yes.

Okay. Secondly, direct supervision requirements. Are you looking at any potential changes to your direct supervision requirements at this time?

Yes. The direct supervision is basically limited to three services, and we call it SLN, but it's soft tissue curators, local anesthesia Administration, and nitrous oxide oxygen analgesia. And all three of those functions are currently under the direct supervision of a licensed dentist. And what we would like to modify is to have the soft tissue cartilage and the local anesthesia to change to where the supervising dentist has the prerogative to determine the level of supervision, whether it's direct supervision or general supervision.

The supervising dentist knows their qualifications of the hygienist staff and how they work and how comfortable they are in administering those services. So it kind of makes sense to us that by changing it from always direct supervision to now, allowing the dentist to make that decision seems like a good choice for the practice.

And you believe that it doesn't warrant a pilot of any sort or anything like that? That might have some unintended consequences.

We'd be open to discussing that.

I mean, it's okay, I'm just know, as someone who's been supervised before as a social worker, I'm just wondering what your thoughts are on that.

Well, I have to say that the RDHAP designation, they have been approved to administer anesthesia under general supervision. And in the past we haven't had any issues or any negative reports with respect to hygienists and dental offices giving Anesthesia. So we feel that the oversight, if the dentist is comfortable with the oversight or allowing the hygienist to do the administration of anesthesia under general, then they can choose to do that.

For that reason, there's been a lot of discussion about when dentists are not in the office, and the hygienist that the patient shows up needs anesthesia, but they can't deliver it because the doctor isn't on site. And so the patient has to leave and reschedule. And for the patients, it's inconvenient. And for the hygienist, they have to plan their days accordingly. And so that could be disruptive.

Well, I'm sure it'd be inconvenient if they don't wake up too, right?

Well, they wouldn't be asleep. It's just local anesthesia.

Yeah, it's local, not the nitro.

Yes.

We're all wondering, like, I don't know. We might have some other issues. Okay, thank you. I just wanted to have that discussion.

Thank you.

Thank you, sir. Senator Smallwood-Cuevas.

Thank you, Mr. Chair. I had a question about your vacancy rates in the sector overall. Some of the local dentists in my community often talk about the shortages of finding dental hygienists. How many licensees do you have? Is there a sense of forecast in terms of needs? And what is the board doing to really increase its applicants in this sector?

Go ahead. Okay.

To be honest, over the past few years, our licensee population has stayed pretty consistent between the 19,000 and 20,000 active licensees that we have. Part of that was due to the pandemic. We had a number of them that did not return to work because of that situation. And we have a pool of quite a few hundred that are out of retirement age.

So a lot of them have been waiting for us to initiate a retired license category, which we just implemented as of the first of this year. So we have a few hundred licensees that are ready to do that. But that slight decline just kind of balances out with the graduating students that we have, which are roughly around eight to nine hundred students per year. And then the unknown variable is how many applications we get from out of state. So that makes up the difference.

Normally, on an average year, we'll receive roughly between 1100-1200 applications.

In terms of the promotion of the program, how you all do your outreach, and I'm particularly thinking about, you talked about the rural communities, you talked about underserved communities. How are you reaching out to that diversity of potential applicants to your occupation?

So I would have to say that the majority of our programs are in community colleges that have diverse student bodies. Historically, the dental hygiene profession has not been very diverse, but we've seen over the recent years that it's starting to really take on more of a diverse population. And I think that the dental hygiene programs actually go out into the communities and provide services. I could say to the veterans affairs, to elementary schools and what have you.

So they're getting the word out that way, and then they also go into the high schools to promote the profession. So they've done a really good job with recruiting students because we have waitlists at most schools.

Thank you for that. My other question has to do about the exam. So to get certified, you have to take three separate exams. I see that you're trying to maybe eliminate one of them where there's some overlap. Can you talk about why it's necessary to have three separate exams that each have a separate fee for dental hygienists? It seems like a burden.

Sure. Okay. To be honest, the three exams that they have is a national exam, which is basically a written exam. And then they have a clinical exam, which in the past has been something where students are tested on live patients. Thanks to the pandemic, it got switched from live patients to mannequin exams. And the board is currently temporarily accepting those results.

And then the third exam is a law and ethics exam, just so that way the graduating student and potential licensee knows about what the parameters are with the license. As far as the legal aspect is.

So the law and ethics specific to California or law. Okay. Specific to California. So it's a separate. It got it.

With regards to the mannequin exam, we had opes do a survey or a study on whether the exam, the live patient exam, or the mannequin exam was like a standardized exam for students, and they really found that it wasn't. So we're looking at ways to how we're going to move forward with an exam or not. And I think that's the discussion that's on the table now.

Yeah. What we have in trying to move through sunset is actually to eliminate a clinical exam requirement. Currently and recent past, the students have passed the clinical exam with very high results, especially through the pandemic, we're looking at, like, 98%.

And because the schools are taught at a competency based level where their faculty make sure that they're qualified and trained and instructed appropriately to enter the profession, with the high clinical exam results, it just seems like, is it really anything adding on to their qualifications to become a licensed individual, or is it just a hurdle?

So we formed a task force to determine that and brought it to our licensing and examination Committee to vet out a little bit further before they brought a recommendation to the full board. And the result was that the recommendation is to eliminate the clinical exam for applicants who apply for the license within three years of graduation.

Thank you for that.

Welcome.

Just let me exercise my chair prerogative for a second just to follow up on this. We've seen this in other boards bureau situations. I assume during the clinical portion of the education component here that dental hygiene students are not working on mannequins. They're performing work on live patients?

Yes.

And is that fairly extensive work on live patients?

The education that they receive is two years in length. They start working on patients after the first six months. So the remaining year and a half is a lot of clinical work that they do.

So they're essentially doing a clinical exam every time they work on a live patient?

Correct, yeah.

Which I completely support your move because it seems sort of redundant at the end of a program. Like that, to then have to go take a clinical exam. When your clinical exam and your exam results are really the patients that you've been working on during the year and a half, when you've been in a clinical phase of your educational program, right?

Correct. Yes.

Okay.

The ones that we're trying to convince are the ones that deem it a rite of passage to the profession.

I understand. We've dealt with that before, Senator Archuleta.

Okay. My question pertains to after graduation, after licensing, and they donate their time to go to a school in the inner city. Do they need to be supervised there? Or they can just go and donate their time hypothetically do it.

It all depends on the services that they give, whether if they're going to do hands on dental hygiene services like a scale and route planning or something like that. Yes, they need to be supervised, but if they're providing preventative care, education and things like that, teaching them how to brush their teeth appropriately, checking their gums to make sure more of educational aspects, then they can go into schools without any supervision.

So primarily they're always supervised majority of the time. Right? Majority of the time they're always supervised.

For the registered dental hygienist? Yes.

It's the registered dental hygienist and alternative practice that can work autonomously.

Okay.

Okay, very good. Thank you.

Colleagues, any other questions? Okay, well, let's move to testimony from Members of the public about the Dental Hygiene Board of California. Any witnesses here in room 2100, they're rushing to the front. Please state your name and affiliation and brief comments.

Members. Jennifer Tannehill with Aaron Reed and associates on behalf of the California Dental Hygienist Association. The California Dental Hygienist Association supports extending the sunset on the dental hygiene Board of California. I'd like to highlight just a couple of items in the background report for your consideration. Issue one, related to the Executive officer exempt level and salary. The modest proposal to upgrade the Executive officer exempt level is important to establishing a management structure that allows appropriate oversight of all of the board's programs and staff.

DCA should act on the requested EO exemption status to evaluate, to elevate, I'm sorry, the level and the salary to measure it with responsibilities of the EO. So CDHA supports that proposal and then issue five. I had really lengthy comments on this, but I've totally trimmed them down. So this relates to the registered dental hygienist in alternative practice, the APs, as we've been talking about and dental health professional shortage areas DHPSAs.

So the Legislature created the registered dental hygienist and alternative practice to serve the shortage areas of the state where dental hygiene services are scarce and there's a lack of dentists available to treat patients. APs provide the dental hygiene care and connect patients with dentists in these areas, so they serve a vital role to connecting people to the dental team.

However, APs are wary of opening a dental hygiene practice in these areas given the risk that they could lose the business if the shortage area designation is lifted. A DHPSA designation can be removed if providers in the area do not petition to keep the designation. The designation can also be removed if more providers are successful in treating patients in the DHPSA. A few dental professionals, in fact that's the goal, is to have the designation lifted.

The few dental professionals in these areas have had to petition repeatedly to keep the designation in place in order to serve these patients. So recently, CDHA surveyed the AP hygienists about a variety of topics and, significantly, in the general comments area. 11 of the 42 comments were directly related to the current limits on AP shortage areas, practices being a barrier to the limits on those practices being a barrier to reaching the underserved and that was about 25% of the comments.

And the survey asked, did you have a practice? Do you have a practice in a DHPSA? 85% said no. If there was not a limit, would you open one? And 70% said yes. So APs would be incentivized to invest in these shortage areas if the risk of losing their practice was removed. No other healthcare providers face such a limit on their ability to practice their profession.

So CDHA requests the Committee to consider amending the BMP code to allow APs who are already operating in these areas just to be able to continue that practice if the designation is removed. And then one last item. CDHA supports the Dental Hygiene Board language that would change registered dental hygienist supervision for extended functions.

Just the two the local anesthesia, which is the shot that just numbs your gum, and then the soft tissue curators, which is working in the soft tissue around the tooth and the gum, from direct supervision to either general or direct supervision at the discretion of the dentist. And this allows RDHs competent in these functions to provide the care under the standing orders from a dentist or with more oversight, depending on how the specific dental office choose to operate.

This change in supervision does not impact liability as dental hygienists already carry their own liability insurance and are accountable to the DHBC to regulate their conduct. So this change would allow for more flexibility for the dental team to meet the needs of the patients more efficiently. Thanks for considering our position.

Thank you, ma'am. Next please.

Good afternoon. I'm about 90 seconds. My name is Sherry Becker, registered dental assistant, Certified Dental assistant fellow of the American Dental Assistance Association, and I'm speaking on behalf of the California Dental Assistance Association, the California Association of Dental Assisting Teachers, and the Registered Dental Assistance and Extended Functions Association. Having been in the dental profession for nearly 40 years, I understand the concept of team and the influence it potentially carries.

Our organizations support the extension of the Dental Hygiene Board of California to continue their work on enhancing the profession with oversight and accountability. As part of that team, we also acknowledge the work of the dental board as well as we are all working towards the same means of consumer protection, enhancement, education, growth and safety within the profession. Thank you.

Thank you. Next please.

Good afternoon. Jessica ran with the California Dental Association. CDA supports the continuation of the Dental Hygiene Board of California and its role it maintains in protecting the public. However, we do have strong concern with issues number 4 and 5 in the meeting materials on issue number four of local Anesthesia the ultimate responsibility of dentists, hygienists and other healthcare professionals should be patient safety. While it is true that local anesthesia can be administered safely in most situations, should problems arise, consequences can be life threatening.

Patient safety is optimized when the most trained person in the office is available to respond to emergencies. The perceived benefit of this expansion is that asserted to be efficiency if a patient gets turned away if a dentist is not there. However, there has been no data produced to show how many patients have been turned away due to a dentist not being on site and hygienist hasn't been able to give that local anesthesia.

In the anticipated yet possible event that the delivery of local anesthesia includes unanticipated complications, necessary training and skill should be available to serve the patient. On issue number five of the RDHGP's practicing in DHPSA, the purpose of the RDHP licensure was to provide care for individuals who are unable to go to the dental office or who live in these dental deserts known as DHPSAs. So if a DHPSA designation was to be removed, how would an RDHP be able to serve any of these two intentions?

I'd also like to add that there has not been a case of a dipsa being lifted in the history. So RDHP is operating in a brick and mortar in a DHPSA. Uninsured medical patients are supposed to be the intended populations. The provider is supposed to treat, since they're the ones who are supposed to receive care at these sites. However, only 124 of about 700 rdhaps, or only 18%, are enrolled as medical providers currently.

So, in other words, at least third of the population, including nearly half the children living in DHPSAs, are uneligible to receive care at these sites because they do not accept medical patients. For this reason, CDA is concerned about the populations who would actually receive care in these brick and mortars if a DHPSA designation was to ever go away.

Based on these statistics, it will be likely limited to patients who have commercial insurance and are already able to be seen by dentists who are contracted by these plans. We also would like to encourage the board to work with HKI on the recertification process of GPS. Thank you so much.

Thank you. Anyone else in room 2100 wishes to make comments about the Dental Hygiene Board seeing none, let's move on to witnesses waiting to make public comment via teleconference moderator if you'd please open the lines.

Thank you, Mr. Chair. If you wish to speak on this. Issue, please press one, then zero at this time. And Mr. Chair, we have no one in queue at this time.

That is fine. So what we're going, having been here almost 2 hours and a half, we're going to take a five minute recess before we begin with the medical board, which will probably be a longer portion of the hearing. So five minute recess.

Reconvening. It is 03:53 p.m. And we're moving on to our final program on the agenda today, the Medical Board of California. In that regard, I'd like to invite Kristina Lawson, the Board President, Dr. Randy Hawkins, Board Vice President, Reji Varghese- if I pronounced that correctly, if not, you can strangle me- Interim Executive Director, Marina O'Connor, Chief of Licensing, and Kerrie Webb, Staff Counsel. We may need another table, but it's nice to see you all in person.

I don't think I've ever had the privilege of doing that since I took over the chairmanship on the Senate side. So thank you for joining us today. Ms. Lawson, when you are ready, and don't rush, you may proceed.

Okay. Now it's on. Well, thank you, Chairs Roth and Berman and Committee Members. It certainly is nice to be here with you in person and not doing this sunset hearing over Zoom. We appreciate the invitation and the opportunity to discuss the Board's recent activities. My name is Kristina Lawson. I've been the Board's President since 2020, and I've served on the Medical Board since 2015. You'll also be hearing from the Board's Vice President shortly.

As discussed in the background paper, the board dates back to 1876 and regulates allopathic medical doctors, licensed midwives, polysynographers, and research psychoanalysts. The work we do each day helps to ensure that consumers receive high quality and appropriate medical care. Since we last met during our 2021 sunset review, we've implemented SB 806 licensure changes which were passed that year. We've updated our controlled-- We're updating, excuse me, our controlled substances guidelines. We've reduced paper in our processes to save time and money.

We've adopted a new five year strategic plan. Also, and unfortunately, since our last sunset review, the Board's financial situation has continued to worsen. As we indicated in our sunset report, addressing the Board's financial situation is the most critical matter to address this year. The $80 increase in fees provided in 2021 was not sufficient. Now we are taking on debt in order to maintain our operations, with more loans anticipated in the future to cover our cash flow needs.

In addition to increasing our fees, statute prevents the Board from having a sufficient reserve. Unlike other boards and departments, we are limited to a reserve of four months of expenditures. While many other boards have a 24 month maximum reserve. Increasing our reserve amount will help to limit the need for large future fee increases. And finally, we wish to have the authority to make future necessary fee increases through regulations.

This will help us to handle some additional increases on our own, which this authority has previously been provided to other licensing boards like the Board of Accountancy. The proposals in our report represent a roadmap we hope the Legislature will approve this year that will provide the board both with the financial resources and the legal tools necessary to pursue our mission and address many of the concerns that we hear from legislators and from the public.

This is our proactive effort to address criticisms, concerns and challenges faced by the Board and to improve our ability to protect consumers. We look forward to working closely with the Legislature to enact as many of the proposals as possible into law. And now I'll turn the floor over to our Vice President, Dr. Randy Hawkins.

Good afternoon. Yes, I'm Dr. Randy Hawkins. I'm a Vice President of the Medical Board of California since 2015, also serve on the Physician Assistant Board, and I'm a consumer representative on a Food and Drug Administration Advisory Committee. I'm a practicing physician, an internist in private practice, caring for California citizens in Inglewood for the past 35 years. My patient population is diverse of the range of demographics.

I'm prepared to pay the Medical Board's requested license fee increase to be given the honor to continue to take care of California citizens. Some other physicians also stated they were willing to pay this increase. Well, that's a little bit about me, but the meeting is not about me. It's about the public we both serve and the Medical Board's mission. It's about the Legislature helping us do a better job accomplishing the board's mission of public protection, appropriate licensing of physicians, and disciplining of physicians where appropriate.

There are myths in some circles that the Medical Board protects doctors and not the public and is only responsive to organized medicines. These are patently false. I disagree emphatically. The board, through its excellent, dedicated staff, is focused. They are aware to some degree of our-- I'm sorry, you're aware to some degree of our difficult financial status. I want to share a few ongoing board activities not involving more money.

First, engaging with the public, including YouTube videos on topics such as how to file a complaint, quarterly meetings, and stakeholder meetings. The latter, for example, mentioned by Mrs. Lawson, for example, includes currently updating the Medical Board's control practice guidelines. Interested parties remain central to this process. There is a need, however, to explore new, creative ways to engage in constructive, mutually beneficial dialogue with our consumer advocates. This is explored in our strategic plan. We've been taking action in this regard.

Second, I want to indicate that I have direct engagement with medical students and their Deans, physicians in training along with their program directors. I'm engaged in educating them about the Board and their own role in public protection and education of medical students, residents and fellows. This is low hanging fruit. Expansion and early exaggeration will bear fruit. Thirdly, the imposition of fee recovery from disciplined physician is yielding some financial return.

In addition to addressing the Board's financial challenge and improving communications with public and compliant and compliance is also a key priority. I want to mention a few first, the complaint liaison unit is a Board suggested approach, improving communication and understanding of the Board. The role of the mission of the board staff in this unit would do the following first, assist consumer seeking information about how to file a complaint effectively and completely.

Second, offer support to complainants after their case has been referred to the field for investigation. Third, increase consumer outreach regarding the Board's role and procedure. Fourth, evaluate complaint's closure review request and fifth, we need the Legislature to approve necessary financial resources and positions to hire additional staff. The Board has not submitted a budget change proposal as our financial position won't support adding new staff at this time. This is an example of an investment that underscores a need for additional financial resources.

Secondly, an online tracking system to further help in this area, the Board is developing in house online systems that would allow complainants to track the process of the progress of the complaint they submitted. They'd be able to do so at their own convenience without having to make a call or wait a response from the board. The liaison unit, in combination with the online tracking system are expected to significantly increase the board's capacity to keep complainants informed and increase public understanding of the role of the Board.

Thank you for your consideration. Mrs. Lawson, board education staff and I'm welcoming the opportunity to answer any questions.

Well, let me start first, let me say I've been very, very impressed with the changes that you have proposed and started to implement and those you have proposed and planned to implement. Since I started in this job, I guess two years ago, seems like a long time, particularly with the Medical Board.

But I would like to focus a little bit at the beginning, more than we've done in the past, on the financial situation and the financial cliff that we seem to be dealing with every year with the Medical Board and delve into-- If you're willing to help me, I'm not sure I can ask articulate questions. I will try on this issue, but help me understand the expenses that you face.

I was struck by the background or statement that the Medical Board's enforcement program accounts for 75% of overall expenditures, which sort of drives the point I continue to make, which is in this particular case, the either unfortunate or bad acts of a few physicians are driving the cost up for a whole bunch of physicians. Those who never see the inside of your enforcement unit or even the outside, are paying for those that are frequent flyers, apparently, in the enforcement unit.

And there may be other drivers of those expenses beyond enforcement. But perhaps you could talk about that with me. I assume for some, it's the standard story of boards where we require individuals to be licensed, and then we tell those who are licensed that they're going to pay for the complete operation of the board involved. So that would be the MOU expenses and other administrative expenses that all boards face.

But there seems to be an ever increasing amount of money allocated to paying for those administrative expenses. I think I'm going to stop talking. Maybe I'll let you all talk to the financial situation, and in particular the expense side of the financial situation, which is what's driving this continuing need for additional fee increases.

Absolutely. And I'm going to ask our interim Executive Director to get into the details with you. But you're absolutely correct. Litigation and our enforcement expenses are the key cost drivers. And I'll let Mr. Varghese get into the details.

Senator, first of all, let me tell you that you pronounced my name accurately, 100% correctly. So appreciate that. Yes, like Ms. Lawson alluded to, it's not all enforcement. Right? I mean, there are litigation against the board. That's costing us, too, in defending those litigations. They're costly. They run multiple years into the system, and that's one big area most people don't realize that the Board will have to defend our board members and staff sometimes, along with the governor's office, to defend these cases.

And we have to pay a share of that. So that's a big share of that. When you move that apart, then you look into the quality of control cases. These are not easy cases to defend. And especially during COVID time, we had to fight through the, try to get the medical records, getting the releases the patients don't readily provide with the consent, so we can go get the records. So we had to go to the subpoena enforcement side. That is expensive and time consuming.

During COVID time, the court systems were closed, so we had to wait. So that added to the time frame and added to the cost. And there are times when recently we have seen, there is an effort from some of the physician community to even discourage the patients to pull back their consent they were originally given. So we are one of the ask is to give us some tools to defend these practices out there. So all these added in, it cost time and effort and budget.

Now, we'll be happy to provide you with a breakdown of those expenses and costs later down the road. I don't have those numbers with me, but these are some highlights that I can give you some feedback now.

Well, let me ask a question. For example, you mentioned patient consent on medical records. Obviously, these are patients who are not complaining about their physician.

That is a big part. They will not give us consent.

These are patients that are implicated in the system for some other reason. Drug prescriptions or whatever. Is there a way to deal with the consent issue in advance, either through statute or some other way, or is it really largely HIPAA and the federal law that we can't impact here on the state level?

That is a very good approach. And if we have that authority and may not need in all cases, but in certain cases, if we can get that authority up front where we have that authority to go and get the records, like even some of the other boards do have that, the capability to go and get the records on demand, they don't need to get a patient concerned because this is a regulatory matter.

We have a job to do to protect the public, and we do need the medical records. I mean, it could be in favor of the physician to prove the case that they didn't violate a standard of care. It can go both ways, but unless we get handled on that medical record, we cannot do anything.

So we would be amending the Confidentiality of Medical Records Act in the California version to authorize the board to go VFR direct to the physician's office in the event of a complaint where those records are necessary for investigation and do that without the need for either consent or subpoena.

Senator Roth, Kerrie Webb here. Thank you very much for hearing us today. The Medical Board is a healthcare oversight agency, so HIPAA does not come into play with our ability to get and review records so that we can evaluate the physician's care of patients. Most boards across the country do not require a subpoena or patient consent to get records because the job of reviewing care provided to patients is so important. And getting those records is a big part of the delay.

I understand. I'm trying to figure out what we need. So all we need to do is give the board the authority to go in and obtain the records.

We've actually made some proposals that would help in that direction. That would be fantastic. And also if that can't be achieved, allowing the statute of limitations to toll if we have to take subpoena enforcement action is very important.

We'll get to that issue. I'm just trying to deal with the-- with this part of the expense equation. What about the investigation process? Does that have expense associated with that that we could alter by making changes in the way you do your investigation or the people that conduct your investigations?

I can expand on that too.

We've had discussions about bringing an investigation unit, as I recall, back inside the Medical Board. I don't know whether that's good or bad, whether that would affect. It affects other things. But would it affect the expense side of the equation here, since we're dealing with fund condition and insolvency possibilities?

Yeah, I mean, just to address that question, the Board itself hasn't taken a position on that question of whether or not investigators should be located where they currently are or in any other location. But I would call your attention to the enforcement monitors preliminary report, which I think you received last week or the week prior, which identifies this as what I'll characterize in my own words, as an area of opportunity for us, something we all need to think about and look at.

But for those of you who obviously manage this organization, does it have financial impacts, other than the impacts that are the obvious ones, and coordination and investigation efficiency?

It's more than financial. It's the management. We are contractually bound by the MOU. So how do we manage a system? How do we manage the budget and all that? It's outside that MOU. It's totally outside the MOU bound. So we really cannot really say that we can financially manage it better unless we have that authority.

And what about the use of attorneys during your enforcement process? Is there some expense savings associated with using the Department of Justice or not using the Department of Justice, having attorneys embedded in the Medical Board or not?

I'll let Kerrie maybe answer that real quick from a legal standpoint.

Well, if I can speak frankly, I was surprised to see the suggestion to not use the Attorney General's Office. I'm not sure what that would look like. The Attorney General's Office, I think their hourly rate is $220. Outside counsel is much more expensive than that. And if you're talking about bringing litigators on board at a reduced rate, I'm not sure what that would look like.

There are different types of attorneys that can be used for different types of things.

Right. I provide staff--

You don't need F. Lee Bailey to supervise the initial investigation of a medical negligence complaint, right?

But you might want F. Lee Bailey if you're walking into trial? I guess that's my question is, have you given any thought to how you allocate your use of attorney of legal services and whether there's savings to be derived from making modifications there? I gather not. I'm just asking a question.

We've talked about this, and the Board has inquired, asked our staff during our board meetings exactly the question that you're asking us here. In the past, the answer has been that much along the lines that Ms. Webb was talking about, that going outside and having outside legal counsel would be substantially more expensive. I will also share with you, we are extremely pleased with the support we get from the Department of Justice, I find and the board has found their attorneys to be of top quality.

We think they serve us very well in our cases. And again, I was somewhat surprised to see some of the comments and public comments and in the background paper about bringing attorneys in house. We have not explored that as a board. I don't know exactly what that would look like, to stand up a whole Department that would be necessary to support the needs of our board. I mean, we have multiple federal lawsuits against the Board right now in addition to all of our enforcement cases.

I mean, it's just an incredibly complicated legal structure, right. And I would think that would be very expensive.

Well, listen, I think the Attorney General's fees, now that I've looked at them the last couple of years, are quite cheap. But there's also the command and control piece and the coordination piece, which my colleagues, I'm sure, will get into, and whether up to a certain level, you achieve some control and coordination efficiency by having some type of lawyer embedded in your operation, as opposed to an attorney that has competing interests and works for another agency. But you all will have to decide that.

Maybe we'll give you the option to make that decision.

And I think the underlying issue or the concern that we have is the costs, both of the Department of Investigation through the MOU and of the Department of Justice. Those are costs that are outside of our control, right. We don't have management over the increases in some cases. We don't have visibility into what the bills are that we might receive. And for an organization like ours that is already in a precarious financial position, those are the aspects of the system that concern us the most.

Well, that's my point. I mean, controlled translates into expense depending on whether you have any or not.

Senator Roth, may I make a couple of comments about some of the questions you had earlier? So we're obligated to investigate cases that the public brings to our attention, those are within our jurisdiction, we have to investigate. And aside from those that are related to the Attorney General representing us, we just have to investigate those. We can't not investigate those cases. Regarding the investigators, for as long as I've been on the Board since 2015, the investigators have had a backlog of not having enough investigators.

They're constantly not having enough investigators, and that they're the ones that do the investigation for what we do. So that's an issue that we can't control. Our leadership at the board is meeting regularly with HQIU, the investigators, to try to move the process along. But those are some of the challenges we have related to the questions you ask.

Okay. I just want to make sure somewhere in here we have the fee request, which is to go for the initial physician and surgeon fee from $863 to $1350, just so my colleagues know that. So why don't I turn it over to my colleagues for questions? I guess I'm looking in this direction. Senator Smallwood-Cuevas.

Thank you so much, Mr. Chair. Thank you all for being here with us. Good to see you again, Mr. Lawson. And thank you for your service in the City of Inglewood, my neighboring community. So I have a few questions that I wanted to ask, and really, this looks at the complaint process, and you talked about the complaints that you receive. And just in some of our research, my team noted that the central complaint unit had received, the public had submitted over 6409 complaints, for a total of 9,943.

8,254, 83% of those complaints were closed with no investigation and no interview. What is the explanation for sort of the seeming high number of complaints that seem to go nowhere? And what are the ways that you all are evaluating these complaints so that 83% are closed with no investigation?

I'll speak to that first. And we can get into some of the specifics about the numbers of cases that are dismissed, if you will, for different reasons. I did want to point out that those statistics don't tell the entire story about our complaint process, right. And our annual report provides some very specific detail about the types of complaints we intake and then what happens to them as they're processed in that central complaint unit. And I'll just give you a couple of examples.

Thousands of cases are closed because the board receives no response from the complainant that matters outside our jurisdiction. So, for example, it's about a nursing situation rather than a physician or surgeon situation, or in some cases, complaints are closed because the same complaint has been made by multiple people, right. And so maybe there are 100 complaints about the same issue, and that actually is more common than you would think it would be. So those statistics don't tell the entire story or paint the whole picture.

And we'd be happy to follow up with you with all the detail that is provided in our annual report. Over the past five years, we've opened about 1450 investigations each year, or about 14% of the complaints received. And 31% of those investigations open has resulted in discipline. Mr. Varghese, I'd be happy to have you follow up with the specific details.

Let me just say we do have the, actually, this is the first time that I've seen this excellent layout in our background or on pages 14, 15 and 16. We do have a spreadsheet between that describes a number of cases, administrative actions, administrative outcomes, and then the complaints received by complaint type and source. As I said, I doing this two years and I hadn't seen this described in this way. Not that you haven't provided it in a report, I just haven't seen it before.

And Senator, to your question also, I do recognize that there's an opportunity for us to help those that interact with the Board, whether it be complainants or whether it be members of the profession or otherwise. There's a need for us to help people better understand our complaint process, help better understand how they can file a complaint and what would be helpful to us to have as part of that filing of the complaint, and then also understand what these outcomes are and what they mean as well.

So we recognize that that's an area of opportunity for us.

Sure. No, I appreciate that. And particularly where it's not your jurisdiction, how do you help them find the right jurisdiction? Because these are valid cases that I'm sure the state and other agencies and boards will need to know. So I appreciate that. The other-- just in our news cycle down in LA County, there have been quite a few stories of challenges and negligence.

In one case, a surgeon who was under investigation eventually charged with criminal manslaughter for a woman who died on the operating table, and two more patients who were all also maimed by the surgeon while the board was still investigating, and after which finally concluded it.

This physician was charged, but how are consumers supposed to ensure their safety when the investigations take longer? I'm curious. How long do these serious investigations, how long do they go for? And if they drag out past the point of the criminal charges, how can we reconcile that reality? Because we want to make sure that these doctors, even when under investigation, that they're not able to continue to practice.

Absolutely. I'll be frank with you. Our investigations take way too long. As Dr. Hawkins pointed out, HQIU has been understaffed as long as I've been on the board for the past seven years. And I suspect that those investigator positions were difficult to fill even prior to that. It's a matter of resources. Right?

And again, I hate to make this all about money, but we need to have the resources in place so that we can investigate our cases and make sure we have the resources we need to make sure that outcomes like the one that you described don't occur. It's been a focus of our Board. We don't believe that our enforcement timelines are acceptable. Right? You asked how long they can take. They can take three years or more for us to go from start to finish.

And we don't think that results in great outcomes. But we do think that many of the proposals we've made, including the request for additional funding, can help us address those challenges and get ourselves in a better position. Dr. Hawkins, you might want to weigh in on this, too.

So I was going to mention that we have these panels, panels A and B, that actually reviews the cases independently and makes a judgment about whether we agree with the recommendation for discipline or not. And sometimes you look at a case and you say, "well, why did this take so long? What happened along the way?" And it's sometimes extremely frustrating. But, Kerrie, so I wonder if you could help us a little bit about this due process that we run into related to physicians.

The example that Ms. Smallwood-Cuevas gave us where something happens and then we may be investigating, something else happened. There's this due processing that we can't actually get around, has to do with the law.

Well, I think your question raises very good points, many of which have already been addressed. Part of the criticism that the Board faces is that patients aren't aware that these very serious investigations are going on. And the Board is limited as to what it can post on the physician's profile by Business and Professions Code Section 2027. So a physician who has been charged with a crime, that is not a postable event.

There's no requirement that a physician tell their patients that they've been charged with a crime. The Board can't just simply restrict a physician's license because they're charged with a crime. The Board can go in to the Superior Court when this is being addressed like an arraignment and ask the judge to impose a practice restriction, which is not always granted. Another avenue is the Board can seek an interim suspension order through an administrative law judge.

The challenge there is that if an interim suspension order is granted, the Board has to be prepared to put its case on in full within 30 days. So the Board has to have that investigation nearly complete to be ready to go, or the interim suspension order will dissolve. And if the investigation is rushed and the case is rushed, you can imagine that a bad result with that disciplinary action would not be in the best interest of consumer protection.

So those are a few of the challenges involved in these very serious cases that are upsetting to all of us.

Well, it sounds like there is some policy remedy that the Legislature could offer in terms of this particular 2027 policy. And if you have other suggestions on how that could be remedied, I think that it would be helpful to know if there are other ways in which policy can help to free your hands, to do what's necessary to better protect and inform the public.

Excuse me, just a brief comment. We do have the ability to stop a physician from practicing if there is evidence that they're mentally or physically impaired. But even that takes a process. It may take weeks.

Okay, thank you for that clarification. There's another, again, in my district, headlines around the experience that led to the death of a woman giving childbirth in my district recently. A Black woman who, through a number of conversations with the medical team that was providing care, basically ignored some of her concerns.

Clearly, it was an issue of implicit bias that took place in that effort, and investigations are continuing in that effort, as her family is seeking justice in the loss of her life and that of her child. But I wonder, what is the Board doing in particular to protect Black women patients in California from these kinds of instances related to fatal consequences due to implicit bias by medical providers?

We saw hundreds of cases coming out of COVID even a physician herself, who did a YouTube video explaining how she was not getting adequate care and died a few days later. What is it that we are doing here in California to hear Black women who complain of pain, complain of serious conditions that are developing in the midst of care, to ensure that their voices are heard? I know my predecessor passed AB 249 to do implicit bias training.

Unfortunately, we've lost another person in my neighboring communities, and so just wanting to hear where that is. And can you speak to how much of a priority is this for the Board?

Yes, and I'll start with just acknowledging what an extraordinary tragedy the case is that you're talking about. We at the Board, of course, and me personally are aware of the circumstances in that case, and the Board has opened a complaint on its own initiative into that matter. I will say that case in particular, underscores a need for really greater collaboration also across the various regulatory agencies.

So Medical Board of California, the Nursing Board, CDPH, so that we can really understand what happened there, and then understand what steps can be taken so that a circumstance like that never occurs again. To your question about implicit bias training, so, board members, we have our own obligations and requirements to undergo that training as board members. I think one of the previous boards or bureaus was talking about DCA hosting that sort of training.

There is one upcoming for all of us, but you also talked about AB 241 I believe, of 2019, which required CME courses to include that information. So that's one of the ways, and I believe we supported that legislation then, that's one of the ways we can have an impact with respect to the sort of workforce development, how we make sure that the workforce of physicians and surgeons and the other regulated professions that we regulate, we take more of a supporting role in that regard.

I would be interested in learning from you and others about areas that you see where we could be more involved, whether it would be in our educational function or otherwise. We do gather a lot of data that we then share with other regulatory agencies, like the Department of Healthcare Access Information. And so we gather a lot of information.

But again, to address your question specifically, we don't take a lead role in that sort of workforce development, making sure that the workforce is trained appropriately once the licensing has occurred. If you want to add any additional information.

So, like Ms. Lawson pointed out, we are sitting with a lot of this healthcare access data with us, which we share with other departments that can analyze it to see where there's a shortage of healthcare, and especially they can break it down to diverse populations so they can make sure where are the desert, so to speak, where physicians are not available to treat adequately the needs for the diverse public population. So we are a resource to that group.

Just want to add on to a little bit further, like you heard from some other bureaus earlier today, back in November 2022, DCA established a DEI Steering Committee. And I am one of those Steering Committee members. There's 12 Committee members, and I'm one of the Committee members, and we just went through a whole day training on DEI a couple of weeks ago. Next week, there will be a larger audience, including all DCA boards and bureaus, coming together for an hour and a half DEI training.

And eventually, and at the same time, some of the trainers at DCA are getting certified. They are getting 50 hours of certification. And then after their certification, that training will be rolled out to all DCA employees and board members and everyone. This is exciting time, and I'm glad that we are taking this approach and this will eventually help in making sure that we address some of the concerns that are out there.

Well, I'm glad to hear about the staff, board members and staff going through that training. And I'm just also wondering on the continuing education curriculum. The case that I mentioned, April's death, the young woman who experienced this implicit bias that led to her death and the death of her baby, will these lessons learned from that sort of review and evaluation of what took place, in terms of sharing data, how does that inform the curriculum that your licensees will get in terms of the continuing education?

Are you all ensuring that whoever's providing that curriculum is updating it with the data that is coming from the field that you all are evaluating? Because you learn something from every case and that hopefully will prevent the next one. Knowledge is power in that sense. So how does that information get shared, relevant, real-time examples in the field?

Ms. Webb, are you able to speak to whether we have any involvement in the actual curriculum as it's developed once the legislation was passed?

The Board does not have involvement in the development of the curriculum. The providers are required to follow the law, and on what's required for continuing medical education, the Board has taken an interest in that. And our last, I think, in December, we had two speakers on implicit bias and the effectiveness of continuing medical education in reducing disparities in the LGBTQ community. And earlier last year, we had a speaker, Dr. Aguilar-Gaxiola from UC Davis, who studies this.

He spoke on the effectiveness of CME in general in addressing implicit bias. And so this is an area that the Board is very interested in. I think your question is a very good one, about: is the Board ensured that the providers are meeting the requirements of the law? And I think that we should take a closer look at that.

My comment, and this is a complicated situation and obviously terrible situation. We have too many of these cases of maternal death among African American women, but also Brown women, and it involves a lot of different things involves a lot of medical issues. And so we have obstetrician gynecologists who are, their job is to help this woman get through a safe pregnancy and deliver a healthy infant. But it starts way, way back with a lot of stuff having to do with health choices, regular medical care, regular follow up.

You would think that with the number of cases that keep occurring that a better job would be done to reduce maternal mortality. We're worse than some Third World countries, actually. But this person, as far as I was told, did all the right things. I mean, she chose a physician who looks like me and you, who could be aware of this increased mortality or morbidity risk. But I don't know that, and I don't know the details about this.

I don't know this particular instance, whether it was the physician's issue, whether it was another issue. Only information I have is the information that's in the newspaper, which is not enough to understand what happened.

But as I talk to medical students about the Medical Board and protecting their license and the privilege they have to be able to practice in the State of California, we also have to talk to them about caring for individuals and the fact that you may not understand that your decisions are related to something that is subconscious, but you have to put it out there.

You have to let folks know that it exists, and then once they know it exists and you have ability to deal with it. So the question about implicit bias is talked about more and more because it's a real thing and folks just don't understand it's actually there. As I mentioned earlier, the Medical Board did some things with, so we have implicit bias training.

We also redacted some things for the medical record, where I may think that if you went to Stanford, that makes you a better doctor, and if you went to that excellent institution, MLK Hospital, from 40 years ago, you got substandard care.

So we took that stuff out of there so that as a reviewer, as a person who's voting about what should happen, I don't give an individual, a doctor, a leg up or the leg down for something that's not relevant to their practice of medicine, and was the standard of care not met. And that's what we try to do.

And if I may add one more thing. This is a space we really would like to hear from the public about the experiences they are going through. And for that matter, now that COVID is behind us, August board meeting is scheduled to be held at Bakersfield, where we are going to the location where patients don't have to travel or trying to get on the phone to talk to us. We are going to them. So we are addressing that from that standpoint.

Thank you. And Ms. Lawson made me aware of that upcoming on-site, and I'm encouraging the Board to do that more often, and particularly going to those underserved communities that have limited access and where these incidents happen far too often. And happy to connect with you on partners and organizations to help understand how these things happen in ways that they think the Medical Board could play a role in preventing them. And my final question has to do with your role directly disciplining physicians.

And there was a study done by the California Research Bureau back in 2017 that looked at the complaints and the disciplinary actions that have been taken by the Board. And the study found that Latinx and Black doctors were more likely to have complaints that sparked investigations and disciplinary actions against them when compared to their white and Asian counterparts. And we just talked about how few complaints actually move forward. So to see that of those that do, Latinx and Black doctors seem to face higher disciplinary action.

So just wondering, what measures is the Board taking to deal with these racial disparities?

Yeah. And that was to Dr. Hawkins' point just a minute ago, we were aware of that. It was very important to the Board that we again, address these issues of implicit bias, or even explicit bias, for that matter, and take certain markers, if you will, out of our processes. So again, when we review the disciplinary actions that get to the Board members, they're redacted. So we only see initials. Right?

So things that would tend to indicate someone might be from one demographic or another are removed to the extent possible. So that's taken out of our process. But again, that was part of work that our previous Board President, Denise Pines, who now is on the Osteopathic Medical Board, was really, really interested and involved in and led, and it led to a number of these things that we still are continuing to implement today.

We would welcome any information you have about other steps we can take in our processes to remove bias and make sure we don't have those disparate outcomes. I think you'd also find that to be the case in the AAPI community, too. There are some disparate outcomes and have been for sure, and we've really looked to remedy that situation through these various measures. And like I said, we'd welcome any other input you or others have about how we can do even better.

Thank you. Mr. Chair.

Chair Berman.

Thank you, Mr. Chair. Hopefully just two quick questions. One is: talk to me a little bit about the Complainant Liaison Unit, how that process would work, and how you think this new process would address some of the concerns that have been raised by some of the consumer groups about the current process.

Absolutely. Yeah. I can walk you through that. And I've really been engaged and involved, of course, with the Board, but with a number of stakeholders in thinking through what this unit might look like. It started off, frankly, as a conversation during our last sunset review in 2021 based on some comments that were made at the time by the Center for Public Interest Law about this idea of an Ombudsman's unit. Right? That was in, I think, some of their public comment submission at the time.

And so we were thinking about, okay, how can we take that concept and really think about how we can help consumers and complainants both understand our process and then make sure they know what they need to provide and what opportunities that they will have for engagement throughout the process. So it's about everything from assisting consumers with initially filing their complaint. Right. Sometimes we hear from consumers, "well, all you have on your website is this box, and then we filled out the box and we thought we'd be followed up with."

Right? "We thought someone would call us and ask for more evidence or the background." So assisting consumers with filing a complaint both effectively and completely, and then offering support to those complainants after the case has been referred to the field for investigation. There are oftentimes questions and concerns to share. We do field a lot of questions already about, "where is my complaint in the process? Do I have an opportunity to be involved?"

It's also about increasing consumer outreach through events, educational opportunities, having someone that can do outreach to the community, and then also potentially to help us evaluate complaint closure review requests. Right? So that's an area as well. We do think it would pair up nicely with our online tracking system that we're developing. We think there's an opportunity for, I guess not collaboration between a system. Maybe we will get there with AI. Right?

So we think there's an opportunity for the two to work together. But again, it's a resource issue for us. We do require additional resources if we want to stand that unit up, but we think that it would be helpful to the process. Anyone else who wants to add anything?

Yeah, I can also share some other. This will be a win win situation for the Board also. As you saw in that pie chart, a large number of complaints are being closed because non-jurisdictional, unactionable complaint. This will be an opportunity for the Complainant Liaison Unit when they make that first contact with the public to educate them, "okay, you have a complaint against a Doctor, but that Doctor is a DO. We are not that source."

So it can reduce because we get those complaints that we are closing but that still need to be processed. It's a resource issue. We just cannot close it out just like that. So it's a resource issue. So this unit would have an intangible benefit on that side too.

So we're trying to check some boxes that the complainers said, "this really bugs me. This is a real problem for me. Why can't XYZ occur?" And so we're trying to check those boxes with this unit.

I appreciate that. And the resource issue has been brought up a lot and rightfully so. We let off the Q&A with that. Is there something that we can do once hopefully the current shortfall gets resolved?

I know it's hard, and this is something that would apply to any board, but it's hard to come back every four years to then ask for maybe a big increase because it's accumulated over, that deficit is accumulated over four years, as opposed to something a little smaller and more gradual every year. Has there been any thought or conversation about that, about having a CPI adjustment kind of built in so that it's less of a shock when the fees do get raised?

Yeah. The preliminary report from the enforcement monitor recommends a CPI or some other recognized barometer as a way for it to increase potentially over time. So that's certainly something we think is worth exploring. We also think it's worth exploring having this in regulations so there's a different process, if you will, like the Board of Accountancy I understand has, so that we don't have to continue to come back to the Legislature to ask for that fee increase every four years. I hope.

Not every two years. I liked that you said every four years. So we would welcome those opportunities to have some more certainty in place. Frankly, I think that our licensees would welcome having some more certainty in place rather than, again, what they're facing currently, which is a potentially significant increase in fees because we've collectively kicked the can down the road.

I think prior to last year with the $80 increase it was 15 years. How long before we had a fee increase? There was substantial period of time that elapsed prior to that.

Thanks.

Thank you, Mr. Chair. I think one of the issues really is the complexity of your discipline process. And I've said this before and I don't have a solution.

So I guess I'm looking at you to help me help you. In cases where, I guess in every case, you have to establish a connection between the conduct involved and unprofessional conduct in order to establish a violation, which I certainly understand in medical negligence cases, but I don't understand in other types of cases where personal conduct by an individual needs to be analyzed by, I guess, a medical expert to determine the connection between the conduct and the practice of medicine. And I've used this example before.

So if I'm a physician and I happen to see a patient once or twice in my office 6-12 months ago, and I see the patient. Haven't seen her in a while. It's a "she." I see her in Capitol Park and I attempt to rape the patient. That you have to retain a medical expert to establish that my conduct is unprofessional and related to the practice of medicine in order to take a disciplinary action against me as a licensee. Is that correct, Doctor? We can ask the lawyer, is that correct?

I mean, there are cases, right? I mean, it's not simply sufficient for us to receive a criminal conviction, for example. And I mean, Ms. Webb, you can speak to that. There are other things to your point, Senator, that we would need to demonstrate and show before that license could be subject to discipline.

The law requires us.

I understand what the Practice Act says, which is what I'm saying is I don't understand, for example, in the criminal case that results in a conviction, why you should have to retry the case to establish the facts.

It's not retrying the case, it's the physician at hearing is likely to have an expert that says, "this didn't happen in their medical practice. This is not related to their practice of medicine."

Exactly right. That's my point. So if it's a serious crime, it's okay to be a doctor?

You're speaking to the choir on this, Senator.

I'm not preaching. I guess my point is I think we need to, and I've told other stakeholders on the other side of you, that we need to rethink this Medical Practice Act, because part of the problem is we have made this so complicated in areas other than medical negligence, which is complicated enough itself, where you have to have medical experts to decide what the standard of care is and whether the standard of care was breached.

But we have a whole other, now, there may not be very many of them because we have to look at the statistics, but at least there's some of them that are outside that arena where we apply the same process that takes time and costs money. And we're going to have to--not you, I guess--we're going to have to figure this thing out and see if we can't make this thing a little simpler to cost you less money.

Because with MOU increases, with the cost of government increasing, with the cost of everything increasing, and with the complexity of your operation, 1300 and whatever it is, is not going to be enough tomorrow and won't be enough the day after tomorrow. And I'm not even sure a 10% cost of living adjustment to this will be sufficient.

The sex offense conviction would result in an immediate revocation of license, though.

Right, I think we did that, or somebody, we did that here. Right. Well, let me go back, I want to go back through some of the other issues if we have time in here and just give you an opportunity to talk to me about it. We've discussed the Complaint Liaison.

Some outside the building have suggested that it would be important to give victims--in cases where there is a victim, which would be, I guess, a patient in a medical negligence case--the opportunity to submit a statement to be considered at some point in the process, for what it's worth.

Obviously, it obviously lacks evidentiary value, but there is probably something in there, whether it's making sure that we're looking at the proper leg or arm or whatever it is, or that the medical records were not altered because maybe the patient would say something and you can't find that in the medical records. So I guess my point is, and we can work through this with you during the process.

At what point in the process would a victim statement be appropriate to be considered by board members who are making a decision?

Yeah. And as you noted, that's something that we're hearing regularly from the complaint and the patient advocate community about. The patients and advocates, complainants, of course, have a critical role in the process already, bringing our attention to possible situations that should be investigated. The Board has included, in our new 5-year strategic plan that was just recently adopted, a priority to consider how to improve complaint communication and transparency in the process. That doesn't completely get to the question you're asking.

I don't know that the Board has decided, or that it's clear to us, exactly how to increase that involvement. There are, of course, all these concerns about due process and evidentiary requirements and when the appropriate place for some sort of statement from a victim, if you will, like a victim impact statement, much like they have in the criminal context, could be included. But we are exploring that. And again, we're open to your suggestion as an important stakeholder in that process.

If we are missing out on opportunities for us to have additional information that would help us show that a physician violated the law or that there's some standard of care violation, we really should know about that. We will be exploring at our May board meeting how, a piece of this, how to get complaints more involved in the process when complaints are reviewed by medical consultants. So this is a dialogue we're having at the board.

We know that it's an issue that's of great concern and of importance to the advocate community. So, again, open to your thinking on that as well about how that process might be approved.

Seems to me it would have to be pretty earlier in the process. So either probably at the settlement stage where someone's recommending a settlement, that the victim statement be included and be provided to the respondent on the other side to address the due process issue. We'd have to provide that it's not evidence in any case for any purpose, but could be considered for what it is worth at the time or certainly in the stipulated settlement cases where panels are going to be involved in approving settlements.

I was just going through the process here and making notes as to when you might be able to do it. You're more familiar with your process than I am, for sure.

I think early on, it probably is a good time, and I think that folks have varying skills. These are complaints of how to present what actually happened. And so as we talk about how to help someone, helps an individual communicate what actually happened. And Reggie talked about something that happened with actually someone who came in the office recently. But I think that there is a need for individuals to be able to articulate well what is that would happen. And so you mentioned something.

There's a physician who asks a question, taking a history, and then in the beginning, the person says, "oh, nothing happened, this, this and this." This is not a discipline issue. This has taken a history. And then 20 minutes later, you ask another question, ask the same question a different way, and they said, "oh, yeah, that happened, blah, blah, blah, blah." And so it happens all the time that an individual really is not thinking well enough for various reasons about how to communicate what's important.

I think we should consider that. Let me ask. I'm going to jump around a little bit. We were talking about accusations and then having to put on your case in 30 days. Does it make sense to take a look at that 30 day requirement when you go in for a suspension of privileges and maybe lengthen the period of time between the point of suspension and the issuance of the accusation?

The Board hasn't taken a position on that, but I think that that is an important tool that has to be used carefully because of that 30 days.

Well, it should be used carefully anyway because it's somebody's. The economics here. But I'm just wondering if 30 days makes sense or if it should be 90 days or 120 days in order to not throw up an obstacle in front of the Board when the Board feels that there should be a suspension of practice, but you do not go into court because of the 30 day requirement. That would be unfortunate. Well, you don't have to take a position.

Right. I mean, I can speak only for myself. The Board has not taken a position on it. But I appreciate you considering it.

I'm giving you the benefit of my personal thoughts here. Let's talk about the mandatory reporting, because you have made some suggestions on that. So perhaps you could cover that with me.

And what you're talking about is the, okay, let me get to your Issue 9 so I make sure we're all looking at the same thing.

Wellness Committees, et cetera.

Wellness Committee's medical groups--

I'm going to dive in Reji on that while I get to the right.

Yeah. This is an effort to expand more facilities, making it a requirement for them to report, because there is some vacuum at present, we're not getting some of the reports that it should be. So this would strengthen our toolkit to get more proactive in that sense to get to the issues that led to the physician misconduct at those facilities.

The Wellness Committee, is that what I would think of as something akin to an employee assistance program for physicians?

It's wellness committees that deal with issues that the physician faces in their facility. And if it is referred to the Wellness Committee, it's more or less off our radar at this point.

Is it protected?

I'm not sure the answer to that,

Senator Roth--

Senator Roth, I just want to repeat, we are listening to the advocates, we're listening to the public. We are making adjustments to do a better job. We are doing this. And I would repeat again, the Medical Board does not protect doctors, it protects the public. And the Medical Board really does not give-- We listen, do we hear what organized medicine says. But we're independent thinkers.

I'm asking. I don't know the answer.

Well, there are physicians that have behavioral issues or addiction that instead of them being go through peer review, they're sent to the Wellness Committee and their privileges can be restricted. But it's done through the Wellness Committee, so the board doesn't learn of it. But the physician has serious issues that put the public at risk. So we're aware that this is a gap that should be addressed so that the board learns of physicians that have these conditions that there has to be monitoring.

So this is more. I was concerned about voluntary reporting to something like an EAP and whether this was going to discourage physicians who have drug or alcohol problems from going to seek help. But it sounds like this is a referral from a peer review committee to a Wellness Committee.

Not sure how the chain of events happen, but we're aware that we're missing a group of physicians that pose a safety issue for consumers.

Well, you all just have to help us make sure that we're not discouraging physicians who have problems from voluntarily seeking help. And when they do, they get reported to you, and then bad things happen. I suspect that's probably not what we want to do. But on the other hand, if it's a peer review situation where someone else has noticed a problem and made a report and they're going to be disciplined or in lieu of discipline, the Wellness Committee is a solution.

That's sort of a different situation to me, anyway. Can we talk anything else on that subject before I jump? Ms. Lawson?

I think we can leave it there, except that we know that facilities try to avoid filing 805 reports, and so we suspect creativity involved in this, and we feel like somehow we need to close the loop on it. But it's a difficult, amorphous issue, and so this is another area where we welcome your input on how to do that.

We have a little time and lots of opinions. Let's talk about the evidentiary standard. I have a personal view on this, but that doesn't mean anything here because this is a collaborative effort. I noticed your proposal is to go to a preponderance of the evidence. My view is that is wonderful, and we should move in that direction, with the possible exception of revocation of license and maybe a lengthy suspension. So how would this work, your proposal, or even one modified the way I've suggested?

I'd like our interim Executive Director potentially to take this one. Just because of your experience with other medical boards across the country that largely use this standard, where we're really an outlier here in California.

Right, that is true. 43 plus states actually do have the preponderance of evidence as the standard, and it's not straight line, and some states have dual standards for various things, to be honest with you. And that report's available on the Federation of State Medical Board's website, which we can provide that data to you. But again, it goes to the fact that it cuts the time in the investigation.

We don't have to just go through the extra length to prove clear and convincing beyond the reasonable doubt to bring the case. Otherwise, what's going to happen is the case could be thrown out of the ALJ and it can have a bad outcome. The patient really didn't want to. So with the preponderance evidence, it makes our jobs easier. Now, we are welcome to discuss that matter. I know you and I had that conversation at the airport one time passing by. You probably don't remember that.

Well, I certainly apologize.

Well, that's okay. I think they start calling your boarding at that time, so you had to rush off. Anyway, but it is an area I think we need to discuss.

My problem, to be honest. And again, we won't solve this this afternoon, but preponderance of the evidence essentially means that the scales tip just a little bit, just enough, and I'm okay with that. On reprimands, on lesser forms of discipline. But certainly where you're talking about a revocation of a physician's license to practice, a license that the physician spent a lot of time working to secure. A lot of time.

And revocation essentially means the physician's out of business unless someone, somebody somewhere allows the physician back into the sandbox.

And I just think having the scales, the evidence just a little bit heavier in that sort of circumstance doesn't make a lot of, I mean, it makes a lot of sense from a process streamlining standpoint, we can move a lot of cases through, but for the physician that's impacted that way, I think the standard should be higher, and I think the burden should be higher if we're putting the physician out of business, presumably permanently. Right?

So I'm not a lawyer, but I just have one question for our discussion. When do you set the standard? At the beginning, when we're filing the acquisition, because what's happened is, or the investigation stage, because we might start with a minor infraction. But going through the investigation process, we find more skeletons, and that becomes a higher standard of proof for a revocation case or less. So it can go both ways throughout the process.

Well, the evidentiary standard really only applies when you're in front of an ALJ. Or you're in court. So at some point you investigate your case to prove that the physician did X or did Y, because you're going to be taking discipline anyway. So if it's a medical negligence case, you're going to have to have your expert establish that there was medical negligence.

So that's exactly my point, that when we're taking that evidence to that ALJ, we were operating under one standard where it should be the other, and we take it to the ALJ and the case is thrown out.

But don't you decide before you go to the ALJ what you're pursuing, whether you're pursuing a revocation or you're pursuing a suspension, or do you treat every case as a revocation case regardless of what? Now does that make sense?

The accusations filed treat every case as a potential revocation case. Right. Because to Director Varghese's point, we don't know what we might find during that investigatory process, right. And in some cases, it can uncover things that are egregious where we had a records violation to begin with. So it's a process issue. It's not clear how we would apply that in practice. And I think it would be worth us looking into those other states that have differentials.

I know at least one state has it in the sexual misconduct context where there's different standards. Ms. Webb, I don't know if you have anything to add on that point.

Yeah. Senator Roth, for example, there may be a sense in a quality of care case that under these facts, this physician is likely to get probation. But if that physician at hearing says that they didn't do anything wrong, they're not going to change their practice and they're going to continue to do the acts that are a violation of the Medical Practice Act, then that physician is not suitable for rehabilitation, that physician should be revoked under those circumstances because they are telling the Administrative Law Judge and the board that they're not going to change their practice.

Right. I understand that and I agree with you. But when you investigate to clear and convincing as opposed to preponderance of the evidence, does that mean you get three experts or four as opposed to one? I mean, you still build your case. You have to prove that the physician engaged in the medical negligence. So I don't really understand the evidentiary standard to me is a law issue that is applied at the time that the case is judged by in this case, the ALJ.

And the ALJ says, well, I don't think that the expert opinion was persuasive and I'm not going to revoke the physicians. Am I making sense? I mean, it's like the DA, I've never been in the civil world. I've never done criminal work, but it's like the DA charging every case and investigating it as a 50 to life or pursuing every case as a 50 year to life in prison case. Am I making sense?

You are making sense.

Because I don't understand. You got to prove your case. And then the only question there is, have you proved your case and are you proven your case by just a little bit, or have you proved your case by a lot, clear and convincing when you're going for revocation?

So I guess to address the question I think you're asking, which is, would this really result in faster processes, in some sort of benefit to our process? A couple of observations. One, we do hear from consumer advocates that this is something that's important to them. And I think one thing that we hear in particular is why is California out of step with all the other jurisdictions?

They do look at our disciplinary rates, they look at the cases, they look at our timelines, and they say those seem to be longer than other jurisdictions. Okay, here's an area of opportunity. The standard seems to be different and every other jurisdiction does it another way. Why are we out of step here in California? And I don't think that we have the data to show you what it's going to look like on the other side of it.

But I know that we think, and we believe that our standard is making it more difficult, more time consuming, more expensive to prosecute these cases than it would be if we had the standard that virtually every other jurisdiction across the country has. So again, we don't have the data to show you what it's going to look like on the other side. But we do know this is important, again, to the advocate community and to others. There are lots of, I guess, points in this process.

We talked about medical inspection authority. We've talked about the subpoena process, all these other things where there can be roadblocks put in place. And this is an area where we think we can make a meaningful difference. But the proof of that difference is going to be on the other side of it.

Right. I mean, it's dangerous for me to think out loud because it shows, I don't think, but for me, it's at the ALJ level, and you don't take that many cases to an ALJ, I think in your statistics. Up to that point, you make the decisions. You decide to settle cases or not. You decide to take a case to trial or not take a case to trial.

But the Attorney General's Office has to be convinced that there's sufficient evidence to meet that burden of clear and convincing evidence. And so an accusation may not be filed if at this point it's more likely than not that a violation occurred, but it doesn't meet a clear and convincing evidence standard. And so, as Ms. Lawson said, for example, Arizona, it has a clear and convincing evidence standard, except for sexual misconduct cases, which is preponderance. Right.

Because it's more difficult to prove those cases by a clear and convincing evidence standard because there may be just two people in the room at the time it occurs. So it would be valuable, especially in those types of cases. But again, the end result, if it's proven, would be revocation.

Well, I don't want to belabor this. It's an interesting, we're going to obviously have to decide it. You've made a recommendation and we need to address that and we'll see what everybody else has to say about this. I'm not going to go over all of these. Maybe you could address the enforcement monitors in a little bit more detail. The enforcement monitor's suggestion with respect to the medical expert situation shortage and the investigator workforce staffing issue. These are on page 49, 50, 51 of our background.

Or maybe you haven't taken a position.

The board hasn't taken. It has not taken a position on any of the recommendations as of yet. Again, we received it right before you received it at the board. So I believe that we will. A couple of things. One, the enforcement monitor is going to issue a final report at some point, I believe by July 1, if I'm not mistaken. And so again, there may be some modifications or refinements or additions that are helpful to us.

And so I think that's something we probably will be taking up either at our May board meeting or at our August meeting.

But the expert issue is not new to the discussion, right?

That is correct. And one of the recommendation in there, and actually more than recommendation, one thing they pointed out the recent development in recruiting more experts with more efforts, staff efforts to reach out to medical community, and the number of application for medical experts have increased. So that was a note that the report points out. But at the same time, they make a recommendation for higher pay for the medical experts so we can recruit more and more, I don't want to say quality experts, but the experts that are caliber that can stand up to the defendants, experts that are highly paid.

Well, in terms of your fee increase, then have you built in some of these extra costs that people are recommending that you take on into the fee increase?

VC Budget helped us with the fee analysis to come up with the 1350 amount. And that is one of the consideration on a higher export pay.

Have I missed anything in terms of asking you questions? Which means that translates that anything else you want to say?

I don't think so. We just appreciate the opportunity to be here and have this constructive conversation with all of you.

Well, I appreciate you coming, all of you. And I do look forward to the continued conversation, because I meant it when I said it, that this is a collaborative effort and some of these issues are very, very difficult issues. And of course, we have yet to hear from some on the other side of these issues. And we'll be hearing about them, I'm sure, pretty soon.

And we'll continue to hear from them and from you as we move forward toward hopefully a successful resolution of this sunset process and a sunset bill for the Medical Board.

Well, we certainly appreciate what you all do. Sometimes government service is a thankless effort, and we see that every day in these jobs. So we appreciate you. Okay, so we will take questions or rather testimony from members of the public now about the Medical Board of California. We're going to begin with witnesses in room 2100. We'll start with T.J. Watkins. If Mr. Watkins is here.

And if not, any other witnesses in room 2100 who wish to make public comment about the medical board of California. I see Mr. Watkins coming up. Mr. Watkins, you're first up. I'm going to give you about four or five minutes, so try to.

I'll speed through it all. Thank you so much. Good afternoon, honorable Members, and thank you to the chair for allowing me a few extra minutes to speak. My name is TJ Watkins, and I'm a current public member on the Medical Board appointed by the Senate Committee. But more importantly, I'm also a whistleblower, and there's importance about that whistleblower because I've seen some things that I've reported. First, I think it's important today for me to clear the record about my own views on doctors. Where I come from in South Africa, doctors are revered. I grew up in a culture that has nothing but absolute respect and admiration for doctors.

They are more than scientists to us. They are our healers. And in America, my experience with knowing many doctors has been that these are extremely hardworking folks, smart, dedicated to the profession, and sacrifice a lot of their time to protect and serve their patients. But like all professions, there's always some bad apples in the spot. And in medicine, when you have a dangerous doctor, it can kill, injure, and maim people.

I'm here today, solely today on my own accord, because the Medical Board of California is stuck, and it's stuck in a pattern of protecting very dangerous doctors. That is primarily due to an implicit bias that created a Doctor protection culture that no matter what we really try to implement, will always be the undercurrent that washes this stuff or any good ideas away. It was interesting because Senator Cuevas seemed been pointed to, it's like 15 seconds.

You can go into any environment on the Internet and get all this newspaper stories. I don't want to bother you with that. We all know that right now the Medical Board is failing. Here are the facts. The facts at the Medical Board right now stands at this. And I've done the statistics. I've shared it on the news and everywhere else. The MBC receives around 10,000 complaints a year. We dismiss 96% of those cases. The remaining cases, we split between public reprimands, probation with discipline surrenders, etc.

But here's the interesting thing. We only revoke 0.5% of doctors licenses. We also do not apply the disciplinary guidelines. Our record to now at the medical board is when we discipline a Doctor with probation, we deviate from the guidelines 85% of the time. That probationary guidelines is supposedly the primary deterrent from keeping doctors from repeating the offenses. But let's step away from that. That is all statistics. Now we're going to come into the actual qualitative. What are the experience?

I want to give you an inside view on what happens in the medical board. When patients or family of patients go into a medical, into the Medical Board, what happens is they cede all their rights, and that right is never returned. The board do not legally have to go and speak to that complainant, ever. So Liaison Committee, any Committee, it's not going to really afford them the right, because we don't have to. Right now, the medical board don't even apply and implement their own rules.

What's more important is there's no appeals process. There is, absolutely. And because there's no appeals process, and I heard the panel talk about bringing about a victim statement, why must we? The victim statement at the beginning is already ignored throughout the process. We also never really accept evidence from the patient, whether it's medical records or otherwise. We only accept evidence from doctors and through subpoenas.

So I want to just run through this, because the most important thing is that the deputy Attorney General's Office, the only thing that I as a board Member, get when I adjudicate a case is an interpretation of an expert report, an interpretation of an investigation report. I do not get to verify what they're saying, is the truth accurate or anywhere.

In the last month, I have found I actually have the legal right to that documentation after this board and my esteemed colleagues here denied me access to that information, and they still do. But that's not a problem, because what this hides is the following. The Deputy Attorney General provides us a memo, and I'll take one more minute. Provides us a memo. And in that memo, they continue to provide misinformation. They bury the facts and fold the memo with toxic filler to influence the board Members.

And so we vote with them 99% of the time. And in closing, the question is, where do I go? Where do our consumers in California go? The medical board is failing them on every metric. They are being failed. Anyone that spoke here today that want to see the outcome of cases, go see the media coverage and then go look at what the outcome is. The outcome is a direct influence of our processes. So, a recent history for me, specifically,

I've got a lineup behind you, TJ.

It's all good. Has dampened my confidence that this will ever get resolved. And I'm not a negative person, but I've seen that everything that we speak about have fallen on deaf ears or inept solutions. No comments in solutions. I've provided a 14 page, 14 point plan that I've collaborated with all the people to find the best way forward. I'm asking this panel, this Committee, and also the Governor to intervene because we are not protecting the public, we are protecting the doctors.