“Under the Dome”
LEGISLATIVE UPDATE by CASA Lobbyist Bryce Docherty
SB 304 (Lieu) – Chapter 515: Medical Board of California – ASC Reporting Requirements
BRIEF SUMMARY: This bill, signed into law by Governor Brown, requires an accredited outpatient setting to report an adverse event to the MBC no later than five days after the adverse event has been detected, or, if that event is an ongoing urgent or emergent threat to the welfare, health, or safety of patients, personnel, or visitors, not later than 24 hours after the adverse event has been detected. States that disclosure of individually identifiable patient information shall be consistent with applicable law.
This bill also permits the MBC to fine an accredited outpatient setting an amount not to exceed $100 for each day that the adverse event is not reported. If the accredited outpatient setting disputes a determination by the MBC regarding alleged failure to report an adverse event, the accredited outpatient setting may, within 10 days of notification of the MBC’s determination, request a hearing, as specified. Lastly, this bill requires that penalties be paid when appeals have been exhausted.
Section 2216.3 is added to the Business and Professions Code, to read:
2216.3. (a) An outpatient setting accredited pursuant to Section 1248.1 of the Health and Safety Code shall report an adverse event to the board no later than five days after the adverse event has been detected, or, if that event is an ongoing urgent or emergent threat to the welfare, health, or safety of patients, personnel, or visitors, not later than 24 hours after the adverse event has been detected. Disclosure of individually identifiable patient information shall be consistent with applicable law.
(b) For the purposes of this section, “adverse event” has the same meaning as in subdivision (b) of Section 1279.1 of the Health and Safety Code.
Section 2216.4 is added to the Business and Professions Code, to read:
2216.4. If an accredited outpatient setting fails to report an adverse event pursuant to Section 2216.3, the board may assess the accredited outpatient setting a civil penalty in an amount not to exceed one hundred dollars ($100) for each day that the adverse event is not reported following the initial five-day period or 24-hour period, as applicable. If the accredited outpatient setting disputes a determination by the board regarding an alleged failure to report an adverse event, the accredited outpatient setting may, within 10 days of notification of the board’s determination, request a hearing, which shall be conducted pursuant to the administrative adjudication provisions of Chapter 4.5 (commencing with Section 11400) and Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code. Penalties shall be paid when appeals pursuant to those provisions have been exhausted.
NOTE: Also deleted Section 1248.15(h) of the Health and Safety Code, which required the same adverse event reports to the CA Dept. of Public Health (CDPH) and applied the same penalties for failure to report.
An outpatient setting shall be subject to the reporting requirements in Section 1279.1 and the penalties for failure to report specified in Section 1280.4.
SB 534 (Hernandez): Chapter 722 – ASC CDPH Licensure Requirements
BRIEF SUMMARY: This bill, signed into law by Governor Brown, requires the California Department of Public Health (CDPH) to utilize the Medicare Certification requirements as the state licensure criteria for ASCs until the department adopts state specific licensure requirements via regulation. State licensed ASCs shall comply with the federal certification standards in effect immediately prior to January 1, 2013. This bill also requires CDPH, by July 1, 2017, to conduct at least one public hearing and submit a report to the appropriate legislative committees that describes the extent to which the federal certification standards are or are not sufficient as a basis for state licensing standards. The report shall make recommendations for any California-specific standards that may be necessary. These provisions shall remain in effect only until January 1, 2018, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2018, deletes or extends that date.
2014 LEGISLATIVE FORECAST
Workers’ Compensation: SB 863 (De Leon) from 2012 required the California Department of Industrial Relations (DIR) to study the feasibility of establishing a facility fee for services that are performed in an ASC at 85 percent of the DRG fee paid by Medicare for the same services performed in a hospital inpatient department. DIR was required to report those findings to the Senate Labor & Industrial Relations Committee and Assembly Insurance Committee NO LATER THAN July 1, 2013. CASA has met with the DIR several times this past year and throughout the study process. Their findings are nearly finalized and CASA anticipates the study being published in early 2014. CASA has outlined to the DIR the total joints and hips program currently being performed in many ASCs. Furthermore, some CASA physician leaders have highlighted some of the spine programs as well. Contingent upon the study findings, CASA may seek legislation to implement a fee schedule in 2014 to incentivize these procedures to be performed in an ASC setting for injured workers.
ASC Reporting Requirement and Oversight: CASA anticipates legislation in 2014 that will require an accredited ASC to also report their data to the California Office of Statewide Health Planning and Development (OSHPD). This data reporting requirement currently only applies to state licensed ASCs. CASA also continues to work very closely with the Medical Board of California (MBC) on accredited and physician-owned ASC oversight. The MBC has established an Outpatient Surgery Setting (OSS) Task Force that is currently reviewing their regulatory oversight authority and will most likely be making recommendations to the full board on needed regulatory changes. NOTE: CASA is very proud of Howard Krauss, M.D., who was recently appointed by Governor Brown to the MBC. Dr. Krauss has been an invaluable CASA Board Member for several years.
CASA also anticipates legislation that will give the state more authority over Medicare Certified ASCs. Discussions are ongoing and CASA continues to work closely with CDPH and the Legislature to ensure any new requirements appropriately protect patients, but also do not over burden ASCs or unnecessarily add operating costs.
MICRA BALLOT INITIATIVE FILED
CASA also anticipates a statewide ballot initiative in 2014 to overturn portions of the California landmark medical malpractice award caps (aka MICRA) for non-economic "pain and suffering" damages. This effort is being led by an advocacy group named Consumer Watchdog with strong financial support from the California trial attorneys. This effort would raise the current cap from $250K to $1.2M. CDA, CMA, CHA and others have formed Patients & Providers to Protect Access and Contain Health Costs, the “NO” committee to fight the trial attorney initiative to change MICRA. This group has already raised $30M to fight this effort.
The campaign to lift the MICRA cap is well underway. Recently, according to the “NO” committee, the Consumer Attorneys of California kicked in hundreds of thousands of dollars to bankroll the initiative. In turn, expect to see signature gatherers at your local grocery stores. From the early stages of this campaign the trial attorneys intend to mislead voters. They already have attempted to make this initiative about patient safety and have tried to gloss over lifting the MICRA cap by adding the window dressing of drug testing doctors. They know if voters understand the dire consequences associated with lifting the cap, voters will oppose the measure. The non-partisan Legislative Analyst's Office estimates that lifting the MICRA cap would cost local governments and the state hundreds of millions of dollars annually. These dollars are currently spent on public safety, protecting the safety net and clinical care. This amount doesn't take into consideration the hit to taxpayers. Overall, lifting the cap would cost Californians billions of dollars. The MICRA cap was put into place by a wave of frivolous lawsuits that drove healthcare costs to unprecedented levels and now that battle is being fought again. The documents linked below are quick refreshers on MICRA and a brief review of the initiative.
Click here to join the fight with CASA!
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