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New Laws in Year 2000 That May Effect
Your Practice
By Dan Groszkruger, JD, MPH, Consulting Editor
Several new laws affecting medical practice and the delivery of health care were passed by state legislators in Sacramento during the last legislative year. Summaries of relevant bills are provided here for your information; some in effect since January and others to come on-line later. Complete information is available at the official web site for the California Legislature: www.leginfo.ca.gov
Outpatient Settings:
The Cosmetic and Outpatient Surgery Patient Protection Act (AB271) becomes effective on July 1, 2000. Violation of this law constitutes unprofessional conduct, subject to disciplinary action by the Medical Board. The new law requires physicians performing procedures outside of an acute-care hospital to:
- Develop criteria for patient discharge following procedures in an outpatient setting;
- Provide at least two (2) staff members, one of whom is a physician or a licensed individual certified in ACLS, to monitor patients after outpatient procedures until they meet the criteria and are discharged;
- Carry malpractice coverage for procedures performed outside of an acute-care hospital;
- Report to the California Medical Board (within 15 days) any patient death, or transfer to an Emergency Room or hospital for treatment exceeding 24 hours, resulting from an outpatient procedure;
- Post the certificate of accreditation, name and telephone number of accrediting agency and instructions regarding the submission of complaints in a place readily visible to patients and staff.
Telephone Medical Advice Services:
Contrary to popular misconception, a new law (AB285) does not apply to medical advice a doctor's office may give to its continuing patients. The new law targets health care service plans (HMOs) and disability insurers who "provide, operate or contract for" telephone medical advice services. Such services must register with the Department of Consumer Affairs, hire licensed personnel, provide advice consistent with good professional practice, maintain records and have physician back-up, on call. The law requires implementation by June 1, 2000. If CAP members use these services for after-hour coverage for their patients, the physician should confirm that the service complies with the new regulations before referring patients.
Physician Advertising:
New legislation (SB 450 and SB 836) went into effect January 1, 2000.
- Physicians who identify themselves in advertising materials as "Board Certified" must specify the full name of the certifying board.
- SB 836 extends the definition of "false advertising" to prohibit the deceptive use of photographs or images of patients, purporting to show the results of procedures (e.g., labeled "before" and "after"), unless the actual procedures undergone by the featured patient(s) are clearly specified. If advertising material contains photographs of models, as opposed to actual patients who have undergone the procedure(s), the use of models must be clearly disclosed.
Confidentiality of Medical Records:
- Existing provisions of the Confidentiality of Medical Information Act (Civil Code § 56 et seq.), applicable to physicians and other "providers of health care," have been extended to include health care service plans (HMOs), contractors (such as medical groups) and "licensed health care professionals" such as osteopaths and chiropractors.
- A new law (SB19) prohibits the negligent disposal of medical information or the intentional sharing, sale or use of medical information for purposes that are unnecessary to patient care. Encoding or encrypting data, governmental reporting and chronic disease
management program participation are still permitted. In other words, disclosure of medical information for commercial purposes will subject the offending party to misdemeanor prosecution, if disclosure results in economic loss or personal injury to a patient. Medical practices should carefully choose vendors and the methods for the destruction of outdated medical records.
- Another new law (AB 416) prohibits the disclosure of personally identifiable information about patients who have received outpatient mental health services from a psychotherapist.
NOTE: The long-awaited final regulations, pertaining to patient privacy and security of medical records, required by the Health Insurance Portability and Accountability Act ("HIPAA") of 1996, have been delayed until Fall 2000.
Managed Care Reforms:
- In effect since January 2000, AB55 expanded an HMO patient's right to seek independent medical review of decisions to deny, delay or modify recommended care, based on a conclusion that the care is not medically necessary. AB55 prohibits charging application or processing fees. Any costs for independent medical review would be paid out of a fund created by assessments against HMOs.
- A companion measure (SB189) augments the independent medical review process, allowing patients with life-threatening or seriously debilitating conditions, as well as those with terminal conditions, to appeal decisions withholding experimental or investigational therapies. SB189 requires HMOs to furnish written responses to grievances filed by enrollees, including specific information about review criteria and clinical reasons for its decision to delay, deny or modify recommended care.
- Another new law, also in effect since January (AB12) requires HMOs to provide or authorize second opinions, by qualified health care professionals, under a number of circumstances. The second opinion may be requested by the patient or by a treating physician or provider. Where swift action is critical, there are provisions for a second opinion to be rendered within 72 hours. HMOs must file, by July 1, 2000, their time-lines for responding to requests for second opinions "in an expeditious manner."
Some of the above may affect your medical practice. While CAP Risk Management does not provide legal advice, we are available to discuss how you may implement necessary modifications and/or policies into your practice.
We are available at 800-252-7706.
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