Chapter 635: Saying Good Night to the Unqualified Practice of Polysomnography

Transcription

1 Business and Professions Chapter 635: Saying Good Night to the Unqualified Practice of Polysomnography Boryana Georgieva Code Sections Affected Business and Professions Code 3575, 3576, 3577, 3578, 3579 (new). SB 132 (Denham); 2009 STAT. Ch. 635 (Effective October 23, 2009). I. INTRODUCTION Sleep medicine is a field that has experienced significant growth in recent years, being recognized as an independent medical specialty by the American Medical Association in This expansion is due in part to the increasing number of patients who seek medical help for sleep-related problems. 2 Statistics show that chronic sleep disorders affect more than fifty million Americans, thus threatening their health and safety. 3 One in five adults does not get a sufficient amount of sleep, [a]bout six million people suffer from moderate to severe obstructive sleep apnea, 4 and almost ten percent of adults suffer from insomnia. 5 To receive proper diagnosis and treatment of their sleep-related problems, many patients undergo sleep studies, also known as polysomnography, in which the patients physiological reactions are monitored and assessed during sleep. 6 While licensed physicians are generally involved with the practice of sleep medicine, 1. RESPIRATORY CARE BD. OF CAL., REVIEW OF UNLICENSED PERSONNEL IN THE PRACTICE OF POLYSOMNOGRAPHY 1 (2005), available at [hereinafter RCB REPORT] (on file with the McGeorge Law Review). 2. See Pamela K. Minkley, Respiratory Care Practitioners and Sleep Medicine: Opportunities and Challenges, 43 RESPIRATORY CARE 412, 412 (1998) (describing the development of sleep medicine as a specialty and explaining its growth with the increasing public awareness of sleep disorders). 3. SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 6 (Mar. 23, 2009). 4. Id. SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 6 (Mar. 23, 2009). Sleep apnea is a condition that occurs when an individual experiences one or more pauses in breathing or shallow breaths during sleep. National Heart Lung and Blood Institute, Sleep Apnea, (last visited Dec. 26, 2009) (on file with the McGeorge Law Review). 5. SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 6 (Mar. 23, 2009). Insomnia is the perception or complaint of inadequate or poorquality sleep because of difficulty falling or staying asleep. National Heart Lung and Blood Institute, Insomnia, (last visited Dec. 26, 2009) (on file with the McGeorge Law Review). 6. ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF SB 132, at 4-5 (June 30, 2009). 471

2 2010 / Business and Professions assisting personnel, who may or may not be licensed professionals, often perform the sleep studies. 7 Prior to Chapter 635, there were no requirements for minimum education, training, or criminal background checks of the personnel assisting with the practice of sleep medicine. 8 Such lack of regulatory oversight has placed patients at risk of incompetent practice and criminal acts. 9 An incident at the Salinas Valley Memorial Hospital in May 2007 illustrates these risks. 10 Thirty-two year old Lacanalale Amorsolo, a sleep technologist working at the hospital, was arrested and charged with felony and misdemeanor sexual assault for inappropriately touching three patients during sleep tests. 11 While laws generally do not prevent criminal acts from happening, it is disturbing that at the time of Amorsolo s convictions, there were no laws that ensured that someone like Amorsolo would not re-enter the field of polysomnography in the future. 12 Chapter 635 was enacted as a consumer protection measure that seeks to alleviate these problems by establishing a regulatory framework for individuals assisting licensed physicians in the practice of sleep medicine. 13 II. LEGAL BACKGROUND A. The Problem of Unlicensed Practice of Polysomnography Polysomnography is the complex process of monitoring, recording, and assessing physiologic data during sleep that is used for diagnosis and treatment of sleep disorders. 14 Because polysomnography borrows and adapts technology from many medical fields, accurate performance of the studies requires specific skills 7. SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 5 (Mar. 23, 2009); see also RCB REPORT, supra note 1, at (reporting that sixtyfive percent of the sleep personnel are unlicensed). 8. See RCB REPORT, supra note 1, at 12 (discussing the status of unlicensed sleep tech personnel as of April 2005). 9. See id. ( Inability to recognize hazards and be aware of and properly use intervention methods could lead to permanent injury to the patient, even death. Inaccurate test results can lead to the improper diagnosis and treatment jeopardizing patient safety and resulting in unnecessary expenditures. ); id. at 17. As found by a survey issued in 2004, 57% of facilities/labs do not perform criminal background checks. Id. 10. See Lena Kauffman, Unthinkable Acts: Sexual Abuse in Sleep Centers Can Happen, Making Prevention and Preparation a Key, SLEEP REV., July 2, 2007, available at com/issues/articles/ _02.asp? (on file with the McGeorge Law Review) (reporting the details of a sexual assault incident involving a sleep technologist). 11. Id. 12. See Denham Introduces Licensure Bill for Sleep Technicians, CAL. CHRON., Jan. 29, 2008, available at (on file with the McGeorge Law Review) (quoting Senator Denham in regard to SB 1125). 13. SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 4 (Mar. 23, 2009). 14. Compare AARC-APT Clinical Practice Guideline: Polysomnography, 40 RESPIRATORY CARE 1336, 1336 (1995) (defining polysomnography as the collective process of monitoring and recording physiologic data during sleep ), with Minkley, supra note 2, at (discussing data analysis). 472

3 McGeorge Law Review / Vol. 41 and knowledge. 15 Technologists who perform polysomnographic procedures must be familiar not only with the equipment used in a sleep laboratory, but also with the sleep/wake pathologies and the physiological changes that occur during sleep, so that they can intervene when necessary. 16 Before the enactment of Chapter 635, however, the importance of having competent polysomnographic personnel was often disregarded because of the growing demand for sleep testing and a limited workforce of qualified technicians. 17 In a 2005 report, the California Respiratory Care Board estimated that sixty-five percent of the sleep personnel were unlicensed and indicated that polysomnography was performed in hotel rooms and patients homes. 18 Although there is an accreditation process for sleep disorder programs, 19 as well as a credentialing examination for polysomnographic technologists, 20 a person did not have to attend an accredited program or pass the examination to assist with polysomnography procedures. 21 Criminal background checks of the assisting personnel were also optional. 22 The increasing practice of polysomnography by unlicensed and unqualified personnel, which was facilitated by lack of regulatory control, raised questions about patient health and safety and led many sleeprelated associations to seek legislative intervention. 23 B. Recent Actions by the Respiratory Care Board of California On August 24, 2007, following the incident at the Salinas Hospital, the Respiratory Care Board of California (RCB) took action that allowed it to start issuing citations against persons and entities engaged in the unlicensed practice 15. See Minkley, supra note 2, at (describing the technology used in polysomnography and the required competencies of the technologists who perform the testing). 16. Healthpronet.org, Polysomnographic Technology: Trends, Education and Certification, healthpronet.org/ahp_month/01_02.html (last visited Dec. 26, 2009) (on file with the McGeorge Law Review). 17. See RCB REPORT, supra note 1, at 9-12 (stating that polysomnography education is in its infancy and that only one institution in California provides formal education in the field). 18. Id. at The American Academy of Sleep Medicine, formerly known as the American Sleep Disorder Association, is the accrediting body for sleep disorder programs. For more information about the organization, visit The Board of Registered Polysomnographic Technologists provides the Registered Polysomnographic Technologist examination. For more information about the certification board and the examination, visit See, e.g., Nancy A. Collop, Conundrums in Sleep Medicine, 115 CHEST J. 607 (1999) ( What is required to set up a sleep laboratory? Money and a building! Anyone can open a sleep laboratory, and it seems that just about everyone is. ); Larry Conway, Respiratory Therapists Role in Sleep Medicine, rtmagazine.com/issues/articles/ _14.asp? (last visited Dec. 26, 2009) (on file with the McGeorge Law Review) ( [S]ome sleep laboratories or centers use college students who are trained on the job and perform the studies as a way to make some money while in school. ). 22. See RCB REPORT, supra note 1, at 17 (indicating that fifty-seven percent of the sleep laboratories do not perform criminal background checks). 23. See SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 5-6 (Mar. 23, 2009) (describing the uncertainty among sleep medicine organizations following the RCB actions). 473

4 2010 / Business and Professions of sleep medicine. 24 The RCB found support for its actions in section 3767 of the Business and Professions Code, which authorized the RCB to issue citations for the unlicensed practice of respiratory therapy. 25 Because some of the polysomnographic procedures fell within the scope of respiratory care, 26 the RCB determined that the personnel performing such procedures must be licensed in accordance with section 3730 of the Business and Professions Code. 27 The actions of the RCB raised concerns among sleep medicine professionals who perceived attempts to limit the practice of polysomnography to licensed respiratory care personnel as a threat to the availability of these services to patients. 28 Although most respiratory care therapists possess the basic skills and knowledge in sleep medicine, they still need to complete comprehensive training to be able to perform polysomnography in a competent manner. 29 To prevent the conflict between polysomnography and the practice of respiratory care as it relates to polysomnography, 30 Chapter 635 establishes a separate licensure procedure for sleep medicine personnel. 31 C. Previous Legislative Efforts On January 28, 2008, Senator Denham introduced SB 1125, the Polysomnographic Technologist Act, sponsored by the California Society for Respiratory Care and the Respiratory Care Board. 32 The bill sought to establish a 24. Respiratory Care Board of California Increases Efforts to Regulate Sleep Industry, SLEEP REV., Nov. 21, 2007, available at [hereinafter RCB Regulation Article] (on file with the McGeorge Law Review) (voting to sanction the unlicensed practice of respiratory care associated with polysomnography ). 25. Id.; see also CAL. BUS. & PROF. CODE 3767 (West 2003) (providing conditions under which the RCB must issue citations for unlicensed care and listing procedures that the RCB must follow). 26. See id (West 2003 & Supp. 2010) (listing the acts that fall within the scope of respiratory care). For a list of some of the tasks in polysomnography that are also considered respiratory care, see Respiratory Care Board Cracks Down on RPSGTs, SLEEP REV., Oct. 29, 2008, available at sleepreviewmag.com/sleep_report/ _29.asp (on file with the McGeorge Law Review). 27. CAL. BUS. & PROF. CODE 3730 (West 2003) (providing the licensing procedures and requirements for respiratory care licensure in California); see also RCB Regulation Article, supra note 24 (same). 28. See SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 5 (Mar. 23, 2009) ( [The Board s actions] caused a great deal of concern and uncertainty among those who treat sleep disorders and their patients. ). 29. For a detailed discussion of the ability of respiratory therapists to practice polysomnography, see Minkley, supra note For a detailed discussion of the conflict between polysomnography and the practice of respiratory care, see, for example, Lawrence J. Epstein, Polysomnographic Technologist Troubled Waters Ahead?, 1 J. CLINICAL SLEEP MED. 14 (2005). 31. See CAL. BUS. & PROF. CODE 3575(b) (enacted by Chapter 635) (listing separate requirements for polysomnographic technologists). 32. See Complete Bill History of SB 1125, (last visited Dec. 26, 2009) [hereinafter Complete Bill History of SB 1125] (on file with the McGeorge Law Review) (providing information on the date the bill was introduced); SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 7 (Mar. 23, 2009) (referencing the California Society for Respiratory Care and the Respiratory Care Board s sponsorship). 474

5 McGeorge Law Review / Vol. 41 new license category and regulatory scheme under the Respiratory Care Board for polysomnographic technologists. 33 However, the bill died early in the legislative process and was never set for a hearing. 34 Shortly after the failure of SB 1125, Senator Perata introduced SB 1526, which was almost identical to Chapter The bill passed both the Assembly and the Senate, but the Governor vetoed it because of budget constraints. 36 Chapter 635 is a reintroduction of SB III. CHAPTER 635 Chapter 635 provides that if an individual wants to use the title certified polysomnographic technologist and engage in the practice of polysomnography, he or she must establish that: (1) [h]e or she is registered with the [Medical Board of California (MBC)] and has successfully undergone a state and federal level criminal offender record information search... ; (2) [h]e or she works under the supervision and direction of a licensed physician and surgeon; and (3) [h]e or she meets the requirements of [Chapter 635]. 38 A. Qualifications and Employment Requirements Chapter 635 requires the MBC, within one year, to promulgate regulations relative to the qualifications for the registration of individuals as certified polysomnographic technologists, polysomnographic technicians, and polysomnographic trainees. 39 To qualify as a certified polysomnographic technologist, an individual must satisfy all of the following requirements: (1) have valid, current credentials... issued by a national accrediting agency... ; (2) graduate from a polysomnographic educational program approved by the MBC; and (3) pass a national certifying examination that has been approved by the [MBC] Individuals who have been practicing polysomnography 41 for 33. SB 1125, 2008 Leg., Sess. (Cal. 2008). 34. See Complete Bill History of SB 1125, supra note 32 (providing a detailed history of the actions taken on SB 1125). 35. See Complete Bill History of SB 1526, (last visited Dec. 26, 2009) (on file with the McGeorge Law Review) (providing information on the date the bill was introduced); SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 7 (Mar. 23, 2009). 36. SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 4 (Mar. 23, 2009). 37. Id. 38. CAL. BUS. & PROF. CODE 3575(d) (enacted by Chapter 635). 39. Id. 3575(b) (enacted by Chapter 635). 40. Id. 3575(b)(1)-(3) (enacted by Chapter 635). 41. Chapter 635 defines polysomnography as: [T]he treatment, management, diagnostic testing, control, education, and care of patients with sleep and wake disorders. Polysomnography shall include, but not be limited to, the process of analysis, monitoring, and recording of physiologic data during sleep and wakefulness to assist in the treatment 475

6 2010 / Business and Professions at least five years have an alternative and can satisfy the third requirement by presenting evidence of their experience that is acceptable to the MBC; 42 however, within three years after Chapter 635 comes into effect, every person who wants to be certified as a polysomnographic technologist must pass a national certifying examination. 43 In addition to the qualification requirements, Chapter 635 provides that a candidate seeking certification as a polysomnographic technologist, technician, or trainee shall be subject to a state and federal level criminal offender record information search conducted through the Department of Justice [(DOJ)]. 44 Based on the candidate s fingerprints and other related information, the DOJ shall request federal summary criminal history information from the Federal Bureau of Investigation; after reviewing the information, the DOJ shall prepare and submit to the MBC a report about the candidate s state and federal arrests and convictions as well as any subsequent arrests. 45 Chapter 635 also requires the MBC to adopt regulations that establish the means and circumstances in which a licensed physician and surgeon may employ polysomnographic technicians and polysomnographic trainees. 46 Additionally, these regulations may specify the scope of services and the level of supervision necessary during employment. 47 B. Procedural Provisions The registration under Chapter 635 expires after two years and can be renewed for a fee. 48 Furthermore, Chapter 635 provides that the polysomnographic technologist, technician, or trainee may have his or her registration denied, suspended, or revoked for any of the following reasons: [i]ncompetence, gross negligence, or repeated similar negligent acts ; act[s] of dishonesty or fraud ; the commission of any act or being convicted of a crime which constitutes grounds for denial of licensure or registration under Section 480 [of the Business and Professions Code] ; or violating or attempting to of disorders, syndromes, and dysfunctions that are sleep related, manifest during sleep, or disrupt normal sleep activities[,]... the therapeutic and diagnostic use of oxygen, the use of positive airway pressure including continuous positive airway pressure (CPAP) and bilevel modalities, adaptive servo-ventilation, and maintenance of nasal and oral airways that do not extend into the trachea. Id. 3575(a)(2) (enacted by Chapter 635). 42. Id. 3575(b)(3) (enacted by Chapter 635). 43. Id. 44. CAL. BUS. & PROF. CODE 3575(c) (enacted by Chapter 635). 45. Id. 3575(c)(1)-(4) (enacted by Chapter 635). 46. Id. 3575(e) (enacted by Chapter 635). 47. Id. 48. Id. 3577(c) (enacted by Chapter 635) (providing that individuals must pay application and registration fees determined by the MBC and renew the registration biennially at a fee not exceeding $150). 476

7 McGeorge Law Review / Vol. 41 violate any provision of [Chapter 635] or any regulation adopted under [Chapter 635]. 49 C. Exemptions and Limitations The qualification and registration requirements of Chapter 635 do not apply to California licensed allied health professionals, including, but not limited to, respiratory care practitioners, working within the scope of practice of their license. 50 In addition, the provisions of Chapter 635 do not apply to diagnostic electroencephalograms conducted in accordance with the guidelines of the American Clinical Neurophysiology Society. 51 Chapter 635 also provides that certified polysomnographic technologists, technicians, or trainees are authorized to treat, manage, control, educate, or care [only] for patients... with sleep disorders or to provide diagnostic testing [only] for patients... with suspected sleep disorders. 52 IV. ANALYSIS Following the veto of SB 1526 in 2008, the California Legislature passed Chapter 635 as an urgency measure that was necessary for the immediate protection of the [health and safety] of the people who use polysomnography to treat their sleep disorders. 53 Prior law did not require specific licensure or registration for polysomnographic technologists, technicians, or trainees, and many sleep laboratories took advantage of the law by increasing the number of unqualified or unlicensed assisting personnel. 54 By providing for minimum qualifications for those personnel, Chapter 635 closes the loophole in existing law and sets up a uniform regulatory framework in the field of polysomnography. 55 In terms of the level of regulation, Chapter 635 is neither a full licensing practice act, 56 nor a pure title act. 57 Chapter 635 is a modest hybrid proposal 49. Id. 3576(a) (enacted by Chapter 635). 50. CAL. BUS. & PROF. CODE 3575(f) (enacted by Chapter 635). 51. Id (enacted by Chapter 635). 52. Id. 3575(g) (enacted by Chapter 635). 53. See 2009 Cal. Stat. ch. 635, 2 (providing that Chapter 635 is an urgency statute that should take effect immediately). 54. See, e.g., RCB REPORT, supra note 1, at 6 ( [S]leep labs are opening regularly because there are no requirements for the set-up or operation of facilities, there is a demand for sleep testing, and there is significant income to be gained. ). 55. See SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 9 (Mar. 23, 2009) ( [Chapter 635] appears to set an appropriate level of competency weighed against the potential for consumer harm in this area. ). 56. Id. at 8. A practice act confers the exclusive right to practice a given profession on practitioners who meet specified criteria related to education, experience, and examination, and often is embodied in a licensing act (i.e., those who are not licensed cannot lawfully practice the profession). A practice act 477

8 2010 / Business and Professions that codifies the qualification requirements for those who engage in the practice of polysomnography or use the title certified polysomnographic technologist and also requires them to undergo criminal background checks. 58 At the same time, Chapter 635 exempts certain licensed allied health professionals from its regulatory control, thus allowing these practitioners to perform polysomnographic procedures as long as they fall within the practitioner s scope of licensed practice. 59 The effect of Chapter 635 is to ensure that the sleep laboratories are staffed with competent personnel free of prior criminal charges or convictions that may threaten the proper treatment or safety of patients. 60 According to the Senate Appropriations Committee, Chapter 635 will affect approximately 1,000 practitioners who have to undergo the certification process and pay the required application and registration fees. 61 However, protecting the public from the hazards of the unlicensed or unqualified practice of polysomnography outweighs any burden that may result from the established regulatory framework. 62 Moreover, Chapter 635 will operate on a neutral cost basis. 63 Although the MBC will require $193,000 to promulgate regulations and $47,000 to continue oversight of sleep [practitioners], 64 the costs will be covered from the application and registration fees generated in a special fund. 65 is the highest and most restrictive form of professional regulation, and is intended to avert severe harm to the public health, safety or welfare that could be caused by unlicensed practitioners. Id. 57. Id. A title act... reserves the use of a particular professional designation to practitioners who have demonstrated specified education, experience or other criteria. A title act typically does not restrict the practice of a profession or occupation; it merely differentiates between practitioners who meet the specified criteria, and are authorized by law to represent themselves accordingly, and those who do not. Id. 58. Id. 59. CAL. BUS. & PROF. CODE 3575(f) (enacted by Chapter 635). 60. See, e.g., SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 5-6, 9 (Mar. 23, 2009) ( This bill appears to set an appropriate level of competency weighed against the potential for consumer harm in this area. ). 61. SENATE COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF SB 132, at 1 (Apr. 20, 2009). 62. See, e.g., Breathing Matters, BIANNUAL NEWSLETTER (Respiratory Care Board of Cal.), Fall 2007, at 1 (stating that RCB considers a regulatory regime for polysomnographic technologists to be the most effective alternative to protect the public ); Letter from Larry L. Renner, Pres., Respiratory Care Bd. of Cal., to Jeff Denham, Senator, Cal. State Senate (Mar. 23, 2009) (on file with the McGeorge Law Review) ( In addition to reviewing criminal backgrounds, the need to ensure education and training of individuals practicing in [polysomnography] is paramount for consumer protection. ). 63. See SENATE COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF SB 132, at 2 (Apr. 20, 2009) (recommending amendments to the initial version of the bill to provide for a neutral cost of operating program ). 64. ASSEMBLY COMMITTEE ON APPROPRIATIONS, COMMITTEE ANALYSIS OF SB 132, at 1 (July 15, 2009). 65. CAL. BUS. & PROF. CODE 3577(d) (enacted by Chapter 635). 478

9 McGeorge Law Review / Vol. 41 In addition to establishing the appropriate oversight of healthcare providers, Chapter 635 also clarif[ies] existing law as it relates to polysomnography. 66 One of the reasons the Respiratory Care Board moved forward with issuing citations against unlicensed sleep technologists and their employers was the absence of licensure for Polysomnography Technologists or any promise of such on the horizon Considering the existing threat to patients with sleep disorders, as evidenced by the criminal acts that took place at the Salinas hospital, the RCB felt obligated to uphold its consumer protection mandate to prevent unlicensed and unqualified practice of respiratory care as it relates to polysomnography. 68 However, medical practitioners and organizations in the field felt uncertain about the intervention of the RCB and perceived its actions as reckless[] overstepping of regulatory authority. 69 Chapter 635 addresses the uncertainty and distinguishes the applicable regulatory standards by establishing a separate licensing category for polysomnographic personnel. 70 V. CONCLUSION The lack of regulatory oversight of the individuals engaged in assisting with the practice of polysomnography and the increasing number of unlicensed polysomnographic personnel has brought several issues to light regarding the health and safety of patients seeking sleep disorder treatment. 71 First, competency in testing is crucial for correct diagnosis and treatment of sleep disorders. 72 Second, because the patient is not awake during the study, there is a potential for the patient to become a victim of criminal acts of the sleep study administrator. 73 Third, the response of the California Respiratory Care Board to the past criminal acts of unlicensed sleep technicians brought to light a conflict between the practices of respiratory care and polysomnography, thus increasing the 66. ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF SB 132, at 5-6 (June 30, 2009) (quoting the MBC s Executive Committee that wrote in support of Chapter 635). 67. See Breathing Matters, supra note 62, at 1 ( [The MBC] has actively sought regulation of this field. ). 68. See id. (describing the concerns of the RCB after reviewing in detail the problem of unregulated practice of polysomnography). 69. California Sleep Society, Background, (last visited Dec. 26, 2009) (on file with the McGeorge Law Review). 70. See ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF SB 132, at 4-6 (June 30, 2009) (explaining how the new regulation requirements will resolve the issues in the field of polysomnography). 71. See RCB REPORT, supra note 1, at 12 (describing the risk of unlicensed practice of polysomnography). 72. See id. ( Inaccurate test results can lead to the improper diagnosis and treatment jeopardizing patient safety and resulting in unnecessary expenditures. ). 73. Id. at

10 2010 / Business and Professions uncertainty among sleep medicine professionals and threatening the availability of sleep testing services to patients. 74 Chapter 635 addressed these issues by establishing a regulatory framework for the practice of polysomnography. 75 By requiring the MBC to adopt minimum qualification requirements and mandatory criminal background checks for polysomnographic technologists, technicians, and trainees, Chapter 635 provides consumer protection to patients seeking sleep disorder treatment and ensures that individuals like the thirty-two-year-old Salinas sleep technician will not find their way back into the profession See generally Epstein, supra note 30 (describing the conflict between the practices of respiratory care and polysomnography); see also SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 5 (Mar. 23, 2009) (stating that the threat of the RCB to issue citations has worried sleep medicine professionals and has placed the availability of sleep medical services into question). 75. See ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF SB 132, at 4-5 (June 30, 2009) ( [Chapter 635] will further [the MBC s] mission of consumer protection by regulating the health care providers who work under physician supervision to treat patients with sleep disorders. ). 76. See SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF SB 132, at 4-5, 8-10 (Mar. 23, 2009) (describing the effect of Chapter 635 as a consumer protection measure). 480

11 Chapter 400: Following Doctors Orders Jean-Michel LeCointre Code Sections Affected Business and Professions Code 2088 (new), 2054, 2435 (amended). AB 501 (Emmerson); 2009 STAT. Ch I. INTRODUCTION What kind of doctors does California want? Surely, double-board-certified specialists, 1 Stanford University faculty, 2 and Nobel Prize winners in the field of medicine 3 are among them. Nevertheless, professionals with credentials such as these have been denied the privilege of calling themselves doctors in California. 4 The Medical Practice Act permits practitioners of the healing arts 5 to use the titles Dr. or M.D. only if they are currently licensed by the Medical Board of California to practice medicine. 6 Thus, graduates of prestigious medical schools who may not yet practice medicine independently, 7 those whose careers have taken non-clinical paths, 8 and those whose certifications have expired 9 may not legally call themselves doctors in California. 10 Physicians who violate this limitation face criminal sanctions Emily Hagedorn, Kern Clinic Wants, Needs Doctor But Disability Creating Roadblocks with State, BAKERSFIELD CALIFORNIAN, Aug. 8, 2008, (on file with the McGeorge Law Review); see also ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF AB 501, at 3 (Apr. 21, 2009) (recounting Hagedorn, supra). 2. Letter from Philip A. Pizzo, Dean, Stanford Univ. Sch. of Med., to Bill Emmerson, Assembly Member, Cal. State Assembly (May 18, 2009) [hereinafter Pizzo Letter] (on file with the McGeorge Law Review); see also Letter from Lawrence Shuer, Assoc. Dean for Graduate Med. Educ., Stanford Univ. Sch. of Med., to Bill Emmerson, Assembly Member, Cal. State Assembly (May 18, 2009) [hereinafter Shuer Letter] (on file with the McGeorge Law Review) (conveying the Stanford University School of Medicine faculty and administration s appreciation for AB 501 s expansion of the class entitled to indicate that they are doctors). 3. Pizzo Letter, supra note Hagedorn, supra note 1; see also Pizzo Letter, supra note 2 (indicating that current law bars doctors of the highest quality from using the title M.D. ); Shuer Letter, supra note 2 (indicating that existing law negatively affects interns, residents, faculty, and staff members). 5. CAL. HEALTH & SAFETY CODE (West 2006) (defining licentiate of the healing arts as a person licensed under the... Medical Practice Act ). 6. CAL. BUS. & PROF. CODE 2054(a) (West 2003). 7. Shuer Letter, supra note 2; see also Pizzo Letter, supra note 2 (stating that many persons who have earned Doctor of Medicine degrees from prestigious schools around the world are not permitted to use the initials M.D. in California). 8. Pizzo Letter, supra note 2; see also Shuer Letter, supra note 2 (indicating a need for faculty and researchers who have earned Doctor of Medicine degrees to be able to use the title Doctor or M.D. ). 9. CAL. BUS. & PROF. CODE 2054(a) (West 2003) (prohibiting the use of title Dr. by any person who does not have a valid certificate as a physician, surgeon, or practitioner). 10. Id.; see also Shuer Letter, supra note 2 (pointing out that interns and resident trainees are currently prohibited from calling themselves Doctors ); Pizzo Letter, supra note 2 (stating that many persons who have earned Doctor of Medicine degrees from prestigious schools around the world are not permitted to use the initials M.D. ). 11. CAL. BUS. & PROF. CODE 2054(a) (West 2003). 481

12 2010 / Business and Professions Chapter 400 addresses this issue by creating several exceptions to the limitations on the use of the titles Dr. and M.D. imposed by the Medical Practice Act. 12 These exceptions allow graduates of approved medical schools and several other groups to use the titles Dr. or M.D. 13 Additionally, Chapter 400 creates a second type of physician s and surgeon s license 14 and increases the Medical Board of California s power to control the balance of its Contingent Fund by adjusting the licensure fee. 15 II. LEGAL BACKGROUND The Medical Board of California (MBC) is a consumer protection agency whose highest priority is the protection of the public. 16 MBC s responsibilities include licensing, regulating, and disciplining California s medical professionals. 17 MBC requires all licensees to pay initial and biennial renewal fees, 18 which MBC places into its Contingent Fund. 19 A. Is There a Doctor in the State?: Defining Doctor Under the Medical Practice Act The Medical Practice Act 20 limits the ability of a practitioner of the healing arts to represent him- or herself as a doctor. 21 With very few exceptions, 22 only a person currently licensed by MBC to practice medicine in California may use the titles Dr. or M.D. 23 However, the narrow confines of the titles permissible uses exclude a relatively large number of persons who would be formally recognized as doctors in most jurisdictions. 24 For example, medical researchers, 12. Id (amended by Chapter 400). 13. Id. 14. Id (enacted by Chapter 400). 15. Id (amended by Chapter 400). 16. CAL. BUS. & PROF. CODE (West 2003). 17. See generally id. (enacting the Medical Practice Act); id (enumerating MBC s responsibilities). 18. CAL. BUS. & PROF. CODE 2083 (West 2003 & Supp. 2010). 19. MBC s regular operating expenses are primarily funded by fees collected by the California State Treasury and credited to MBC s Contingent Fund. Id (West 2003). MBC must maintain a reserve within the Contingent Fund sufficient to cover approximately two months operating expenditures. Id. 2435(i). Despite the fact that the Business and Professions Code refers to a reserve, MBC and the Department of Consumer Affairs interpret this to mean fund balance. CAL. STATE AUDITOR, REP. NO , MEDICAL BOARD OF CALIFORNIA: IT NEEDS TO CONSIDER CUTTING ITS FEES OR ISSUING A REFUND TO REDUCE THE FUND BALANCE OF ITS CONTINGENT FUND 1 n.1 (2007), available at bsa.ca.gov/pdfs/reports/ pdf (on file with the McGeorge Law Review). Thus, MBC is required to maintain a fund balance in its Contingent Fund sufficient to cover approximately two months operating expenditures. 20. CAL. BUS. & PROF. CODE 2001, 2054 (West 2003). 21. Id Id Id See Shuer Letter, supra note 2 ( We believe the M.D. degree and the term Doctor are universally 482

13 McGeorge Law Review / Vol. 41 professors, Nobel Prize winners, and other graduates of medical schools whose careers have taken non-clinical paths are prohibited from calling themselves doctors in California. 25 Additionally, MBC has denied qualified but differently-abled applicants licensure and use of Dr. and M.D. because of medical conditions. 26 This denial stems from MBC s limited licensure capacity; 27 MBC may issue only a single type of license to applicants: the physician s and surgeon s certificate. 28 The certificate permits a qualified applicant to use drugs or devices in or upon human beings and to sever or penetrate the tissues of human beings and to use any and all other methods in the treatment of diseases, injuries, deformities, and other physical and mental conditions. 29 To receive a certificate, MBC requires applicants to meet numerous qualifications to ensure that they are able to practice medicine safely. 30 Thus, under existing law, an applicant who cannot practice all aspects of medicine safely is denied licensure or the use of Dr. or M.D., because his or her medical condition prevents the applicant from performing some aspects of a traditional clinical practice safely. 31 For example, John Melville is double-specialized in pediatrics and internal medicine and is a member of the National Health Service Corps. 32 Despite his uncommon and prestigious credentials, Mr. Melville s application for a physician s and surgeon s certificate was denied because he has cerebral palsy. 33 Because Mr. Melville s palsy causes frequent and sometimes violent shaking, he voluntarily abstains from procedures involving sharp objects. 34 Nevertheless, symbolic of the degree conferred as a result of completing a course of study at medical school.... ); Hagedorn, supra note 1 (suggesting that Dr. Melville is not the only differently-abled physician who has been denied a physician s and surgeon s certificate because of his medical condition). 25. Pizzo Letter, supra note 2; Shuer Letter, supra note 2 (listing various groups at the Stanford University School of Medicine who have been denied the titles use). 26. Pizzo Letter, supra note 2; see also ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF AB 501, at 1-2 (Apr. 21, 2009). 27. See CAL. BUS. & PROF. CODE 2050 (West 2003) (noting that there is only one form of the certificate issued by MBC to all physicians). 28. Id. 29. Id See generally id (enumerating a litany of academic and clinical training and instruction requirements that each applicant for a physician s and surgeon s certificate must complete prior to being qualified for licensure). 31. See id (declaring MBC s primary purpose to be protection of the public); id ( All examinations shall be designed to ascertain the applicant s fitness to practice medicine. ); id. 2004(e) (West 2003 & Supp. 2010) (assigning the Division of Medical Quality responsibility to [review] the quality of medical practice carried out by physician and surgeon certificate holders ); ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF AB 501, at 3 (Apr. 21, 2009) (summarizing the story of Dr. John Melville); Hagedorn, supra note 1 (stating that MBC does not have the ability to issue an initial limited license without disciplinary connotations). 32. Hagedorn, supra note Id. 34. Id. 483

14 2010 / Business and Professions MBC cannot grant him an unrestricted license, because he is unable to practice all aspects of medicine safely. 35 Mr. Melville, however, has already been granted unrestricted certificates in both Alaska and Ohio. 36 Other states grant licenses prohibiting differently-abled physicians like Mr. Melville from performing only certain procedures, but permitting them to engage in all other aspects of practice that they are capable of performing safely. 37 California, however, does not have such a provision. 38 Thus, a double-specialized physician with a clean disciplinary record seeking to work in underserved communities was denied licensure in California because MBC has only a single type of license. 39 MBC cannot issue an unrestricted license to physicians who are unable to practice all aspects of medicine safely because of a medical condition. 40 B. Managing the Contingent Fund Although MBC is statutorily required to maintain a reserve in its Contingent Fund of no more than two months operating expenses, 41 it lacks authority to discretionarily reduce licensure fees to keep the Contingent Fund within the statutory limits. 42 Ninety-one percent of MBC s funds come from licensure fees paid by the 125,612 physicians currently licensed in California. 43 Beginning in 2005, each license-holder is required to pay an initial application fee and biennial renewal fees of $ Currently, MBC s Contingent Fund contains more than four months operating expenses; 45 however, MBC cannot reduce physicians fees or refund the excess to bring the Contingent Fund within the statutory limits Id. 36. Id. 37. Id. 38. ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF AB 501, at 2 (Apr. 21, 2009). 39. See id. 40. Hagedorn, supra note 1; see also ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF AB 501, at 3 (Apr. 21, 2009) (summarizing Hagedorn, supra note 1). 41. CAL. BUS. & PROF. CODE 2435(h) (West 2003); ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS, COMMITTEE ANALYSIS OF AB 501, at 4 (Apr. 21, 2009). 42. Id. 2435(e)-(h); see also SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF AB 501, at 1, 4-5 (June 29, 2009) (stating that AB 501 would allow MBC to adjust its licensing fees under specified conditions). 43. CAL. STATE AUDITOR, supra note 19, at 3; MED. BD. OF CAL., ANNUAL REPORT, at i (2008), available at (on file with the McGeorge Law Review). 44. CAL. BUS. & PROF. CODE 2435(c)-(d) (West 2003); 2005 Cal. Stat. ch. 674, 17 (amending CAL. BUS. & PROF. CODE 2435). 45. MED. BD. OF CAL., supra note 43, at i. 46. See generally CAL. BUS. & PROF. CODE 2435 (lacking a provision permitting MBC to reduce initial and biennial licensing fees); CAL. STATE AUDITOR, supra note 19, at 11 (recommending that MBC seek a statutory amendment granting it the flexibility to adjust or refund licensure fees); SENATE COMMITTEE ON 484

15 III. CHAPTER 400 McGeorge Law Review / Vol. 41 Chapter 400 amends section 2054 of the Business and Professions Code to broaden the class of persons that may legally hold themselves out as doctors. 47 The expanded class of persons under Chapter 400 includes persons qualified under California Code sections 2111 or 2113 for certificates of registration 48 or as visiting fellows. 49 Additionally, medical school graduates who are enrolled in postgraduate training programs approved by MBC are permitted to indicate that they are doctors. 50 Chapter 400 also extends the use of these titles to a medical school graduate who is not currently licensed to practice medicine in California if the graduate: (1) has been issued a license to practice medicine in another state; (2) has not had that license revoked or suspended by any state; (3) holds him- or herself out as a physician or surgeon only to the extent authorized by Chapter 400; and (4) does not engage in any act prohibited by section 2060 of the Business and Professions Code. 51 Chapter 400 also adds section 2088 to the Business and Professions Code, permitting MBC to initially issue a limited physician s and surgeon s license to an applicant who is otherwise eligible for an unrestricted license but is unable to practice some aspects of medicine safely due to a disability. 52 Limited-license applicants may obtain independent evaluations of their abilities to practice medicine safely, must pay the initial licensure fee, and must agree to limit their practices in a manner prescribed by MBC. 53 BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF AB 501, at 4 (June 29, 2009) (noting that Chapter 400 gives MBC the ability to increase the annual and biennial fees). 47. CAL. BUS. & PROF. CODE 2054(c) (amended by Chapter 400). Business and Professions Code section 2054(a) states that anyone who holds himself out as a doctor without state licensure is guilty of a misdemeanor. Id. 2054(a) (West 2003). This section defines holding oneself out as a doctor as: [Using] in any sign, business card, or letterhead, or, in an advertisement, the words doctor or physician, the letters or prefix Dr., or the initials M.D., or any other terms or letters indicating or implying that he or she is a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law, or that he or she is entitled to practice hereunder, or who represents or holds himself or herself out as a physician and surgeon, physician, surgeon, or practitioner under the terms of this or any other law.... Id. 48. Id Id. 2111, 2054(c)(3) (amended by Chapter 400). 50. CAL. BUS. & PROF. CODE 2054 (amended by Chapter 400); SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF AB 501, at 4 (June 29, 2009). 51. CAL. BUS. & PROF. CODE 2054 (amended by Chapter 400); SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF AB 501, at 4 (June 29, 2009); CAL. BUS. & PROF. CODE 2060 (West 2003) (prohibiting an unlicensed physician from opening an office, appointing a place to meet patients, receiving calls from patients, giving orders, or having ultimate authority over the care of a patient located in California). 52. CAL. BUS. & PROF. CODE 2088 (enacted by Chapter 400); SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF AB 501, at 4 (June 29, 2009). 53. CAL. BUS. & PROF. CODE 2088 (enacted by Chapter 400); SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF AB 501, at 4-5 (June 29, 2009). 485

16 2010 / Business and Professions Finally, Chapter 400 amends section 2435 of the Business and Professions Code to include a statement of the Legislature s intent that MBC limit its Contingent Fund balance to an amount that covers between two and four months operating expenses. 54 To accomplish this, the legislation caps the initial and biennial licensing fee at $790, increases MBC s authority to adjust the fee yearly, and expands the statutory limits to at least two but no more than four months operating expenses. 55 Additionally, Chapter 400 requires the Office of State Audits to conduct an investigation of the Contingent Fund by January 1, IV. ANALYSIS OF CHAPTER 400 Chapter 400 is all about expansion. 57 The legislation expands the permissible use of Dr. and M.D. by eliminating existing restrictions and permitting a larger class of people to use the titles. 58 Additionally, Chapter 400 expands MBC s authority by creating the initial limited-license category and by authorizing MBC to adjust licensure fees to keep the Contingent Fund within statutory limits. 59 A. Letting in the Nobel Prize Winners: Standardizing Use of Doctors Titles Chapter 400 s amendments to the Business and Professions Code are necessary to standardize and simplify the use of titles indicating that a person is a doctor. In support of Chapter 400, the University of California argues that the legislation enacts necessary changes to clarify the use of Dr. and M.D. 60 Only in California are individuals who have earned Doctor of Medicine degrees prohibited from referring to themselves as Dr. simply because they are involved in non-clinical careers. 61 At Stanford University, for example, medical administrators, scientific researchers, a Nobel Prize winner in the field of medicine, medical interns, and medical residents, despite having earned Doctor of Medicine degrees from accredited institutions, were excluded from calling themselves doctors. 62 By loosening the limitations on the use of Dr. and M.D., Chapter 400 provides clarifying changes which... allow a broad group 54. CAL. BUS. & PROF. CODE 2435(h) (amended by Chapter 400). 55. Id (amended by Chapter 400); SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF AB 501, at 5 (June 29, 2009). 56. CAL. BUS. & PROF. CODE 2435(i) (amended by Chapter 400). 57. Id. 2054, 2435 (amended by Chapter 400); 2088 (enacted by Chapter 400). 58. Id (amended by Chapter 400). 59. Id. 2054, 2435 (amended by Chapter 400). 60. SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF AB 501, at 8 (June 29, 2009). 61. Pizzo Letter, supra note Id.; Shuer Letter, supra note

17 McGeorge Law Review / Vol. 41 of individuals who have earned M.D. degrees from accredited medical schools to use the title doctor or the initials M.D. 63 Chapter 400 s simplification and uniformity promotes MBC s goal of protecting the public. 64 Because the M.D. degree and the term Doctor are universally symbolic of the degree conferred as a result of completing a course of study at medical school, 65 patients can take comfort knowing that their healthcare providers have received sufficient training and are capable of providing sound medical advice. Additionally, medical school graduates are no longer faced with a choice that threatens to bar them from being doctors : pursue a clinical career and be a doctor within the strict statutory definition, or pursue a non-clinical career and give up the right to use the honored title. 66 As the Stanford University School of Medicine notes, standardization of the use of Dr. and M.D. satisfies a sense of professional fairness by permitting all graduates of recognized medical schools to use Dr. or M.D. in recognition of achieving a Doctor of Medicine degree. 67 Indeed, it hardly seems fair that a person holding a Doctor of Philosophy degree is permitted to refer to him- or herself as a doctor, but a person holding an equivalent degree in the medical field may not. 68 This aspect of Chapter 400 also brings California in line with other states laws permitting all graduates of accredited schools to refer to themselves as doctors. 69 Thus, by simplifying the regulations concerning Dr. and M.D., Chapter 400 eliminates professional and public confusion surrounding the use of these titles in California. 70 Additionally, allowing graduates of accredited medical schools to use the titles recognizes their academic and professional achievements and satisfies a sense of professional fairness, 71 while bringing California s law in line with that of other states SENATE COMMITTEE ON BUSINESS, PROFESSIONS AND ECONOMIC DEVELOPMENT, COMMITTEE ANALYSIS OF AB 501, at 8 (June 29, 2009). 64. See generally CAL. BUS. & PROF. CODE (West 2003) ( Protection of the public shall be the highest priority for Medical Board of California.... ). 65. Shuer Letter, supra note See CAL. BUS. & PROF. CODE 2054(a) (West 2003) (requiring a person holding himself out as a doctor to have a valid physician s and surgeon s certificate); Pizzo Letter, supra note 2 (stating that an individual who holds a Doctor of Medicine degree but is not engaged in clinical practice is prohibited from using the initials M.D. ). 67. Pizzo Letter, supra note 2; Shuer Letter, supra note Pizzo Letter, supra note See id. (stating that only in California are persons who hold Doctor of Medicine degrees prohibited from calling themselves doctors simply because they are engaged in non-clinical careers). 70. Id.; see also Shuer Letter, supra note 2 ( This is a very important clarification for all Graduate Medical Education programs.... ). 71. Pizzo Letter, supra note 2; see also Shuer Letter, supra note 2 ( Allowing [medical residents and interns] to use both M.D. initials and Dr. honors the work and study they have completed.... ). 72. See Pizzo Letter, supra note 2 (stating that only in California are persons who hold Doctor of Medicine degrees prohibited from calling themselves doctors simply because they are engaged in non-clinical careers). 487