The Health Law Ticker

As of January 1, 2020, when a patient (or their representative) submits a written allegation of sexual abuse or sexual misconduct to a health care entity, that entity must report the allegation to the appropriate state licensing agency (e.g., the Medical Board of California) within 15 days of receipt. (SB 425, codified at Cal. Bus. & Prof. Code Section 805.8) After making its way through the state legislature with little to no opposition from state lawmakers, California Governor Gavin Newsom signed this bill into law on October 12. The purpose of the bill was to not only accelerate the process in which state licensing boards receive notification about these serious allegations, but also to expand the types of entities that must report these events.

Which health care entities have a duty to report under this new law?

Section 805.8 applies to any clinic or health facility licensed or exempt from licensure under Section 1200 et seq. of the Health and Safety Code. In addition, it also applies broadly to any other entity (including, but not limited to, a postsecondary educational institution) that makes any arrangement under which a healing arts licensee is allowed to practice or provide care for patients. These arrangements include all forms and levels of clinical privileges as well as contractual and locum tenens arrangements to provide professional services.

Unlike Sections 805 and 805.01 of the Business and Professions Code, which requires certain reports to be made by a somewhat narrowly defined group of “peer review bodies” (such as medical staffs of hospital, ambulatory surgery centers or licensed clinics), Section 805.8 requires reporting by a wide-ranging group of entities. The broad definition of “other entities” reaches beyond actual facilities or locations where a health care provider works and may be construed to include entities that employ or contract with health care providers, such as medical groups.

What type of health care providers could be reported under this law?

Health care entities should take note that licensees who may need to be reported under Section 805.8 include not only those licensed to practice medicine, but any person licensed under Business and Professions Code Section Division 2 that works for a health care facility or has otherwise entered into an arrangement to practice or provide care for patients. This includes, but is not limited to, physical therapists, chiropractors, massage therapists, respiratory therapists and social workers.

What penalties could apply if the health care entity fails to make a report within 15 days?

If the health care entity does not make a report to the appropriate licensing agency within 15 days of receiving the written allegation, heavy fines may be levied by the agency—up to $50,000 for any failure to report and up to $100,000 if the failure to report was willful. In addition, licensees with an obligation to report could face charges of unprofessional conduct from their own licensing agency.

By its terms, the law provides no exemption from reporting even where the health care entity determines through their own investigation during the 15-day time frame that an allegation is unsubstantiated. To encourage reporting, the statute provides civil and criminal liability protections for those who make a required report.

Does this report supersede other reporting duties a health care entity may have?

No. Some of the health care entities to which the new law applies already have separate reporting requirements in cases involving sexual abuse or misconduct. For example, hospitals have a duty to make a report to the California Department of Public Health within five days of detecting sexual assault on a patient within or on the grounds of their facility. In addition, hospital medical staffs must report actions or recommendations (such as a summary suspension or recommendation for termination) that stem from the determination that a physician has engaged in sexually misconduct during the course of treatment of a patient. Since Section 805.8 augments, rather than displaces other reporting requirements that may apply, health care entities must ensure that they fulfill all appropriate reporting requirements should allegations related to sexual misconduct arise.

What will happen when the licensing agency receives the report?

State licensing agencies must investigate the circumstances surrounding any report received. Therefore, it is possible that licensing agencies will still investigate reports that were later determined to be unsubstantiated during a health care entity’s internal review of the matter. Similar to other reports to state licensing agencies, licensees will be permitted to submit an exculpatory or explanatory statement and the report will be maintained as confidential in the licensing agency’s central file on the licensee, unless and until a formal disciplinary prosecution is initiated through Accusation.

01/29/2020 Update: In January 2020, the Medical Board of California published the 805.8 reporting form on its website. The 805.8 reporting form requires the reporting entity to disclose the patient’s name and contact information. In addition, the reporting entity must submit a copy of the written allegation from the patient (or patient’s representative).