2023 New Law Alert: California
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A variety of subjects impacting physicians were signed into law by Governor Newsom in 2022. Following is a sampling of new laws you should be aware of; all are effective by January 1, 2023 unless otherwise noted. A comprehensive report on new healthcare laws is available from the California Medical Association.
AB 35: Updates to the Medical Injury Compensation Reform Act (MICRA). Key provisions include a limited increase to the non-economic damage cap, a modified attorney fee structure, and a revised minimum threshold for payment for future economic damages following a judgment. Read our MICRA 2022 Update for details.
AB 1278: Requires Notice to Patients About Open Payments Database. Beginning January 1st, physicians are required to provide a notice to their patients regarding the Open Payments Database managed by the U.S. Centers for Medicare & Medicaid Services, or CMS. Specifically:
- At the initial office visit with their patient in 2023, a physician must provide either a written or electronic notice of the Database that includes the following text: “The Open Payments database is a federal tool used to search payments made by drug and device companies to physicians and teaching hospitals. It can be found at https://openpaymentsdata.cms.gov/.”
- Physicians using electronic records must include a record of this notice in the patient’s records.
- If the physician uses a paper-based records system, then the written notice to the patient must include a signature from the patient (or their representative) and a date of signature. A copy of the written notice must be provided to the patient and included in the patient’s records.
- Physicians must also post a notice regarding the Database at each practice location in an area likely to be seen by all persons. The notice must include a link to the database and the following text (if a physician is employed by a health care employer, the employer is responsible for meeting this requirement):
“For informational purposes only, a link to the federal Centers for Medicare and Medicaid Services (CMS) Open Payments web page is provided here. The federal Physician Payments Sunshine Act requires that detailed information about payment and other payments of value worth over ten dollars ($10) from manufacturers of drugs, medical devices, and biologics to physicians and teaching hospitals be made available to the public.”
Reproductive Health
A number of laws were enacted regarding reproductive health and reproductive rights, including a suite of laws intended to protect patients and providers from anti-abortion laws enacted in other states. Some notable bills include:
AB 1666: Protects patients and providers in California from civil actions and financial retaliation they face for providing abortion care that is legal in the State of California. Prohibits another state’s law authorizing a civil action against a person or entity related to performance of an abortion from being heard in California court and would prohibit the enforcement or satisfaction of a civil judgment received under that law.
AB 1242: Protects patients and providers in California from extradition actions and arrest for providing abortion care that is legal in the state of California. Specifically, this bill prohibits law enforcement from cooperating with, or providing information to, out-of-state entities regarding a lawful abortion under California law, and from knowingly arresting a person for performing or aiding in the performance of a lawful abortion or for obtaining an abortion. The bill further prohibits specified corporations from providing information to out-of-state entities regarding an abortion that is lawful under California law.
AB 2091: Enhances privacy protections for medical records related to abortion care against disclosures to law enforcement and out-of-state third parties seeking to enforce abortion bans in other states. Specifically, it prohibits compelling a person to identify or provide information that would identify or that is related to an individual who has sought or obtained an abortion in a criminal, administrative, legislative, or other proceeding if the information is being requested based an another state’s laws that “interfere with a person’s right to choose” or obtain an abortion.
AB 2626: Prohibits the Medical Board of California and Osteopathic Medical Board of California from taking certain disciplinary actions against physicians solely for performing an abortion in accordance with the Medical Practice Act and the Reproductive Privacy Act. It further prohibits the boards from denying an application for licensure because the person was disciplined or convicted in another state in which they are licensed solely for performing an abortion in that state.
Pain management prescribing/treatment for patients using cannabis
AB 1954: This law seeks to protect chronic pain patients who use marijuana, and to protect the physicians who treat them. It prohibits physicians from automatically denying treatment or medication to a patient based solely on a positive drug screen for THC or a report of medical cannabis use. The bill clarifies that medical cannabis prescribed by a physician shall not constitute the use of an “illicit substance” for purposes of compliance with a pain contract or treatment agreement. It requires an evaluation of the patient to determine whether the patient’s use of medical cannabis is “medically significant” to the treatment or medication prescribed. Specifically, “medically significant” may include, but is not limited to, any of the following:
- The treatment or medication is contraindicated or is likely, or expected, to cause an adverse reaction or physical or mental harm to the patient if administered or used in conjunction with THC or medical cannabis, based on the known characteristics of the patient and the known characteristics of the patients’ treatment or medication regimen.
- The treatment or medication is expected to be ineffective based on the known clinical characteristics of the patient and their medication/treatment regimen.
- The treatment or medication, when administered or used in conjunction with THC or medical cannabis, is not clinically appropriate for the patient because the treatment or medication is expected to: 1) worsen a comorbid condition; 2) Decrease the capacity to maintain a reasonable functional ability in performing daily activities; 3 pose a significant barrier to adherence to, or compliance with, the patient’s drug regimen or plan of care.
- Any other clinically or medically relevant determination.
The law provides that a physician shall not be punished for administering treatment or medication to a qualified patient and consistent with the standard of care.
MIEC recommends: physicians who have pain management medication agreements/pain contracts with patients should review and update the language and policy as needed. Statements that patients will be terminated from the practice if marijuana is identified during drug screening should be revised. Physicians who determine that medical cannabis is in conflict with care and treatment should document their evaluation and reasoning.
SB 349: Client Bill of Rights required for Substance Use Disorder Treatment: The California Ethical Treatment for Persons with Substance Use Disorder Act prohibits false and misleading marketing and advertising and requires treatment providers to adopt a client bill of rights and make this available to all clients and prospective clients. Model legislation created by the National Alliance for Model State Drug Laws (NAMDSL) forms the basis of the Act’s provisions and addresses truth in marketing, lead generation and referrals, drug testing, recovery residences, patient brokering and kickbacks, managed care, and accountability.
MIEC Recommends: Substance Use Disorder Treatment providers can find language for the client bill of rights and other bill provisions here.
AB 2098: Dissemination of misinformation or disinformation regarding COVID-19 by a physician is deemed unprofessional conduct. This includes false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines. “Dissemination” means the conveyance of information from the licensee to a patient under the licensee’s care in the form of treatment or advice.
AB 1797: Requires providers to enter immunizations they administer as well as a patient’s race and ethnicity into a California immunization registry (CAIR or RIDE/Healthy Futures). For additional information, please see AB 1797 Immunization Registry FAQs by the California DPH.
Mandated Reporting:
AB 2085 clarifies the definition of reportable child abuse and neglect. Existing law defines “general neglect” as the negligent failure to provide adequate food, clothing, shelter, medical care, or supervision where no physical injury to the child has occurred. The new law limits the definition of general neglect to only include circumstances where the child is at substantial risk of suffering serious physical harm or illness and provides that general neglect does not include a parent’s economic disadvantage.
Reminder: “Physician organizations and medical groups” must sign California’s Data Sharing Agreement (DSA) by January 1, 2023. The agreement is part of the state’s new Data Exchange Framework. The goal of the framework is to expedite and expand the exchange of information among all health and human services organizations throughout the state. The terms of the DSA, including its mandate to exchange information with other Framework participants, will not take effect until January 31, 2024. Certain smaller providers who sign the agreement, including physician practices of fewer than 25 physicians and select specialty hospitals, will not be required to exchange information under the Framework until January 31, 2026.