New California Laws in 2022
A variety of subjects impacting physicians were signed into law by Governor Newsom in 2021. Following is a sampling of new laws you should be aware of; all are effective January 1, 2022 unless otherwise noted. A comprehensive report on new healthcare laws is available from the California Medical Association.
Electronic Prescribing Mandate
This law (passed by the California Legislature in 2018) requires that almost all prescriptions written in California be transmitted electronically. The California Medical Association has published a description of the law, including the types of prescriptions that are exempt from the mandate.
Does electronic prescribing trigger HIPAA provisions? MIEC has received inquiries from psychiatrists and other physicians who do not contract with health plans regarding whether electronic prescribing is one of the electronic transactions that would make a physician a “covered entity” under HIPAA. Most of the electronic transactions that HIPAA uses to determine whether a physician is a “covered entity” involve specified electronic transactions between a physician and a health plan pertaining to billing, eligibility, and related communications. Electronic prescribing alone is not one of the specified electronic transactions that would trigger HIPAA requirements for a physician traditionally outside of the “covered entity” category.
Updates to End of Life Option Act (SB 380)
The End of Life Option Act (2016) authorizes a process for terminally ill adults living in California to request, obtain and self-administer drugs for medical aid in dying. Effective January 1, 2022, the established procedures have been changed as follows:
- An individual may qualify for aid-in-dying medication by making 2 oral requests a minimum of 48 hours apart (formerly these requests were to be made 15 days apart.)
- An individual who is prescribed and ingests an aid-in-dying medication is no longer required to fill out a final attestation form within 48 hours prior to self-administering the medication
Additionally, the new law permits an aid-in-dying request to be received by more than one attending physician and requires an attending physician to ensure the date of a request is documented in an individual’s medical record. It prohibits an oral request documented in the patient’s record from being disregarded by an attending physician solely because it was received by a prior attending physician. Participation in the activities authorized pursuant to the act continues to be voluntary for physicians. However, under the new law, a physician who is unwilling or unable to participate must inform the individual seeking aid-in-dying medication that they do not participate, document the date of the individual’s request and the physician’s notice of their objection, and transfer the patient’s relevant medical record upon request. Participation in the Act is also voluntary for health care entities such as hospitals and clinics. A health care entity is required to post its current policy on aid-in-dying on its website. Checklist and Compliance forms for attending and consulting physicians and other forms/resources are available through the California Department of Public Health.
Cancer Medication Recycling Act (SB 310)
This act establishes a program for the collection and distribution of eligible unused cancer medications. It requires participating providers to be registered with a surplus medication collection and distribution intermediary. Eligible providers must be licensed to practice medicine by the Medical Board of California and be board certified in medical oncology or hematology. Eligible medications are those that were initially prescribed to an established patient of the donor physician’s practice; are prescribed as part of a cancer treatment plan; and in its original unopened, tamper-evident dose unit packaging that includes the drug’s lot number and expiration date. Opioids, compounded medications, injectable medications, drugs that have an approved US FDA REMS requirement, and all growth factor medications are ineligible.
Liability Protections for Expedited Partner Therapy (EPT); Prenatal syphilis screening (SB 306)
Under existing law, prescribers treating a patient for a sexually transmitted infection (STI) with antibiotics may concurrently prescribe antibiotics for the patient’s partner. The new law allows the prescriber to write “expedited partner therapy” on the prescription if the patient does not provide the partner’s name. The law prohibits a pharmacist or other healthcare provider who prescribes, dispenses, furnishes or otherwise renders EPT from being liable in or subject to civil, criminal or administrative action except in cases of intentional misconduct, gross negligence, or wanton or reckless activity. The law further requires providers of prenatal care or attending a birthing patient to provide syphilis screening and testing as outlined in the most recent CDPH guidelines or other clinical guidelines. (Previously the law specified that this screening was to occur at the first official visit or within 10 days of said visit.)
Maternal Mental Health Screening Expanded to include interpregnancy care (AB 1477)
Existing law requires health care practitioners who provide prenatal or postpartum care to offer to screen a mother for maternal health conditions. In an effort to facilitate access to mental health services for mothers who have experienced stillbirths or miscarriages, this law expands the practitioners offering and providing such screening to include those who provide interpregnancy care.
Primary care providers are required to offer Hepatitis B and C screening to adults (AB 789)
This law requires that an adult patient receiving primary care services be offered a screening test for hepatitis B and hepatitis C to the extent these services are covered under the patient’s health insurance, unless the physician reasonably believes one of the following conditions applies: The patient is being treated for a life-threatening emergency; the patient has previously been offered or obtained hepatitis B or C screening test; or the patient lacks the capacity to consent. In the event of a positive test result, the provider must offer to provide or refer the patient to appropriate follow-up care. The law prohibits a health care provider who fails to comply with these provisions from being subject to any disciplinary action related to their licensure or certification, or to any civil or criminal liability for that failure.
Emotional support animal certification requirements expanded (AB 468)
This law requires that a person or business that sells or provides a dog for use as an emotional support animal provide written notice to the recipient of the animal that the dog does not have the special training required to qualify as a service animal under the Americans with Disabilities Act and is not entitled to the rights and privileges accorded to a trained service animal. The law further prohibits a physician or other provider from certifying an individual’s need for an “emotional support dog” unless the provider has had a bonafide client-provider relationship for at least 30 days prior and has completed an appropriate clinical evaluation. The practitioner must also provide verbal or written notice to the patient that knowingly and fraudulently representing an emotional support animal as a service animal is a criminal offense.
Medical Board Fee Increases; Cost Recovery for Investigations (SB 806)
In addition to fee increases, the new law amends section 125.3 of the Business and Professions Code to include a cost recovery provision, allowing MBC to recover the costs of investigation and prosecution for a successful disciplinary proceeding against a physician licensee. The Board believes this provision will help offset costs and “incentivize licensees to settle cases,” allowing for quicker discipline and less cost for administrative hearings.