Health Care Law Legislation and Litigation Update for 2015: California Health Law Continues to Evolve at a Rapid Pace
| Publication year | 2016 |
| Author | Carol Scott, H. Thomas Watson, and David D. Johnson |
Carol Scott, H. Thomas Watson, and David D. Johnson
Carol D. Scott J.D., M.P.H. is a health care law partner with the law firm of Hinshaw & Culbertson, LLP, in its Los Angeles, California office. Her practice focuses on advising various types of health care providers and related entities on regulatory, transactional, fraud and abuse, reimbursement, compliance, privacy and security, and business issues. She is the Co-Chair of the State Bar Legislation Subcommittee.
H. Thomas Watson is a partner at Horvitz & Levy LLP. He is a California State Bar Certified Appellate Specialist and chairs the State Bar's Health Law Committee. He has authored numerous articles on health law and damages issues, and is a frequent lecturer on these topics.
David D. Johnson is a health law attorney in the San Francisco office of Crowell & Moring, LLP. He focuses on health care litigation and regulatory counseling. Mr. Johnson graduated from the University of Texas at Austin School of Law. Prior to law school, he worked as a C.P.A.
The Legislature enacted over 130 significant new health care laws in 2015. The bills that generated the most news addressed individual rights. The most controversial was Assembly Bill X2-15 (2015-2016 Reg. Sess.), the End of Life Option Act, which for the first time permits physicians to provide terminally ill patients with drugs to aid in their death. Similarly controversial was Senate Bill 277 (2015-2016 Reg. Sess.), which phases out the "personal belief exemption for vaccinations of school-aged children. Other consumer-oriented bills tighten the regulations on medical marijuana, require disclosures by pregnancy counseling centers, and change the rules for when a sperm/ova donor will be deemed the parent of a child conceived through assisted reproduction.
While the major reforms to California's health care coverage system of recent years have been largely completed, the Legislature enacted several bills in 2015 that expanded access to health care. These included Senate Bill 4 (2015-2016 Reg. Sess.) and Senate Bill 75 (2015-2016 Reg. Sess.), which extended full-scope Medi-Cal benefits to children under the age of 19 who are unable to prove that they have satisfactory immigration status; Senate Bill 337 (2015-2016 Reg. Sess.), which provides physicians with more flexible alternatives for reviewing the records of physician assistants; and Assembly Bill 848 (2015-2016 Reg. Sess.), which expands the ability of alcohol and drug treatment centers to provide medical services. Other bills tweaked insurance coverage, such as by limiting cost-sharing for drugs.
The California Supreme Court filed only one health care opinion last year, State Department of Public Health v. Superior Court.1 This decision recognizes a limited exception to patient confidentiality for citations issued by the Department of Public Health to providers under the Long-Term Care Act. The court of appeal, however, published many significant health law decisions, which addressed professional and medical staff matters, billing, medical coverage, premium taxes, tort liability, MICRA, workers' compensation medical review, and other issues.
In June 2015, Governor Brown signed Senate Bill 277, one of the strictest school vaccination laws in the United States. Starting July 1, 2016, all children enrolled in public or private schools, day care, and nursery schools must be vaccinated against a variety of diseases, regardless of religious or other personal beliefs. Children with special medical conditions, such as immune system deficiencies and medical allergies, may be exempt if they have a doctor's statement. Senate Bill 277 provides that children who do not qualify for a medical exemption and who are not vaccinated must be home-schooled or enroll in an independent study program off school grounds. Only children with serious health issues are allowed to opt out of the mandatory vaccinations—with one exception. If a parent filed a personal belief statement on or before December 31, 2015, the child can attend school until the child reaches the next "grade span" (e.g., graduation from grade school to middle school).2
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2. End of LifeIn October 2015, the Governor signed another piece of controversial landmark legislation, Assembly Bill X2-15, the California End of Life Option Act ("ELOA"), which allows a terminally ill patient to request that a physician prescribe a lethal drug to aid the patient in ending his or her life. ELOA includes the following criteria: (i) two doctors must examine the patient and determine that the patient has six (6) months or less to live; (ii) the patient must make a written request and two oral requests at least fifteen (15) days apart; (iii) the patient must provide informed consent; (iv) the patient must be mentally capable of making decisions about his or her own health; and (v) the drug must be self-administered by the patient. Compliance with ELOA is voluntary. Health care providers are immune from liability for refusing to comply with a patient's request. Conversely, physicians who do comply with a patient's request have professional, civil, and criminal immunity.3With the passage of ELOA, California is the fifth state to allow medically-assisted death. 4
3. Mental Health and Involuntary HoldsUnder pre-existing law, a peace officer or other authorized individual may, upon probable cause, involuntarily detain an individual for an initial 72-hour mental health evaluation, if they determine that the individual, as a result of a mental disorder, is a danger to self or others, or is gravely disabled. This is known as a "5150 hold."5 When determining if probable cause exists, the officer may consider information about the historical course of the person's mental disorder, if relevant. Some law enforcement authorities, however, have interpreted the law as requiring a finding of imminent danger before a hold is warranted.6 Assembly Bill 1194 (2015-2016 Reg. Sess.) provides that probable cause for a 5150 hold is not limited to whether there is a danger of imminent harm, and that the factors stated in Welfare and Institutions Code section 5150.05, such as the historical course of the individual's mental health disorder, are what should be considered in determining whether a 5150 hold is proper.7
4. Medical MarijuanaSenate Bill 643, Assembly Bill 243 and Assembly Bill 266 (2015-2016 Reg. Sess.), collectively known as the Medical Marijuana Regulation and Safety Act ("MMRA"), establish a comprehensive new licensing and regulatory regime for medical marijuana. Under MMRA, cultivators will be required to obtain licenses from the California Department of Food and Agriculture, and transporters, testing labs, dispensaries, and others in the distribution chain will be required to obtain licenses from the California Department of Consumer Affairs. Licensees also will be required to comply with new standards controlling cultivation, advertising, packaging, transporting, distributing, and dispensing medical marijuana. MMRA further provides for the termination of the existing model of marijuana cooperatives and collectives one year after this new licensing program has been established.8
MMRA also includes new requirements designed to curb physician over-prescription of medical marijuana. Under MMRA, only the patient's attending physician can recommend medical marijuana. MMRA also requires that the Medical Board of California prioritize its investigative and prosecutorial resources to identify and discipline physicians who repeatedly recommend excessive medical marijuana to patients, recommend marijuana to patients without a good faith examination, prescribe over the Internet, or fail to keep proper records. MMRA also prohibits a physician who recommends medical marijuana from having an interest in another medical marijuana enterprise, or from accepting, soliciting, or offering any form of remuneration to or from a facility licensed under MMRA.9
5. Pregnancy Counseling CentersAssembly Bill 775 (2015-2016 Reg. Sess.), the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act ("RFACTA"), requires certain pregnancy counseling centers to provide clients with information about state-funded family planning services. Under RFACTA, licensed facilities whose primary purpose is providing family planning or pregnancy-related services, and who meet specified criteria, are now required to provide their clients with a notice...
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