Sasha G. Aguilar
Governor Gavin Newsom signed Senate Bill 425 (SB 425) into law on October 12, 2019. This codified Business and Professions Code section 805.8, regarding professional reporting. As of January 1, 2020, when a patient (or their representative) submits a written allegation of sexual abuse or misconduct to a health care entity, that entity must report the allegation to the appropriate licensing agency within 15 days.
While the law mandates numerous types of reports for physicians and other providers, this one clearly includes physical therapists as discussed below.
Mandatory Reporting of Patient “Allegations” of Sexual Misconduct
This statute requires reporting of any allegations of sexual abuse or sexual misconduct made against a healing arts licensee by a patient. It does not say findings, or conclusions; rather the statute provides for the reporting of “allegations. “
Any health care facility or other entity that allows a healing arts licensee to provide care for patients shall report any allegation of sexual abuse or misconduct. Sexual misconduct is defined as “inappropriate contact or communication of a sexual nature.” The allegation or complaint must be in writing and the report must be made within 15 days to the licensing agency. The agency must then investigate the underlying facts.
Failure to report as described above leads to serious fines. A willful failure to file the report shall be punishable by a fine, not to exceed $100,000 per violation. Any failure to report is punishable by a fine, not to exceed $50,000 per violation.
The licensee need not be an employee of the health care facility or other entity required to report. Mandated reporting is triggered if the licensee may provide care for patients. This includes staff privilege types such as full, active, limited, auxiliary, provisional, temporary, courtesy, locum tenens arraignment, contract actual arrangements or even arrangement to provide outpatient services. Basically, any professional licensee that provides care to patients.
Besides physicians, the mandated reporting applies to individuals licensed by California’s Podiatric Medical Board, the Board of Psychology, the Dental Board, the Dental Hygiene Board, the Osteopathic Medical Board, the Board of Chiropractic Examiners, the Board of Registered Nursing, the Board of Vocational Nursing and Psychiatric Technicians, the Board of Optometry, the Veterinary Medical Board, the Board of Behavioral Sciences, the Physical Therapy Board, the Board of Pharmacy, the Speech-Language Pathology and Audiology and Hearing Aid Dispensers Board, the Board of Occupational Therapy, the Acupuncture Board and the Physician Assistant Board.
This bill reaches far beyond the traditional 805 Reports that health care entities are accustomed to making regarding physicians when there exists a medical disciplinary cause or reason to report them.
Impact of AB 425 on Hospitals, Clinics and Health Facilities
The bill was introduced in response to multiple unresolved complaints of alleged sexual misconduct by medical professionals. According to the author, State Senator Jerry Hill,
SB 425 closes legal loopholes that can allow a subject of repeated sexual abuse and misconduct complaints to work at a health facility for years because the relevant regulatory board is not notified by the facility of the allegations against a licensee. State regulatory boards cannot fulfill their responsibilities to protect patients and other consumers, if they are not notified of these serious allegations involving their licensee. The failure to do so shields bad actors while exposing patients to greater risk.
The bill will not only accelerate the process in which licensing boards are notified, but also increases the types of entities that must report these events.
This bill requires any health care facility, licensed or exempt, and applies broadly to any other entity, including but not limited to a postsecondary education intuition, to make the reporting. Current law requires certain reports to be made by a narrowly defined peer review body. These bodies include medical staff at hospitals, ambulatory surgery centers, or licensed clinics. “Other entities” has a broad definition that reaches beyond facilities or locations where a medical professional works and can be understood to include entities that employ or contract with health care providers, such as a medical group.
The penalties associated with a failure to report, willful or not, are incredibly large. Failure to report within 15 days results in heavy fines of $50,000 for any failure and $100,000 for a willful failure, for each violation.
Impact on Physical Therapists
By the terms of the statute, there are no exceptions to such reporting. Even if a health care facility determined, during the 15-day timeline, that an allegation is unsupported, it is obligated to report the allegations. To further support reporting, the statue provides protection from civil and criminal liability for those who make the required report.
A report is required within 15 days when the following exist:
• The reporter is a health care facility or other entity, as defined above;
• The facility receives a written allegation of sexual assault or misconduct from a patient;
• The allegation is against a healing arts licensee; and
• And that licensee us allowed to provide care at the facility.
Effectively, this law turns every allegation into a Board investigation and can no longer be handled at the facility-level. And state licensing agencies must investigate the circumstances of every report they receive. So every allegation, true or not, will now be investigated by the Board.
What’s Next
SB 425 does not supersede other reporting duties a health care entity may have. Rather, it creates an additional reporting requirement, with severe penalties and limited time to comply. The defined facilities will not have time to complete their own investigations within 15 days and will simply generate the report to avoid the fines.
Both physical therapists who are the subject of such complaints and health facilities defined under this section should consult legal counsel regarding their new legal obligations, liabilities, and impact of this new legislation.
Sasha G. Aguilar is an Associate Attorney with the Government and Administrative Law firm of Simas & Associates, Ltd., in Sacramento, San Luis Obispo, San Jose, and San Diego, California. Ms. Aguilar practices in the areas of Healthcare Regulation, Professional Licensing and Regulation and Workplace and Employment Regulation. The firm has proudly served as legal counsel to the California Physical Therapy Association since 2004 and can be reached at info@simasgovlaw.com.