New Year, New Reporting Requirements: California Entities Must Report Certain Patient Complaints of Sexual Abuse and Misconduct by Healing Arts Licensees
Complaints of physician sexual misconduct and abuse have increased since the investigation into the former USA Gymnastics team physician uncovered his widespread sexual abuse of female gymnasts. Since then, patient sexual misconduct and abuse complaints have surfaced against ex-USC gynecologist George Tyndall and ex-UCLA gynecologist James Heap. The egregious conduct perpetrated by all three physicians raised questions regarding how patient complaints involving sexual misconduct and abuse are handled at many institutions.
Existing California law already deems any licensee’s “sexual abuse, misconduct, or relations with a patient” or “sexual exploitation” of a patient or former patient as unprofessional conduct warranting disciplinary action. To address how patient complaints involving sexual misconduct and abuse are handled, Senate Bill 425 (SB 425) adds Section 805.8 to the California Business and Professions Code. The new statute, as well as several amendments to existing Business and Professions Code sections, became effective on January 1, 2020.
Section 805.8 Requires Clinics, Health Facilities, and “Other Entities” to Report Written Patient Complaints Alleging a Healing Arts Licensee’s Sexual Misconduct and Abuse to the Licensee’s Licensing Agency
Under Section 805.8, if a health care facility or “other entity” (both of which are described further below) that allows a healing arts licensee to practice or provide care to patients receives a written complaint from a patient or a patient’s representative alleging sexual abuse or sexual misconduct, then the health care facility and other entity must report the patient complaint to the healing arts licensee’s licensing agency within 15 days. The licensing agency would then be required to investigate. The health care facility’s report will remain confidential and is not subject to discovery, but may be used in a subsequent disciplinary hearing. Failure to report a patient’s written complaint may result in civil fines of up to $100,000 dollars for a willful failure, and up to $50,000 dollars for any other failure.
Section 805.8’s Scope is Expansive
The statute applies broadly and includes a wide range of health care professionals and health care facilities. A “licensee” is not only a physician: 805.8’s definition of “licensee” includes any person licensed under the “healing arts” division of the Business and Professions Code. This includes chiropractors, dentists, speech-language pathologists, audiologists, nurses, physical therapists, psychologists, optometrists, physicians and surgeons, and physician assistants, among several others.
The definition of “health care facility” is also expansive and includes “a clinic or health facility licensed or exempt from licensure pursuant to Division 2 (commencing with Section 1200) of the Health and Safety Code.” This means that it applies to, among other entities, clinics, hospitals, skilled nursing facilities, and intermediate care facilities. Potentially the most expansive, and most troubling, term is “other entity,” which “includes, but is not limited to, a postsecondary educational institution as defined in Section 66261.5 of the Education Code.” Given the history that led to the bill’s introduction, it is very possible that this definition was specifically added to ensure that colleges and professional schools are included in the statute. However, the wording – specifically, the phrase, “includes, but is not limited to” – suggests that the law applies to any entity, without limitation, that makes arrangements for healing arts licensees to practice or provide care for patients. The new law does not, however, require health care facilities or other entities to file reports to their own licensing agencies, though certain facilities and entities may be required to file reports of sexual abuse or sexual misconduct under other existing statutes.
Despite Section 805.8’s breadth, the statute applies only where there is a written complaint from a patient or a patient’s representative. A health care facility should consult with legal counsel if it receives a written patient complaint alleging sexual misconduct or sexual abuse against a licensee to determine whether the written complaint falls within the scope of Section 805.8.
Reporting Must Occur, Regardless of the Status of Any Internal Investigation
Section 805.8 does not require a health care facility or other entity to investigate a patient’s complaint prior to reporting to the licensing agency. In fact, even a discredited complaint must be reported. A health care facility or other entity should still independently investigate the patient’s complaint, but the investigation likely would not be a defense to a civil fine imposed for failing to timely report. Therefore, a health care facility and other entity should make every effort to submit a timely report to the licensing agency. If additional information is uncovered during an internal investigation, it should consult with legal counsel to determine whether a supplemental report to the licensing agency is appropriate.
As we move forward in the new year, health care facilities and “other entities” subject to the statute should prepare or amend policies to comply with the new reporting requirement. They also should educate staff to forward any written patient complaints of sexual abuse or misconduct to the person who will oversee compliance with the reporting requirement.
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