Member Article

Under a new state law that takes effect January 1, 2020, California health care facilities and other entities must report any written allegations that a physician or other healing arts licensee has sexually abused or engaged in sexual misconduct with respect to a patient. Sexual misconduct is defined as "inappropriate contact or communication of a sexual nature."

SB 425 (Hill) amends the Business and Professions Code to add a new provision, Section 805.8. It imposes mandatory reporting requirements on "health care facilities" and "other entities," and these terms are broadly defined. They include hospitals, clinics, skilled nursing facilities, and other entities, including post-secondary educational institutions, that make any arrangement under which a healing arts licensee is allowed to practice or provide care for patients. Such arrangements include, but are not limited to, full staff privileges, active staff privileges, limited staff privileges, auxiliary staff privileges, provisional staff privileges, temporary staff privileges, courtesy staff privileges, locum tenens arrangements, and contractual arrangements to provide professional services, including, but not limited to, arrangements to provide outpatient services.

The timeline for reporting is short. Upon receipt of any written allegation submitted by a patient or the patient's representative that a healing arts licensee engaged in sexual abuse or sexual misconduct, the hospital, clinic, or other entity must file the report within 15 days from the date it received the written allegation. There is no grace period or tolling for investigating the allegation.

Unlike reporting obligations imposed by Business and Professions Code Sections 805 and 805.01, reports under Section 805.8 must be filed regarding all individuals who are licensed under Division 2 of the Business and Professions Code. This includes not only physicians, dentists, podiatrists, and psychologists, but also nurses, chiropractors, speech-language pathologists, audiologists, opticians, optometrists, physical therapists, occupational therapists, dieticians, pharmacists, physician assistants, and perfusionists, to name a few.

Consequences of failing to report are severe. As with Business and Professions Code Sections 805 and 805.01, failure to report can result in fines of up to $50,000 per violation or up to $100,000 per violation if the failure is willful. If the person designated to file the report is a licensed physician or podiatrist, the applicable licensing board may bring an action for unprofessional conduct against the individual for failing to timely file the report. To encourage compliance without fear of retribution, anyone who reports under Section 805.8 is immune from civil or criminal liability as a result of making the required report.

An agency receiving a report under Section 805.8 must investigate the circumstances giving rise to the report. The report itself will be kept confidential and will not be subject to discovery, except it may be reviewed by the healing arts licensee in accordance with Business and Professions Code Section 800(c) and may be disclosed in a subsequent disciplinary hearing.

Unlike Sections 805 and 805.01, Section 805.8 does not specify which individual in the organization must file the report. Health care entities subject to the new law should establish procedures to ensure timely reporting of written reports of sexual abuse or sexual misconduct consistent with the law. This will require that, no matter who within the organization receives a written allegation of sexual abuse or sexual misconduct from a patient or a patient's representative, the information is timely conveyed to the individual assigned to submit Section 805.8 reports.

Please contact us if you would like more information about this new reporting requirement.