November 30, 2022

Volume XII, Number 334

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California Legislative Update Part I: New Requirements for Licensed Health Care Professionals

As of the close of the 2021-22 legislative session, Governor Gavin Newsom signed into law health care related legislation tackling issues from management of health care costs to reproductive rights. In Part I of our legislative update, we summarize many of the laws relevant to licensed health care professionals.

Physicians & Surgeons

AB 1278: California Licensed Physicians and Surgeons or their Employers Must Provide Notice to Patients of the Open Patients Database

Effective January 1, 2023, California licensed physicians and surgeons or their employers must provide to each patient at the initial office visit written or electronic notice of the Open Payments database (a federal tool used to search payments made by drug and device companies to physicians and teaching hospitals) and retain the notice in the patient’s medical record. Written notice must include a signature from the patient or patient’s representative and the date of signature. Additionally, physicians must post an Open Payments database notice in each location where they practice in an area likely to be seen by all persons who enter the location. Beginning January 1, 2024, if a physician’s practice maintains an internet website, then the website must include an Open Payments database notice. Physicians and surgeons who do not follow the new law may be disciplined by their respective licensing boards for unprofessional conduct. See our recent post for more detail on the new law’s requirements here.

AB 1954: Physicians and Surgeons May Not Automatically Deny Treatment to Qualified Patients Based Solely on a Positive Drug Screen for Tetrahydrocannabinol THC

Effective January 1, 2023, physicians are prohibited from automatically denying treatment or medication to a “qualified patient” under California’s Compassionate Use Act based solely on a positive drug screen for THC or report of medical cannabis use without first completing a case-by-case evaluation of the patient that includes a determination that the qualified patient’s use of medical cannabis is “medically significant” to the treatment or medication. Use of medical cannabis that has been recommended by a licensed physician will not constitute the use of an illicit substance for purposes of such an evaluation. Physicians will not be punished, or denied any right or privilege, for having administered treatment or medication to a qualified patient consistent with the new law and consistent with the standard of care.

AB-2098: A Physician’s or Surgeon’s Dissemination of Misinformation Related to COVID-19 Is Unprofessional Conduct

Effective January 1, 2023, disseminating misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment, and the development, safety, and effectiveness of COVID-19 vaccines by physicians is unprofessional conduct.

Nursing

SB 1375: Nurse Practitioners and Nurse Midwives May Perform First-Trimester Abortions Following Completion of Required Training

Effective January 1, 2023,  nurse practitioners and nurse-midwives who have completed specified training are authorized to perform an abortion within the first trimester of pregnancy by aspiration techniques under standardized protocols under physician supervision or independently if the nurse practitioner has met the requirements for independent practice in California. The bill requires a nurse practitioner to practice abortion by aspiration techniques consistent with applicable standards of care and within the scope of the nurse practitioner’s clinical and professional education and training. 

Psychology

AB 2754: Registered Psychological Associates May Be Supervised Via Synchronous Audiovisual Means

Effective immediately, AB 2754 authorizes the supervision of an applicant for licensure as a psychologist, and of a registered psychological associate, to be provided in real time, which is defined as through in-person or synchronous audiovisual means, in compliance with federal and state laws related to patient health confidentiality.

Optometry

AB 2574: Optometrists May Used Tests Performed in CLIA-Waived Labs and Administer Certain Immunizations

Effective January 1, 2023, among other things, the new law clarifies and expands the scope of optometry by authorizing optometrists to use laboratory tests or examinations performed in a laboratory with a certificate of waiver; and administer various immunizations including COVID-19 vaccinations if certain requirements are met.

Pharmacy

SB 1259: Pharmacists May Furnish FDA-Approved Opioid Antagonists

Effective January 1, 2023, pharmacists who complete required training are authorized to furnish an opioid antagonist approved by the federal Food and Drug Administration (instead of only naloxone hydrochloride) in accordance with standardized procedures or protocols developed and approved by both the California State Board of Pharmacy and the Medical Board of California, in consultation with the California Society of Addiction Medicine, the California Pharmacists Association, and other appropriate entities.

AB 852: Practitioners Must Follow New Rules Regarding Electronic Prescriptions

Effective January 1, 2023, a pharmacy, pharmacist, or other practitioner authorized to dispense or furnish a prescription is prohibited from refusing to dispense or furnish an electronic prescription solely because the prescription was not submitted via, or is not compatible with, their proprietary software. However, a pharmacy, pharmacist, or other authorized practitioner may decline to dispense or furnish an electronic prescription submitted via software that fails to meet any one of specified criteria, including compliance with the federal Health Insurance Portability and Accountability Act of 1996.

Also, the new law adds the following exemptions from the requirement that prescriptions be issued as an electronic data transmission prescription:

  • Prescriptions issued by a prescribing health care practitioner serving as a volunteer in a free clinic who receives no remuneration for their services; and

  • A prescriber who has registered with the California State Board of Pharmacy in a manner and format determined by the board, stating that they are located in the area of a declared disaster or emergency; issue 100 or fewer prescriptions per year; or are unable to issue electronic data transmission prescriptions due to circumstances beyond their control.

Further, the new law specifies the following exceptions to the requirement that a pharmacy immediately transfer an electronic prescription to an alternative pharmacy upon request of the patient:

  • The action would result in a violation of any state or federal law; and

  • The action is not supported by the latest version of the National Council for Prescription Drug Programs SCRIPT standard.

If a pharmacy is prohibited from transferring or forwarding electronic data transmission prescriptions, and that prohibition is subsequently removed, then that pharmacy shall implement, within one year from the date the prohibition is removed, the necessary provisions to allow for the transferring or forwarding of an electronic data transmission prescription.

©1994-2022 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.National Law Review, Volume XII, Number 315
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About this Author

Kathryn F. Edgerton Los Angeles Health Care Attorney Mintz
Member

Kathryn F. Edgerton is a Member of Mintz's Los Angeles office. Kathryn advises hospitals and other health-related organizations on a broad range of transactional, regulatory, and strategic issues. Kathryn's clients include physician organizations, long-term and behavioral health providers, telemedicine providers, home health providers, and medical spas.

Known for providing practical, business-focused guidance, Kathryn counsels clients on operational and transactional matters. She advises national organizations and start-ups on strategic,...

424-259-4030
Lara Compton Health Care Lawyer Mintz
Member

Lara is a trusted advisor to clients ranging from traditional health care providers to disrupter digital health platforms as they navigate the practical and regulatory challenges of health care innovation. Her unique depth of knowledge across HIPAA privacy and other regulatory issues governing the use of data, state and federal fraud and abuse laws, business planning and operational issues has led colleagues to describe Lara as the “Swiss Army knife” of health care problem-solving.

Working at the intersection of health care and technology, Lara counsels telemedicine and other...

212.692.6288
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