California’s New Mandatory Sexual Misconduct & Abuse Reporting Requirement

The State of California is taking additional steps to report sexual misconduct and abuse of patients by licensed health care providers. Effective January 1, 2020, Health Care Facilities and Other Entities (defined below) that arrange for services provided by certain licensed healthcare professionals can now be held liable for failing to report sexual misconduct or sexual abuse of their patients by providers.

According to the new law (Business and Professional Code Sec. 805.8), if a Health Care Facility or Other Covered Entity receives a written complaint or allegation regarding a Provider’s (as defined below) sexual misconduct or sexual abuse of a patient, it must report the complaint within 15 days to the Provider’s professional licensing board.  Outside GC lawyers represent numerous healthcare clients and other entities which may be subject to this mandatory reporting requirement.

Here are the key provisions of CA’s new law:

1. What is a “Health Care Facility or Other Covered Entity?”
   Under the new law, the term “Health Care Facility” includes hospitals, clinics, inpatient and/or outpatient service providers such as home health agencies, diagnostic imaging centers, dialysis centers, adult day care centers, congregate living facilities, skilled nursing facilities and hospice facilities. “Other Covered Entity” includes any person or entity, regardless if it is licensed or not, that makes any arrangement where a Provider is allowed to practice. By adding “Other Covered Entities” to the law, California now requires reporting of situations of potential abuse by non-healthcare institutions such as universities or companies that have on-site clinics or health facilities (e.g., clinics to address on-the-job injuries, retail pharmacies with on-site clinics, etc.).
   
   
2. Who is Considered a “Provider”? The term “Provider” includes any person with a license to practice in the healing arts, such as physicians, dentists, doctors of osteopathy, physician’s assistants, registered nurses, physical therapists, pharmacists, etc., regardless of whether the “Provider” is an employee or hired under a contractual or temporary staffing arrangement.
   
   
3. Who Can File a Complaint? Either a patient or a patient’s representative can file a complaint. The patient’s representative is not required to have an official legal designation as a representative to act or speak on behalf of the patient. It is important to note that in order for the Health Care Facility or Other Covered Entity to have an obligation to report a matter, it must first receive a written allegation or complaint from either the patient or the patient’s representative. 
   
   
4. What Triggers Mandatory Reporting? To trigger the reporting of a Provider to a professional licensing board, the written complaint about a Provider must allege “sexual misconduct” which is defined as “inappropriate contact or communication of a sexual nature.” Complaints alleging rudeness, incompetence, impaired conduct (e.g., drunkenness), and even violence, do not need to be reported under this law; however such conduct may trigger reporting obligations or possible liability under different legal grounds.
   
   
5. Failure to Report. If a Health Care Facility or Other Covered Entity willfully fails to report a complaint, the State of California can impose monetary penalties up to $100,000.00. For failures to report without a finding of willfulness, the State can impose fines up to $50,000. Factors that will be considered in determining the amount of a fine include whether or not the failure to report resulted in harm to the patient and/or whether there are prior failures to report by the Health Care Facility or Other Covered Entity.

In light of the reporting obligations of this new California law, Health Care Facilities and Other Covered Entities should consider how to:

1. Educate all employees, including “providers” about the new law and include this information in any regular/on-going employee training programs;
   
   
2. Advise patients of their rights (that any sexual misconduct or sexual abuse by providers will not be tolerated) and responsibilities (incidents should be reported in writing immediately to the health care facility or covered entity), as prescribed under the law;
   
   
3. Review, update, and implement, if necessary, procedures to properly respond to patient complaints or allegations, and to ensure timely reporting to the provider’s professional licensing board; and
   
   
4. Conduct an internal investigation of the patient complaint and take appropriate corrective action, if appropriate.

If you would like more information about California’s new mandatory reporting requirement under Section 805.8 of the Business and Professions Code, please contact Michael Brown at [email protected] or 949-636-8128.

Michael Brown is a Partner with our California-based team, bringing over three decades of senior in-house counsel experience in the areaS of healthcare, compliance and privacy. Michael has served as in-house counsel to healthcare giants such as Tenet HealthSystems (hospitals), Apria Healthcare (home medical equipment, respiratory and infusion therapy); Clarient, a GE Healthcare company (clinical laboratories); and Edwards Lifesciences (medical device), where he also was a member of the AdvaMed Diagnostic and Compliance Committee that revised the AdvaMed Code of Conduct for the medical device industry.