On May 13th, 2015

CSLEA continues to press for transfer of Medical Board Investigators to DOJ

CSLEA-Bear-Badge-LogoCSLEA continued its efforts to secure the transfer of Medical Board investigators, presently assigned to the Department of Consumer Affairs Division of Investigation, to the Department of Justice. In addition to meeting with the Speaker's Office, this week, CSLEA Chief Counsel Kasey Clark and CSLEA lobbyist Kate Bell of Capitol Advocacy met with Reginald Jones-Sawyer, chair of Assembly Sub-Committee 5 and Shirley Weber, Assembly Budget Chair, to discuss the historical evolution and ongoing problems with the Vertical Enforcement model. Also present on behalf of the Department of Justice was Deputy Director Kent Shaw.

VE pairs investigators from DCA with prosecutors from the Attorney General's office to pursue disciplinary cases against physicians. Although the investigators and attorneys continue to work within separate chains of command, prior legislation proposed a consolidation within the AG's office.  In 2005, SB 231 (Figueroa) created a pilot program establishing VE to handle DCA Medical Board of California (MBC) investigations and prosecutions. As originally recommended by the MBC Enforcement Monitor in 2005, and in the draft language of SB 231, VE would have  transferred the MBC's investigators to the HQES in the Department of Justice within the AG's office. This would have placed the investigator and prosecutor in the same office under the same agency, a practice, as is done in numerous other district attorney's offices throughout the country. However, very late in the legislative process, the transfer of MBC investigators was taken out of the bill, despite support from both the MBC and the California Medical Association.

In 2013, SB 304 (Price/Gordon) introduced a bill which focused on the lack of efficacy of the VE model pairing prosecutors and investigators from separate agencies. The impetus to revisit the issue of transferring investigators to the AG's office, came from the clear need to improve the enforcement activities and results in MBC enforcement cases. The authors urged the MBC to take a more proactive approach to its consumer protection mission, including its enforcement operations, and suggested that strong consideration should be given to taking steps to further align MBC's investigators with prosecutors.

Although SB 304 again recommended the consolidation of the enforcement unit within DOJ, the bill was amended and received a new author. The amendment modified the move of investigators from the MBC to the AG's office and instead proposed transferring them to the Division of Investigation (DOI) within DCA. The bill was enacted and the investigators, now assigned to HQIU (Health Quality Investigation Unit), continue to work with attorneys from the AG's office.

The move of the investigators to DCA DOI in 2014 has not improved efficiency and has only exacerbated the problems of separation of attorneys and investigators. Since VE was established, there have been no marked increase in cases referred for prosecution, many attorneys are micro-managing the work of  specially trained investigators by mandating that they be present on all witness/accused interviews and personally select every expert retained to review the work of the medical practitioner. The agencies are so divided over how the VE model was intended to be applied that DOJ and DCA have been operating with separate policy manuals. And morale within the investigations division is so low that DCA has implemented a freeze on outgoing transfers for fear that the current 14% vacancy rate will increase.

Jones-Sawyer and Weber were sympathetic to the issue and are in favor of airing the problems and identifying the best possible solution.  Although there are increased costs due to salary increases for investigators if they were moved to DOJ, the efficiencies achieved in expediting processes such as interim suspension orders would be worth an investment considered small in terms of the overall budget.  Weber agreed that the budget process, not legislation, was the best vehicle for addressing the matter. 

The next steps are to meet with DCA and to get their position on the proposed solution. Although DCA opposed the move in 2013, it comes down to a question of whether there are any more viable options besides the one that has been twice suggested.  CSLEA will also be meeting with the Legislative Analyst's Office to seek an examination and report on the efficacy of the VE model.

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