When does a hospital have to file an 805 report after revoking or restricting a physician's privileges?

Plain-English summary

When a hospital's peer review body takes a serious action against a physician, podiatrist, dentist, psychologist, or other healing-arts licentiate, the law requires an "805 report" to be filed with the relevant state licensing agency within 15 days of the action's "effective date." The Medical Board of California asked the Attorney General to settle a long-running ambiguity: is that 15-day clock supposed to start when the peer review body first announces its decision, or only after the licentiate has exhausted the internal appeal that section 809.1 entitles them to?

The Attorney General concluded that, as a general rule, the "effective date" is the date the peer review body's decision becomes final. That generally means after the section 809.1 hearing process has run its course, or after the time for requesting that hearing has lapsed. The opinion grounds this reading in the dictionary meaning of "effective date," in section 809.1's own language ("if adopted"), and in due-process and fair-procedure case law treating staff privileges as a property interest that cannot be taken away without a hearing.

The opinion also explained an important exception. Section 805.01, added in 2010, requires immediate filing of an 805 report (within 15 days of the peer review body's decision, regardless of whether a hearing is held) in cases involving particularly dangerous conduct: incompetence, gross deviation from the standard of care, self-prescribing or abusing controlled substances, repeated excessive prescribing, sexual misconduct with patients, and similar circumstances. The carve-out for these cases reinforced the general rule: if section 805 already meant "report immediately, even pending appeal," there would have been no need for section 805.01 to spell that out for the dangerous categories.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Who has to file an 805 report?
A: The chief of staff or chief executive of a peer review body, and the chief executive or administrator of any licensed health care facility or clinic where peer review takes place. The reporting duty runs to the relevant state licensing agency.

Q: What kinds of actions trigger an 805 report?
A: Actions taken by a peer review body for "medical disciplinary cause or reason" against a covered licentiate. Specifically: denying or rejecting an application for staff privileges or membership; terminating or revoking membership, privileges, or employment; or imposing (or accepting voluntarily) restrictions on privileges or employment for a cumulative total of 30 days or more in any 12-month period.

Q: Which licentiates are covered?
A: Physicians, podiatrists, clinical psychologists, marriage and family therapists, clinical social workers, professional clinical counselors, dentists, and physician assistants. Each of those professions has its own state licensing agency that receives the 805 report.

Q: What does the AG mean by "the decision becomes final"?
A: The AG meant the point at which the peer review body's action is no longer "proposed." If the licentiate timely requests a section 809.1 hearing, the action does not become final until that hearing process is complete. If the licentiate does not request a hearing within the allowed time, the action becomes final when that window closes.

Q: Why didn't the AG just say "the date of the original decision"?
A: Two reasons. First, section 809.1 itself draws a contrast between a "final proposed action" and one that has been "adopted," and it tells the peer review body to inform the licentiate that an 805 report will be filed "if" the proposed action is adopted. The statute treats the decision as not yet effective until adoption. Second, California courts have held that staff privileges are a property right (Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195) or, in private institutions, a fair-procedure right (Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648), and cannot be reported away before any hearing.

Q: What if the licentiate's misconduct involves something the public urgently needs to know about?
A: That is exactly the carve-out section 805.01 addresses. For incompetence, gross deviation from the standard of care, self-prescribing or self-administering controlled substances, drug or alcohol abuse, repeated excessive prescribing, sexual misconduct with a patient, and the other listed dangerous circumstances, the report must be filed within 15 days of the peer review body's final decision regardless of whether a section 809.2 hearing is pending. Section 809.5 separately allows immediate suspension of clinical privileges where failure to act would put a patient in imminent danger.

Q: What happens if a peer review body files late?
A: This opinion addressed when the clock starts, not the consequences of missing the deadline. Late or missing 805 reports can carry administrative penalties for the reporting entity and can also become evidence in licensing investigations.

Background and statutory framework

Section 805 was enacted in 1975 (Assembly Bill No. 1 (2nd Ex. Sess. 1975) ch. 1, § 2.3) as part of California's healing-arts oversight scheme. The Legislature has declared that prompt filing of these reports "is essential for the protection of the public" (Bus. & Prof. Code, § 801.01). Peer review bodies that must file 805 reports include hospital medical staffs, professional societies that comprise at least 25 percent of the covered licentiates in a geographic area, and committees of any entity employing more than 25 same-class licentiates that review professional care quality.

Section 809.1, added later, gives a licentiate facing a final proposed peer review action the right to written notice, a hearing under section 809.2, and the procedural protections in sections 809.3 through 809.4. The Sahlolbei court (112 Cal.App.4th 1137 (2003)) confirmed that a "final proposed action" cannot be put into effect before the licentiate has a chance to use those procedural rights.

In 2010, the Legislature added section 805.01 (Sen. Bill 700 (2009-2010 Reg. Sess.) ch. 505, § 4) to require immediate reporting to the licensing agency for the most dangerous categories of misconduct, regardless of any pending appeal. The AG read this addition as confirming that the basic section 805 rule contemplated reporting only after the appeal process, except for the carve-out cases.

The opinion further pointed out that the Medical Board of California's own interest in this question reflects the constant tension in healing-arts oversight between two important values: protecting the public from dangerous practitioners and respecting the property and fair-procedure rights of licensed professionals. The Legislature's two-track design (general rule of post-appeal reporting plus immediate reporting for the most serious cases) is the balance it struck.

Citations and references

Statutes:
- Business and Professions Code section 805 (peer review reporting requirement)
- Business and Professions Code section 805.01 (immediate-reporting circumstances)
- Business and Professions Code section 801.01 (legislative declaration of importance)
- Business and Professions Code section 809.1 (notice and hearing rights of licentiate)
- Business and Professions Code section 809.2 (hearing procedure)
- Business and Professions Code section 809.5 (immediate suspension where imminent danger)

Cases:
- Arnett v. Dal Cielo (1996) 14 Cal.4th 4 (function of hospital peer review)
- Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 (statutory construction)
- Coalition of Concerned Communities, Inc. v. Los Angeles (2004) 34 Cal.4th 733 (statute read as a whole)
- Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111 (dictionary definitions)
- Kaiser Foundation Hospitals v. Superior Court (2005) 128 Cal.App.4th 85 (peer review exhaustion)
- Sahlolbei v. Providence Healthcare, Inc. (2003) 112 Cal.App.4th 1137 (rejecting pre-hearing effectiveness)
- Applebaum v. Board of Directors (1980) 104 Cal.App.3d 648 (fair procedure in private hospitals)
- Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195 (property interest in license)
- Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881 (statutory construction tool)
- Medical Staff of Sharp Memorial Hosp. v. Superior Court (2004) 121 Cal.App.4th 173 (public protection priority)
- Webman v. Little Co. of Mary Hospital (1995) 39 Cal.App.4th 592
- Rhee v. El Camino Hospital District (1988) 201 Cal.App.3d 477
- Miller v. Eisenhower Medical Center (1980) 27 Cal.3d 614

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/15-301_0.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
XAVIER BECERRA
Attorney General

OPINION of XAVIER BECERRA, Attorney General; ANYA M. BINSACCA, Deputy Attorney General

No. 15-301
April 17, 2020

THE MEDICAL BOARD OF CALIFORNIA has requested an opinion on the following question:

What is the meaning of the term "effective date," as used in Business and Professions Code section 805, which requires a report to be filed with the relevant state healing arts licensing agency "within 15 days after the effective date" of certain actions taken by a peer review body against specified health care practice licentiates?

CONCLUSION

The term "effective date," as used in Business and Professions Code section 805, means the date on which the triggering decision becomes final, following the conclusion of any appeal by the licentiate to the peer review body, except where expressly provided otherwise.

ANALYSIS

Business and Professions Code section 805, originally enacted in 1975, is part of the legislative scheme by which certain state licensing agencies regulate the quality of health care practice in California. It applies to physicians, podiatrists, clinical psychologists, marriage and family therapists, clinical social workers, professional clinical counselors, dentists, and physician assistants (collectively, "licentiates"). It requires a peer review body to file a report (an "805 report") with the relevant licensing agency when the peer review body takes certain actions against a licentiate for "medical disciplinary cause or reason," that is, "that aspect of a licentiate's competence or professional conduct that is reasonably likely to be detrimental to patient safety or to the delivery of patient care." The Legislature has declared that the filing of these reports with healthcare oversight agencies "is essential for the protection of the public."

Organizations required to maintain peer review bodies that file such 805 reports include the medical staff in most hospitals and health-care practice groups, any non-profit-tax-exempt professional society comprising at least 25 percent of the covered licentiates in a geographic area, and any committees "organized by any entity consisting of or employing more than 25 licentiates of the same class" for the purpose of reviewing the quality of professional care. For example, in hospitals, peer review bodies "evaluate physicians applying for staff privileges, establish standards and procedures for patient care, assess the performance of physicians currently on staff, and review such matters as the need for and results of each surgery performed in the hospital, the functioning of the patient records system, the control of in-hospital infections, and the use and handling of drugs within the hospital." Peer review bodies for other licentiates perform comparable review functions in their respective settings.

A peer review body must file an 805 report with the relevant licensing agency any time the peer review body, for medical disciplinary cause or reason, denies or rejects a licentiate's application for membership or staff privileges; terminates or revokes a licentiate's membership, staff privileges, or employment; or imposes restrictions (or restrictions are voluntarily accepted) on staff privileges, membership, or employment for a cumulative total of 30 days or more in a 12-month period. The report must be filed "within 15 days after the effective date on which" any of these precipitating events occurs. We are asked about the meaning of the phrase "effective date," particularly whether it refers to the date of the peer review body's initial decision, or instead to the resolution of the body's appeal process in the event the licentiate appeals that initial decision. We conclude that "effective date" for these purposes means the date on which the triggering decision becomes final, which will generally be following the conclusion of the licentiate's appeal of the peer review body's decision.

Our analysis begins with the statute itself. The "first task in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. In determining such intent, [we] must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose." If the statutory language is clear, we "follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend." On the other hand, where ambiguity exists, "consideration should be given to the consequences that will flow from a particular interpretation." Important to this inquiry, the statutory language must be read "in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment."

What is the plain and ordinary meaning of "effective date"? The ordinary meaning of words is appropriately informed by dictionary definitions. Dictionaries state the relevant definition of "effective" as "operative; in effect" and "[b]eing in force; operative, as a law." Black's Law Dictionary provides a similar, more legally oriented definition for "effective date": "The date on which a statute, contract, insurance policy, or other such instrument becomes enforceable or otherwise takes effect, which sometimes differs from the date on which it was enacted or signed." Applying these concepts, we believe that when section 805 says a report must be filed within "15 days after the effective date on which any of the following occur," it means that the 805 report must be filed within 15 days of the decision's finality.

Such a decision becomes final after the peer review body's appeals process is completed. "A licentiate who is the subject of a final proposed action of a peer review body" that triggers the filing of an 805 report is entitled to procedural rights described in section 809.1, which culminate in a hearing held under section 809.2. Section 809.1 entitles the licentiate to written notice of: the final proposed action; the fact that the action, "if adopted," will be reported under section 805; the right to request a hearing; and the time limit in which to request a hearing. If the licentiate timely requests a hearing, the licentiate is entitled to notice of the reasons for the final proposed action and the acts or omissions charged. A "final proposed action" is defined as "the final decision or recommendation of the peer review body after informal investigatory activity or prehearing meetings, if any."

Section 809.1 clearly contemplates that a licentiate is entitled to a hearing on the final proposed action before the peer review body's decision goes into effect and the 805 report is filed. A "proposed action" is, by definition, not yet in effect. Moreover, section 809.1 states that an 805 report will be filed "if" the proposed action is "adopted." Thus the statute distinguishes between a proposed action and one that has been adopted, and calls for the filing of an 805 report only after the action is adopted, or, in other words, becomes final. This is consistent with case law indicating that "[t]he holder of a professional license has a property interest in the right to practice his or her profession, which cannot be taken away or restricted without [fair] process." In the event that the licentiate does not request a hearing under section 809.1, it appears that the decision would become final once the time for appealing to the peer review body expires.

Some have interpreted "effective date" as the date of the peer review body's final proposed decision, rather than the expiration of the time for the licentiate to appeal or the conclusion of the appeal process. As discussed above, we do not find support for that interpretation in the language of sections 805 and 809.1, nor in the case law.

Moreover, the 2010 enactment of a new provision within the statutory scheme buttresses our conclusion that section 805 uses "effective date" to mean the date the decision becomes final following a licentiate's appeal to the peer review body, rather than the date its proposed final decision is initially made, by requiring 805 reports to be filed before the appeals process occurs in specific cases. Section 805.01 requires an 805 report to the relevant licensing agency "within 15 days after a peer review body makes a final decision or recommendation . . . regardless of whether a hearing is held pursuant to Section 809.2," when the decision is based on certain particularly concerning or dangerous circumstances. These circumstances include incompetence, gross deviation from the standard of care, self-prescribing or self-administering controlled substances, abusing drugs or alcohol, repeated acts of excessive prescribing or providing of controlled substances, and sexual misconduct with a patient. That section 805.01 provides for the filing of a report to the licensing agency under these circumstances regardless of the pendency of a licentiate's appeal strongly implies that the basic reporting requirement in section 805, subdivision (b) contemplates the filing of the 805 report only following a hearing, when one is requested. This immediate reporting requirement allows the licensing agency to immediately investigate and take appropriate action in these particularly concerning or dangerous cases.

The sole justification advanced for interpreting "effective date" in section 805, subdivision (b) as the date of a peer review body's final proposed action, rather than the date the decision becomes final, is the importance of 805 reports to licensing agencies' ability to investigate and take prompt action against troublesome, and potentially dangerous, licentiates. We believe that the Legislature balanced this important concern with the fair process rights of licentiates by generally allowing licentiates to pursue their right to appeal before an 805 report is filed, while carving out exceptions requiring immediate action and immediate reporting concurrent with a licentiate's appeal under particularly concerning or dangerous circumstances.

In sum, we conclude that the "effective date" for purposes of filing an 805 report is the date on which a peer review body's decision becomes final, following the conclusion of a licentiate's appeal to the body of its proposed final action, except where expressly provided otherwise.