Peer Review, Privileges, and Credentialing for California Physicians

Hospital and medical group peer review can affect a physician’s career as much as a licensing board case. A restriction on privileges can lead to a report to the Medical Board under Business and Professions Code section 805, a report to the National Practitioner Data Bank, and questions on every future credentialing application. The Law Offices of Nathan Mubasher represents physicians in peer review investigations, fair hearings, and credentialing disputes. Nathan Mubasher has trained as a peer review hearing officer with the California Society for Healthcare Attorneys and is a member of that organization and the California Academy of Attorneys for Health Care Professionals.

How peer review usually begins

Peer review can start with a concern about a single case, a pattern in routine data, a staff complaint, behavior, or health. Early steps are often informal: a conversation with a department chair, a focused review, or a request to agree to proctoring or a temporary limit on certain procedures.

These early steps matter more than they appear. Under section 805, some actions trigger a mandatory report even when they are described as voluntary. And resigning or taking a leave of absence after receiving notice of an investigation can itself be reportable.

Section 805 and 805.01 reports

Business and Professions Code section 805 requires the chief of staff or other chief executive of the peer review body, and the chief executive officer or administrator of the licensed facility or clinic, to file a report with the physician’s licensing board after certain actions taken for a medical disciplinary cause or reason. Reportable events generally include:

• Denial or rejection of an application for staff privileges or membership
• Termination or revocation of staff privileges, membership, or employment
• Restrictions imposed, or voluntarily accepted, on staff privileges, membership, or employment for a cumulative total of 30 days or more in any 12-month period
• Summary suspension of privileges that remains in effect for more than 14 days
• Resignation or leave of absence, or withdrawal or abandonment of an application or a renewal request, after notice of a pending investigation, or of a denial, for a medical disciplinary cause or reason

The report is generally due within 15 days after the effective date of the action (for a resignation, leave, or withdrawal, within 15 days after the physician takes that step; for a summary suspension, within 15 days after it is imposed). The physician receives a copy and notice of the right to submit additional statements to the board (section 805(f)). Section 805.01 adds a separate report, due within 15 days after the peer review body makes a final decision or recommendation that results in a final proposed action following a formal investigation, whether or not a hearing is held. It covers four categories: incompetence or gross or repeated deviations from the standard of care involving death or serious bodily injury, use of drugs or alcohol in a way that is dangerous or impairs the ability to practice safely, repeated clearly excessive prescribing of controlled substances or prescribing without a good faith prior examination, and sexual misconduct with patients. Either report can lead the Medical Board to open its own investigation. See Medical Board of California Investigations.

Fair hearing rights

California gives physicians statutory fair hearing rights before certain final adverse actions, in Business and Professions Code sections 809 through 809.9. Medical staff bylaws add their own procedures, which must meet the statutory minimums. In general terms:

1. Notice. The physician must receive written notice of the final proposed action, that it will be reported under section 805 if adopted, the right to request a hearing, and the time limit for requesting one. If a hearing is requested on time, a second notice must state the reasons, including the acts or omissions charged, and the place, time, and date of the hearing (section 809.1).
2. Hearing body. The peer review body decides whether the hearing is held before an arbitrator selected by a process acceptable to both sides or before a panel of unbiased individuals. Panel members may not gain a direct financial benefit from the outcome or have acted as accuser, investigator, factfinder, or initial decisionmaker in the matter, and the panel must include, where feasible, someone in the physician’s specialty. A hearing officer, if one is selected, presides but does not vote (section 809.2). The physician may question panel members and any hearing officer about possible bias and challenge their impartiality. The hearing must generally begin within 60 days after the request.
3. Access to information. The physician has the right to inspect and copy, at the physician’s expense, documents relevant to the charges that the peer review body has or controls, except confidential information about other identifiable practitioners. The peer review body has the same right to the physician’s relevant documents, and on request the two sides exchange witness lists and exhibits (section 809.2).
4. Presentation. Both sides may call, examine, and cross-examine witnesses, present and rebut relevant evidence, have a record made, and submit a written statement at the close of the hearing (section 809.3). The peer review body presents its evidence first. An initial applicant must prove their qualifications by a preponderance of the evidence; otherwise, the peer review body must show by a preponderance that the action is reasonable and warranted.
5. Counsel. The peer review body’s written rules, usually the medical staff bylaws, decide whether the physician may be represented by an attorney at the hearing, at the physician’s expense. If the physician is not represented by an attorney, the peer review body may not be either (section 809.3).
6. Decision and appeal. Both sides receive a written decision with findings of fact and a conclusion connecting the evidence to the decision, and a written explanation of any appeal procedure. The statute does not require an appeal, but if one is provided, both sides may appear and respond, be represented by an attorney or other representative, and receive the appeal body’s written decision (section 809.4).

After internal remedies are exhausted, judicial review is generally by petition for writ of administrative mandate in Superior Court (Code of Civil Procedure section 1094.5).

The Data Bank and federal law

The federal Health Care Quality Improvement Act (42 U.S.C. section 11101 and following) requires reporting of certain adverse actions on clinical privileges to the National Practitioner Data Bank, including restrictions lasting more than 30 days and surrender of privileges while under investigation. California has opted out of the federal law’s professional review provisions in favor of its own peer review statutes (Business and Professions Code section 809(a)(9)), but federal Data Bank reporting still applies. A Data Bank report follows a physician to every hospital, health plan, and medical group that queries it.

Confidentiality and retaliation protections

Peer review records and proceedings are generally protected from discovery under Evidence Code section 1157, with exceptions. Physicians should still keep their own notes and copies of everything they receive.

California law also protects patients, employees, and medical staff members of a health facility from retaliation for presenting a grievance, complaint, or report about patient care, services, or conditions, or for cooperating in a related investigation (Health and Safety Code section 1278.5), and protects physicians who advocate for medically appropriate care (Business and Professions Code sections 510 and 2056). If a peer review action follows a physician’s own safety complaint, those statutes may be relevant.

Credentialing and reappointment

Credentialing disputes do not always involve formal discipline. Physicians face initial applications, periodic reappointment, requests for new privileges, focused professional practice evaluations, and payer and medical group credentialing. Issues can arise from gaps in practice, prior Data Bank reports, prior board actions, health questions, or how an application question was answered.

How the office helps physicians in peer review

Nathan Mubasher works directly with each physician. Depending on the stage, the work can include:

• Reviewing medical staff bylaws, rules, and any proposed agreement before the physician signs it
• Advising on whether a proposed restriction, leave, or resignation would trigger an 805 or Data Bank report
• Responding to focused reviews and preparing for meetings with medical staff leadership
• Requesting a hearing and representing the physician through the fair hearing and appeal
• Coordinating with any related Medical Board matter, employment issue, or contract dispute
• Evaluating writ review after the internal process ends

If a peer review action affects your employment, see Physician Employment Contracts. For an overview of how peer review interacts with licensing, read Professional License Defense in California: A Survival Guide for Physicians and Nurses.

Frequently asked questions

What is an 805 report?

It is a report a peer review body must file with the physician’s licensing board under Business and Professions Code section 805 after certain actions taken for a medical disciplinary cause or reason, such as termination of privileges or restrictions totaling 30 days or more in 12 months. It can lead to a licensing board investigation.

Should I resign my privileges to avoid a hearing?

Be careful. Resigning or taking a leave after receiving notice of a pending investigation can be reportable under section 805 and can also be reported to the National Practitioner Data Bank. Get advice on the reporting consequences before resigning or agreeing to any restriction.

Is a focused professional practice evaluation reportable?

A routine focused evaluation or proctoring requirement is not necessarily reportable. Under section 805, a restriction is reportable if it is imposed or voluntarily accepted for a medical disciplinary cause or reason and totals 30 days or more in a 12-month period. Whether a given arrangement restricts privileges depends on its terms. Review the terms before agreeing.

Can I bring a lawyer to a peer review hearing?

It depends on the medical staff bylaws. Under Business and Professions Code section 809.3, if you are not represented by an attorney at the hearing, the peer review body may not be either. If the bylaws provide an appeal, you may be represented by an attorney or another representative in it (section 809.4). Either way, an attorney can help prepare the case, the witnesses, and the documents.

Are peer review records confidential?

Generally, peer review proceedings and records are protected from discovery under Evidence Code section 1157, with exceptions. Keep your own copies of notices and correspondence you receive.

Related pages

• Medical Board of California Investigations
• Physician Employment Contracts
• Professional License Defense
• About Nathan Mubasher

Attorney Advertising. Law Offices of Nathan Mubasher, 8583 Irvine Center Drive, Suite 35, Irvine, CA 92618. Responsible attorney: Nathan Mubasher. This page provides general information about California law, not legal advice for any specific situation. Reading it or contacting the office does not create an attorney-client relationship. Every matter is different, and no particular result can be guaranteed.