Bargetto, R.

English

University of San Diego

REGULATORY AGENCY ACTIONfacturer's failure to compensate thedealer for tests performed on vehiclesis questioned.The Board consists of four dealermembers and five public members. TheBoard's staff consists of an executivesecretary, three legal assistants andtwo secretaries.LITIGATION:In American Isuzu Motors, Inc. v.NMVB, 186 Cal. App. 3d 464 (October16, 1986), the Second District Court ofAppeal upheld the California legisla-ture's 1985 amendments to Vehicle Codesections 3050 and 3066, which precludeany Board member who is a new motorvehicle dealer from participating in,hearing, commenting upon, advisingother members upon, or deciding anymatter before the Board involving a dis-pute between a franchisee and a franchi-sor. In this regard, the Second Districtapparently disagrees with the FourthDistrict's holding in University FordChrysler-Plymouth, Inc. v. NMVB, 179Cal. App. 3d 796 (1986), by equating the1985 amendments with the Board's vol-untary recusal policy, under which itoperated prior to the 1985 amendmentsand when it administratively decidedpetitioner Fladeboe's protest againstAmerican Izusu. Thus, American Izusu'schallenge to the constitutionality of theNMVB was rejected, and the Board'sdecision in favor of Mr. Fladeboe wasaffirmed.RECENT MEETINGS:The New Motor Vehicle Board did notmeet between February 1986 and the endof the year.At its January 12, 1987 meeting, theBoard considered the administrative lawjudge's (ALJ) recommendation in a dis-ciplinary matter involving PittsburgFord, Inc. In December 1986, the ALJrecommended the assessment of a five-year probation period against Pittsburg,a Bay area dealership, for price mis-representation to consumers. Mr. Daus,majority shareholder of Pittsburg,expressed concern regarding one of theterms of the probation, which requiredthat a Ford Motor Company employeesupervise the dealership on a daily basis.Mr. Daus stated that Ford has refused toprovide a manager; he offered to managethe dealership himself and to pay anindependent auditor to review all dealer-ship accounts and reimburse any over-charges to customers charged by thedealership. The Department of MotorVehicles, which had investigated thefraud claim, objected to any amend-ments to the terms of the recommendedprobation, and called for revocationof Pittsburg's license. The Board metin executive session regarding thematter, and plans to issue a decision inthe near future.FUTURE MEETINGS:To be announced.BOARD OF OSTEOPATHICEXAMINERSExecutive Director:Linda Bergmann(916) 322-4306In 1922, California voters approved aconstitutional initiative which createdthe Board of Osteopathic Examiners(BOE). BOE regulates entry into theosteopathic profession, examines andapproves schools and colleges of osteo-pathic medicine and enforces profes-sional standards. The 1922 initiative,which provided for a five-member Boardconsisting of practicing osteopaths, wasamended in 1982 to include two publicmembers. The Board now consists ofseven members, appointed by the Gov-ernor, serving staggered three-year terms.MAJOR PROJECTS:Regulation Changes. The Boardreviewed all of its regulations in accor-dance with AB 1111 at its November 21meeting in Sacramento. The Board rati-fied the regulations, which must now beapproved by the Office of Administra-tive Law. (See CRLR Vol. 6, No. 4 (Fall1986) p. 88 for details.)LEGISLATION:SB 1888 (Stiern) was signed and chap-tered on September 29 (Chapter 1274).(See CRLR Vol. 6, No. 4 (Fall 1986)p. 88.)AB 3033 (Floyd) died in committee.(See CRLR VOl. 6, No. 4 (Fall 1986)p. 89.)AB 3043 (Tucker), which was sup-ported by the Board, died in committee,and would have specifically prohibitedphysician's assistants from dispensingdrugs.RECENT MEETINGS:Under Business and Professions Codesection 2185, an applicant for a physi-cians and surgeons certificate who failsto pass the oral exam or any part of thewritten exam after two attempts is noteligible to be reexamined until the appli-cant presents evidence that he/she hascompleted additional appropriate medi-cal instruction. Two students who failedthe licensing exam twice have petitionedthe Board to review their exams and theentire examination process. The Boardestablished a subcommittee to review thecurrent exam, modify and update its sec-tions, prepare study materials for per-sons who have failed the exam twice, andestablish new guidelines for eligibility toretake the exam.The Board established a committee toinvestigate the College of OsteopathicMedicine of the Pacific (COMP). OnMarch 19 and 20, the committee willstudy and review the curriculum andfacilities of COMP to ensure the ade-quacy of its clinical instruction.The Board discussed physical disabil-ity as a condition warranting waiver ofCME requirements to maintain an activelicense. When presented with a dozenhardship cases, the Board reiterated itsgoal to promote and ensure medicalquality while recognizing those examin-ers who have devoted their lives to thehealth profession but are unable to fulfillthe CME requirements due to a physicalcondition. The Board plans to develop apolicy which would require medical doc-umentation and substantiation whenpetitioning for a waiver. Each requestwill be analyzed on a case-by-case basis.The Board rejected a proposal whichwould require osteopathic examiners tobe subject to drug testing. The Boardreasoned that no statute exists whichgives a licensing board authority to passor enforce such a resolution.FUTURE MEETINGS:April II in Pomona.June 12 in Pomona.August 14 in Sacramento.PUBLIC UTILITIESCOMMISSIONExecutive Director: Victor WeisserPresident: Stanley W. Hulett(415) 557-1487The California Public Utilities Com-mission (PUC) was created in 1911 andstrengthened in 1946 to regulate private-ly-owned utilities and ensure reasonablerates and service for the public. TheCommission oversees more than 1,500utility and transport companies, includ-ing electric, gas, water, telephone,railroads, buses, trucks, freight servicesand numerous smaller services. Morethan 19,000 highway carriers fall underits jurisdiction.Overseeing this effort are five commis-sioners appointed by the Governor withSenate approval. The commissionersThe California Regulatory Law Reporter Vol. 7, No. 1 (Winter 1987)

Board of Osteopathic Examiners

REGULATORY AGENCY ACTION 61Deats to attempt to facilitate a negotia-tion between the two associations.Commissioner Ferraro reported onthe progress of the Medication Commit-tee. In response to a proposal from CliffGoodrich, Vice President and GeneralManager at Santa Anita, informationwill now be placed in the Daily Pro-grams to advise the public as to thosehorses which are being treated as bleed-ers and those which are coming off thebleeder list. Commissioner Ferraro alsoreported that the Medication Committeeis taking a stand to ensure the safetyof horses and jockeys and to curb ex-cess use of even permitted medications.The Committee, she said, plans to doeverything it can to enforce the medi-cation rules.FUTURE MEETINGS:May 22 in Los Angeles.June 19 in Los Angeles.NEW MOTOR VEHICLEBOARDExecutive Officer: Sam W. Jennings(916) 445-1888The New Motor Vehicle Board(NMVB) licenses new motor vehicledealerships and regulates dealershiprelocations and manufacturer termina-tions of franchises. It reviews disciplin-ary action taken against dealers by theDepartment of Motor Vehicles. Mostlicensees deal in cars or motorcycles.The Board also handles disputesarising out of warranty reimbursementschedules. After servicing or replacingparts in a car under warranty, a dealeris reimbursed by the manufacturer. Themanufacturer sets reimbursement rateswhich a dealer occasionally challengesas unreasonable. Infrequently, the manu-facturer's failure to compensate thedealer for tests performed on vehiclesis questioned.The Board consists of four dealermembers and five public members. TheBoard's staff consists of an executivesecretary, three legal assistants andtwo secretaries.LITIGATION:In Yamaha Motor Corp., U.S.A. v.Superior Court, 185 Cal. App. 3d 1232(1986), the Second District Court ofAppeal has held that a motorcycle deal-ership franchisee's failure to exhaust itsadministrative remedies against its fran-chisor before the NMVB precludes thefranchisee from seeking judicial relief.Van Nuys Cycle Inc. (Van Nuys)was a motorcycle dealership franchisedby Yamaha Motor Corp., U.S.A.(Yamaha). Yamaha began sales of a newmotorscooter called the Riva, but estab-lished new dealerships for its distributionrather than selling it to Van Nuys.Yamaha maintained that because theRiva is a motorscooter, it is not withinthe terms of its motorcycle dealershipagreement with Van Nuys. Van Nuyssued Yamaha, seeking damages forbreach of the franchise agreement andan implied covenant of good faith andfair dealing, and for intentional inter-ference with a prospective businessadvantage. The trial court overruledYamaha's demurrer. The Second DistrictCourt of Appeals issued a peremptorywrit of mandate ordering the lower courtto vacate its order overruling the de-murrer and to enter an order sustainingthe demurrer. The court held thatYamaha's refusal to supply the newproduct to Van Nuys was a modificationof the franchise agreement and that VanNuys should have sought a determina-tion of the issue by the NMVB.In Toyota of Visalia Inc. v. NewMotor Vehicle Board, 87 DAR 379 (Jan.14, 1987), the Fifth District Court ofAppeal has affirmed the trial court'sruling that new evidence in an adminis-trative proceeding may be admissible tomitigate a Department of Motor Vehicles(DMV) penalty if the evidence was notreasonably available at the time of theoriginal hearing.In January 1980, the DMV accusedToyota of Visalia Inc. (Toyota) of falseand misleading advertising in violationof Vehicle Code provisions. After anadministrative hearing, the DMV foundthat the dealership was guilty of tenCode violations and ordered the dealer-ship license suspended. Toyota petitionedto the NMVB. The Board ultimatelyreduced the penalty to a license sus-pension of thirty days with three years'probation. Toyota sought to augmentthe record before the Board with elevennew exhibits relevant to the penaltyissue, but the Board refused to reviewthe evidence.The Fifth District affirmed theBoard's ruling in part and reversed inpart. The eleven proferred exhibitscontained evidence of restitution to cer-tain injured customers and evidence thatthe Toyota dealership agreement wouldbe terminated if it were closed for morethan five days. The court found thateight of the exhibits could not havebeen diligently produced at the originalhearing and therefore should have beenadmitted by.the Board.In Sonoma Subaru Inc. v. New MotorVehicle Board of California, 87 DAR526 (Jan. 7, 1987), the Third DistrictCourt of Appeal held that an automobilefranchisee's failure to timely protest thetermination of its franchise license tothe NMVB bars judicial relief. Subaruof Northern California and Subaru ofAmerica, Inc. (Subaru) had decided toterminate the Sonoma Subaru (Sonoma)dealership franchise after Sonoma hadrepeatedly failed to provide Subaru witha certified financial statement and proofthat it was solvent. Under Vehicle Codesection 3060, a franchisor may terminateits franchisee's dealership if the fran-chisee cannot demonstrate its solvency.Section 3060 also provides the franchiseewith an automatic right to appeal thetermination notice to the Board withinten days of receipt of the notice.Sonoma failed to file a timely appealalthough it had properly filed two earlierappeals with the Board. The Board re-fused to hear an untimely protest, andthe trial court upheld the refusal due toSonoma's failure to meet the ten-dayrequirement. The Third District Courtof Appeal affirmed.FUTURE MEETINGS:To be announced.BOARD OF OSTEOPATHICEXAMINERSExecutive Director: Linda Bergmann(916) 322-4306In 1922, California voters approveda constitutional initiative which createdthe Board of Osteopathic Examiners(BOE). BOE regulates entry into theosteopathic profession, examines andapproves schools and colleges of osteo-pathic medicine and enforces profession-al standards. The 1922 initiative, whichprovided for a five-member Board con-sisting of practicing osteopaths, wasamended in 1982 to include two publicmembers. The Board now consists ofseven members, appointed by the Gov-ernor, serving staggered three-year terms.MAJOR PROJECTS:Regulation Changes. The Office ofAdministrative Law (OAL) has dis-approved the regulations submitted bythe BOE in December 1986. (See CRLRVol. 7, No. 1 (Winter 1987) p. 94.)According to the OAL, some regulationsfailed to satisfy the clarity, consistency,and necessity standards of GovernmentCode section 11349. Other regulationsdid not comply with the incorporationThe California Regulatory Law Reporter Vol. 7, No. 2 (Spring 1987)1REGULATORY AGENCY ACTIONby reference requirement of Title 1,section 20 of the California Adminis-trative Code.The regulations may be rewritten andsubmitted within 120 days. The BOEwill continue to work with the OAL toresolve the disapproved sections.LEGISLATION:AB 81 (Tucker), which is supportedby BOE, would require the Departmentof Health Services to increase by 54%the amount of Medi-Cal reimbursementto physicians for obstetrical services.Currently, Medi-Cal pays a physician$657.28 for total obstetrical care whileprivate patients pay physicians threetimes that amount. Under AB 81, theDepartment of Health Services wouldbe required to establish a reasonable feeschedule of not less than $1,135. Thisbill would take effect immediately as anurgency statute, and has been assignedto the Health Committee.AB 214 (Margolin), as amendedFebruary 14, would regulate the treat-ment of patients brought to hospitalemergency rooms and the transfer ofthose patients to other medical facilities.It would prohibit basing an emergencypatient's treatment on race, ethnicity,religion, national origin, citizenship,age, sex, preexisting medical condition,physical or mental handicap, insurancestatus, economic status, or ability to payfor medical services. This bill is pendingin the Health Committee.AB 219 (Margolin) would appropri-ate $25 million to the Health CareDeposit Fund in order to provide hos-pitals which provide a disproportionateshare of uncompensated care with amore adequate level of reimbursement.This bill would also appropriate $6million to the Health Care Deposit Fundto provide a more adequate level ofreimbursement to physicians for thedisproportionate share of uncompen-sated emergency care they provide. Thebill is also pending in the HealthCommittee.AB 249 (Margolin), as amendedMarch 11, would specify that a disabledperson whom the state has determinedto need the level of care provided in ahospital or long-term health care facility,but for whom it is appropriate to pro-vide care outside an institutional setting,where the cost is less than the estimatedcost of the institutional care, shall beeligible for the Medi-Cal program as acategorically needy recipient, providedthe individual obtains a waiver from theSecretary of the U.S. Department ofHealth and Human Services.AB 250 (Hughes) is supported byBOE. Under existing law, physicians aresubject to specified penalties for dis-closing test results for antibodies to theprobable causative agent of AIDS with-out the patient's consent. AB 250, asamended March 9, would provide that aphysician shall not be held criminally orcivilly liable for disclosing to the spouseof a patient that the patient has testedpositive on a test to detect antibodies tothe probable causative agent of AIDS.AB 258 (Wyman), as amended Feb-ruary 26, would require the Departmentof Health Services to develop policiesand procedures which may be utilizedby skilled nursing facilities to inventory,project, and assist in the recovery ofpersonal property, as defined, of resi-dents of skilled nursing facilities in theirpossession during their stay at the facility.AB 258 as amended is completelydifferent from the original bill. As intro-duced, AB 258 would have authorizedthe Director of the Department of HealthServices, as an alternative to suspensionof a license or special permit of a healthfacility, to appoint a receiver for thefacility. BOE opposed AB 258 as in-troduced.AB 261 (Grisham) would providethat any person who is convicted ofselling, administering, furnishing, orgiving away a controlled substance to aperson under the age of 14, and who haspreviously been convicted of any suchcrime, shall be punished by imprison-ment for 25 years to life. This bill hasbeen referred to the Committee onPublic Safety.SB 12 (Maddy), as amended March16, is somewhat similar to AB 214(Margolin) (see supra). This bill wouldregulate the treatment of persons broughtto hospital emergency departments andthe transfer of those patients to othermedical facilities. It would specify con-ditions under which emergency medicalpatients may be transferred and pro-cedures which may be followed, andwould prohibit basing an emergencypatient's treatment on, among otherthings, the patient's insurance status,economic status or ability to pay formedical services, unless the circum-stances are medically significant.SB 306 (Montoya) is supported byBOE. Existing law prohibits healthfacilities and various public entities fromdiscriminating with respect to employ-ment, staff privileges, or the provisionof professional services against a licensedphysician/surgeon on the basis of wheth-er the physician/surgeon holds an MDor DO degree. This bill would also pro-hibit health care service plans, nonprofithospital service plans, disability insur-ance policies, and self-insured employerwelfare benefit plans from discriminatingon that basis.RECENT MEETINGS:On January 13, the Board held ameeting in Sacramento. Bryn Henderson,DO, was elected President; KennethStahl, DO, was elected Vice President;and Maureen Duffy-Lewis was electedSecretary/ Treasurer.BOE is currently developing a revisedexamination. Each Board member isdeveloping questions and answers tosubmit to the examination committee.Guidelines for test procedures are alsobeing developed. The staff is contactingother medical examining boards as totheir examination procedures.Also at the January meeting, theBoard denied one request for permissionto take the oral/practical examinationbecause of prior disciplinary action;granted two requests for waiver of itsCertified Medical Examiner (CME) re-quirements; and withheld decision(pending further clarification) on severalother requests for waiver of its CMErequirements.On February 21, the Board met inPalm Springs in conjunction with theOsteopathic Physicians and Surgeons ofCalifornia (OPSC) convention. The BOEheld its meeting and then participated ina joint meeting with the OPSC. TheBoard feels that better communicationwith the OPSC will help in providingquality osteopathic medicine in California.The Board discussed goals for 1987,which include provision of quality medi-cal care, a decreased expense budget,and increased communication with othermedical boards. One way in which theBoard hopes to achieve these goals is byimproving its relations with the legis-lature. Each Board member will contacthis/her respective legislators and informthem about BOE's activities. The Boardhopes this communication will increaselegislative concern about BOE andosteopathic medicine.Also at the February meeting, theBoard held two reinstatement hearings.The Board denied one of the petitionson grounds the petitioner is still onparole for a felony violation; the Boardtook the other petition under advisement.FUTURE MEETINGS:June 19 in Pomona.August 14 in Sacramento.The California Regulatory Law Reporter Vol. 7, No. 2 (Spring 1987)

https://digital.sandiego.edu/cgi/viewcontent.cgi?article=3027&amp;context=crlr

Board of Osteopathic Examiners

Abstract

Similar works

Full text

Available Versions

University of San Diego

University of San Diego