BILL NUMBER: AB 456 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 14, 2009
INTRODUCED BY Assembly Member Emmerson
FEBRUARY 24, 2009
An act relating to state government. An
act to amend Sections 1695, 1695.1, 1695.5, 1695.6, 1696, 1697, 1698,
and 1699 of, and to add Section 1699.5 to, the Business and
Professions Code, relating to dentistry.
LEGISLATIVE COUNSEL'S DIGEST
AB 456, as amended, Emmerson. State agencies: period
review. . Dentistry: diversion program.
The Dental Practice Act provides for the licensure and regulation
of dentists by the Dental Board of California. The act requires the
Dental Board of California to establish and administer a diversion
program for the rehabilitation of licensees whose competency is
impaired due to the abuse of drugs or alcohol, and imposes certain
duties on diversion evaluation committees and the program manager
related to accepting or denying licensees into, or terminating
licensees from, the program, reviewing and designating treatment
facilities, reviewing licensee participation, and performing other
related duties. Existing law requires the board to close any
investigation of a licensee whose investigation is based primarily on
the self-administration or possession of certain controlled
substances or drugs if the licensee enters and successfully completes
a diversion program, and requires the reopening of the investigation
upon withdrawal or termination from the program. Existing law
requires that all participating licensees sign an agreement of
understanding that withdrawal or termination from the diversion
program at a time when a committee determines that the licensee is a
threat to the public's health and safety shall result in the use of
the licensee's diversion treatment records in a disciplinary or
criminal proceeding. Existing law authorizes the program manager to
request execution of a similar statement of understanding that
alleged violations of the act by a licensee entering a diversion
program may still be investigated. Existing law authorizes a
committee to convene public meetings in closed sessions if
considering reports pertaining to licensees requesting or
participating in a diversion program and only to the extent necessary
to protect the privacy of a licensee. Existing law requires a
licensee who requests participation in a diversion program to agree
to cooperate with the treatment program designed by the committee and
to bear all costs of the program, unless the cost is waived by the
board.
This bill would declare the intent of the Legislature that the
diversion program established by the Dental Board of California be
implemented as a monitoring program for licensees whose participation
is a component of a probationary or disciplinary action. The bill
would delete the requirement that the board close investigations of
licensees who self-administer or possess controlled substances or
drugs and who enter and successfully complete a diversion program,
and instead authorize the board to determine when to close or reopen
investigations of those licensees, as specified. The bill would
authorize a diversion evaluation committee to report to the board's
enforcement program any licensee who is denied admission into, or
terminated from, the diversion program, and who is deemed by the
committee to present a threat to the public or his or her own health
and safety. The bill would authorize the use of that licensee's
diversion records in any disciplinary or criminal proceeding, and
would delete the provisions that require or authorize the execution
of a statement of understanding. The bill would also require the
diversion evaluation committee to report to the board's enforcement
program certain licensees engaging in acts of substantial
noncompliance, as determined by the diversion evaluation committee,
and would authorize the use of those licensees records for purposes
of discipline, as specified. The bill would also expand the committee'
s authority to convene a closed session meeting as applied to matters
relating to a licensee requesting or participating in a diversion
program, and would require a waiver of licensee confidentiality under
certain circumstances, including upon filing by the licensee of a
lawsuit against the board relating to the diversion program. The bill
would toll the statute of limitations for filing an accusation
against a licensee during the time period a licensee is participating
in the diversion program, and would delete the authority of the
board to waive costs attributed to a licensee participating in a
program. The bill would also make other nonsubstantive, technical
changes to related provisions.
Existing law authorizes the creation of various state agencies.
This bill would state the intent of the Legislature to enact
legislation establishing a periodic review of all state agencies.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1695 of the Business
and Professions Code is amended to read:
1695. It is the intent of the Legislature that the Dental
Board of Dental Examiners of California seek
ways and means to identify and rehabilitate licentiates
licensees whose competency may be impaired due
to abuse of , or dependency on, dangerous drugs or
alcohol, so that licentiates licensees
so afflicted may be treated and returned to the practice of dentistry
in a manner which that will not
endanger the public health and safety. It is also the intent of the
Legislature that the Dental Board of Dental
Examiners of California shall implement this legislation in
part by establishing a diversion program as both a
voluntary alternative approach to traditional disciplinary actions
and as a monitoring program for licensees whose
participation is a component of a probationary or disciplinary action
.
SEC. 2. Section 1695.1 of the Business
and Professions Code is amended to read:
1695.1. As used in this article:
(a) "Board" means the Dental Board of Dental
Examiners of California.
(b) "Committee" means a diversion evaluation committee created by
this article.
(c) "Program manager" means the staff manager of the diversion
program, as designated by the executive officer of the board. The
program manager shall have background experience in dealing with
substance abuse issues.
SEC. 3. Section 1695.5 of the Business
and Professions Code is amended to read:
1695.5. (a) The board shall establish criteria for the
acceptance, denial, or termination of licentiates
licensees in a diversion program. Unless ordered by the
board as a condition of licentiate disciplinary
probation or other disciplinary action , only those
licentiates licensees who have
voluntarily requested diversion treatment and supervision by a
committee shall participate in a diversion program.
(b) A licentiate licensee who is not
the subject of a current investigation may self-refer to the
diversion program on a confidential basis, except as provided in
subdivision (f).
(c) A licentiate licensee under
current investigation by the board may also request entry into the
diversion program by contacting the board's Diversion Program
Manager. The Diversion Program Manager may refer the
licentiate licensee requesting participation in
the program to a diversion evaluation committee for evaluation of
eligibility. Prior to authorizing a licentiate to enter into
the diversion program, the Diversion Program Manager may require the
licentiate, while under current investigation for any violations of
the Dental Practice Act or other violations, to execute a statement
of understanding that states that the licentiate understands that his
or her violations of the Dental Practice Act or other statutes that
would otherwise be the basis for discipline, may still be
investigated and the subject of disciplinary action.
(d) If the reasons for a current investigation of a
licentiate licensee are based primarily on the
self-administration of any controlled substance or dangerous drugs or
alcohol under Section 1681 of the Business and Professions
Code , or the illegal possession, prescription, or
nonviolent procurement of any controlled substance or dangerous drugs
for self-administration that does not involve actual, direct harm to
the public, the board shall may close
the investigation without further action if the licentiate
licensee is accepted into the board's diversion
program and successfully completes the requirements of the program.
If an investigation is closed and the licentiate
licensee withdraws or is terminated from the
program by a diversion evaluation committee, and the termination is
approved by the program manager, the investigation shall
may be reopened and disciplinary action imposed,
if warranted, as determined by the board.
(e) Neither acceptance nor participation in the diversion program
shall preclude the board from investigating or continuing to
investigate, or taking disciplinary action or continuing to take
disciplinary action against, any licentiate
licensee for any unprofessional conduct committed before,
during, or after participation in the diversion program.
(f) All licentiates shall sign an agreement of
understanding that the withdrawal or termination from the diversion
program at a time when a diversion evaluation committee determines
the licentiate presents a threat to the public's health and safety
shall result in the utilization by the board of diversion treatment
records in disciplinary or criminal proceedings If a
diversion evaluation commi ttee determines that a
licensee, who is denied admission into the diversion program or
terminated from the diversion program, presents a threat to the
public or his or her own health and safety, the committee shall
report the name and license number of the licensee, along with
a copy of all diversion records for that licensee, to the board'
s enforcement program. The board may use any of the records it
receives under this subdivision in any disciplinary or criminal
proceeding .
(g) Any licentiate licensee
terminated from the diversion program for failure to comply with
program requirements is subject to disciplinary action by the board
for acts committed before, during, and after participation in the
diversion program. A licentiate licensee
who has been under investigation by the board and has been
terminated from the diversion program by a diversion evaluation
committee shall be reported by the diversion evaluation committee to
the board.
SEC. 4. Section 1695.6 of the Business
and Professions Code is amended to read:
1695.6. A committee created under this article operates under the
direction of the program manager. The program manager has the
primary responsibility to review and evaluate recommendations of the
committee. Each committee shall have the following duties and
responsibilities:
(a) To evaluate those licentiates
licensees who request to participate in the diversion program
according to the guidelines prescribed by the board and to make
recommendations. In making the recommendations, a committee shall
consider the recommendations of any licentiates
licensees designated by the board to serve as consultants
on the admission of the licentiate lice
nsee to the diversion program.
(b) To review and designate those treatment facilities to which
licentiates licensees in a diversion
program may be referred.
(c) To receive and review information concerning a
licentiate licensee participating in the
program.
(d) To consider in the case of each licentiate
licensee participating in a program whether he or she may
with safety continue or resume the practice of dentistry.
(e) To perform such other related duties, under the direction of
the board or program manager, as the board may by regulation require.
SEC. 5. Section 1696 of the Business
and Professions Code is amended to read:
1696. Notwithstanding the provisions of Article 9 (commencing
with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2
of the Government Code, relating to public meetings, a committee may
convene in closed session to consider reports pertaining
matters relating to any licentiate
licensee requesting or participating in a
diversion program. A committee shall only convene in closed
session to the extent that it is necessary to protect the privacy of
such a licentiate meeting that will be convened
entirely in closed session need not comply with Section 11125 or
11126.3 of the Government Code .
SEC. 6. Section 1697 of the Business
and Professions Code is amended to read:
1697. Each licentiate licensee who
requests participation in a diversion program shall agree to
cooperate with the treatment program designed by the committee and
approved by the program manager and to bear all costs related to the
program , unless the cost is waived by the board .
Any failure to comply with the provisions of a treatment program may
result in termination of the licentiate's
licensee's participation in a program.
SEC. 7. Section 1698 of the Business
and Professions Code is amended to read:
1698. (a) After the committee and the program manager in their
discretion have determined that a licentiate
licensee has been rehabilitated and the diversion program is
completed, the committee shall purge and destroy all records
pertaining to the licentiate's licensee's
participation in a diversion program.
(b) Except as authorized by subdivision (f) of Section 1695.5
and subdivisions (c) and (d) , all board and committee records
and records of proceedings pertaining to the treatment of a
licentiate licensee in a program shall be kept
confidential and are not subject to discovery or subpoena.
(c) Notwithstanding any other provision of law, the diversion
evaluation committee shall report to the board's enforcement program,
for any licensee who is participating in the diversion program as a
result of his or her license being placed on probation or as a result
of a referral related to a board investigation pursuant to
subdivision (d) of Section 1695.5, all acts of substantial
noncompliance by the licensee as determined by the diversion
evaluation committee. The report shall be made no more than 24 hours
after the diversion evaluation committee makes its determination. If
that licensee does not successfully complete the diversion program,
all diversion records for that licensee shall be provided to the
board's enforcement program and may be used at the board's discretion
to discipline the licensee.
(d) A licensee shall be deemed to have waived any rights granted
by any law or regulation relating to confidentiality under the
program, if he or she does any of the following:
(1) Presents information relating to any aspect of the diversion
program during any stage of the disciplinary process subsequent to
the filing of an accusation, statement of issues, or petition to
compel an examination pursuant to Article 12.5 (commencing with
Section 820) of Chapter 1. The waiver under this paragraph shall be
limited to information necessary to verify or refute any information
disclosed by the licensee.
(2) Files a lawsuit against the board relating to any aspect of
the diversion program.
(3) Claims in defense to a disciplinary action, based on a
complaint that led to the licensee's participation in the diversion
program, that he or she was prejudiced by the length of time that
passed between the alleged violation and the filing of the
accusation. The waiver under this paragraph shall be limited to
information necessary to document the length of time the licensee
participated in the diversion program.
SEC. 8. Section 1699 of the Business
and Professions Code is amended to read:
1699. The board shall provide for the representation of any
person making reports to a committee or the board under this article
in any action for defamation for reports or information given to the
committee or the board regarding a licentiate's
licensee's participation in the diversion program.
SEC. 9. Section 1699.5 is added to the
Business and Professions Code , to read:
1699.5. Notwithstanding Section 1670.2, the statute of
limitations relating to the filing of an accusation against a
licensee shall be tolled during the time period a licensee is
participating in the diversion program.
SECTION 1. It is the intent of the Legislature
to enact legislation establishing a periodic review of all state
agencies.