BILL NUMBER: SB 294 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY SEPTEMBER 4, 2009
AMENDED IN ASSEMBLY JULY 1, 2009
AMENDED IN ASSEMBLY JUNE 8, 2009
AMENDED IN SENATE MARCH 31, 2009
INTRODUCED BY Senator Negrete McLeod
FEBRUARY 25, 2009
An act to add Section 2835.7 to the Business and
Professions Code, relating to nurse practitioners. An
act to amend Sections 27, 116, 160, 726, 802.1 803, 803.5, 803.6,
1695.5, 2365, 2663, 2666, 2715, 2770.7, 3534.1, 3534.5, 4365, 4369,
and 4870 of, to add Sections 1695.7, 1699.2, 2365.5, 2372, 2669.2,
2770.16, 2770.18, 2835.7, 3534.12, 4375, 4870.5, and 4873.2 to, to
add Article 10.1 (commencing with Section 720) to Chapter 1 of
Division 2 of, to add and repeal Section 2719 of, and to repeal
Article 4.7 (commencing with Section 1695) of Chapter 4 of, Article
15 (commencing with Section 2360) of Chapter 5 of, Article 5.5
(commencing with Section 2662) of Chapter 5.7 of, Article 3.1
(commencing with Section 2770) of Chapter 6 of, Article 6.5
(commencing with Section 3534) of Chapter 7.7 of, Article
21 (commencing with Section 4360) of Chapter 9 of, and Article 3.5
(commencing with Section 4860) of Chapter 11 of, Division 2 of, the
Business and Professions Code, relating to healing arts.
LEGISLATIVE COUNSEL'S DIGEST
SB 294, as amended, Negrete McLeod. Nurse practitioners.
Healing arts.
Existing law provides for the regulation of healing arts licensees
by various boards within the Department of Consumer Affairs. The
department is under the control of the Director of Consumer Affairs.
(1) Existing law requires certain boards within the department to
disclose on the Internet information on their respective licensees.
This bill would additionally require specified healing arts boards
to disclose on the Internet information on their respective
licensees.
Existing law authorizes the director to audit and review, among
other things, inquiries and complaints regarding licensees,
dismissals of disciplinary cases, and discipline short of formal
accusation by the Medical Board of California and the California
Board of Podiatric Medicine.
This bill would additionally authorize the director to audit and
review the aforementioned activities by any of the healing arts
boards. The bill would also declare the intent of the Legislature
that the department establish an information technology system to
create and update healing arts license information and track
enforcement cases pertaining to these licensees.
Existing law requires a physician and surgeon, osteopathic
physician and surgeon, and a doctor of podiatric medicine to report
to his or her respective board when there is an indictment or
information charging a felony against the licensee or he or she been
convicted of a felony or misdemeanor.
This bill would expand that requirement to any licensee of a
healing arts board, as specified, would require these licensees to
submit a written report, and would require a report when disciplinary
action is taken against a licensee by another healing arts board or
by a healing arts board of another state.
Existing law requires the district attorney, city attorney, and
other prosecuting agencies to notify the Medical Board of California,
the Osteopathic Medical Board of California, the California Board of
Podiatric Medicine, the State Board of Chiropractic Examiners, and
other allied health boards and the court clerk if felony charges have
been filed against one of the board's licensees.
This bill would instead require that notice to be provided to any
healing arts board and the court clerk if felony charges are filed
against a licensee. By imposing additional duties on these local
agencies, the bill would impose a state-mandated local program.
Existing law requires, within 10 days after a court judgment, the
clerk of the court to report to the appropriate board when a
licentiate has committed a crime or is liable for any death or
personal injury resulting in a specified judgment. Existing law also
requires the clerk of the court to transmit to certain boards
specified felony preliminary transcript hearings concerning a
defendant licentiate.
This bill would instead require the clerk of the court to report
that information and to transmit those transcripts to any described
healing arts board.
(2) Under existing law, healing arts licensees are regulated by
various boards and these boards are authorized to issue, deny,
suspend, and revoke licenses based on various grounds and these
boards are also authorized to take disciplinary action against their
licensees for the failure to comply with its laws and regulations.
Existing law requires or authorizes the board to appoint an executive
officer or an executive director to, among other things, perform
duties delegated by the board.
This bill would authorize the executive officer or the executive
director of specified healing arts licensing boards, where an
administrative action has been filed by the board to revoke the
license of a licensee and the licensee has failed to file a notice of
defense, appear at the hearing, or has agreed to surrender his or
her license, to adopt a proposed default decision or a proposed
settlement agreement. The bill would also provide that the license of
a licensee shall be suspended if the licensee is incarcerated after
the conviction of a felony and would require the board to notify the
licensee of the suspension and of his or her right to a specified
hearing. The bill would also specify the timeframes for suspending a
license under certain circumstances if the conviction was
substantially related to the qualifications, functions, or duties of
the licensee's respective board.
The bill would also prohibit a licensee of specified healing arts
boards from including certain provisions in an agreement to settle a
civil dispute arising from his or her practice, as specified. The
bill would make a licensee or a health care facility that fails to
comply with a patient's medical record request, as specified, within
15 days, or who fails or refuses to comply with a court order
mandating release of records, subject to civil and criminal
penalties, as specified. By creating a new crime, the bill would
impose a state-mandated local program.
The bill would authorize the Attorney General and his or her
investigative agents, and these healing arts boards to inquire into
any alleged violation of the laws under the board's jurisdiction and
to inspect documents subject to specified procedures.
The bill would require these healing arts boards to report
annually, by October 1, to the department and the Legislature certain
information, including, but not limited to, the total number of
consumer calls received by the board, the total number of complaint
forms received by the board, the total number of convictions reported
to the board, and the total number of licensees in diversion or on
probation for alcohol or drug abuse.
(3) Existing law establishes diversion and recovery programs to
identify and rehabilitate dentists, osteopathic physicians and
surgeons, physical therapists and physical therapy assistants,
registered nurses, physician assistants, pharmacists and intern
pharmacists, and veterinarians and registered veterinary technicians
whose competency may be impaired due to, among other things, alcohol
and drug abuse.
The bill would make the provisions establishing these diversion
programs inoperative on January 1, 2012.
Existing law makes a licentiate terminated from a diversion
program for failing to comply with the program's requirements subject
to disciplinary action by his or her respective board.
This bill would instead provide that the participant's license
shall be suspended until the participant petitions the board for
reinstatement of his or her license, certificate, or board approval
and is granted a probationary or unrestricted license, certificate,
or board approval. The bill would also require a third party or state
agency or private organization administering the diversion program
to report, as specified, to the program manager or chairperson any
act of substantial noncompliance, as defined, by the participant with
the program.
(4) Existing law, the Nursing Practice Act, provides for the
licensure and regulation of nurses by the Board of Registered
Nursing. Existing law authorizes the board to employ personnel as it
deems necessary to carry out the act's provisions, except that the
employment of personnel to provide investigative services shall be in
the Division of Investigations within the Department of Consumer
Affairs.
This bill would remove that limitation and would authorize the
board to employ investigators, nurse consultants, and other personnel
as it deems necessary. The bill would also specify that these
investigators have the authority of peace officers while carrying out
their board duties.
The bill would require the Director of Consumer Affairs, by March
1, 2010, to appoint an enforcement program monitor to serve until
October 1, 2011, who would be required to, among other things,
monitor and evaluate the board's disciplinary system and procedures.
The bill would prohibit the enforcement program monitor from
exercising authority over the board's disciplinary operations or
staff. The bill would require the enforcement program monitor, by
December 1, 2010, to submit a specified initial written report to the
board, the department, and the Legislature and to issue a final
written report by October 1, 2011.
Existing law , the Nursing Practice Act,
provides for the certification and regulation of nurse practitioners
and nurse-midwives by the Board of Registered Nursing and specifies
requirements for qualification or certification as a nurse
practitioner. Under the act, the practice of nursing is defined, in
part, as providing direct and indirect patient care services, as
specified, including the dispensing of drugs or devices under
specified circumstances. The practice of nursing is also described as
the implementation, based on observed abnormalities, of standardized
procedures, defined as policies and protocols developed by specified
facilities in collaboration with administrators and health
professionals, including physicians and surgeons and nurses.
This bill would authorize the implementation of standardized
procedures that would expand the duties of a nurse practitioner in
the scope of his or her practice, as enumerated. The bill would make
specified findings and declarations in that regard.
(5) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 27 of the Business
and Professions Code is amended to read:
27. (a) Every entity specified in subdivision (b) , on or
after July 1, 2001, shall provide on the Internet
information regarding the status of every license issued by that
entity in accordance with the California Public Records Act (Chapter
3.5 (commencing with Section 6250) of Division 7 of Title 1 of the
Government Code) and the Information Practices Act of 1977 (Chapter 1
(commencing with Section 1798) of Title 1.8 of Part 4 of Division 3
of the Civil Code). The public information to be provided on the
Internet shall include information on suspensions and revocations of
licenses issued by the entity and other related enforcement action
taken by the entity relative to persons, businesses, or facilities
subject to licensure or regulation by the entity. In providing
information on the Internet, each entity shall comply with the
Department of Consumer Affairs Guidelines for Access to Public
Records. The information may not include personal information,
including home telephone number, date of birth, or social security
number. Each entity shall disclose a licensee's address of record.
However, each entity shall allow a licensee to provide a post office
box number or other alternate address, instead of his or her home
address, as the address of record. This section shall not preclude an
entity from also requiring a licensee, who has provided a post
office box number or other alternative mailing address as his or her
address of record, to provide a physical business address or
residence address only for the entity's internal administrative use
and not for disclosure as the licensee's address of record or
disclosure on the Internet.
(b) Each of the following entities within the Department of
Consumer Affairs shall comply with the requirements of this section:
(1) The Acupuncture Board shall disclose information on its
licensees.
(2) The Board of Behavioral Sciences shall disclose information on
its licensees, including marriage and family therapists, licensed
clinical social workers, and licensed educational psychologists.
(3) The Dental Board of California shall disclose information on
its licensees.
(4) The State Board of Optometry shall disclose information
regarding certificates of registration to practice optometry,
statements of licensure, optometric corporation registrations, branch
office licenses, and fictitious name permits of their licensees.
(5) The Board for Professional Engineers and Land Surveyors shall
disclose information on its registrants and licensees.
(6) The Structural Pest Control Board shall disclose information
on its licensees, including applicators, field representatives, and
operators in the areas of fumigation, general pest and wood
destroying pests and organisms, and wood roof cleaning and treatment.
(7) The Bureau of Automotive Repair shall disclose information on
its licensees, including auto repair dealers, smog stations, lamp and
brake stations, smog check technicians, and smog inspection
certification stations.
(8) The Bureau of Electronic and Appliance Repair shall disclose
information on its licensees, including major appliance repair
dealers, combination dealers (electronic and appliance), electronic
repair dealers, service contract sellers, and service contract
administrators.
(9) The Cemetery Program and Funeral
Bureau shall disclose information on its licensees, including
cemetery brokers, cemetery salespersons, crematories, and cremated
remains disposers.
(10) The Funeral Directors and Embalmers Program
Cemetery and Funeral Bureau shall disclose information on
its licensees, including embalmers, funeral establishments, and
funeral directors.
(11) The Contractors' State License Board shall disclose
information on its licensees in accordance with Chapter 9 (commencing
with Section 7000) of Division 3. In addition to information related
to licenses as specified in subdivision (a), the board shall also
disclose information provided to the board by the Labor Commissioner
pursuant to Section 98.9 of the Labor Code.
(12) The Board of Psychology shall disclose information on its
licensees, including psychologists, psychological assistants, and
registered psychologists.
(13) The State Board of Chiropractic Examiners shall disclose
information on its licensees.
(14) The Board of Registered Nursing shall disclose information on
its licensees.
(15) The Board of Vocational Nursing and Psychiatric Technicians
of the State of California shall disclose information on its
licensees.
(16) The Veterinary Medical Board shall disclose information on
its licensees and registrants.
(17) The Physical Therapy Board of California shall disclose
information on its licensees.
(18) The California State Board of Pharmacy shall disclose
information on its licensees.
(19) The Speech-Language Pathology and Audiology Board shall
disclose information on its licensees.
(20) The Respiratory Care Board of California shall disclose
information on its licensees.
(21) The California Board of Occupational Therapy shall disclose
information on its licensees.
(22) The Naturopathic Medicine Committee, the Osteopathic Medical
Board of California shall disclose information on its licensees.
(23) The Physician Assistant Committee of the Medical Board of
California shall disclose information on its licensees.
(24) The Dental Hygiene Committee of California shall disclose
information on its licensees.
(c) "Internet" for the purposes of this section has the meaning
set forth in paragraph (6) of subdivision (e) of Section 17538.
SEC. 2. Section 116 of the Business and
Professions Code is amended to read:
116. (a) The director may audit and review, upon his or her own
initiative, or upon the request of a consumer or licensee, inquiries
and complaints regarding licensees, dismissals of disciplinary cases,
the opening, conduct, or closure of investigations, informal
conferences, and discipline short of formal accusation by
the Medical Board of California, the allied health professional
boards, and the California Board of Podiatric Medicine
any of the healing arts boards established under Division 2
(commencing with Section 500 ) or under any initiative act
referred to in that division . The director may make
recommendations for changes to the disciplinary system to the
appropriate board, the Legislature, or both.
(b) The director shall report to the Chairpersons of the Senate
Business and Professions Committee and the Assembly Health Committee
annually , commencing March 1, 1995, regarding his
or her findings from any audit, review, or monitoring and evaluation
conducted pursuant to this section.
SEC. 3. Section 160 of the Business and
Professions Code is amended to read:
160. The Chief and all investigators of the Division of
Investigation of the department and ,
all investigators of the Medical Board of California and the
Board of Dental Examiners Dental Board of California,
and the designated investigators of the Board of Registered Nursing
have the authority of peace officers while engaged in
exercising the powers granted or performing the duties imposed upon
them or the division in investigating the laws administered by the
various boards comprising the department or commencing directly or
indirectly any criminal prosecution arising from any investigation
conducted under these laws. All persons herein referred to shall be
deemed to be acting within the scope of employment with respect to
all acts and matters in this section set forth.
SEC. 4. Article 10.1 (commencing with Section 720)
is added to Chapter 1 of Division 2 of the Business and
Professions Code , to read:
Article 10.1. Healing Arts Licensing Enforcement
720. (a) Unless otherwise provided, as used in this article, the
term "board" shall include all of the following:
(1) The Dental Board of California.
(2) The Medical Board of California.
(3) The State Board of Optometry.
(4) The California State Board of Pharmacy.
(5) The Board of Registered Nursing.
(6) The Board of Behavioral Sciences.
(7) The Board of Vocational Nursing and Psychiatric Technicians of
the State of California.
(8) The Respiratory Care Board of California.
(9) The Acupuncture Board.
(10) The Board of Psychology.
(11) The California Board of Podiatric Medicine.
(12) The Physical Therapy Board of California.
(13) The Hearing Aid Dispensers Bureau.
(14) The Physician Assistant Committee of the Medical Board of
California.
(15) The Speech-Language Pathology and Audiology Board.
(16) The California Board of Occupational Therapy.
(17) The Osteopathic Medical Board of California.
(18) The Naturopathic Medicine Committee, the Osteopathic Medical
Board of California.
(19) The Dental Hygiene Committee of California.
(20) The State Board of Chiropractic Examiners.
(21) The Veterinary Medical Board.
(b) Unless otherwise provided, as used in this article, "licensee"
means a licensee of a board described in subdivision (a).
720.2. (a) The executive officer or executive director of a board
may adopt a proposed default decision where an administrative action
to revoke a license has been filed by the board and the licensee has
failed to file a notice of defense or to appear at the hearing and a
proposed default decision revoking the license has been issued.
(b) The executive officer or executive director of a board may
adopt a proposed settlement agreement where an administrative action
to revoke a license has been filed by the board and the licensee has
agreed to surrender his or her license.
720.4. (a) The license of a licensee of a board shall be
suspended automatically during any time that the licensee is
incarcerated after conviction of a felony, regardless of whether the
conviction has been appealed. The board shall, immediately upon
receipt of the certified copy of the record of conviction from the
court clerk, determine whether the license of the licensee has been
automatically suspended by virtue of his or her incarceration, and if
so, the duration of that suspension. The board shall notify the
licensee of the license suspension and of his or her right to elect
to have the issue of penalty heard as provided in subdivision (d).
(b) Upon receipt of the certified copy of the record of
conviction, if after a hearing before an administrative law judge
from the Office of Administrative Law it is determined that the
felony for which the licensee was convicted was substantially related
to the qualifications, functions, or duties of the licensee, the
board shall suspend the license until the time for appeal has
elapsed, if no appeal has been taken, or until the judgment of
conviction has been affirmed on appeal or has otherwise become final,
and until further order of the board.
(c) Notwithstanding subdivision (b), conviction of a charge of
violating any federal statutes or regulations or any statute or
regulation of this state regulating dangerous drugs or controlled
substances, or a conviction pursuant to Section 187, 261, 262, or 288
of the Penal Code, shall be conclusively presumed to be
substantially related to the qualifications, functions, or duties of
a licensee and no hearing shall be held on this issue. However, upon
its own motion or for good cause shown, the board may decline to
impose or may set aside the suspension when it appears to be in the
interest of justice to do so, with due regard to maintaining the
integrity of and confidence in the practice regulated by the board.
(d) (1) Discipline may be ordered against a license in accordance
with the laws and regulations of the board when the time for appeal
has elapsed, the judgment of conviction has been affirmed on appeal,
or an order granting probation is made suspending the imposition of
the sentence, irrespective of a subsequent order under Section 1203.4
of the Penal Code allowing the person to withdraw his or her plea of
guilty and to enter a plea of not guilty, setting aside the verdict
of guilty, or dismissing the accusation, complaint, information, or
indictment.
(2) The issue of penalty shall be heard by an administrative law
judge from the Office of Administrative Law. The hearing shall not be
held until the judgment of conviction has become final or,
irrespective of a subsequent order under Section 1203.4 of the Penal
Code, an order granting probation has been made suspending the
imposition of sentence, except that a licensee may, at his or her
option, elect to have the issue of penalty decided before those time
periods have elapsed. Where the licensee so elects, the issue of
penalty shall be heard in the manner described in subdivision (b) at
the hearing to determine whether the conviction was substantially
related to the qualifications, functions, or duties of a licensee. If
the conviction of a licensee who has made this election is
overturned on appeal, any discipline ordered pursuant to this section
shall automatically cease. Nothing in this subdivision shall
prohibit the board from pursuing disciplinary action based on any
cause other than the overturned conviction.
(e) The record of the proceedings resulting in the conviction,
including a transcript of the testimony therein, may be received in
evidence.
(f) Any other provision of law setting forth a procedure for the
suspension or revocation of a license issued by a board shall not
apply to proceedings conducted pursuant to this section.
(g) This section shall not apply to a physician and surgeon's
certificate subject to Section 2236.1.
720.6. Except as otherwise provided, any proposed decision or
decision issued under this article in accordance with the procedures
set forth in Chapter 5 (commencing with Section 11500) of Part 1 of
Division 3 of Title 2 of the Government Code, that contains any
finding of fact that the licensee or registrant engaged in any act of
sexual contact, as defined in Section 729, with a patient, or has
committed an act or has been convicted of a sex offense as defined in
Section 44010 of the Education Code, shall contain an order of
revocation. The revocation shall not be stayed by the administrative
law judge. Unless otherwise provided in the laws and regulations of
the board, the patient shall no longer be considered a patient of the
licensee when the order for services and procedures provided by the
licensee is terminated, discontinued, or not renewed by the licensee.
720.8. (a) A licensee of a board shall not include or permit to
be included any of the following provisions in an agreement to settle
a civil dispute arising from his or her practice, whether the
agreement is made before or after the filing of an action:
(1) A provision that prohibits another party to the dispute from
contacting or cooperating with the board.
(2) A provision that prohibits another party to the dispute from
filing a complaint with the board.
(3) A provision that requires another party to the dispute to
withdraw a complaint he or she has filed with the board.
(b) A provision described in subdivision (a) is void as against
public policy.
(c) A violation of this section constitutes unprofessional conduct
and may subject the licensee to disciplinary action.
(d) If a board complies with Section 2220.7, that board shall not
be subject to the requirements of this section.
720.10. (a) Notwithstanding any other provision of law making a
communication between a licensee of a board and his or her patients a
privileged communication, those provisions shall not apply to
investigations or proceedings conducted by a board. Members of a
board, deputies, employees, agents, the Attorney General's Office,
and representatives of the board shall keep in confidence during the
course of investigations the names of any patients whose records are
reviewed and may not disclose or reveal those names, except as is
necessary during the course of an investigation, unless and until
proceedings are instituted. The authority under this subdivision to
examine records of patients in the office of a licensee is limited to
records of patients who have complained to the board about that
licensee.
(b) Notwithstanding any other provision of law, the Attorney
General and his or her investigative agents, and a board and its
investigators and representatives may inquire into any alleged
violation of the laws under the jurisdiction of the board or any
other federal or state law, regulation, or rule relevant to the
practice regulated by the board, whichever is applicable, and may
inspect documents relevant to those investigations in accordance with
the following procedures:
(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where patient consent is given.
(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where relevant to
an investigation of a licensee.
(c) In all cases where documents are inspected or copies of those
documents are received, their acquisition or review shall be arranged
so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.
(d) Where documents are lawfully requested from licensees in
accordance with this section by the Attorney General or his or her
agents or deputies, or investigators of any board, they shall be
provided within 15 business days of receipt of the request, unless
the licensee is unable to provide the documents within this time
period for good cause, including, but not limited to, physical
inability to access the records in the time allowed due to illness or
travel. Failure to produce requested documents or copies thereof,
after being informed of the required deadline, shall constitute
unprofessional conduct. A board may use its authority to cite and
fine a licensee for any violation of this section. This remedy is in
addition to any other authority of the board to sanction a licensee
for a delay in producing requested records.
(e) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care of
patients.
(f) If a board complies with Section 2225, that board shall not be
subject to the requirements of this section.
720.12. (a) A board, and the Attorney General, shall return any
original documents received pursuant to Section 720.12 to the
licensee from whom they were obtained within seven calendar days.
(b) If a board complies with Section 2225.3, that board shall not
be subject to the requirements of this section.
720.14. (a) (1) A licensee who fails or refuses to comply with a
request for the certified medical records of a patient, that is
accompanied by that patient's written authorization for release of
records to a board, within 15 days of receiving the request and
authorization, shall pay to the board a civil penalty of one thousand
dollars ($1,000) per day for each day that the documents have not
been produced after the 15th day, up to ten thousand dollars
($10,000), unless the licensee is unable to provide the documents
within this time period for good cause.
(2) A health care facility shall comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a board
together with a notice citing this section and describing the
penalties for failure to comply with this section. Failure to provide
the authorizing patient's certified medical records to the board
within 30 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable to
the board, of up to one thousand dollars ($1,000) per day for each
day that the documents have not been produced after the 20th day, up
to ten thousand dollars ($10,000), unless the health care facility is
unable to provide the documents within this time period for good
cause. This paragraph shall not require health care facilities to
assist the boards in obtaining the patient's authorization. A board
shall pay the reasonable costs of copying the certified medical
records, but shall not be required to pay such cost prior to the
production of the medical records.
(b) (1) A licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board, shall pay to the board a civil penalty of one
thousand dollars ($1,000) per day for each day that the documents
have not been produced after the date by which the court order
requires the documents to be produced, unless it is determined that
the order is unlawful or invalid. Any statute of limitations
applicable to the filing of an accusation by the board shall be
tolled during the period the licensee is out of compliance with the
court order and during any related appeals.
(2) Any licensee who fails or refuses to comply with a court
order, issued in the enforcement of a subpoena, mandating the release
of records to a board is guilty of a misdemeanor punishable by a
fine payable to the board not to exceed five thousand dollars
($5,000). The fine shall be added to the licensee's renewal fee if it
is not paid by the next succeeding renewal date. Any statute of
limitations applicable to the filing of an accusation by a board
shall be tolled during the period the licensee is out of compliance
with the court order and during any related appeals.
(3) A health care facility that fails or refuses to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of patient records to a board, that is accompanied by a
notice citing this section and describing the penalties for failure
to comply with this section, shall pay to the board a civil penalty
of up to one thousand dollars ($1,000) per day for each day that the
documents have not been produced, up to ten thousand dollars
($10,000), after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Any statute of limitations applicable to the
filing of an accusation by the board against a licensee shall be
tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(4) Any health care facility that fails or refuses to comply with
a court order, issued in the enforcement of a subpoena, mandating the
release of records to a health care license board is guilty of a
misdemeanor punishable by a fine payable to the board not to exceed
five thousand dollars ($5,000). Any statute of limitations applicable
to the filing of an accusation by the board against a licensee shall
be tolled during the period the health care facility is out of
compliance with the court order and during any related appeals.
(c) Multiple acts by a licensee in violation of subdivision (b)
shall be punishable by a fine not to exceed five thousand dollars
($5,000) or by imprisonment in a county jail not exceeding six
months, or by both that fine and imprisonment. Multiple acts by a
health care facility in violation of subdivision (b) shall be
punishable by a fine not to exceed five thousand dollars ($5,000) and
shall be reported to the State Department of Public Health and shall
be considered as grounds for disciplinary action with respect to
licensure, including suspension or revocation of the license or
certificate.
(d) A failure or refusal
of a licensee to comply with a court order, issued in the enforcement
of a subpoena, mandating the release of records to the board
constitutes unprofessional conduct and is grounds for suspension or
revocation of his or her license.
(e) Imposition of the civil penalties authorized by this section
shall be in accordance with the Administrative Procedure Act (Chapter
5 (commencing with Section 11500) of Division 3 of Title 2 of the
Government Code). Any civil penalties paid to or received by a board
pursuant to this section shall be deposited into the fund
administered by the board.
(f) For purposes of this section, "certified medical records"
means a copy of the patient's medical records authenticated by the
licensee or health care facility, as appropriate, on a form
prescribed by the licensee's board.
(g) For purposes of this section, a "health care facility" means a
clinic or health facility licensed or exempt from licensure pursuant
to Division 2 (commencing with Section 1200) of the Health and
Safety Code.
(h) If a board complies with Section 2225.5, that board shall not
be subject to the requirements of this section.
(i) This section shall not apply to a licensee who does not have
access to, or control over, certified medical records.
720.16. (a) Each board shall report annually to the department
and the Legislature, not later than October 1 of each year, the
following information:
(1) The total number of consumer calls received by the board and
the number of consumer calls or letters designated as
discipline-related complaints.
(2) The total number of complaint forms received by the board.
(3) The total number of reports received by the board pursuant to
Section 801, 801.01, and 803, as applicable.
(4) The total number of coroner reports received by the board.
(5) The total number of convictions reported to the board.
(6) The total number of criminal filings reported to the board.
(7) If the board is authorized to receive reports pursuant to
Section 805, the total number of Section 805 reports received by the
board, by the type of peer review body reporting and, where
applicable, the type of health care facility involved, and the total
number and type of administrative or disciplinary actions taken by
the board with respect to the reports, and their disposition.
(8) The total number of complaints closed or resolved without
discipline, prior to accusation.
(9) The total number of complaints and reports referred for formal
investigation.
(10) The total number of accusations filed and the final
disposition of accusations through the board and court review,
respectively.
(11) The total number of citations issued, with fines and without
fines, and the number of public letters of reprimand, letters of
admonishment, or other similar action issued, if applicable.
(12) The total number of final licensee disciplinary actions
taken, by category.
(13) The total number of cases in process for more than six
months, more than 12 months, more than 18 months, and more than 24
months, from receipt of a complaint by the board.
(14) The average and median time in processing complaints, from
original receipt of the complaint by the board, for all cases, at
each stage of the disciplinary process and court review,
respectively.
(15) The total number of licensees in diversion or on probation
for alcohol or drug abuse or mental disorder, and the number of
licensees successfully completing diversion programs or probation,
and failing to do so, respectively.
(16) The total number of probation violation reports and probation
revocation filings, and their dispositions.
(17) The total number of petitions for reinstatement, and their
dispositions.
(18) The total number of caseloads of investigators for original
cases and for probation cases, respectively.
(b) "Action," for purposes of this section, includes proceedings
brought by, or on behalf of, the board against licensees for
unprofessional conduct that have not been finally adjudicated, as
well as disciplinary actions taken against licensees.
(c) If a board complies with Section 2313, that board shall not be
subject to the requirements of this section.
SEC. 5. Section 726 of the Business and
Professions Code is amended to read:
726. (a) The commission of any act of
sexual abuse, misconduct, or relations with a patient, client, or
customer constitutes unprofessional conduct and grounds for
disciplinary action for any person licensed under this division
, and under any initiative act referred
to in this division and under Chapter 17 (commencing with
Section 9000) of Division 3 .
(b) The commission of, and conviction for, any act of sexual
abuse, misconduct or attempted sexual misconduct, whether or not with
a patient, or conviction of a felony requiring registration pursuant
to Section 290 of the Penal Code shall be considered a crime
substantially related to the qualifications, functions, or duties of
a healing arts board licensee.
This
(c) This section shall not apply
to sexual contact between a physician and surgeon and his or her
spouse or person in an equivalent domestic relationship when that
physician and surgeon provides medical treatment, other than
psychotherapeutic treatment, to his or her spouse or person in an
equivalent domestic relationship.
SEC. 6. Section 802.1 of the Business
and Professions Code is amended to read:
802.1. (a) (1) A physician and surgeon, osteopathic
physician and surgeon, and a doctor of podiatric medicine
Any licensee of a healing arts board established under this
division or under any initiative act referred to in this division
shall submit a written report either
of any of the following to the entity that
issued his or her license:
(A) The bringing of an indictment or information charging a felony
against the licensee.
(B) The conviction of the licensee, including any verdict of
guilty, or plea of guilty or no contest, of any felony or
misdemeanor.
(C) Any disciplinary action ever taken by another healing arts
board of this state or a healing arts board of another state.
(2) The report required by this subdivision shall be made in
writing within 30 days of the date of the bringing of the indictment
or information or of the conviction or disciplinary action
.
(b) Failure to make a report required by this section shall be a
public offense punishable by a fine not to exceed five thousand
dollars ($5,000).
SEC. 7. Section 803 of the Business and
Professions Code is amended to read:
803. (a) Except as provided in subdivision (b), within 10 days
after a judgment by a court of this state that a person who holds a
license, certificate, or other similar authority from the
Board of Behavioral Science Examiners or from an agency mentioned in
subdivision (a) of Section 800 (except a person licensed pursuant to
Chapter 3 (commencing with Section 1200)) any of the
healing arts boards established under this division or under any
initiative act referred to in this division has committed a
crime, or is liable for any death or personal injury resulting in a
judgment for an amount in excess of thirty thousand dollars ($30,000)
caused by his or her negligence, error or omission in practice, or
his or her rendering unauthorized professional services, the clerk of
the court that rendered the judgment shall report that fact to the
agency that issued the license, certificate, or other similar
authority.
(b) For purposes of a physician and surgeon, osteopathic physician
and surgeon, or doctor of podiatric medicine, who is liable for any
death or personal injury resulting in a judgment of any amount caused
by his or her negligence, error or omission in practice, or his or
her rendering unauthorized professional services, the clerk of the
court that rendered the judgment shall report that fact to the agency
that issued the license.
SEC. 8. Section 803.5 of the Business
and Professions Code is amended to read:
803.5. (a) The district attorney, city attorney, or other
prosecuting agency shall notify the Medical Board of
California, the Osteopathic Medical Board of California, the
California Board of Podiatric Medicine, the State Board of
Chiropractic Examiners, or other appropriate allied health board,
the appropriate healing arts board established under
this division or under any initiative act referred to in this
division and the clerk of the court in which the charges have
been filed, of any filings against a licensee of that board charging
a felony immediately upon obtaining information that the defendant is
a licensee of the board. The notice shall identify the licensee and
describe the crimes charged and the facts alleged. The prosecuting
agency shall also notify the clerk of the court in which the action
is pending that the defendant is a licensee, and the clerk shall
record prominently in the file that the defendant holds a license
from one of the boards described above.
(b) The clerk of the court in which a licensee of one of the
boards is convicted of a crime shall, within 48 hours after the
conviction, transmit a certified copy of the record of conviction to
the applicable board.
SEC. 9. Section 803.6 of the Business
and Professions Code is amended to read:
803.6. (a) The clerk of the court shall transmit any felony
preliminary hearing transcript concerning a defendant licensee to
the Medical Board of California, the Osteopathic Medical
Board of California, the California Board of Podiatric Medicine, or
other appropriate allied health board, as applicable,
any of the healing arts boards established under this division or
under any initiative act referred to in this division where the
total length of the transcript is under 800 pages and shall notify
the appropriate board of any proceeding where the transcript exceeds
that length.
(b) In any case where a probation report on a licensee is prepared
for a court pursuant to Section 1203 of the Penal Code, a copy of
that report shall be transmitted by the probation officer to the
appropriate board.
SEC. 10. 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 in a diversion
program. Unless ordered by the board as a condition of licentiate
disciplinary probation, only those licentiates who have voluntarily
requested diversion treatment and supervision by a committee shall
participate in a diversion program.
(b) A licentiate 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 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 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 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 close the
investigation without further action if the licentiate is accepted
into the board's diversion program and successfully completes the
requirements of the program. If the licentiate withdraws or is
terminated from the program by a diversion evaluation committee, and
the termination is approved by the program manager, the investigation
shall 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 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.
(g) Any The license of a licentiate
who is 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 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.
shall be placed on suspension until the licentiate
petitions the board for reinstatement of his or her license and is
granted a probationary or unrestricted license.
SEC. 11. Section 1695.7 is added to the
Business and Professions Code , to read:
1695.7. (a) Any third-party vendor under contract with the board
for the administration of the diversion program shall report to the
program manager within five days any act, by a licentiate, of
substantial noncompliance with the program. For purposes of this
section, "substantial noncompliance" includes, but is not limited to,
a failed drug test, a relapse, refusal to submit to a drug test,
failure to comply with any practice limitations, repeated or material
failure to comply with other requirements of the program, or
termination from the program.
(b) Failure by a third-party vendor to comply with this section is
grounds for termination of a contract for the administration of the
diversion program.
SEC. 12. Section 1699.2 is added to the
Business and Professions Code , to read:
1699.2. This article shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 13. Section 2365 of the Business
and Professions Code is amended to read:
2365. (a) The board shall establish criteria for the acceptance,
denial, or termination of participants in the diversion program.
Unless ordered by the board as a condition of disciplinary probation,
only those participants who have voluntarily requested diversion
treatment and supervision by a committee shall participate in the
diversion program.
(b) A participant 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 participant 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 participant 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 Medical Practice Act
or other violations, to execute a statement of understanding that
states that the licentiate understands that his or her violations of
the Medical 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 participant
are based primarily on the self-administration of any controlled
substance or dangerous drugs or alcohol under Section 2239, 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 may
close the investigation without further action if the licentiate is
accepted into the board's diversion program and successfully
completes the requirements of the program. If the participant
withdraws or is terminated from the program by a diversion evaluation
committee, and the termination is approved by the program manager,
the investigation 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 participant for any unprofessional
conduct committed before, during, or after participation in the
diversion program.
(f) All participants 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.
(g) Any The license of a participant
who is 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 participant 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.
shall be placed on suspension until the participant
petitions the board for reinstatement of his or her certificate and
is granted a probationary or unrestricted certificate.
SEC. 14. Section 2365.5 is added to the
Business and Professions Code , to read:
2365.5. (a) Any third-party vendor under contract with the board
for the administration of the diversion program shall report to the
program manager within five days any act, by a participant, of
substantial noncompliance with the program. For purposes of this
section, "substantial noncompliance" includes, but is not limited to,
a failed drug test, a relapse, refusal to submit to a drug test,
failure to comply with any practice limitations, repeated or material
failure to comply with other requirements of the program, or
termination from the program.
(b) Failure by a third-party vendor to comply with this section is
grounds for termination of a contract for the administration of the
diversion program.
SEC. 15. Section 2372 is added to the
Business and Professions Code , to read:
2372. This article shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 16. Section 2663 of the Business
and Professions Code is amended to read:
2663. (a) The board shall establish and
administer a diversion program for the rehabilitation of physical
therapists and physical therapist assistants whose competency is
impaired due to the abuse of drugs or alcohol. The board may contract
with any other state agency or a private organization or
third-party vendor to perform its duties under this article.
The board may establish one or more diversion evaluation committees
to assist it in carrying out its duties under this article. Any
diversion evaluation committee established by the board shall operate
under the direction of the diversion program manager, as designated
by the executive officer of the board. The program manager has the
primary responsibility to review and evaluate recommendations of the
committee.
(b) (1) Any state agency or private organization or third-party
vendor under contract with the board for the administration of the
diversion program shall report within five days to the program
manager any act, by a participant, of substantial noncompliance with
the program. For purposes of this section, "substantial noncompliance"
includes, but is not limited to, a failed drug test, a relapse,
refusal to submit to a drug test, failure to comply with any practice
limitations, repeated or material failure to comply with other
requirements of the program, or termination from the program.
(2) Failure by a state agency or private organization or
third-party vendor to comply with this subdivision is grounds for
termination of a contract for the administration of the diversion
program.
SEC. 17. Section 2666 of the Business
and Professions Code is amended to read:
2666. (a) Criteria for acceptance into the diversion program
shall include all of the following:
(1) The applicant shall be licensed as a physical therapist or
approved as a physical therapist assistant by the board and shall be
a resident of California.
(2) The applicant shall be found to abuse dangerous drugs or
alcoholic beverages in a manner which may affect his or her ability
to practice physical therapy safely or competently.
(3) The applicant shall have voluntarily requested admission to
the program or shall be accepted into the program in accordance with
terms and conditions resulting from a disciplinary action.
(4) The applicant shall agree to undertake any medical or
psychiatric examination ordered to evaluate the applicant for
participation in the program.
(5) The applicant shall cooperate with the program by providing
medical information, disclosure authorizations, and releases of
liability as may be necessary for participation in the program.
(6) The applicant shall agree in writing to cooperate with all
elements of the treatment program designed for him or her.
Any applicant may be denied participation in the program if the
board, the program manager, or a diversion evaluation committee
determines that the applicant will not substantially benefit from
participation in the program or that the applicant's participation in
the program creates too great a risk to the public health, safety,
or welfare.
(b) A participant may be terminated from the program for any of
the following reasons:
(1) The participant has successfully completed the treatment
program.
(2) The participant has failed to comply with the treatment
program designated for him or her.
(3) The participant fails to meet any of the criteria set forth in
subdivision (a) or (c).
(4) It is determined that the participant has not substantially
benefited from participation in the program or that his or her
continued participation in the program creates too great a risk to
the public health, safety, or welfare. Whenever an applicant is
denied participation in the program or a participant is terminated
from the program for any reason other than the successful completion
of the program, and it is determined that the continued practice of
physical therapy by that individual creates too great a risk to the
public health, safety, and welfare, that fact shall be reported to
the executive officer of the board and all documents and information
pertaining to and supporting that conclusion shall be provided to the
executive officer. The matter may be referred for investigation and
disciplinary action by the board. Each physical therapist or physical
therapy assistant who requests participation in a diversion program
shall agree to cooperate with the recovery program designed for him
or her. Any failure to comply with that program may result in
termination of participation in the program.
The diversion evaluation committee shall inform each participant
in the program of the procedures followed in the program, of the
rights and responsibilities of a physical therapist or physical
therapist assistant in the program, and the possible results of
noncompliance with the program.
(c) In addition to the criteria and causes set forth in
subdivision (a), the board may set forth in its regulations
additional criteria for admission to the program or causes for
termination from the program.
(d) The license of a physical therapist or the approval of a
physical therapy assistant who is terminated from the diversion
program for failure to
comply with program requirements shall be placed on suspension until
the physical therapist or physical therapy assistant petitions the
board for reinstatement of his or her license or board approval and
is granted a probationary or unrestricted license or board approval.
SEC. 18. Section 2669.2 is added to the
Business and Professions Code , to read:
2669.2. This article shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 19. Section 2715 of the Business
and Professions Code is amended to read:
2715. The board shall prosecute all persons guilty of violating
the provisions of this chapter.
Except as provided by Section 159.5, the
The board, in accordance with the provisions of the
Civil Service Law, may employ such
investigators, nurse consultants, and other personnel as it
deems necessary to carry into effect the provisions of this chapter.
Investigators employed by the board shall be provided special
training in investigating nursing practice activities.
The board shall have and use a seal bearing the name "Board of
Registered Nursing." The board may adopt, amend, or repeal, in
accordance with the provisions of Chapter 4.5 (commencing with
Section 11371) , of Part 1 ,
of Division 3 , of
Title 2 of the Government Code, such rules and regulations as may be
reasonably necessary to enable it to carry into effect the
provisions of this chapter.
SEC. 20. Section 2719 is added to the
Business and Professions Code , to read:
2719. (a) (1) On or before March 1, 2010, the director shall
appoint an enforcement program monitor. The director may retain a
person for this position through a personal services contract, the
Legislature finding, pursuant to Section 19130 of the Government
Code, that this is a new state function.
(2) The director shall supervise the enforcement program monitor
and may terminate or dismiss him or her from this position.
(b) The director shall advertise the availability of the
enforcement program monitor position. The requirements for this
position shall include, but not be limited to, experience in
conducting investigations and familiarity with state laws,
regulations and rules, procedures pertaining to the board, and
relevant administrative procedures.
(c) (1) The enforcement program monitor shall monitor and evaluate
the disciplinary system and procedures of the board, making his or
her highest priority the reform and reengineering of the board's
enforcement program and operations and the improvement of the overall
efficiency of the board's disciplinary system.
(2) The enforcement program monitor's duties shall be performed on
a continuing basis for a period of 19 months from the date of the
enforcement program monitor's appointment. These duties shall
include, but not be limited to, reviewing and making recommendations
with respect to the following: improving the quality and consistency
of complaint processing and investigation, reducing the timeframes
for completing complaint processing and investigation, reducing any
complaint backlog, assessing the relative value to the board of
various sources of complaints or information available to the board
about licensees in identifying licensees who practice substandard
care causing serious patient harm, and assuring consistency in the
application of sanctions or discipline imposed on licensees. These
duties shall also include reviewing and making recommendations in the
following areas: the accurate and consistent implementation of the
laws and rules affecting discipline; appropriate application of
investigation and prosecution priorities; an assessment of the
concerns of the board, the department's Division of Investigation,
the Attorney General's Office, the defense bar, licensees, and
patients regarding disciplinary matters or procedures; and the board'
s cooperation with other governmental entities charged with enforcing
related laws and regulations regarding nurses.
(3) The enforcement program monitor shall also evaluate the
effectiveness and efficiency of the board's diversion program and
make recommendations regarding the continuation of the program and
any changes or reforms required to assure that nurses participating
in the program are appropriately monitored and the public is
protected from nurses who are impaired due to alcohol or drug abuse
or mental or physical illness.
(4) (A) The enforcement program monitor shall exercise no
authority over the board's disciplinary operations or staff; however,
the board, its staff, the department's Division of Investigation,
and the Attorney General's Office shall cooperate with him or her
with respect to his or her duties.
(B) The board, its staff, the department's Division of
Investigation, and the Attorney General's Office shall provide data,
information, and case files as requested by the enforcement program
monitor to perform all of his or her duties. The provision of
confidential data, information, and case files by the board to the
enforcement program monitor at any time after the appointment of the
monitor shall not constitute a waiver of any exemption from
disclosure or discovery or of any confidentiality protection or
privilege otherwise provided by law that is applicable to the data,
information, or case files.
(5) The director shall assist the enforcement program monitor in
the performance of his or her duties, and the enforcement program
monitor shall have the same investigative authority as the director.
(d) On or before December 1, 2010, the enforcement program monitor
shall submit an initial written report of his or her findings and
conclusions to the board, the department, and the Legislature, and be
available to make oral reports to each, if requested to do so. The
enforcement program monitor may also provide additional information
to either the department or the Legislature at his or her discretion
and at the request of either the department or the Legislature. The
enforcement program monitor shall make his or her reports available
to the public and the media. The enforcement program monitor shall
make every effort to provide the board with an opportunity to reply
to any facts, findings, issues, or conclusions in his or her reports
with which the board may disagree.
(e) The board shall reimburse the department for all of the costs
associated with the employment of an enforcement program monitor.
(f) On or before October 1, 2011, the enforcement program monitor
shall issue a final written report. The final report shall include
final findings and conclusions on the topics addressed in the reports
submitted by the monitor pursuant to subdivision (d).
(g)This section shall become inoperative on October 1, 2011, and,
as of January 1, 2012, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2012, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 21. Section 2770.7 of the Business
and Professions Code is amended to read:
2770.7. (a) The board shall establish criteria for the
acceptance, denial, or termination of registered nurses in the
diversion program. Only those registered nurses who have voluntarily
requested to participate in the diversion program shall participate
in the program.
(b) A registered nurse under current investigation by the board
may request entry into the diversion program by contacting the board.
Prior to authorizing a registered nurse to enter into the diversion
program, the board may require the registered nurse under current
investigation for any violations of this chapter or any other
provision of this code to execute a statement of understanding that
states that the registered nurse understands that his or her
violations that would otherwise be the basis for discipline may still
be investigated and may be the subject of disciplinary action.
(c) If the reasons for a current investigation of a registered
nurse are based primarily on the self-administration of any
controlled substance or dangerous drug or alcohol under Section 2762,
or the illegal possession, prescription, or nonviolent procurement
of any controlled substance or dangerous drug for self-administration
that does not involve actual, direct harm to the public, the board
shall close the investigation without further action if the
registered nurse is accepted into the board's diversion program and
successfully completes the requirements of the program. If the
registered nurse withdraws or is terminated from the program by a
diversion evaluation committee, and the termination is approved by
the program manager, the investigation shall be reopened and
disciplinary action imposed, if warranted, as determined by the
board.
(d) 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 registered nurse for any
unprofessional conduct committed before, during, or after
participation in the diversion program.
(e) All registered nurses shall sign an agreement of understanding
that the withdrawal or termination from the diversion program at a
time when the program manager or 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.
(f) Any The license of a registered
nurse who is 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 registered nurse
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.
shall be placed on suspension until the licentiate
petitions the board for reinstatement of his or her license and is
granted a probationary or unrestricted license.
SEC. 22. Section 2770.16 is added to the
Business and Professions Code , to read:
2770.16. (a) Any third-party vendor under contract with the board
for the administration of the diversion program shall report within
five days to the program manager any act, by a registered nurse, of
substantial noncompliance with the program. For purposes of this
section, "substantial noncompliance" includes, but is not limited to,
a failed drug test, a relapse, refusal to submit to a drug test,
failure to comply with any practice limitations, repeated or material
failure to comply with other requirements of the program, or
termination from the program.
(b) Failure by a third-party vendor to comply with this section is
grounds for termination of a contract for the administration of the
diversion program.
SEC. 23. Section 2770.18 is added to the
Business and Professions Code , to read:
2770.18. This article shall remain in effect only until January
1, 2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SECTION 1. The Legislature finds and declares
all of the following:
(a) Nurse practitioners are registered nurses who have a graduate
education and clinical training, and who provide a wide range of
services and care.
(b) Under current law, nurse practitioners have the same statutory
authority to provide services and care as do registered nurses.
However, the law allows those registered nurses who the Board of
Registered Nursing has determined meet the standards for a nurse
practitioner to provide care and services beyond those specified in
statute for registered nurses where those services are performed
pursuant to standardized procedures and protocols developed through
collaboration among administrators and health professionals,
including physicians and surgeons, in the organized health care
system in which a nurse practitioner practices.
(c) The Legislature reiterates its intention to allow each
organized health care system in which a nurse practitioner practices
to define those services nurse practitioners may perform in
standardized procedures developed pursuant to Section 2725 of the
Business and Professions Code.
(d) Notwithstanding the foregoing, the Legislature finds that
there may be some ambiguity in current law regarding what services
and functions to be performed by nurse practitioners may be included
in standardized procedures and protocols.
(e) Therefore, to remove this ambiguity, the Legislature hereby
clarifies that standardized procedures and protocols may include the
specified services and functions set forth in this act so that health
care entities may allow nurse practitioners to engage in those
activities if the entities choose to do so, and that third-party
payors understand that those services and functions can be performed
by nurse practitioners if they are included in an entity's
standardized procedures and protocols.
SEC. 2. SEC. 24. Section 2835.7 is
added to the Business and Professions Code, to read:
2835.7. (a) In addition to any other practices that meet the
general criteria set forth in statute or regulation for inclusion in
standardized procedures developed through collaboration among
administrators and health professionals, including physicians and
surgeons and nurses, pursuant to Section 2725, standardized
procedures may be implemented that authorize a nurse practitioner to
do any of the following:
(1) Order durable medical equipment, subject to any limitations
set forth in the standardized procedures. Notwithstanding that
authority, nothing in this paragraph shall operate to limit the
ability of a third-party payor to require prior approval.
(2) After performance of a physical examination by the nurse
practitioner and collaboration with a physician and surgeon, certify
disability pursuant to Section 2708 of the Unemployment Insurance
Code.
(3) For individuals receiving home health services or personal
care services, after consultation with the treating physician and
surgeon, approve, sign, modify, or add to a plan of treatment or plan
of care.
(b) Nothing in this section shall be construed to affect the
validity of any standardized procedures in effect prior to the
enactment of this section or those adopted subsequent to enactment.
SEC. 25. Section 3534.1 of the Business
and Professions Code is amended to read:
3534.1. (a) The examining committee shall
establish and administer a diversion program for the rehabilitation
of physician assistants whose competency is impaired due to the abuse
of drugs or alcohol. The examining committee may contract with any
other state agency or a private organization or a third-party
vendor to perform its duties under this article. The examining
committee may establish one or more diversion evaluation committees
to assist it in carrying out its duties under this article. As used
in this article, "committee" means a diversion evaluation committee.
A committee created under this article operates under the direction
of the diversion program manager, as designated by the executive
officer of the examining committee. The program manager has the
primary responsibility to review and evaluate recommendations of the
committee.
(b) (1) Any state agency or private organization or third-party
vendor under contract with the examining committee for the
administration of the diversion program shall report within five days
to the program manager any act, by a participant, of substantial
noncompliance with the program. For purposes of this section,
"substantial noncompliance" includes, but is not limited to, a failed
drug test, a relapse, refusal to submit to a drug test, failure to
comply with any practice limitations, repeated or material failure to
comply with other requirements of the program, or termination from
the program.
(2) Failure by a state agency or private organization or
third-party vendor to comply with this subdivision is grounds for
termination of a contract for the administration of the diversion
program.
SEC. 26. Section 3534.5 of the Business
and Professions Code is amended to read:
3534.5. (a) A participant may be terminated
from the program for any of the following reasons: (a) the
participant has successfully completed the treatment program; (b) the
participant has failed to comply with the treatment program
designated for him or her; (c) the participant fails to meet any of
the criteria set forth in subdivision (d); or (d) it is determined
that the participant has not substantially benefited from
participation in the program or that his or her continued
participation in the program creates too great a risk to the public
health, safety, or welfare. Whenever
(1) The participant has successfully completed the treatment
program.
(2) The participant has failed to comply with the treatment
program designated for him or her.
(3) The participant fails to meet any of the criteria set
forth in Section 3534.4.
(4) It is determined that the participant has not
substantially benefited from participation in the program or that his
or her continued participation in the program creates too great a
risk to the public health, safety, or welfare.
(b) Whenever an applicant is
denied participation in the program or a participant is
terminated from the program for any reason other than the successful
completion of the program, and it is determined that the
continued practice of medicine by that individual creates too great a
risk to the public health and safety, that fact shall be reported to
the executive officer of the examining committee and all documents
and information pertaining to and supporting that conclusion shall be
provided to the executive officer. The matter may be referred for
investigation and disciplinary action by the examining committee.
Each
(c) The license of a physician assistant who is terminated
from the diversion program for failure to comply with program
requirements shall be placed on suspension until the licentiate
petitions the board for reinstatement of his or her license and is
granted a probationary or unrestricted license.
(d) Each physician assistant who
requests participation in a diversion program shall agree to
cooperate with the recovery program designed for him or her. Any
failure to comply with that program may result in termination of
participation in the program.
The
(e) The examination committee
shall inform each participant in the program of the procedures
followed in the program, of the rights and responsibilities of a
physician assistant in the program, and the possible results of
noncompliance with the program.
SEC. 27. Section 3534.12 is added to the
Business and Professions Code , to read:
3534.12. This article shall remain in effect only until January
1, 2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 28. Section 4365 of the Business
and Professions Code is amended to read:
4365. (a) The board shall contract with one
or more qualified contractors to administer the pharmacists recovery
program.
(b) (1) Any third-party vendor under contract with the board for
the administration of the pharmacists recovery program shall report
within five days to the program manager any act, by a participant, of
substantial noncompliance with the program. For purposes of this
section, "substantial noncompliance" includes, but is not limited to,
a failed drug test, a relapse, refusal to submit to a drug test,
failure to comply with any practice limitations, repeated or material
failure to comply with other requirements of the program, or
termination from the program.
(2) Failure by a third-party vendor to comply with this
subdivision is grounds for termination of a contract for the
administration of the pharmacists recovery program.
SEC. 29. Section 4369 of the Business
and Professions Code is amended to read:
4369. (a) Any failure to comply with the treatment contract,
determination that the participant is failing to derive benefit from
the program, or other requirements of the pharmacists recovery
program may result in the termination of the pharmacist's or intern
pharmacist's participation in the pharmacists recovery program.
The name and license number of a pharmacist or intern
pharmacist who is terminated from the pharmacists recovery program
and the basis for the termination shall be reported to the board.
(b) The license of a pharmacist or intern pharmacist terminated
from the pharmacists recovery program for failure to comply with
program requirements shall be placed on suspension until the
licentiate petitions the board for reinstatement of his or her
license and is granted a probationary or unrestricted license.
(b)
(c) Participation in the pharmacists recovery program
shall not be a defense to any disciplinary action that may be taken
by the board.
(c)
(d) No provision of this article shall preclude the
board from commencing disciplinary action against a licensee who is
terminated from the pharmacists recovery program.
SEC. 30. Section 4375 is added to the
Business and Professions Code , to read:
4375. This article shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 31. Section 4870 of the Business
and Professions Code is amended to read:
4870. (a) Each veterinarian and registered
veterinary technician who requests participation in a diversion
program shall agree to cooperate with the treatment program designed
by a diversion evaluation committee. Any failure to comply with the
provisions of a treatment program may result in termination of the
veterinarian's or registered veterinary technician's participation in
a program.
(b) The license of a veterinarian or registration of a registered
veterinary technician who is terminated from the diversion program
for failure to comply with program requirements shall be placed on
suspension until the veterinarian or registered veterinary technician
petitions the board for reinstatement of his or her license or
registration.
SEC. 32. Section 4870.5 is added to the
Business and Professions Code , to read:
4870.5. (a) Any third-party vendor under contract with the board
for the administration of the diversion program shall report within
five days to the appropriate chairperson any act, by a veterinarian
or registered veterinary technician, of substantial noncompliance
with the program. For purposes of this section, "substantial
noncompliance" includes, but is not limited to, a failed drug test, a
relapse, refusal to submit to a drug test, failure to comply with
any practice limitations, repeated or material failure to comply with
other requirements of the program, or termination from the program.
(b) Failure by a third-party vendor to comply with this section is
grounds for termination of a contract for the administration of the
diversion program.
SEC. 33. Section 4873.2 is added to the
Business and Professions Code , to read:
4873.2. This article shall remain in effect only until January 1,
2012, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2012, deletes or extends
that date.
SEC. 34. (a) It is the intent of the Legislature
that the Department of Consumer Affairs shall, on or before December
31, 2012, establish an enterprise information technology system
necessary to electronically create and update healing arts license
information, track enforcement cases, and allocate enforcement
efforts pertaining to healing arts
licensees. The Legislature intends the system to be
designed as an integrated system to support all business automation
requirements of the department's licensing and enforcement functions.
(b) The Legislature also intends the department to enter into
contracts for telecommunication, programming, data analysis, data
processing, and other services necessary to develop, operate, and
maintain the enterprise information technology system.
SEC. 35. The Legislature finds and declares all of
the following with respect to Section 2835.7 of the Business and
Professions Code, as added by Section 24 of this act:
(a) Nurse practitioners are registered nurses who have a graduate
education and clinical training, and who provide a wide range of
services and care.
(b) Under current law, nurse practitioners have the same statutory
authority to provide services and care as do registered nurses.
However, the law allows those registered nurses who the Board of
Registered Nursing has determined meet the standards for a nurse
practitioner to provide care and services beyond those specified in
statute for registered nurses where those services are performed
pursuant to standardized procedures and protocols developed through
collaboration among administrators and health professionals,
including physicians and surgeons, in the organized health care
system in which a nurse practitioner practices.
(c) The Legislature reiterates its intention to allow each
organized health care system in which a nurse practitioner practices
to define those services nurse practitioners may perform in
standardized procedures developed pursuant to Section 2725 of the
Business and Professions Code.
(d) Notwithstanding the foregoing, the Legislature finds that
there may be some ambiguity in current law regarding what services
and functions to be performed by nurse practitioners may be included
in standardized procedures and protocols.
(e) Therefore, to remove this ambiguity, the Legislature hereby
clarifies that standardized procedures and protocols may include the
specified services and functions set forth in this act so that health
care entities may allow nurse practitioners to engage in those
activities if the entities choose to do so, and that third-party
payors understand that those services and functions can be performed
by nurse practitioners if they are included in an entity's
standardized procedures and protocols.
SEC. 36. No reimbursement is required by this act
pursuant to Section 6 of Article XIII B of the California
Constitution for certain costs that may be incurred by a local agency
or school district because, in that regard, this act creates a new
crime or infraction, eliminates a crime or infraction, or changes the
penalty for a crime or infraction, within the meaning of Section
17556 of the Government Code, or changes the definition of a crime
within the meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.