BILL ANALYSIS                                                                                                                                                                                                    

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          SB 294 (Negrete McLeod)
          As Amended September 4, 2009
          Majority vote

           SENATE VOTE  :   25-11

           BUSINESS & PROFESSIONS   10-0   APPROPRIATIONS      16-0        
          |Ayes:|Hayashi, Emmerson,        |Ayes:|De Leon, Nielsen,         |
          |     |Conway, Eng,              |     |Ammiano,                  |
          |     |Hernandez, Nava, Niello,  |     |Charles Calderon, Coto,   |
          |     |John A. Perez, Ruskin,    |     |Davis, Duvall, Fuentes,   |
          |     |Smyth                     |     |Hall, Harkey, Miller,     |
          |     |                          |     |John A. Perez, Skinner,   |
          |     |                          |     |Solorio, Audra            |
          |     |                          |     |Strickland, Torlakson     |

           SUMMARY  :  Expands the authorized functions that may be performed  
          by nurse practitioners (NP) practicing under standard  
          procedures, makes significant revisions to the enforcement  
          programs of healing arts boards, appoints an Enforcement Program  
          Monitor (EPM) to the Board of Registered Nursing (BRN), and  
          makes other changes.  Specifically,  this bill  :   

          1)Expands the authorized functions that may be performed by an  
            NP practicing under standardized procedures to include:

             a)   Ordering durable medical equipment, subject to any  
               limitations set forth in the standardized procedures.   
               Specifies that this authority does not limit the ability of  
               a third-party payor to require prior approval;

             b)   Certifying disability, as specified, after performance  
               of a physical examination by the NP and collaboration with  
               a physician and surgeon; and,

             c)   Approving, signing, modifying or adding to a plan of  
               treatment or plan of care for individuals receiving home  
               health services or personal care services after  
               consultation with the treating physician and surgeon.

          2)Prohibits this bill from being construed to affect the  


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            validity of any standard procedures and protocols in effect  
            prior to the enactment of this bill or those adopted  
            subsequent to the enactment of this bill.

          3)Expand the list of boards and bureaus required to provide  
            licensee information on their respective Web sites, as  
            specified, to include:

             a)   Board of Psychology;

             b)   State Board of Chiropractic Examiners;

             c)   BRN;

             d)   Board of Vocational Nursing and Psychiatric Technicians;

             e)   Veterinary Medical Board;

             f)   Physical Therapy Board;

             g)   California State Board of Pharmacy;

             h)   Speech-Language Pathology and Audiology Board;

             i)   Respiratory Care Board;

             j)   California Board of Occupational Therapy; 

             aa)  Naturopathic Medicine Committee, the Osteopathic Medical  
               Board of California;

             bb)  The Physician Assistant Committee of the Medical Board  
               of California (MBC); and,

             cc)  The Dental Hygiene Committee of California.

          4)Increase the Department of Consumer Affairs (DCA) Director's  
            audit jurisdiction to encompass licensees of all of the  
            healing arts boards.  

          5)Add all investigators of the Dental Board of California (DBC)  
            and specified investigators of BRN to those who have the  
            authority of peace officers while investigating specified  


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          6)Define "health care license board" (HCLB) to include all the  

             a)   DBC;

             b)   MBC;

             c)   State Board of Optometry;

             d)   California State Board of Pharmacy;

             e)   BRN;

             f)   Board of Behavioral Sciences;

             g)   Board of Vocational Nursing and Psychiatric Technicians;

             h)   Respiratory Care Board of California;

             i)   Acupuncture Board;

             j)   Board of Psychology;

             aa)  California Board of Podiatric Medicine;

             bb)  Physical Therapy Board of California;

             cc)  Hearing Aid Dispensers Bureau;

             dd)  Physician Assistant Committee of the MBC;

             ee)  Speech-Language Pathology and Audiology Board;

             ff)  California Board of Occupational Therapy;

             gg)  Osteopathic Medical Board of California;

             hh)  Naturopathic Medicine Committee, the Osteopathic MBC;

             ii)  Dental Hygiene Committee of California;

             jj)  State Board of Chiropractic Examiners; and,

             aaa) Veterinary Medical Board 


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          7)Authorize the executive officer (EO) or executive director  
            (ED) of HCLB to adopt a proposed default decision where an  
            administrative action to revoke a license has been filed and  
            the licensee has failed to file a notice of defense or to  
            appear at the hearing and a proposed default decision which  
            revokes the license has been issued.

          8)Authorize the EO or ED of HCLB to adopt a proposed settlement  
            agreement where an administrative action to revoke a license  
            has been filed and the licensee has agreed to a surrender of  
            his or her license.

          9)Requires that the license of a licensee of a HCLB be suspended  
            automatically during any time that the licensee is  
            incarcerated after conviction of a felony regardless of  
            whether the conviction has been appealed.  

          10)Requires a HCLB to, immediately upon receipt of the certified  
            copy of the record of conviction, 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. Requires HCLB to notify the licensee of the  
            license suspension and of his or her right to elect to have  
            the issue of penalty heard.

          11)Requires the HCLB, upon receipt of the certified copy of the  
            record of conviction, to hold a hearing determining whether  
            the crime for which the licensee was convicted was  
            substantially related to the qualifications, functions, or  
            duties of a licensee of that HCLB.  If the HCLB determines  
            this in the affirmative, the HCLB must suspend the license  
            until the time for appeal has elapsed, and if no appeal has  
            been taken, until the judgment of conviction has otherwise  
            become final, and until further order of the HCLB.

          12) States that any 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 of specified sections 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. Upon its  
            own motion or for good cause shown, the HCLB 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  


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            maintaining the integrity of and confidence in the profession  
            regulated by the HCLB.

          13)Permits the HCLB to order discipline in accordance with its  
            laws and regulations, or order the denial of the license when:

             a)   The time for appeal has elapsed;

             b)   The judgment of conviction has been affirmed on appeal;  

             c)   An order granting probation is made suspending the  
               imposition of sentence, as specified, 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  

          14)States that 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 an order granting probation has  
            been made suspending the imposition of sentence, except that  
            the licensee may elect to have the issue of penalty decided  
            before those time periods have elapsed.  

          15)State that where the licensee so elects, the issue of penalty  
            shall be heard in the manner described 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 health care license board from pursuing  
            disciplinary action based on any cause other than the  
            overturned conviction.

          16)Permits the record of the proceedings resulting in the  
            conviction, including a transcript of the testimony, to be  
            received in evidence.

          17)States that any other provision of law that may proscribe  
            another procedure is invalid, and that this bill's procedures  
            do not apply to a physician and surgeon's certificate, as  


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          18)State that a crime involving sexual misconduct or attempted  
            sexual misconduct, whether or not with a patient, or a felony  
            requiring registration shall be considered a crime  
            substantially related to the qualifications, functions, or  
            duties of a respiratory care practitioner.

          19)State that any provision of law authorizing a HCLB to order  
            the denial, suspension or revocation of, or the imposition of  
            probationary conditions upon, a licensee for any grounds of  
            discipline that contains any finding of fact that the licensee  
            engaged in any act of sexual contact with a patient, or has  
            committed an act or been convicted of a sex offense, as  
            specified, shall contain an order of revocation.  Prohibits  
            the revocation from being stayed by the administrative law  
            judge.  State that, unless otherwise provided in the laws and  
            regulations of the HCLB, the patient shall no longer be  
            considered a patient of the licensee when the order for  
            medical services and procedures provided by the licensee is  
            terminated, discontinued, or not renewed.

          20)Prohibit a licensee of a HCLB from including or permitting 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 filing the  
            action, and states that a violation of constitutes  
            unprofessional conduct and may subject the licensee to  
            disciplinary action:

             a)   A provision that prohibits another party to the dispute  
               from contacting or cooperating with HCLB;

             b)   A provision that prohibits another party to the dispute  
               from filing a complaint with HCLB; or,

             c)   A provision that requires another party to the dispute  
               to withdraw a complaint he or she has filed with HCLB;

          21)Declare that a provision that prohibits another party to the  
            dispute from contacting or cooperating with HCLB is void as  
            against public policy.

          22)Permit access to a patient's medical records to investigators  
            or proceedings of a HCLB.


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          23)Require members of a HCLB, deputies, employees, agents, the  
            Attorney General's (AG) Office, and representatives of the  
            HCLB to 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. 

          24)Permit the AG and his or her investigative agents, and a HCLB  
            and its investigators and representatives to inquire into any  
            alleged violation of the laws under the jurisdiction of the  
            HCLB or any other federal or state law, regulation, or rule  
            relevant to the practice of medicine regulated by the HCLB,  
            whichever is applicable, and may inspect documents relevant to  
            those investigations in accordance with the following  

             a)   Any document relevant to an investigation may be  
               inspected, and copies may be obtained, where patient  
               consent is given; and,

             b)   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. 

          25)Require that in all cases where documents are inspected or  
            copies of those documents are received, their acquisition or  
            review 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. 

          26)Require that, where documents are lawfully requested from  
            licensees by the AG, his or her agents or deputies, or  
            investigators of any health care license board, the documents  
            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  
            health care license 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  


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            a licensee for a delay in producing requested records. 

          27)Prohibit searches conducted of the office or medical facility  
            of any licensee from interfering with the recordkeeping format  
            or preservation needs of any licensee necessary for the lawful  
            care of patients.

          28)Require a HCLB and the AG to return any original documents  
            received as specified to the licensee from whom they were  
            obtained within seven calendar days.

          29)Requires a licensee who fails or refuses to comply with a  
            request for the certified medical records (CMR) of a patient,  
            that is accompanied by that patient's written authorization  
            for release of records to a health care license board, within  
            15 days of receiving the request and authorization, to pay to  
            the HCLB a civil penalty of $1,000 per day for each day that  
            the documents have not been produced after the 15th day, up to  
            $10,000, unless the licensee is unable to provide the  
            documents within this time period for good cause. 

          30)Requires a health care facility to comply with a request for  
            CMR of a patient that is accompanied by that patient's written  
            authorization for release of records to a health care license  
            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 CMRs to  
            the HCLB 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  
            $1,000 per day for each day that the documents have not been  
            produced after the 20th day, up to $10,000, unless the health  
            care facility is unable to provide the documents within this  
            time period for good cause. This does not require health care  
            facilities to assist the HCLBs in obtaining the patient's  

          31)Requires a HCLB to pay the reasonable costs of copying the  
            CMRs after the production of the CMRs.

          32)Imposes a scale of civil penalties on licensees and health  
            care facilities that fail or refuse to comply with a request  
            for records or court order, but exempts licensees from the  
            penalty provisions who do not have access to, or control over,  


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          33)Require all healing arts boards, except the MBC, to report  
            annually to the department and the Legislature, no later than  
            October 1 of each year, the following information:

             a)   The total number of consumer calls received by the board  
               and the number of consumer calls or letters designated as  
               discipline-related complaints;

             b)   The total number of complaint forms received by the  

             c)   The total number of specified disciplinary reports  
               received by the board, as applicable;

             d)   The total number of coroner reports received by the  

             e)   The total number of convictions reported to the board;

             f)   The total number of criminal filings reported to the  

             g)   If the board is authorized to receive certain reports,  
               the total number of such 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;

             h)   The total number of complaints closed or resolved  
               without discipline, prior to accusation;

             i)   The total number of complaints and reports referred for  
               formal investigation;

             j)   The total number of accusations filed and the final  
               disposition of accusations through the board and court  
               review, respectively;

             aa)  The total number of citations issued with fines and  
               without fines, and number of public letters of reprimand,  
               letters of admonishment, or other similar action issued, if  


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             bb)  The total number of final licensee disciplinary actions  
               taken, by category;

             cc)  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;

             dd)  The average and median time in processing complaints,  
               from original receipt of complaint by the board, for all  
               cases, at each stage of the disciplinary process and court  
               review, respectively;

             ee)  The total number of licensees in diversion or on  
               probation for alcohol or drug abuse or mental disorder, and  
               the number successfully completing diversion programs or  
               probation, and failing to do so, respectively;

             ff)  The total number of probation violation reports and  
               probation revocation filings, and their dispositions;

             gg)  The total number of petitions for reinstatement, and  
               their dispositions;

             hh)  The total number of caseloads of investigators for  
               original cases and for probation cases, respectively.

          34)Requires a HCLB licensee to submit a written report within 30  
            days of any of the following to his or her HCLB:  

             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; or, 

             c)   Any disciplinary action taken by another board or  
               another state.   

          35)States that failure for the licensee to make a report to his  
            or her HCLB is a public offense punishable by a fine of up to  

          36)Requires a court clerk to report to a HCLB when a licensee is  


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            convicted of committing a crime, or is liable for any death or  
            personal injury resulting in a judgment for an amount in  
            excess of $30,000 caused by his or her negligence, error or  
            omission in practice, or his or her rendering unauthorized  
            professional services.  

          37)Requires the district attorney, city attorney, or other  
            prosecuting agency to notify the appropriate HCLB and the  
            court clerk in which the charges have been filed immediately  
            of any felony charge filings against a licensee of that HCLB. 

          38)Requires the clerk of the court to transmit any felony  
            preliminary hearing transcripts concerning a defendant  
            licensee of any of the HCLB where the total length of the  
            transcript is under 800 pages, and the clerk shall notify the  
            appropriate HCLB of any proceeding where the transcript  
            exceeds that length.

          39)Require a licensee or participant who is terminated from a  
            diversion program for failure to comply with the program  
            requirements to have his or her license placed on suspension  
            until the licentiate petitions the HCLB for reinstatement of  
            his or her license and is granted a probationary or  
            unrestricted license. 

          40)Requires, until January 1, 2012, any third party vendor under  
            contract with the HCLB for the administration of the diversion  
            program to immediately report to the program manager any act  
            of substantial non-compliance with the program.  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.  

          41)Requires the license of a physical therapist, physical  
            therapy assistant, physician assistant, pharmacist,  
            veterinarian, registered veterinary technician, intern  
            pharmacist, or registered nurse terminated from the diversion  
            program for failure to comply with program requirements to be  
            placed on suspension by operation of law until such time that  
            the licentiate petitions the board for reinstatement of his or  
            her license and is granted a probationary or unrestricted  

          42)Permits HCLB to employ investigators, nurse consultants, and  
            other such personnel as it deems necessary to carry into  


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            effect the provisions of this chapter.  Investigators employed  
            by the board shall be provided special training in  
            investigating nursing practice activities.

          43)Authorizes the termination of a participant from a diversion  
            or treatment program for any of the following reasons:  

             a)   The participant has successfully completed the treatment  

             b)   The participant has failed to comply with the treatment  
               program designated for him or her;

             c)   The participant fails to meet other criteria, as  
               specified; 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  

          44)States that whenever an applicant is denied participation in  
            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  
            EO of the examining committee and all documents and  
            information pertaining to and supporting that conclusion shall  
            be provided to the EO.  The matter may be referred for  
            investigation and disciplinary action by the examining  

          45)Place a sunset provision of January 1, 2012 on certain  
            provisions relating to diversion and treatment programs. 

          46)Requires the Director of the DCA to appoint a BRN EPM prior  
            to March 1, 2010.  Permits the director to retain a person for  
            this position by a personal services contract, as specified. 

          47)Requires the Director to supervise the EPM and authorizes the  
            Director to terminate or dismiss him or her from this  

          48)Requires the Director to advertise the availability of the  
            EPM.  The requirements for this position include experience in  


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            conducting investigations and familiarity with state laws,  
            rules, and procedures pertaining to BRN and with relevant  
            administrative procedures.

          49)Requires the EPM to monitor and evaluate the disciplinary  
            system and procedures of the BRN, making as his or her highest  
            priority the reform and reengineering of the BRN's enforcement  
            program and operations and the improvement of the overall  
            efficiency of the BRN's disciplinary system.

          50)Requires the monitoring duty to be performed on a continuing  
            basis for 19 months from the date of the EPM's appointment and  
            shall include, but not be limited to:

             a)   improving the quality and consistency of complaint  
               processing and investigation;

             b)   Reducing the timeframes for completing complaint  
               processing and investigation;

             c)   Reducing any complaint backlog;

             d)   Assessing the relative value to the BRN of various  
               sources of complaints or information available to the BRN  
               about licensees in identifying those who practice  
               substandard care causing serious patient harm;

             e)   Assuring consistency in the application of sanctions or  
               discipline imposed on licensees, and shall include the  
               following areas:

               i)     The accurate and consistent implementation of the  
                 laws and rules affecting discipline; 

               ii)    Appropriate application of investigation and  
                 prosecution priorities; 

               iii)   An assessment of the concerns of BRN, DCA's Division  
                 of Investigation (DOI), AG,  the defense bar, licensees,  
                 and patients regarding disciplinary matters or  

               iv)    BRN's cooperation with other governmental entities  
                 charged with enforcing related laws and regulations  
                 regarding nurses.  


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             f)   Evaluating the effectiveness and efficiency of BRN'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.

          51)Prohibits the EPM from exercising authority over BRN's  
            discipline, operations or staff; however, BRN, its staff, DOI,  
            and the AG's Office shall cooperate with him or her with  
            respect to his or her duties.
          52)Require BRN, its staff, DOI, and the AG's office to provide  
            data, information, and case files as requested by the EPM to  
            perform his or her duties.  

          53)States that the provision of confidential data, information,  
            and case files by BRN to the EPM at any time after the  
            appointment of the EPM 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  

          54)Requires the Director to assist the EPM in the performance of  
            his or her duties, and the EPM shall have the same  
            investigative authority as the director.

          55)Requires the EPM to submit an initial written report of his  
            or her findings and conclusions to BRN, DCA, and the  
            Legislature no later than December 1, 2010, and be available  
            to make oral reports to each, if requested to do so.  The EPM  
            may also provide additional information to either DCA or the  
            Legislature at his or her discretion or at the request of  
            either DCA or the Legislature.  

          56)Requires the EPM to:

             a)   Make his or her reports available to the public or the  
               media, and,

             b)   Make every effort to provide BRN with an opportunity to  
               reply to any facts, findings, issues, or conclusions in his  


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               or her reports with which BRN may disagree.

          57)Requires BRN to reimburse DCA for all of the costs associated  
            with the employment of EPM.

          58)Requires the EPM to issue a final report prior to October 1,  
            2011, which shall include final findings and conclusions on  
            the topics addressed in the reports submitted by the monitor.

          59)Sunsets the provisions authorizing the EPM on October 1,  

          60)Declares legislative intent.

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee, absorbable workload to the Board of Registered  
          Nursing to continue oversight of the NP scope of practice. 

           COMMENTS  :  Current regulations define a NP as a registered nurse  
          (RN) who possesses additional preparation and skills in physical  
          diagnosis, psychosocial assessment, and management of  
          health-illness needs in primary health care, and who has been  
          prepared by a program that conforms to the Board of Registered  
          Nursing (BRN) standards, as specified.  The Nursing Practice Act  
          delineates nurse's scope of practice, which includes: direct and  
          indirect patient care services that ensure the safety, comfort,  
          personal hygiene, and protection of a patient; the performance  
          of disease prevention and restorative measures; direct and  
          indirect patient care services, including, the administration of  
          medications and therapeutic agents necessary to implement  
          treatment, disease prevention, or rehabilitation regimen ordered  
          by a physician, dentist, podiatrist and clinical psychologist;  
          the performance of skin tests, immunization techniques, and the  
          withdrawal of blood from veins and arteries; observation of  
          signs and symptoms of illness, reactions to treatment, general  
          behavior, or general physical condition, and determining whether  
          the signs, symptoms, reaction, behaviors, or general appearance  
          exhibit abnormal characteristics; and, implementation, based on  
          observed abnormalities, of appropriate reporting, referral,  
          standardized procedure, changes in treatment regimen in  
          accordance with standardized procedures, or the initiation of  
          emergency procedures.  

          Standardized procedures are the legal mechanism for RNs and NPs  
          to perform functions which otherwise would be considered the  


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          practice of medicine and which would be within the scope of  
          practice of a physician and surgeon.  Standardized procedures  
          and protocols are policies and protocols developed by a health  
          facility or organized health care system, and developed through  
          collaboration with the administration, physicians and nurses.   
          They must include a written description of the method used in  
          developing and approving them.  

          This bill will also do the following:

          1)Provide on the BRN's Web site information on the status of the  
            license of health care practitioner.

          2) Extend authority of the Director to audit enforcement  
            programs of health care boards.  

          3)Require an annual report to Legislature and DCA on enforcement  
            actions of health boards.

          4)Give authority of BRN to hire peace officer investigators.

          5)Give authority to BRN to hire non-peace officer investigators  
            and nurse consultants.  

          6)Prohibit regulatory gag clauses

          7)Give authority to the EO to adopt default decisions and  
            settlement agreements.  

          8)Permit access to documents and medical records for  
            disciplinary action and impose penalties if they are not  

          9)Suspend the license of incarcerated licensees.  

          10)Provide mandatory revocation for sexual misconduct or for the  
            status of being a sex    offender.

          11)Require reporting of convictions and criminal charges.

          12)Require a license suspended if a licensee fails the diversion  

          13)Place a sunset date on diversion programs.


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          14)Appoint an EPM for BRN.

           Analysis Prepared by  :    Ross Warren / B. & P. / (916) 319-3301 

                                                                FN: 0002990