BILL ANALYSIS
SB 294
Page 1
SENATE THIRD READING
SB 294 (Negrete McLeod)
As Amended September 4, 2009
Majority vote
SENATE VOTE : 25-11
BUSINESS & PROFESSIONS 10-0 APPROPRIATIONS 16-0
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|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 |
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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
matters.
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6)Define "health care license board" (HCLB) to include all the
following:
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;
or,
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
indictment.
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
specified.
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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
procedures:
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
authorization.
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,
CMRs.
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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
board;
c) The total number of specified disciplinary reports
received by the board, as applicable;
d) The total number of coroner reports received by the
board;
e) The total number of convictions reported to the board;
f) The total number of criminal filings reported to the
board;
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
applicable;
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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
$5,000.
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
license.
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
program;
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
welfare.
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
committee.
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
position.
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
procedures;
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
files.
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,
2011.
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
provided.
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
program.
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