BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1172
                                                                  Page  1

          Date of Hearing:   June 29, 2010

              ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER  
                                     PROTECTION
                                 Mary Hayashi, Chair
                SB 1172 (Negrete McLeod) - As Amended:  June 22, 2010

           SENATE VOTE  :   27-0
           
          SUBJECT  :   Regulatory boards: diversion programs.

           SUMMARY  :   Limits the retention requirements on records for the  
          treatment and rehabilitation of substance-abusing licentiates,  
          authorizes specified healing arts boards to order a licensee to  
          cease practice due to a major violation or if the licensee has  
          been ordered to undergo a clinical diagnostic evaluation, and  
          orders specified healing arts boards to order a licensee to  
          cease practice if the licensee tests positive for any substance  
          that is prohibited under the terms of the licensee's probation  
          or diversion program.  Specifically, this bill  :   

          1)Limits the retention requirement to three years for all  
            records and documents pertaining to the treatment and  
            rehabilitation of licentiates impaired by alcohol or dangerous  
            drugs by individuals or entities contracting with the  
            Department of Consumer Affairs (DCA) or any board within DCA  
            for the provision of such services.

          2)Relaxes the confidentiality requirement on records and  
            documents pertaining to services for the treatment and  
            rehabilitation of licentiates impaired by alcohol or dangerous  
            drugs, stating that they must be kept confidential and are not  
            subject to discovery or subpoena, unless otherwise expressly  
            provided by statute or regulation.  

          3)Requires a healing arts board, except the Board of Registered  
            Nursing (BRN), to order a licensee of the board to cease  
            practice if the licensee tests positive for any substance that  
            is prohibited under the terms of the licensee's probation or  
            diversion program;

          4)Permits a healing arts board, except BRN, to adopt regulations  
            authorizing the board to order a licensee on probation or in a  
            diversion program to cease practice due to a major violation  
            or if the licensee has been ordered to undergo a clinical  








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            diagnostic evaluation pursuant to uniform and specific  
            standards, as specified. 

          5)Prohibits an order to cease practice pursuant to this bill  
            from being governed by the Administrative Procedures Act  
            (APA), and states that the order shall not constitute a  
            disciplinary action.

           EXISTING LAW  :

          1)Provides for the regulation of specified professions and  
            vocations by various boards, as defined, within DCA. 

          2)Requires individuals or entities contracting with DCA or any  
            board within DCA for the provision of services relating to the  
            treatment and rehabilitation of licentiates impaired by  
            alcohol or dangerous drugs to retain all records and documents  
            pertaining to those services for three years or until they are  
            audited, whichever occurs first.  Under existing law, those  
            records and documents are required to be kept confidential and  
            are not subject to discovery or subpoena.

          3)Provides for the licensure and regulation of various healing  
            arts by boards within DCA. These boards are authorized to  
            issue, deny, suspend, and revoke licenses based on various  
            grounds and to take disciplinary action against their  
            licensees.

          4)Establishes diversion and recovery programs to identify and  
            rehabilitate dentists, osteopathic physicians and surgeons,  
            physical therapists, physical therapy assistants, registered  
            nurses, physician assistants, pharmacists and intern  
            pharmacists, veterinarians, and registered veterinary  
            technicians whose competency may be impaired due to, among  
            other things, alcohol and drug abuse.

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           Purpose of this bill  .  According to the author's office,  
          "Pursuant to SB 1441 (Ridley-Thomas), Chapter 548, Statutes of  
          2008, DCA was required to adopt uniform guidelines on 16  
          specific standards that would apply to substance abusing health  
          care licensees, regardless of whether a board has a diversion  








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          program.  

          "Although most of the adopted guidelines do not need additional  
          statutes for implementation, there are a few changes that must  
          be statutorily adopted to fully implement these standards.  

          "This bill seeks to provide the statutory authority to allow  
          boards to order a licensee to cease practice if the licensee  
          tests positive for any substance that is prohibited under the  
          terms of the licensee's probation or diversion program, if a  
          major violation is committed and while undergoing clinical  
          diagnostic evaluation.  

          "The ability of a board to order a licensee to cease practice  
          under these circumstances provides a delicate balance to the  
          inherent confidentiality of diversion programs.  The protection  
          of the public remains the top priority of boards when dealing  
          with substance abusing licensees."  

           Background  .  Currently, each healing arts board adopts its own  
          standards and requirements for substance abusing licensees.  SB  
          1441 (Ridley-Thomas), Chapter 548, Statutes of 2008 established  
          the Substance Abuse Coordination Committee (Committee) within  
          DCA.  The Committee was tasked with formulating, by January 1,  
          2010, uniform standards to be used by healing arts boards in  
          dealing with substance-abusing licensees.  These 16 standards  
          include:  requirements for clinical diagnostic evaluation of  
          licensees; requirements for the temporary removal of the  
          licensee from practice for clinical diagnostic evaluation and  
          any treatment, and criteria before being permitted to return to  
          practice on a full-time or part-time basis; all aspects of drug  
          testing; whether inpatient, outpatient, or other type of  
          treatment is necessary; worksite monitoring requirements and  
          standards; consequences for major and minor violations; and  
          criteria for a licensee to return to practice and petition for  
          reinstatement of a full and unrestricted license. 

          On March 3, 2009, the Committee conducted it first public  
          hearing and agreed to draft uniform guidelines for each of the  
          standards.  In December 2009, DCA adopted uniform guidelines for  
          each of the standards required by SB 1441.

          This bill will provide the additional statutory authority  
          necessary to implement some of these uniform standards dealing  
          with serious reasons for the licensee to cease practice.  








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          Specifically, this bill requires a healing arts board to order a  
          licensee to cease practice if they test positive for any  
          prohibited substance during their probation, while participating  
          in a diversion program, or when a licensee undergoes a clinical  
          diagnostic evaluation.

          The author's office argues that adherence to the APA is  
          unnecessary because "the licensees who enter a diversion program  
          have chosen freely to enter the program in exchange for the  
          boards pursuing disciplinary actions against them.  Similarly,  
          licensees who are on probation have agreed to the terms of their  
          provisions and are fully aware of the consequences of failure to  
          abide by their probation agreements."  

           Previous legislation  .  SB 1441 (Ridley-Thomas), Chapter 548,  
          Statutes of 2008, established the Committee within DCA to  
          develop uniform standards and controls for programs dealing with  
          licensees with substance abuse problems.
            
           REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          None on file.
           
            Opposition 
           
          None on file.

           Analysis Prepared by :    Sarah Weaver / B.,P. & C.P. / (916)  
          319-3301