BILL ANALYSIS Ó
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|Hearing Date:May 2, 2011 |Bill No:SB |
| |943 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 943Author:Business, Professions and
Economic Development
As Introduced: March 31, 2011 Fiscal:Yes
SUBJECT: Healing arts.
SUMMARY: Makes several non-controversial, minor, non-substantive or
technical changes to various miscellaneous provisions pertaining to
regulatory boards of the Department of Consumer Affairs (DCA) and
professions regulated under the Business and Professions Code (BPC).
Existing law:
1) Provides for the licensing and regulation of various professions
and businesses by some
23 boards, 4 committees, 8 bureaus, and 1 commission within the DCA
under various BPC licensing acts.
2) Contains the following provisions relating to the Dental Hygiene
Committee (DHC):
a) Establishes DHC within the Dental Board of California (DBC) to
regulate the practice of registered dental hygienists (RDH).
b) Requires an applicant for licensure as a RDH to provide
fingerprints to state and federal criminal justice agencies.
Requires DHC to submit fingerprint images to the Department of
Justice (DOJ) for the purposes of criminal record information.
Specifies that DOJ charges a fee to cover processing. (BPC §
1916)
c) Establishes the authority of DHC for licensure of RDHs in
extended functions pursuant to certain requirements. Establishes
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the authority of DHC for licensure of RDHs in alternative
practice pursuant to certain requirements, including completion
of a bachelor's degree or equivalent from a higher education
institution accredited by a national agency recognized by the
Council on Postsecondary Accreditation. (BPC § 1918 and BPC §
1922)
d) Clarifies that a RDH in alternative practice shall not infer,
purport or advertise that he or she is in any way able to provide
dental services or make any type of dental health diagnosis
beyond evaluating hygiene status. (BPC § 1927)
e) Requires that a percentage of funds in the State Dental
Auxiliary Fund be transferred to the State Dental Hygiene Fund
based on the number of RDHs, RDHs in extended functions or RDHs
in alternative practice licensed on June 30, 2009. (BPC § 1945)
f) Authorizes DHC to suspend, revoke or decline a license if the
time for appeal has elapsed, if the judgment of a conviction has
been affirmed on appeal or if an order granting probation is made
which suspends the sentence. (BPC § 1950 (c))
g) Specifies that unprofessional conduct for a RDH includes being
convicted of a charge violating any federal statute or rules or
any state statute or rules regarding controlled substances. (BPC
§ 1952 (c))
h) Specifies that a licensee who fails or refuses to comply with
a request for a patient's dental hygiene records, accompanied by
that patient's written authorization, within 15 days of receiving
the request and authorization, must pay DHC a $250 civil penalty,
up to $5000, for each day the documents have not been produced.
(BPC §§ 1952 (a)(1), 1952 (a)(2) and 1952 (e)
i) Specifies that a health care facility that fails or refuses to
comply with a request for a patient's dental hygiene records,
accompanied by that patient's written authorization, within 30
days of receiving the request and authorization, must pay DHC a
$250 civil penalty, up to $5000, for each day the documents have
not been produced. Clarifies that the civil penalties shall be
in accordance with the Administrative Procedures Act (APA). (BPC
§§ 1955(a)(2) and 1955 (e)
3) Contains the following provisions relating to the Board of
Registered Nursing (BRN):
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a) Establishes the Nursing Practice Act, enforced by the BRN, to
regulate the practice of nursing in California.
b) Permits nurse practitioners and physician assistants to
furnish prescription drugs under the supervision of a physician
to clarify that it is a prescribing activity for purposes of
registering with the United States Drug Enforcement Authority.
(BPC § 2836.2)
4) Contains the following provisions relating to the Board of
Psychology:
a) Licenses and regulates the practice of psychologists by the
Board of Psychology.
b) Establishes the standards for ethical conduct relating to the
practice of psychology as the "Ethical Principles and Code of
Conduct" published by the American Psychological Association
(APA). Requires all licensees and registrants to post a "Notice
to Consumers" in a conspicuous location in their principal
psychological business office informing consumers that the Board
of Psychology receives and responds to questions and complaints
regarding the practice of psychology and provides information on
how to contact the Board, including a designated mailing address.
(BPC § 2936)
5) Contains the following provisions relating to the Board of Pharmacy
(BOP):
a) Provides for the licensure and regulation of pharmacies,
pharmacists and wholesalers of dangerous drugs or devices by the
BOP.
b) Requires an applicant to pass a practical exam given by BOP
prior to December 31, 2003. (BPC § 4200 (a)(6))
6) Contains the following provisions relating to the Board of
Behavioral Sciences (BBS):
a) Licenses and regulates the practice of marriage and family
therapists (MFTs), MFT interns, licensed educational
psychologists (LEPs), licensed clinical social workers (LCSWs)
and associate social workers (ASWs) by the BBS. Beginning
January 1, 2012, the Board will additionally license professional
clinical counselors (LPCCs).
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b) Specifies the following as subjects that satisfy masters or
doctoral degree requirements for licensure:
i) Marriage, family and child counseling
ii) Marriage and family therapy
iii) Psychology
iv) Clinical psychology
v) Counseling psychology
vi) Counseling with an emphasis in either marriage, family and
child counseling or marriage and family therapy (BPC §
4980.36)
c) Specifies that the practicum required for licensure must
include a minimum of 225 hours of face-to-face experience
counseling individuals, couples, families or groups. (BPC §
4980.36 (d)(1)(B)(ii))
d) Prohibits a licensed professional MFT in practice or a MFT
corporation from supervising more than two individuals registered
as either an MFT intern or ASCW. Prohibits a licensed
professional MFT in private practice from employing more than two
MFT interns or ASCWs. Prohibits a MFT corporation from employing
more than 10 MFT interns or ASCWs. (BPC § 4980.45 (a)-(b))
e) Authorizes BBS to deny an application, suspend or revoke a
license or registration for a clinical social worker,
professional clinical counselor or educational psychologist.
(BPC (§ 4982.25 (b) and (i))
f) Authorizes BBS to suspend or revoke a license based upon
disciplinary action in another state or territory of the U.S. or
by a government agency. (BPC § 4990.38)
g) Authorizes BBS to deny a license or registration, or suspend
or revoke the license or registration of a licensee based on
unprofessional conduct, including acting beyond the scope of
one's competence as an LCSW. (BPC § 4992.3 (m))
h) Prohibits members of certain professional groups from holding
themselves out to the public for certain psychological work.
(BPC § 4996.13 (e))
i) Prohibits a LCSW in private practice or a LCSW corporation
from supervising more than two individuals registered as either a
MFT intern or ASCW. Prohibits a LCSW in private practice from
employing more than two MFT interns or ASCWs. Prohibits a LCSW
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corporation from employing more than 10 MFT interns or ASCWs.
(BPC § 4996.24)
This bill:
1) Makes the following changes relating to the Dental Hygiene
Committee (DHC):
a) Adds provision stating "Ýp]rotection of the public shall be
the highest priority for the committee in exercising its
licensing, regulatory and disciplinary functions" (BPC § 1902.1)
b) Clarifies that references to various sections refer to those
sections in "this article" (BPC §§1907, 1922(a)(1), 1960(g),
1961, 1962, )
c) Specifies that the fingerprint images applicants for licensure
must submit shall be "electronic" (BPC § 1916(a))
d) Changes reference to code section regarding fingerprints from
BPC §1628.5 to BPC §1943 (BPC § 1916(f))
e) Deletes requirement that applicants shall submit fingerprint
images to the Department of Justice for background check (BPC §
1916(b))
f) Removes corresponding reference to DOJ charging fee to cover
cost of processing fingerprint request (BPC § 1916(g))
g) Makes clarifying change specifying that a person must complete
an application and pay all fees required by committee in order to
be licensed (BPC §§ 1918 & 1922)
h) Specifies that applicants for licensure may have a degree from
an institution accredited by a regional accrediting agency
recognized by the United States Department of Education. Deletes
provision that institution may be recognized by council on
Postsecondary Accreditation (BPC § 1922(a)(2))
i) Simplifies phrase "dental health diagnosis" to read "dental
diagnosis" (BPC §1927(a))
j) Deletes provision relating to a 2009 shift of funds from the
State Dental Auxiliary Fund to the State Dental Hygiene Fund (BPC
§ 1945)
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aa) Allows the committee to reprimand a licensee or order a
license placed on probation in addition to other disciplinary
actions (BPC § 1950(c))
bb) Splits large paragraph in BPC § 1952(c) into a main section
and two subsections: (i) and (ii). (BPC § 1952(c))
cc) Amends reference to refer to "dental or" dental hygiene
records (BPC § 1955(a)(1))
dd) Allows for committee to collect "administrative penalties" in
addition to civil penalties; clarifies that penalty or fine may
be "up to a maximum" of $250 per day (BPC §§ 1955(a)(2) &
1955(e))
ee) Corrects erroneous reference from "certificate" to "permit,"
removes other references to "permit" (BPC §§ 1955(c), 1957,
1962(c)-(d))
ff) Clarifies grammatical ambiguity (BPC § 1959)
gg) Clarifies reference to Section 651 "of the code" (BPC §
1962(b)(3))
hh) Corrects syntax error by changing "prefer" to "proffer" (BPC §
1963)
ii) Changes specified references from § 1681 to § 1950.5 (BPC §§
1962(b)(3), 1966.1)
2) Makes the following changes relating to the Board of Registered
Nursing (BRN):
a) Changes references to "military education and experience" to
"military education" (BPC § 2736.5)
b) Amends incorrect reference to code section regarding
authorized nurse practitioners (BPC § 2836.2)
3) Makes the following changes relating to the Board of Psychology:
a) Changes mailing address to where people may send questions,
comments, or complaints to reflect the Board's move to a new
location in 2008. (BPC § 2936)
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4) Makes the following changes relating to the Board of Pharmacy
(BOP):
a) Deletes an obsolete reference to a practical exam given by the
Board prior to December 31, 2003. (BPC § 4200(a)(6))
5) Makes the following changes relating to the Board of Behavioral
Sciences (BBS):
a) Amends references to Bureau for Private Postsecondary
Education to reflect Bureau's name change (BPC §§ 4980.36(b),
4980.37(b), 4980.40.5(a), 4999.12(c)).
b) Adds "couple and family therapy" to the list of acceptable
subjects that satisfy masters or doctoral degree requirement for
licensee applicants (BPC §§ 4980.36(b), 4980.37(b), 4980.40.5(a))
c) Clarifies how required experiential hours may be allocated
between "face-to-face" counseling and "client-centered advocacy"
(BPC §§ 4980.36(d)(1)(B)(ii)&(vi))
d) Makes more minor changes as to how required experiential hours
may be allocated (BPC § 4980.43(a)(7),(9))
e) Includes "clinical counselor intern" in the list of interns or
associates a marriage and family therapy corporation or licensed
professional in private practice may employ may supervise and/or
employ (BPC § 4980.45 (a)-(b))
f) Increases the number of interns a marriage and family therapy
corporation or licensed individual in private practice may employ
at one time from two per licensed therapist to three per licensed
therapist. Also increases total number of interns a corporation
may have at one time from 10 to 15 (BPC § 4980.45(a)-(b))
g) Changes references to "professional corporation" in section to
clarify that provisions apply to a "marriage and family therapy
corporation" (BPC § 4980.45)
h) Includes "marriage and family therapist" and "educational
psychologist" in list of positions listed in section regarding
disciplinary action following revocation of license (BPC §§
4982.25(b)&(i))
i) Clarifies that board may suspend or revoke a license based
upon disciplinary action in "this state" in addition to other
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states and territories (BPC § 4990.38)
j) Clarifies a provision relating to acting beyond the scope of
one's competence as a social worker (BPC § 4992.3(m))
aa) Clarifies that the board may take disciplinary action based on
revocation of a license to practice "clinical social work," among
revocation of other licenses, certificates, or registrations (BPC
§ 4992.36)
bb) Adds "licensed professional clinical counselors" to list of
qualified members of professional groups that the section shall
not prevent from doing work of a psychosocial nature (BPC §
4996.13(e))
cc) Includes "clinical counselor intern" in the list of interns or
associates a LCSW corporation or licensed professional in private
practice may employ may supervise and/or employ (BPC §
4996.24(a)-(c))
dd) Increases the number of interns a LCSW corporation or licensed
individual in private practice may employ at one time from two
per licensed therapist to three per each employee or shareholder
who has satisfied the requirements of Section 1870 of Title 16 of
the California Code of Regulations. Also increases total number
of interns a corporation may have at one time from 10 to 15 (BPC
§ 4996.24(a)-(c))
ee) Consolidates provisions regarding board's authority to
suspend or revoke a license or registration under the section
(BPC § 4999.91(a)-(b))
ff) Consolidates provisions regarding the number of interns or
employees certain licensed individuals may supervise at one time
(BPC § 4999.455)
FISCAL EFFECT: Unknown. Legislative Counsel has keyed this bill
"fiscal."
COMMENTS:
1)Purpose. This bill is one of three "committee bills" authored by
the Business, Professions and Economic Development Committee
(Committee) and is intended to consolidate a number of
non-controversial provisions related to various regulatory programs
and professions governed by the Business and Professions Code.
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Consolidating the provisions in one bill is designed to relieve the
various licensing boards, bureaus and professions from the necessity
and burden of having separate measures for a number of
non-controversial revisions.
Many of the provisions of this bill are minor, technical and updating
changes, while other provisions are substantive changes intended to
improve the ability of various licensing programs and other entities
to efficiently and effectively administer their respective laws.
However, as a Committee bill, if controversy or opposition should
arise regarding any provision that cannot be resolved, then that
provision will be removed from the bill. This will eliminate the
chance of placing any of the other provisions in jeopardy.
2)Background. The following is background and reasons for the more
significant and substantive provisions in this measure:
a) DHC. Hygienists were initially licensed under the Committee
on Dental Auxiliaries (COMDA) which was under the jurisdiction of
the DBC. SB 853 (Perata, Chapter 31, Statutes of 2008) brought
hygienists under the jurisdiction of the DHC which is an
autonomous Committee. However, there are still some references
to COMDA and the DBC having jurisdiction for DHC. The intent of
the law was to create an autonomous Committee responsible for
promulgating its own regulations, conduct and develop
examinations, licensing and enforcement. This bill makes changes
to include clarifying
language, address licensee's responsibilities and requirement and
boost consumer protection.
b) BRN. BRN was established in 1905, and is responsible for
implementation and enforcement of the Nursing Practice Act, the
laws and regulations related to nursing education, licensure,
practice, and discipline. The BRN implements regulatory programs
and performs a variety of activities to protect consumers. These
programs and activities include setting registered nurse (RN)
educational standards for prelicensure and advanced practice
nursing programs, approving California RN programs, issuing and
renewing RN licenses, issuing certificates for advanced practice
nurses and public health nurses, taking disciplinary action for
violation of the NPA, and managing a diversion program for RNs
whose practice may be impaired due to chemical dependency or
mental illness.
According to BRN, experience is not one of the required criteria
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for licensure, upon passing the licensure examination, so use of
the term to determine the qualifications of military persons is
misleading. Current language is outdated, and inconsistent with
other code sections. Experience, as it pertains to the
requirements for licensure, is inappropriate terminology, as
everyone, including military personnel, is required to meet the
qualifications outlined in statute. This bill removes the term
"experience" and allows "military education" to be used to
determine qualification as a licensee in California.
c) BBS. According to BBS, many of the provisions contained in
this bill add clarity and consistency to licensing law. Several
of the proposed amendments are needed as a result of new
legislation establishing the licensure and regulation of Licensed
Professional Clinical Counselors (LPCCs) by the Board. This new
legislation went into effect January 1, 2010 (SB 788, Chapter
619, Statutes of 2009).
A growing number of graduate programs nationwide have begun
offering degrees in "Couple and Family Therapy." This degree
title reflects a growing trend to acknowledge a greater diversity
of relationships with which Marriage and Family Therapists (MFTs)
work. A degree in Couple and Family Therapy is currently not
listed in statute as one of the degrees the Board may accept in
order to qualify for an MFT license. This bill adds the degree
title "Couple and Family Therapy" to the list of degrees titles
that are accepted to qualify for MFT licensure.
Current law requires that a qualifying degree for licensure
include practicum that includes a minimum of 225 hours of
face-to-face experience counseling individuals, couples, families
or groups, and states that up to 75 of these house may be gained
performing client centered advocacy. However, client centered
advocacy, as defined in section 4980.03, does not consist of
face-to-face contact. In order to clarify the type of experience
required, this bill separates the 225 hours into 150 hours of
face-to-face experience and 75 hours of either client centered
advocacy or face-to-face experience.
Last year, BBS voted to limit the number of registrants a
supervisor can supervise in a private practice setting. Current
MFT and LCSW law now limits the number of registrants that a
licensed professional in private practice may supervise or employ
to two individuals registered either as an MFT intern or an ASW.
Additionally, an MFT, LCSW, or LPCC corporation may currently
employ no more than ten individuals registered either as MFT
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interns or ASWs at any one time. There is currently no limit on
the number of clinical counselor interns that may be supervised
in private practice. This bill imposes a limitation of three
registrants for a supervisor in private practice. Additionally,
the corporation may currently employ no more than fifteen
individuals registered by the Board at any one time. This bill
adds a section in order to apply these same limitations to LPCCs.
Current law discuss grounds for denial of application or
disciplinary action for unprofessional conduct by MFTs, for
Licensed Educational Psychologists (LEPs), and LCSWs. Current
code sections for each leave out action against its own license
as grounds for disciplinary conduct. Additionally, there is no
equivalent section in LPCC law stating that action against a
Board license or registration constitutes grounds for
disciplinary action against an LPCC license or registration. For
consistency, this bill lists all four of the Board's license
types to clarify the intention that disciplinary action against
any one of the Board's license types would constitute grounds for
disciplinary action against any other of the Board's licenses if
an individual held more than one license with the Board.
Current law pertaining to LCSWs states that holding one's self
out as being able to perform any service beyond the scope of
one's license is unprofessional conduct. However, the equivalent
code sections in MFT, LEP, and LPCC law state that it is
considered unprofessional conduct to perform any professional
services beyond the scope of one's competence. This bill
includes scope of competence for LCSWs in order to make it
consistent with MFT, LEP, and LPCC code.
Current law allows certain other professional groups to practice
work of a psychosocial nature as long as they don't hold
themselves out to be an LCSW. Licensed professional clinical
counselors are not included in the list. This bill adds licensed
professional clinical counselors to the list of professional
groups allowed to practice work of a psychosocial nature.
3)Further changes. As this bill continues to move in the legislative
process, additional changes may be made based on requests from DCA
boards, bureaus, committees or commission. Currently, the following
proposals were approved by Committee and Republican policy staff and
will be amended into the measure after this hearing:
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a) BBS. This bill makes changes as to how required experiential
hours may be allocated but was included erroneously in this
technical omnibus bill and will be removed, as the provision may
be more substantive than is appropriate for this bill.
Proposed Amendment: On page 29, strike lines 24-39 inclusive.
On page 30, strike lines 1-40 inclusive. On page 31, strike
lines 1-39 inclusive. On page 32, strike lines 1-39 inclusive.
On page 33, strike lines 1-40 inclusive. On page 34, strike
lines 1-19.
b) Polysomnic Technicians. SB 132 (Denham, Chapter 635, Statutes
of 2009) established a certification program for sleep
professionals assisting physicians in the practice of sleep
medicine, administered by the California Medical Board (Med
Board). In order to prevent a flood of applications for initial
certification, a grandfathering provision was added to allow
current practitioners who "submit proof to the board that he or
she has been practicing polysomnography for at least five years
in a manner that is acceptable to the board" to be certified.
There is concern that the grandfathering provision lacks clarity
and is ambiguous, resulting in confusion as to whether current
practitioners can be grandfathered in. There is also concern
that lack of clarity will result in a large number of initial
certification requests to the Med Board from current
practitioners in good standing, as well as a potential shortage
of practitioners in hospitals and clinics while these
individuals wait to have their application processed. A limited
grandfathering provision for practitioners "practicing
polysomnography for at least five years in a manner that is
acceptable to the board" will ensure that there is not a
disruption in patient access to sleep medicine services from the
lack of a grandfathering provision.
Proposed Amendment: Amend Business and Professions Code Section
3575, subdivision (b) as follows:
(b) Within one year after the effective date of this chapter, the
board shall promulgate regulations relative to the qualifications
for the registration of individuals as certified polysomnographic
technologists, polysomnographic technicians, and polysomnographic
trainees. The qualifications for a certified polysomnographic
technologist shall include all of the following:
(1) He or she shall have valid, current credentials as a
polysomnographic technologist issued by a national accrediting
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agency approved by the board.
(2) He or she shall have graduated from a polysomnographic
educational program that has been approved by the board.
(3) He or she shall have passed a national certifying
examination that has been approved by the board,.
(4) or in the alternative, may An applicant may satisfy the
qualifications established in clauses (1)-(3), inclusive, by
submitting proof to the board that he or she has been practicing
polysomnography for at least five years in a manner that is
acceptable to the board. However, beginning three years after the
effective date of this chapter, all individuals seeking to obtain
certification as a polysomnographic technologist shall have
passed a national certifying examination that has been approved
by the board.
SUPPORT AND OPPOSITION:
Support:
None on file as of April 26, 2011.
Opposition:
None on file as of April 26, 2011.
Consultant:Sarah Mason