California Legislature—2013–14 Regular Session

Assembly Bill No. 809

Introduced by Assembly Member Logue

February 21, 2013

An act to amend Sections 1626.2, 2290.5, 4980.01, 4982, 4989.54, 4992.3, 4996, and 4999.90 of the Business and Professions Code, relating to telehealth, and declaring the urgency thereof, to take effect immediately.

LEGISLATIVE COUNSEL’S DIGEST

AB 809, as introduced, Logue. Healing arts: telehealth.

Existing law requires a health care provider, as defined, prior to the delivery of health care services via telehealth, as defined, to verbally inform the patient that telehealth may be used and obtain verbal consent from the patient for this use. Existing law also provides that failure to comply with this requirement constitutes unprofessional conduct.

This bill would delete those provisions. The bill would make additional conforming changes.

This bill would declare that it is to take effect immediately as an urgency statute.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1626.2 of the Business and Professions
Code is amended to read:

1626.2.  

A dentist licensed under this chapter is a licentiate for
purposes of paragraph (2) of subdivision (a) of Section 805, and
thus is a health care practitioner subject to the provisions of Section
2290.5 begin delete pursuant to subdivision (b) of that section end delete .

SEC. 2.  

Section 2290.5 of the Business and Professions Code
is amended to read:

2290.5.  

(a) For purposes of this division, the following
definitions shall apply:

(1) “Asynchronous store and forward” means the transmission
of a patient’s medical information from an originating site to the
health care provider at a distant site without the presence of the
patient.

(2) “Distant site” means a site where a health care provider who
provides health care services is located while providing these
services via a telecommunications system.

(3) “Health care provider” means a person who is licensed under
this division.

(4) “Originating site” means a site where a patient is located at
the time health care services are provided via a telecommunications
system or where the asynchronous store and forward service
originates.

(5) “Synchronous interaction” means a real-time interaction
between a patient and a health care provider located at a distant
site.

(6) “Telehealth” means the mode of delivering health care
services and public health via information and communication
technologies to facilitate the diagnosis, consultation, treatment,
education, care management, and self-management of a patient’s
health care while the patient is at the originating site and the health
care provider is at a distant site. Telehealth facilitates patient
self-management and caregiver support for patients and includes
synchronous interactions and asynchronous store and forward
transfers.

begin delete

(b) Prior to the delivery of health care via telehealth, the health
care provider at the originating site shall verbally inform the patient
that telehealth may be used and obtain verbal consent from the
patient for this use. The verbal consent shall be documented in the
patient’s medical record.

end delete begin delete

(c) The failure of a health care provider to comply with this
section shall constitute unprofessional conduct. Section 2314 shall
not apply to this section.

end delete begin delete

(d)

end delete

begin insert (b) end insert  This section shall not be construed to alter the scope of
practice of any health care provider or authorize the delivery of
health care services in a setting, or in a manner, not otherwise
authorized by law.

begin delete

(e)

end delete

begin insert (c) end insert  All laws regarding the confidentiality of health care
information and a patient’s rights to his or her medical information
shall apply to telehealth interactions.

begin delete

(f)

end delete

begin insert (d) end insert  This section shall not apply to a patient under the jurisdiction
of the Department of Corrections and Rehabilitation or any other
correctional facility.

begin delete

(g)

end delete

begin insert (e) end insert  (1) Notwithstanding any other provision of law and for
purposes of this section, the governing body of the hospital whose
patients are receiving the telehealth services may grant privileges
to, and verify and approve credentials for, providers of telehealth
services based on its medical staff recommendations that rely on
information provided by the distant-site hospital or telehealth
entity, as described in Sections 482.12, 482.22, and 485.616 of
Title 42 of the Code of Federal Regulations.

(2) By enacting this subdivision, it is the intent of the Legislature
to authorize a hospital to grant privileges to, and verify and approve
credentials for, providers of telehealth services as described in
paragraph (1).

(3) For the purposes of this subdivision, “telehealth” shall
include “telemedicine” as the term is referenced in Sections 482.12,
482.22, and 485.616 of Title 42 of the Code of Federal Regulations.

SEC. 3.  

Section 4980.01 of the Business and Professions Code
is amended to read:

4980.01.  

(a) Nothing in this chapter shall be construed to
constrict, limit, or withdraw the Medical Practice Act, the Social
Work Licensing Law, the Nursing Practice Act, the Licensed
Professional Clinical Counselor Act, or the Psychology Licensing
Act.

(b) This chapter shall not apply to any priest, rabbi, or minister
of the gospel of any religious denomination when performing
counseling services as part of his or her pastoral or professional
duties, or to any person who is admitted to practice law in the state,
or who is licensed to practice medicine, when providing counseling
services as part of his or her professional practice.

(c) (1) This chapter shall not apply to an employee working in
any of the following settings if his or her work is performed solely
under the supervision of the employer:

(A) A governmental entity.

(B) A school, college, or university.

(C) An institution that is both nonprofit and charitable.

(2) This chapter shall not apply to a volunteer working in any
of the settings described in paragraph (1) if his or her work is
performed solely under the supervision of the entity, school, or
institution.

(d) A marriage and family therapist licensed under this chapter
is a licentiate for purposes of paragraph (2) of subdivision (a) of
Section 805, and thus is a health care practitioner subject to the
provisions of Section 2290.5 begin delete pursuant to subdivision (b) of that
section end delete .

(e) Notwithstanding subdivisions (b) and (c), all persons
registered as interns or licensed under this chapter shall not be
exempt from this chapter or the jurisdiction of the board.

SEC. 4.  

Section 4982 of the Business and Professions Code is
amended to read:

4982.  

The board may deny a license or registration or may
suspend or revoke the license or registration of a licensee or
registrant if he or she has been guilty of unprofessional conduct.
Unprofessional conduct includes, but is not limited to, the
following:

(a) The conviction of a crime substantially related to the
qualifications, functions, or duties of a licensee or registrant under
this chapter. The record of conviction shall be conclusive evidence
only of the fact that the conviction occurred. The board may inquire
into the circumstances surrounding the commission of the crime
in order to fix the degree of discipline or to determine if the
conviction is substantially related to the qualifications, functions,
or duties of a licensee or registrant under this chapter. A plea or
verdict of guilty or a conviction following a plea of nolo contendere
made to a charge substantially related to the qualifications,
functions, or duties of a licensee or registrant under this chapter
shall be deemed to be a conviction within the meaning of this
section. The board may order any license or registration suspended
or revoked, or may decline to issue a license or registration when
the time for appeal has elapsed, or the judgment of conviction has
been affirmed on appeal, or, when an order granting probation is
made suspending the imposition of sentence, irrespective of a
subsequent order under Section 1203.4 of the Penal Code allowing
the person to withdraw a plea of guilty and enter a plea of not
guilty, or setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment.

(b) Securing a license or registration by fraud, deceit, or
misrepresentation on any application for licensure or registration
submitted to the board, whether engaged in by an applicant for a
license or registration, or by a licensee in support of any application
for licensure or registration.

(c) Administering to himself or herself any controlled substance
or using of any of the dangerous drugs specified in Section 4022,
or of any alcoholic beverage to the extent, or in a manner, as to be
dangerous or injurious to the person applying for a registration or
license or holding a registration or license under this chapter, or
to any other person, or to the public, or, to the extent that the use
impairs the ability of the person applying for or holding a
registration or license to conduct with safety to the public the
practice authorized by the registration or license. The board shall
deny an application for a registration or license or revoke the
license or registration of any person, other than one who is licensed
as a physician and surgeon, who uses or offers to use drugs in the
course of performing marriage and family therapy services.

(d) Gross negligence or incompetence in the performance of
marriage and family therapy.

(e) Violating, attempting to violate, or conspiring to violate any
of the provisions of this chapter or any regulation adopted by the
board.

(f) Misrepresentation as to the type or status of a license or
registration held by the person, or otherwise misrepresenting or
permitting misrepresentation of his or her education, professional
qualifications, or professional affiliations to any person or entity.

(g) Impersonation of another by any licensee, registrant, or
applicant for a license or registration, or, in the case of a licensee,
allowing any other person to use his or her license or registration.

(h) Aiding or abetting, or employing, directly or indirectly, any
unlicensed or unregistered person to engage in conduct for which
a license or registration is required under this chapter.

(i) Intentionally or recklessly causing physical or emotional
harm to any client.

(j) The commission of any dishonest, corrupt, or fraudulent act
substantially related to the qualifications, functions, or duties of a
licensee or registrant.

(k) Engaging in sexual relations with a client, or a former client
within two years following termination of therapy, soliciting sexual
relations with a client, or committing an act of sexual abuse, or
sexual misconduct with a client, or committing an act punishable
as a sexually related crime, if that act or solicitation is substantially
related to the qualifications, functions, or duties of a marriage and
family therapist.

(l) Performing, or holding oneself out as being able to perform,
or offering to perform, or permitting any trainee or registered intern
under supervision to perform, any professional services beyond
the scope of the license authorized by this chapter.

(m) Failure to maintain confidentiality, except as otherwise
required or permitted by law, of all information that has been
received from a client in confidence during the course of treatment
and all information about the client that is obtained from tests or
other means.

(n) Prior to the commencement of treatment, failing to disclose
to the client or prospective client the fee to be charged for the
professional services, or the basis upon which that fee will be
computed.

(o) Paying, accepting, or soliciting any consideration,
compensation, or remuneration, whether monetary or otherwise,
for the referral of professional clients. All consideration,
compensation, or remuneration shall be in relation to professional
counseling services actually provided by the licensee. Nothing in
this subdivision shall prevent collaboration among two or more
licensees in a case or cases. However, no fee shall be charged for
that collaboration, except when disclosure of the fee has been made
in compliance with subdivision (n).

(p) Advertising in a manner that is false, fraudulent, misleading,
or deceptive, as defined in Section 651.

(q) Reproduction or description in public, or in any publication
subject to general public distribution, of any psychological test or
other assessment device, the value of which depends in whole or
in part on the naivete of the subject, in ways that might invalidate
the test or device.

(r) Any conduct in the supervision of any registered intern,
associate clinical social worker, or trainee by any licensee that
violates this chapter or any rules or regulations adopted by the
board.

(s) Performing or holding oneself out as being able to perform
professional services beyond the scope of one’s competence, as
established by one’s education, training, or experience. This
subdivision shall not be construed to expand the scope of the
license authorized by this chapter.

(t) Permitting a trainee or registered intern under one’s
supervision or control to perform, or permitting the trainee or
registered intern to hold himself or herself out as competent to
perform, professional services beyond the trainee’s or registered
intern’s level of education, training, or experience.

(u) The violation of any statute or regulation governing the
gaining and supervision of experience required by this chapter.

(v) Failure to keep records consistent with sound clinical
judgment, the standards of the profession, and the nature of the
services being rendered.

(w) Failure to comply with the child abuse reporting
requirements of Section 11166 of the Penal Code.

(x) Failure to comply with the elder and dependent adult abuse
reporting requirements of Section 15630 of the Welfare and
Institutions Code.

(y) Willful violation of Chapter 1 (commencing with Section
123100) of Part 1 of Division 106 of the Health and Safety Code.

begin delete

(z) Failure to comply with Section 2290.5.

end delete begin delete

(aa) 

end delete

begin insert (z) end insert begin insert   end insert (1) Engaging in an act described in Section 261, 286, 288a,
or 289 of the Penal Code with a minor or an act described in
Section 288 or 288.5 of the Penal Code regardless of whether the
act occurred prior to or after the time the registration or license
was issued by the board. An act described in this subdivision
occurring prior to the effective date of this subdivision shall
constitute unprofessional conduct and shall subject the licensee to
refusal, suspension, or revocation of a license under this section.

(2) The Legislature hereby finds and declares that protection of
the public, and in particular minors, from sexual misconduct by a
licensee is a compelling governmental interest, and that the ability
to suspend or revoke a license for sexual conduct with a minor
occurring prior to the effective date of this section is equally
important to protecting the public as is the ability to refuse a license
for sexual conduct with a minor occurring prior to the effective
date of this section.

begin delete

(ab)

end delete

begin insert (aa) end insert  Engaging in any conduct that subverts or attempts to subvert
any licensing examination or the administration of an examination
as described in Section 123.

SEC. 5.  

Section 4989.54 of the Business and Professions Code
is amended to read:

4989.54.  

The board may deny a license or may suspend or
revoke the license of a licensee if he or she has been guilty of
unprofessional conduct. Unprofessional conduct includes, but is
not limited to, the following:

(a) Conviction of a crime substantially related to the
qualifications, functions, and duties of an educational psychologist.

(1) The record of conviction shall be conclusive evidence only
of the fact that the conviction occurred.

(2) The board may inquire into the circumstances surrounding
the commission of the crime in order to fix the degree of discipline
or to determine if the conviction is substantially related to the
qualifications, functions, or duties of a licensee under this chapter.

(3) A plea or verdict of guilty or a conviction following a plea
of nolo contendere made to a charge substantially related to the
qualifications, functions, or duties of a licensee under this chapter
shall be deemed to be a conviction within the meaning of this
section.

(4) The board may order a license suspended or revoked, or
may decline to issue a license when the time for appeal has elapsed,
or the judgment of conviction has been affirmed on appeal, or
when an order granting probation is made suspending the
imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw
a plea of guilty and enter a plea of not guilty or setting aside the
verdict of guilty or dismissing the accusation, information, or
indictment.

(b) Securing a license by fraud, deceit, or misrepresentation on
an application for licensure submitted to the board, whether
engaged in by an applicant for a license or by a licensee in support
of an application for licensure.

(c) Administering to himself or herself a controlled substance
or using any of the dangerous drugs specified in Section 4022 or
an alcoholic beverage to the extent, or in a manner, as to be
dangerous or injurious to himself or herself or to any other person
or to the public or to the extent that the use impairs his or her ability
to safely perform the functions authorized by the license. The board
shall deny an application for a license or revoke the license of any
person, other than one who is licensed as a physician and surgeon,
who uses or offers to use drugs in the course of performing
educational psychology.

begin delete

(d) Failure to comply with the consent provisions in Section
2290.5.

end delete begin delete

(e)

end delete

begin insert (d) end insert  Advertising in a manner that is false, fraudulent, misleading,
or deceptive, as defined in Section 651.

begin delete

(f)

end delete

begin insert (e) end insert  Violating, attempting to violate, or conspiring to violate any
of the provisions of this chapter or any regulation adopted by the
board.

begin delete

(g)

end delete

begin insert (f) end insert  Commission of any dishonest, corrupt, or fraudulent act
substantially related to the qualifications, functions, or duties of a
licensee.

begin delete

(h)

end delete

begin insert (g) end insert  Denial of licensure, revocation, suspension, restriction, or
any other disciplinary action imposed by another state or territory
or possession of the United States or by any other governmental
agency, on a license, certificate, or registration to practice
educational psychology or any other healing art. A certified copy
of the disciplinary action, decision, or judgment shall be conclusive
evidence of that action.

begin delete

(i)

end delete

begin insert (h) end insert  Revocation, suspension, or restriction by the board of a
license, certificate, or registration to practice as an educational
psychologist, a clinical social worker, professional clinical
counselor, or marriage and family therapist.

begin delete

(j)

end delete

begin insert (i) end insert  Failure to keep records consistent with sound clinical
judgment, the standards of the profession, and the nature of the
services being rendered.

begin delete

(k)

end delete

begin insert (j) end insert  Gross negligence or incompetence in the practice of
educational psychology.

begin delete

(l)

end delete

begin insert (k) end insert  Misrepresentation as to the type or status of a license held
by the licensee or otherwise misrepresenting or permitting
misrepresentation of his or her education, professional
qualifications, or professional affiliations to any person or entity.

begin delete

(m)

end delete

begin insert (l) end insert  Intentionally or recklessly causing physical or emotional
harm to any client.

begin delete

(n)

end delete

begin insert (m) end insert  Engaging in sexual relations with a client or a former client
within two years following termination of professional services,
soliciting sexual relations with a client, or committing an act of
sexual abuse or sexual misconduct with a client or committing an
act punishable as a sexually related crime, if that act or solicitation
is substantially related to the qualifications, functions, or duties of
a licensed educational psychologist.

begin delete

(o)

end delete

begin insert (n) end insert  Prior to the commencement of treatment, failing to disclose
to the client or prospective client the fee to be charged for the
professional services or the basis upon which that fee will be
computed.

begin delete

(p)

end delete

begin insert (o) end insert  Paying, accepting, or soliciting any consideration,
compensation, or remuneration, whether monetary or otherwise,
for the referral of professional clients.

begin delete

(q)

end delete

begin insert (p) end insert  Failing to maintain confidentiality, except as otherwise
required or permitted by law, of all information that has been
received from a client in confidence during the course of treatment
and all information about the client that is obtained from tests or
other means.

begin delete

(r)

end delete

begin insert (q) end insert  Performing, holding himself or herself out as being able to
perform, or offering to perform any professional services beyond
the scope of the license authorized by this chapter or beyond his
or her field or fields of competence as established by his or her
education, training, or experience.

begin delete

(s)

end delete

begin insert (r) end insert  Reproducing or describing in public, or in any publication
subject to general public distribution, any psychological test or
other assessment device the value of which depends in whole or
in part on the naivete of the subject in ways that might invalidate
the test or device. An educational psychologist shall limit access
to the test or device to persons with professional interests who can
be expected to safeguard its use.

begin delete

(t)

end delete

begin insert (s) end insert  Aiding or abetting an unlicensed person to engage in conduct
requiring a license under this chapter.

begin delete

(u)

end delete

begin insert (t) end insert  When employed by another person or agency, encouraging,
either orally or in writing, the employer’s or agency’s clientele to
utilize his or her private practice for further counseling without
the approval of the employing agency or administration.

begin delete

(v)

end delete

begin insert (u) end insert  Failing to comply with the child abuse reporting
requirements of Section 11166 of the Penal Code.

begin delete

(w)

end delete

begin insert (v) end insert  Failing to comply with the elder and adult dependent abuse
reporting requirements of Section 15630 of the Welfare and
Institutions Code.

begin delete

(x)

end delete

begin insert (w) end insert  Willful violation of Chapter 1 (commencing with Section
123100) of Part 1 of Division 106 of the Health and Safety Code.

begin delete

(y)

end delete

begin insert (x end insert begin insert ) end insert  (1) Engaging in an act described in Section 261, 286, 288a,
or 289 of the Penal Code with a minor or an act described in
Section 288 or 288.5 of the Penal Code regardless of whether the
act occurred prior to or after the time the registration or license
was issued by the board. An act described in this subdivision
occurring prior to the effective date of this subdivision shall
constitute unprofessional conduct and shall subject the licensee to
refusal, suspension, or revocation of a license under this section.

(2) The Legislature hereby finds and declares that protection of
the public, and in particular minors, from sexual misconduct by a
licensee is a compelling governmental interest, and that the ability
to suspend or revoke a license for sexual conduct with a minor
occurring prior to the effective date of this section is equally
important to protecting the public as is the ability to refuse a license
for sexual conduct with a minor occurring prior to the effective
date of this section.

begin delete

(z)

end delete

begin insert (y) end insert  Engaging in any conduct that subverts or attempts to subvert
any licensing examination or the administration of the examination
as described in Section 123.

begin delete

(aa)

end delete

begin insert (z) end insert  Impersonation of another by any licensee or applicant for a
license, or, in the case of a licensee, allowing any other person to
use his or her license.

begin delete

(ab)

end delete

begin insert (aa) end insert  Permitting a person under his or her supervision or control
to perform, or permitting that person to hold himself or herself out
as competent to perform, professional services beyond the level
of education, training, or experience of that person.

SEC. 6.  

Section 4992.3 of the Business and Professions Code
is amended to read:

4992.3.  

The board may deny a license or a registration, or may
suspend or revoke the license or registration of a licensee or
registrant if he or she has been guilty of unprofessional conduct.
Unprofessional conduct includes, but is not limited to, the
following:

(a) The conviction of a crime substantially related to the
qualifications, functions, or duties of a licensee or registrant under
this chapter. The record of conviction shall be conclusive evidence
only of the fact that the conviction occurred. The board may inquire
into the circumstances surrounding the commission of the crime
in order to fix the degree of discipline or to determine if the
conviction is substantially related to the qualifications, functions,
or duties of a licensee or registrant under this chapter. A plea or
verdict of guilty or a conviction following a plea of nolo contendere
made to a charge substantially related to the qualifications,
functions, or duties of a licensee or registrant under this chapter
is a conviction within the meaning of this section. The board may
order any license or registration suspended or revoked, or may
decline to issue a license or registration when the time for appeal
has elapsed, or the judgment of conviction has been affirmed on
appeal, or, when an order granting probation is made suspending
the imposition of sentence, irrespective of a subsequent order under
Section 1203.4 of the Penal Code allowing the person to withdraw
a plea of guilty and enter a plea of not guilty, or setting aside the
verdict of guilty, or dismissing the accusation, information, or
indictment.

(b) Securing a license or registration by fraud, deceit, or
misrepresentation on any application for licensure or registration
submitted to the board, whether engaged in by an applicant for a
license or registration, or by a licensee in support of any application
for licensure or registration.

(c) Administering to himself or herself any controlled substance
or using any of the dangerous drugs specified in Section 4022 or
any alcoholic beverage to the extent, or in a manner, as to be
dangerous or injurious to the person applying for a registration or
license or holding a registration or license under this chapter, or
to any other person, or to the public, or, to the extent that the use
impairs the ability of the person applying for or holding a
registration or license to conduct with safety to the public the
practice authorized by the registration or license. The board shall
deny an application for a registration or license or revoke the
license or registration of any person who uses or offers to use drugs
in the course of performing clinical social work. This provision
does not apply to any person also licensed as a physician and
surgeon under Chapter 5 (commencing with Section 2000) or the
Osteopathic Act who lawfully prescribes drugs to a patient under
his or her care.

(d) Incompetence in the performance of clinical social work.

(e) An act or omission that falls sufficiently below the standard
of conduct of the profession as to constitute an act of gross
negligence.

(f) Violating, attempting to violate, or conspiring to violate this
chapter or any regulation adopted by the board.

(g) Misrepresentation as to the type or status of a license or
registration held by the person, or otherwise misrepresenting or
permitting misrepresentation of his or her education, professional
qualifications, or professional affiliations to any person or entity.
For purposes of this subdivision, this misrepresentation includes,
but is not limited to, misrepresentation of the person’s
qualifications as an adoption service provider pursuant to Section
8502 of the Family Code.

(h) Impersonation of another by any licensee, registrant, or
applicant for a license or registration, or, in the case of a licensee,
allowing any other person to use his or her license or registration.

(i) Aiding or abetting any unlicensed or unregistered person to
engage in conduct for which a license or registration is required
under this chapter.

(j) Intentionally or recklessly causing physical or emotional
harm to any client.

(k) The commission of any dishonest, corrupt, or fraudulent act
substantially related to the qualifications, functions, or duties of a
licensee or registrant.

(l) Engaging in sexual relations with a client or with a former
client within two years from the termination date of therapy with
the client, soliciting sexual relations with a client, or committing
an act of sexual abuse, or sexual misconduct with a client, or
committing an act punishable as a sexually related crime, if that
act or solicitation is substantially related to the qualifications,
functions, or duties of a clinical social worker.

(m) Performing, or holding one’s self out as being able to
perform, or offering to perform or permitting, any registered
associate clinical social worker or intern under supervision to
perform any professional services beyond the scope of one’s
competence, as established by one’s education, training, or
experience. This subdivision shall not be construed to expand the
scope of the license authorized by this chapter.

(n) Failure to maintain confidentiality, except as otherwise
required or permitted by law, of all information that has been
received from a client in confidence during the course of treatment
and all information about the client that is obtained from tests or
other means.

(o) Prior to the commencement of treatment, failing to disclose
to the client or prospective client the fee to be charged for the
professional services, or the basis upon which that fee will be
computed.

(p) Paying, accepting, or soliciting any consideration,
compensation, or remuneration, whether monetary or otherwise,
for the referral of professional clients. All consideration,
compensation, or remuneration shall be in relation to professional
counseling services actually provided by the licensee. Nothing in
this subdivision shall prevent collaboration among two or more
licensees in a case or cases. However, no fee shall be charged for
that collaboration, except when disclosure of the fee has been made
in compliance with subdivision (o).

(q) Advertising in a manner that is false, fraudulent, misleading,
or deceptive, as defined in Section 651.

(r) Reproduction or description in public, or in any publication
subject to general public distribution, of any psychological test or
other assessment device, the value of which depends in whole or
in part on the naivete of the subject, in ways that might invalidate
the test or device. A licensee shall limit access to that test or device
to persons with professional interest who are expected to safeguard
its use.

(s) Any conduct in the supervision of any registered associate
clinical social worker, intern, or trainee by any licensee that violates
this chapter or any rules or regulations adopted by the board.

(t) Failure to keep records consistent with sound clinical
judgment, the standards of the profession, and the nature of the
services being rendered.

(u) Failure to comply with the child abuse reporting
requirements of Section 11166 of the Penal Code.

(v) Failure to comply with the elder and dependent adult abuse
reporting requirements of Section 15630 of the Welfare and
Institutions Code.

(w) Willful violation of Chapter 1 (commencing with Section
123100) of Part 1 of Division 106 of the Health and Safety Code.

begin delete

(x) Failure to comply with Section 2290.5.

end delete begin delete

(y) 

end delete

begin insert (x) end insert begin insert   end insert (1) Engaging in an act described in Section 261, 286, 288a,
or 289 of the Penal Code with a minor or an act described in
Section 288 or 288.5 of the Penal Code regardless of whether the
act occurred prior to or after the time the registration or license
was issued by the board. An act described in this subdivision
occurring prior to the effective date of this subdivision shall
constitute unprofessional conduct and shall subject the licensee to
refusal, suspension, or revocation of a license under this section.

(2) The Legislature hereby finds and declares that protection of
the public, and in particular minors, from sexual misconduct by a
licensee is a compelling governmental interest, and that the ability
to suspend or revoke a license for sexual conduct with a minor
occurring prior to the effective date of this section is equally
important to protecting the public as is the ability to refuse a license
for sexual conduct with a minor occurring prior to the effective
date of this section.

begin delete

(z)

end delete

begin insert (y) end insert  Engaging in any conduct that subverts or attempts to subvert
any licensing examination or the administration of the examination
as described in Section 123.

SEC. 7.  

Section 4996 of the Business and Professions Code is
amended to read:

4996.  

(a) Only individuals who have received a license under
this article may style themselves as “Licensed Clinical Social
Workers.” Every individual who styles himself or herself or who
holds himself or herself out to be a licensed clinical social worker,
or who uses any words or symbols indicating or tending to indicate
that he or she is a licensed clinical social worker, without holding
his or her license in good standing under this article, is guilty of a
misdemeanor.

(b) It is unlawful for any person to engage in the practice of
clinical social work unless at the time of so doing begin delete such end delete begin insert that end insert person
holds a valid, unexpired, and unrevoked license under this article.

(c) A clinical social worker licensed under this chapter is a
licentiate for purposes of paragraph (2) of subdivision (a) of Section
805, and thus is a health care practitioner subject to the provisions
of Section 2290.5 begin delete pursuant to subdivision (b) of that section end delete .

SEC. 8.  

Section 4999.90 of the Business and Professions Code
is amended to read:

4999.90.  

The board may refuse to issue any registration or
license, or may suspend or revoke the registration or license of
any intern or licensed professional clinical counselor, if the
applicant, licensee, or registrant has been guilty of unprofessional
conduct. Unprofessional conduct includes, but is not limited to,
the following:

(a) The conviction of a crime substantially related to the
qualifications, functions, or duties of a licensee or registrant under
this chapter. The record of conviction shall be conclusive evidence
only of the fact that the conviction occurred. The board may inquire
into the circumstances surrounding the commission of the crime
in order to fix the degree of discipline or to determine if the
conviction is substantially related to the qualifications, functions,
or duties of a licensee or registrant under this chapter. A plea or
verdict of guilty or a conviction following a plea of nolo contendere
made to a charge substantially related to the qualifications,
functions, or duties of a licensee or registrant under this chapter
shall be deemed to be a conviction within the meaning of this
section. The board may order any license or registration suspended
or revoked, or may decline to issue a license or registration when
the time for appeal has elapsed, or the judgment of conviction has
been affirmed on appeal, or, when an order granting probation is
made suspending the imposition of sentence, irrespective of a
subsequent order under Section 1203.4 of the Penal Code allowing
the person to withdraw a plea of guilty and enter a plea of not
guilty, or setting aside the verdict of guilty, or dismissing the
accusation, information, or indictment.

(b) Securing a license or registration by fraud, deceit, or
misrepresentation on any application for licensure or registration
submitted to the board, whether engaged in by an applicant for a
license or registration, or by a licensee in support of any application
for licensure or registration.

(c) Administering to himself or herself any controlled substance
or using any of the dangerous drugs specified in Section 4022, or
any alcoholic beverage to the extent, or in a manner, as to be
dangerous or injurious to the person applying for a registration or
license or holding a registration or license under this chapter, or
to any other person, or to the public, or, to the extent that the use
impairs the ability of the person applying for or holding a
registration or license to conduct with safety to the public the
practice authorized by the registration or license. The board shall
deny an application for a registration or license or revoke the
license or registration of any person, other than one who is licensed
as a physician and surgeon, who uses or offers to use drugs in the
course of performing licensed professional clinical counseling
services.

(d) Gross negligence or incompetence in the performance of
licensed professional clinical counseling services.

(e) Violating, attempting to violate, or conspiring to violate any
of the provisions of this chapter or any regulation adopted by the
board.

(f) Misrepresentation as to the type or status of a license or
registration held by the person, or otherwise misrepresenting or
permitting misrepresentation of his or her education, professional
qualifications, or professional affiliations to any person or entity.

(g) Impersonation of another by any licensee, registrant, or
applicant for a license or registration, or, in the case of a licensee
or registrant, allowing any other person to use his or her license
or registration.

(h) Aiding or abetting, or employing, directly or indirectly, any
unlicensed or unregistered person to engage in conduct for which
a license or registration is required under this chapter.

(i) Intentionally or recklessly causing physical or emotional
harm to any client.

(j) The commission of any dishonest, corrupt, or fraudulent act
substantially related to the qualifications, functions, or duties of a
licensee or registrant.

(k) Engaging in sexual relations with a client, or a former client
within two years following termination of therapy, soliciting sexual
relations with a client, or committing an act of sexual abuse, or
sexual misconduct with a client, or committing an act punishable
as a sexually related crime, if that act or solicitation is substantially
related to the qualifications, functions, or duties of a licensed
professional clinical counselor.

(l) Performing, or holding oneself out as being able to perform,
or offering to perform, or permitting any trainee, applicant, or
registrant under supervision to perform, any professional services
beyond the scope of the license authorized by this chapter.

(m) Failure to maintain confidentiality, except as otherwise
required or permitted by law, of all information that has been
received from a client in confidence during the course of treatment
and all information about the client which is obtained from tests
or other means.

(n) Prior to the commencement of treatment, failing to disclose
to the client or prospective client the fee to be charged for the
professional services, or the basis upon which that fee will be
computed.

(o) Paying, accepting, or soliciting any consideration,
compensation, or remuneration, whether monetary or otherwise,
for the referral of professional clients. All consideration,
compensation, or remuneration shall be in relation to professional
clinical counseling services actually provided by the licensee.
Nothing in this subdivision shall prevent collaboration among two
or more licensees in a case or cases. However, no fee shall be
charged for that collaboration, except when disclosure of the fee
has been made in compliance with subdivision (n).

(p) Advertising in a manner that is false, fraudulent, misleading,
or deceptive, as defined in Section 651.

(q) Reproduction or description in public, or in any publication
subject to general public distribution, of any psychological test or
other assessment device, the value of which depends in whole or
in part on the naivete of the subject, in ways that might invalidate
the test or device.

(r) Any conduct in the supervision of a registered intern,
associate clinical social worker, or clinical counselor trainee by
any licensee that violates this chapter or any rules or regulations
adopted by the board.

(s) Performing or holding oneself out as being able to perform
professional services beyond the scope of one’s competence, as
established by one’s education, training, or experience. This
subdivision shall not be construed to expand the scope of the
license authorized by this chapter.

(t) Permitting a clinical counselor trainee or intern under one’s
supervision or control to perform, or permitting the clinical
counselor trainee or intern to hold himself or herself out as
competent to perform, professional services beyond the clinical
counselor trainee’s or intern’s level of education, training, or
experience.

(u) The violation of any statute or regulation of the standards
of the profession, and the nature of the services being rendered,
governing the gaining and supervision of experience required by
this chapter.

(v) Failure to keep records consistent with sound clinical
judgment, the standards of the profession, and the nature of the
services being rendered.

(w) Failure to comply with the child abuse reporting
requirements of Section 11166 of the Penal Code.

(x) Failing to comply with the elder and dependent adult abuse
reporting requirements of Section 15630 of the Welfare and
Institutions Code.

(y) Repeated acts of negligence.

(z) (1) Engaging in an act described in Section 261, 286, 288a,
or 289 of the Penal Code with a minor or an act described in
Section 288 or 288.5 of the Penal Code regardless of whether the
act occurred prior to or after the time the registration or license
was issued by the board. An act described in this subdivision
occurring prior to the effective date of this subdivision shall
constitute unprofessional conduct and shall subject the licensee to
refusal, suspension, or revocation of a license under this section.

(2) The Legislature hereby finds and declares that protection of
the public, and in particular minors, from sexual misconduct by a
licensee is a compelling governmental interest, and that the ability
to suspend or revoke a license for sexual conduct with a minor
occurring prior to the effective date of this section is equally
important to protecting the public as is the ability to refuse a license
for sexual conduct with a minor occurring prior to the effective
date of this section.

(aa) Engaging in any conduct that subverts or attempts to subvert
any licensing examination or the administration of an examination
as described in Section 123.

(ab) Revocation, suspension, or restriction by the board of a
license, certificate, or registration to practice as a professional
clinical counselor, clinical social worker, educational psychologist,
or marriage and family therapist.

begin delete

(ac) Failing to comply with the procedures set forth in Section
2290.5 when delivering health care via telehealth.

end delete begin delete

(ad) 

end delete

begin insert (ac) end insert begin insert   end insert Willful violation of Chapter 1 (commencing with Section
123100) of Part 1 of Division 106 of the Health and Safety Code.

SEC. 9.  

This act is an urgency statute necessary for the
immediate preservation of the public peace, health, or safety within
the meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting the necessity are:

In order to protect the health and safety of the public due to a
lack of access to health care providers in rural and urban medically
underserved areas of California, the increasing strain on existing
providers expected to occur with the implementation of the federal
Patient Protection and Affordable Care Act, and the assistance that
further implementation of telehealth can provide to help relieve
these burdens, it is necessary for this act to take effect immediately.