Amended in Senate April 25, 2013

Amended in Senate April 1, 2013

Senate Bill No. 578

Introduced by Senator Wyland

February 22, 2013

An act to amend Section 4982 of the Business and Professions Code, relating to healing arts.

LEGISLATIVE COUNSEL’S DIGEST

SB 578, as amended, Wyland. Marriage and family therapists: unprofessional conduct.

Existing law, the Licensed Marriage and Family Therapist Act, provides for the licensure or registration and the regulation of marriage and family therapists by the Board of Behavioral Sciences, and makes a violation of the law a misdemeanor. Existing law authorizes the board to deny a license or registration or to suspend or revoke the license or registration of a licensee or registrant if he or she has been guilty of unprofessional conduct, which, among other things, includes engaging in sexual relations with a current or former client within a specified period of time.

This bill would specify that unprofessional conduct includes engaging in a dual relationship with a begin delete patient end delete begin insert client end insert that is likely to impair his or her professional judgment or lead to exploitation of the begin delete patient end delete begin insert client end insert . The bill describes a dual relationship as a separate and distinct relationship between a marriage and family therapist and his or her begin delete patient end delete begin insert client end insert that occurs simultaneously with the therapeutic relationship or begin delete within a reasonable period of time end delete following the termination of the therapeutic relationship. begin insert The bill would require, if a dual relationship occurs and cannot be avoided, a marriage and family therapist to take professional precautions, including documentation of the dual relationship, to ensure that his or her judgment is not impaired and that the client is not exploited. The bill would specify that a violation of those provisions would not be a crime. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

SECTION 1.  

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.

(z) Failure to comply with Section 2290.5.

(aa) (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.

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

(ac) Engaging in a dual relationship with a begin delete patient end delete begin insert client end insert that is
likely to impair his or her professional judgment or lead to
exploitation of the begin delete patient end delete begin insert client end insert . For purposes of this subdivision,
a dual relationship occurs when a marriage and family therapist
and his or her begin delete patient end delete begin insert client end insert engage in a separate and distinct
relationship either simultaneously with the therapeutic relationship,
or begin delete within a reasonable period of time end delete following the termination of
the therapeutic relationship. begin insert If a dual relationship occurs and
cannot be avoided, a marriage and family therapist shall take
appropriate and culturally sensitive professional precautions,
including documentation of the dual relationship, to ensure that
his or her judgment is not impaired and that the client is not
exploited. A violation of this subdivision shall not be subject to
Section 4983. end insert Nothing in this subdivision shall be construed to
alter or affect the prohibitions of subdivision (k).