California Legislature—2015–16 Regular Session

Assembly Bill No. 2745

Introduced by Assembly Member Holden

February 19, 2016

An act to amend Sections 2088, 2225, 2441, 2519, 2520, 3576, and 3577 of, and to add Sections 2522, 2523, 3576.1, and 3576.2 to, the Business and Professions Code, relating to healing arts, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

AB 2745, as introduced, Holden. Healing arts: licensing and certification.

(1) Existing law, the Medical Practice Act, provides for the licensure and regulation of physicians and surgeons by the Medical Board of California. Existing law authorizes an applicant for a physician’s and surgeon’s license who is otherwise eligible for a license but is unable to practice some aspects of medicine safely due to a disability to receive a limited license if the applicant pays the license renewal fee and signs an agreement agreeing to limit his or her practice in the manner prescribed by the reviewing physician and agreed to by the board. Existing law makes any person who knowingly provides false information in this agreement subject to any sanctions available to the board. Existing law authorizes the board to require the applicant to obtain an independent clinical evaluation of his or her ability to practice medicine safely as a condition of receiving the limited license. Violation of the act is a crime. Existing law establishes the Contingent Fund of the Medical Board of California, a continuously appropriated fund.

This bill would specify that a licensee who is otherwise eligible for a license but is unable to practice some aspects of medicine safely due to a disability is authorized to receive the limited license if the above-described conditions are met. By adding fees for deposit into the Contingent Fund of the Medical Board of California, this bill would make an appropriation.

(2) Existing law authorizes a licensee who demonstrates that he or she is unable to practice medicine due to a disability to request a waiver of the license renewal fee. Under existing law, a licensee granted that waiver is prohibited from practicing medicine until he or she establishes that the disability no longer exists or signs an agreement, under penalty of perjury, agreeing to limit his or her practice in the manner prescribed by the reviewing physician.

This bill would require the board to agree to this limit, would authorize the board to require an independent clinical evaluation, and would subject a person who knowingly provides false information in the agreement to sanctions. By expanding the scope of a crime, this bill would impose a state-mandated local program.

(3) Existing law authorizes the board, in any investigation that involves the death of a patient, to inspect and copy the medical records of the deceased patient without the authorization of the beneficiary or personal representative of the deceased patient or a court order solely to determine the extent to which the death was the result of the physician and surgeon’s violation of the Medical Practice Act, if the board provides a written request to the physician and surgeon that includes a declaration that the board has been unsuccessful in locating or contacting the deceased patient’s beneficiary or personal representative after reasonable efforts.

This bill would authorize the board to provide the written request to the facility where the medical records are located or the care to the deceased patient was provided.

(4) Existing law, the Licensed Midwifery Practice Act of 1993, provides for the licensing and regulation of midwives by the Board of Licensing of the Medical Board of California. Under the act, the board is authorized to suspend or revoke the license of a midwife for specified conduct, including unprofessional conduct consisting of, among other things, incompetence or gross negligence in carrying out the usual functions of a licensed midwife. A violation of the act is a crime.

This bill would authorize the board to place a license on probation and establish a fee for monitoring a licensee on probation. The bill would also authorize a person whose license has been voluntarily surrendered while under investigation or while charges are pending or whose license has been suspended, revoked, or placed on probation to petition the board for reinstatement or modification of penalty, as specified. The bill would require the revocation of a license for a person required to register as a sex offender, except as specified.

(5) Existing law prohibits a person from using the title “certified polysomnographic technologist” or engaging in the practice of polysomnography unless he or she is registered as a certified polysomnographic technologist, is supervised and directed by a licensed physician and surgeon, and meets certain other requirements. Existing law requires polysomnographic technologists to apply to and register with the Medical Board of California and to pay specified fees to be fixed by the board at no more than $100 each, and to renew their registration biennially for a fee of no more than $150. Existing law requires the deposit of those fees in the Contingent Fund of the Medical Board of California. Existing law authorizes a registration to be suspended, revoked, or otherwise subject to discipline for specified conduct.

This bill would also authorize a registration to be placed on probation if a registrant engages in that conduct and would establish a fee for monitoring a registrant on probation. By increasing fees for deposit into the Contingent Fund, this bill would make an appropriation. The bill would authorize a person whose registration has been voluntarily surrendered while under investigation or while charges are pending or whose registration has been suspended, revoked, or placed on probation to petition the board for reinstatement or modification of penalty, as specified. The bill would require the revocation of a registration for a person required to register as a sex offender, except as specified.

(6) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: yes. Fiscal committee: yes. State-mandated local program: yes.

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

SECTION 1.  

Section 2088 of the Business and Professions
Code is amended to read:

2088.  

(a) An applicant for a physician’s and surgeon’s license
begin insert or a physician’s and surgeon’s licensee end insert who is otherwise eligible
for that license but is unable to practice some aspects of medicine
safely due to a disability may receive a limited license if he or she
does both of the following:

(1) Pays the begin insert appropriate end insert initial begin insert or renewal end insert license fee.

(2) Signs an agreement on a form prescribed by the board in
which the applicant begin insert or licensee end insert agrees to limit his or her practice
in the manner prescribed by the reviewing physician and agreed
to by the board.

(b) The board may require the applicant begin insert or licensee end insert described
in subdivision (a) to obtain an independent clinical evaluation of
his or her ability to practice medicine safely as a condition of
receiving a limited license under this section.

(c) Any person who knowingly provides false information in
the agreement submitted pursuant to subdivision (a) shall be subject
to any sanctions available to the board.

SEC. 2.  

Section 2225 of the Business and Professions Code is
amended to read:

2225.  

(a) Notwithstanding Section 2263 and any other law
making a communication between a physician and surgeon or a
doctor of podiatric medicine and his or her patients a privileged
communication, those provisions shall not apply to investigations
or proceedings conducted under this chapter. Members of the
board, the Senior Assistant Attorney General of the Health Quality
Enforcement Section, members of the California Board of Podiatric
Medicine, and deputies, employees, agents, and representatives of
the board or the California Board of Podiatric Medicine and the
Senior Assistant Attorney General of the Health Quality
Enforcement Section shall keep in confidence during the course
of investigations, the names of any patients whose records are
reviewed and shall not disclose or reveal those names, except as
is necessary during the course of an investigation, unless and until
proceedings are instituted. The authority of the board or the
California Board of Podiatric Medicine and the Health Quality
Enforcement Section to examine records of patients in the office
of a physician and surgeon or a doctor of podiatric medicine is
limited to records of patients who have complained to the board
or the California Board of Podiatric Medicine about that licensee.

(b) Notwithstanding any other law, the Attorney General and
his or her investigative agents, and investigators and representatives
of the board or the California Board of Podiatric Medicine, may
inquire into any alleged violation of the Medical Practice Act or
any other federal or state law, regulation, or rule relevant to the
practice of medicine or podiatric medicine, whichever is applicable,
and may inspect documents relevant to those investigations in
accordance with the following procedures:

(1) Any document relevant to an investigation may be inspected,
and copies may be obtained, where patient consent is given.

(2) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied if relevant to
an investigation of a licensee.

(c) (1) Notwithstanding subdivision (b) or any other law, in
any investigation that involves the death of a patient, the board
may inspect and copy the medical records of the deceased patient
without the authorization of the beneficiary or personal
representative of the deceased patient or a court order solely for
the purpose of determining the extent to which the death was the
result of the physician and surgeon’s conduct in violation of the
Medical Practice Act, if the board provides a written request to
begin insert either end insert the physician and surgeon begin insert or the end insert begin insert facility where the medical
records are located or the care to the deceased patient was
provided, end insert that includes a declaration that the board has been
unsuccessful in locating or contacting the deceased patient’s
beneficiary or personal representative after reasonable efforts.
Nothing in this subdivision shall be construed to allow the board
to inspect and copy the medical records of a deceased patient
without a court order when the beneficiary or personal
representative of the deceased patient has been located and
contacted but has refused to consent to the board inspecting and
copying the medical records of the deceased patient.

(2) The Legislature finds and declares that the authority created
in the board pursuant to this section, and a physician and surgeon’s
compliance with this section, are consistent with the public interest
and benefit activities of the federal Health Insurance Portability
and Accountability Act (HIPAA).

(d) In all cases in which documents are inspected or copies of
those documents are received, their acquisition or review shall be
arranged so as not to unnecessarily disrupt the medical and business
operations of the licensee or of the facility where the records are
kept or used.

(e) If documents are lawfully requested from licensees in
accordance with this section by the Attorney General or his or her
agents or deputies, or investigators of the board or the California
Board of Podiatric Medicine, the documents shall be provided
within 15 business days of receipt of the request, unless the licensee
is unable to provide the documents within this time period for good
cause, including, but not limited to, physical inability to access
the records in the time allowed due to illness or travel. Failure to
produce requested documents or copies thereof, after being
informed of the required deadline, shall constitute unprofessional
conduct. The board may use its authority to cite and fine a
physician and surgeon for any violation of this section. This remedy
is in addition to any other authority of the board to sanction a
licensee for a delay in producing requested records.

(f) Searches conducted of the office or medical facility of any
licensee shall not interfere with the recordkeeping format or
preservation needs of any licensee necessary for the lawful care
of patients.

SEC. 3.  

Section 2441 of the Business and Professions Code is
amended to read:

2441.  

begin insert (a) end insert begin insert   end insert Any licensee who demonstrates to the satisfaction
of the board that he or she is unable to practice medicine due to a
disability may request a waiver of the license renewal fee. The
granting of a waiver shall be at the discretion of the board and may
be terminated at any time. Waivers shall be based on the inability
of a licensee to practice medicine. A licensee whose renewal fee
has been waived pursuant to this section shall not engage in the
practice of medicine unless and until the licensee pays the current
renewal fee and does either of the following:

begin delete

(a)

end delete

begin insert (1) end insert  Establishes to the satisfaction of the board, on a form
prescribed by the board and signed under penalty of perjury, that
the licensee’s disability either no longer exists or does not affect
his or her ability to practice medicine safely.

begin delete

(b)

end delete

begin insert (2) end insert  Signs an agreement on a form prescribed by the board, signed
under penalty of perjury, in which the licensee agrees to limit his
or her practice in the manner prescribed by the reviewing begin delete physician. end delete
begin insert physician and agreed to by the board. end insert

begin insert

(b) The board may require the licensee described in paragraph
(2) of subdivision (a) to obtain an independent clinical evaluation
of his or her ability to practice medicine safely as a condition of
receiving a disability license under this section.

end insert begin insert

(c) Any person who knowingly provides false information in the
agreement submitted pursuant to paragraph (2) of subdivision (a)
shall be subject to any sanctions available to the board.

end insert

SEC. 4.  

Section 2519 of the Business and Professions Code is
amended to read:

2519.  

The board may begin delete suspend or revoke end delete begin insert suspend, revoke, or
place on probation end insert the license of a midwife for any of the
following:

(a) Unprofessional conduct, which includes, but is not limited
to, all of the following:

(1) Incompetence or gross negligence in carrying out the usual
functions of a licensed midwife.

(2) Conviction of a violation of Section 2052, in which event,
the record of the conviction shall be conclusive evidence thereof.

(3) The use of advertising that is fraudulent or misleading.

(4) Obtaining or possessing in violation of law, or prescribing,
or except as directed by a licensed physician and surgeon, dentist,
or podiatrist administering to himself or herself, or furnishing or
administering to another, any controlled substance as defined in
Division 10 (commencing with Section 11000) of the Health and
Safety Code or any dangerous drug as defined in Article 8
(commencing with Section 4210) of Chapter 9 of Division 2 of
the Business and Professions Code.

(5) The use of any controlled substance as defined in Division
10 (commencing with Section 11000) of the Health and Safety
Code, or any dangerous drug as defined in Article 8 (commencing
with Section 4210) of Chapter 9 of Division 2 of the Business and
Professions Code, or alcoholic beverages, to an extent or in a
manner dangerous or injurious to himself or herself, any other
person, or the public or to the extent that begin delete such end delete begin insert this end insert use impairs his
or her ability to conduct with safety to the public the practice
authorized by his or her license.

(6) Conviction of a criminal offense involving the prescription,
consumption, or self-administration of any of the substances
described in paragraphs (4) and (5), or the possession of, or
falsification of, a record pertaining to, the substances described in
paragraph (4), in which event the record of the conviction is
conclusive evidence thereof.

(7) Commitment or confinement by a court of competent
jurisdiction for intemperate use of or addiction to the use of any
of the substances described in paragraphs (4) and (5), in which
event the court order of commitment or confinement is prima facie
evidence of such commitment or confinement.

(8) Falsifying, or making grossly incorrect, grossly inconsistent,
or unintelligible entries in any hospital, patient, or other record
pertaining to the substances described in subdivision (a).

(b) Procuring a license by fraud or misrepresentation.

(c) Conviction of a crime substantially related to the
qualifications, functions, and duties of a midwife, as determined
by the board.

(d) Procuring, aiding, abetting, attempting, agreeing to procure,
offering to procure, or assisting at, a criminal abortion.

(e) Violating or attempting to violate, directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate
any provision or term of this chapter.

(f) Making or giving any false statement or information in
connection with the application for issuance of a license.

(g) Impersonating any applicant or acting as proxy for an
applicant in any examination required under this chapter for the
issuance of a license or a certificate.

(h) Impersonating another licensed practitioner, or permitting
or allowing another person to use his or her license or certificate
for the purpose of providing midwifery services.

(i) Aiding or assisting, or agreeing to aid or assist any person
or persons, whether a licensed physician or not, in the performance
of or arranging for a violation of any of the provisions of Article
12 (commencing with Section 2221) of Chapter 5.

(j)  Failing to do any of the following when required pursuant
to Section 2507:

(1)  Consult with a physician and surgeon.

(2)  Refer a client to a physician and surgeon.

(3)  Transfer a client to a hospital.

SEC. 5.  

Section 2520 of the Business and Professions Code is
amended to read:

2520.  

(a) (1) The fee to be paid upon the filing of a license
application shall be fixed by the board at not less than seventy-five
dollars ($75) nor more than three hundred dollars ($300).

(2) The fee for renewal of the midwife license shall be fixed by
the board at not less than fifty dollars ($50) nor more than two
hundred dollars ($200).

(3) The delinquency fee for renewal of the midwife license shall
be 50 percent of the renewal fee in effect on the date of the renewal
of the license, but not less than twenty-five dollars ($25) nor more
than fifty dollars ($50).

(4) The fee for the examination shall be the cost of administering
the examination to the applicant, as determined by the organization
that has entered into a contract with the begin delete Division of Licensing end delete
begin insert board end insert for the purposes set forth in subdivision (a) of Section
2512.5. Notwithstanding subdivision begin delete (b), end delete begin insert (c), end insert that fee may be
collected and retained by that organization.

begin insert

(b) The fee for monitoring a licensee on probation shall be the
cost of monitoring, as fixed by the board.

end insert begin delete

(b)

end delete

begin insert (c) end insert  The fees prescribed by this article shall be deposited in the
Licensed Midwifery Fund, which is hereby established, and shall
be available, upon appropriation, to the board for the purposes of
this article.

SEC. 6.  

Section 2522 is added to the Business and Professions
Code, to read:

2522.  

(a) A person whose license has been voluntarily
surrendered while under investigation or while charges are pending
or whose license has been revoked or suspended or placed on
probation, may petition the board for reinstatement or modification
of penalty, including modification or termination of probation.

(b) The person may file the petition after a period of not less
than the following minimum periods have elapsed from the
effective date of the surrender of the license or the decision
ordering that disciplinary action:

(1) At least three years for reinstatement of a license surrendered
or revoked for unprofessional conduct, except that the board may,
for good cause shown, specify in a revocation order that a petition
for reinstatement may be filed after two years.

(2) At least two years for early termination of probation of three
years or more.

(3) At least one year for modification of a condition, or
reinstatement of a license surrendered or revoked for mental or
physical illness, or termination of probation of less than three years.

(c) The petition shall state any facts as may be required by the
board. The petition shall be accompanied by at least two verified
recommendations from midwives licensed in any state who have
personal knowledge of the activities of the petitioner since the
disciplinary penalty was imposed.

(d) The petition may be heard by a panel of the board. The board
may assign the petition to an administrative law judge designated
in Section 11371 of the Government Code. After a hearing on the
petition, the administrative law judge shall provide a proposed
decision to the board, which shall be acted upon in accordance
with Section 2335.

(e) The panel of the board or the administrative law judge
hearing the petition may consider all activities of the petitioner
since the disciplinary action was taken, the offense for which the
petitioner was disciplined, the petitioner’s activities during the
time the license was in good standing, and the petitioner’s
rehabilitative efforts, general reputation for truth, and professional
ability. The hearing may be continued from time to time as the
administrative law judge designated in Section 11371 of the
Government Code finds necessary.

(f) The administrative law judge designated in Section 11371
of the Government Code reinstating a license or modifying a
penalty may recommend the imposition of any terms and conditions
deemed necessary.

(g) No petition shall be considered while the petitioner is under
sentence for any criminal offense, including any period during
which the petitioner is on court-imposed probation or parole. No
petition shall be considered while there is an accusation or petition
to revoke probation pending against the person. The board may
deny without a hearing or argument any petition filed pursuant to
this section within a period of two years from the effective date
of the prior decision following a hearing under this section.

SEC. 7.  

Section 2523 is added to the Business and Professions
Code, to read:

2523.  

(a) Except as provided in subdivisions (b) and (c), the
board shall revoke the license of any person who has been required
to register as a sex offender pursuant to Section 290 of the Penal
Code.

(b) This section shall not apply to a person who is required to
register as a sex offender pursuant to Section 290 of the Penal
Code solely because of a misdemeanor conviction under Section
314 of the Penal Code.

(c) This section shall not apply to a person who has been relieved
under Section 290.5 of the Penal Code of his or her duty to register
as a sex offender, or whose duty to register has otherwise been
formally terminated under California law.

SEC. 8.  

Section 3576 of the Business and Professions Code is
amended to read:

3576.  

(a) A registration under this chapter may be denied,
suspended, revoked, begin insert placed on probation, end insert or otherwise subjected
to discipline for any of the following by the holder:

(1) Incompetence, gross negligence, or repeated similar
negligent acts performed by the registrant.

(2) An act of dishonesty or fraud.

(3) Committing any act or being convicted of a crime
constituting grounds for denial of licensure or registration under
Section 480.

(4) Violating or attempting to violate begin delete any provision of end delete this
chapter or any regulation adopted under this chapter.

(b) Proceedings under this section shall be conducted in
accordance with Chapter 5 (commencing with Section 11500) of
Part 1 of Division 3 of Title 2 of the Government Code, and the
board shall have all powers granted therein.

SEC. 9.  

Section 3576.1 is added to the Business and Professions
Code, to read:

3576.1.  

(a) A person whose registration has been voluntarily
surrendered while under investigation or while charges are pending
or whose registration has been revoked or suspended or placed on
probation, may petition the board for reinstatement or modification
of penalty, including modification or termination of probation.

(b) The person may file the petition after a period of not less
than the following minimum periods have elapsed from the
effective date of the surrender of the registration or the decision
ordering that disciplinary action:

(1) At least three years for reinstatement of a registration
surrendered or revoked for unprofessional conduct, except that the
board may, for good cause shown, specify in a revocation order
that a petition for reinstatement may be filed after two years.

(2) At least two years for early termination of probation of three
years or more.

(3) At least one year for modification of a condition, or
reinstatement of a registration surrendered or revoked for mental
or physical illness, or termination of probation of less than three
years.

(c) The petition shall state any facts as may be required by the
board. The petition shall be accompanied by at least two verified
recommendations from polysomnographic technologists registered
in any state who have personal knowledge of the activities of the
petitioner since the disciplinary penalty was imposed.

(d) The petition may be heard by a panel of the board. The board
may assign the petition to an administrative law judge designated
in Section 11371 of the Government Code. After a hearing on the
petition, the administrative law judge shall provide a proposed
decision to the board, which shall be acted upon in accordance
with Section 2335.

(e) The panel of the board or the administrative law judge
hearing the petition may consider all activities of the petitioner
since the disciplinary action was taken, the offense for which the
petitioner was disciplined, the petitioner’s activities during the
time the registration was in good standing, and the petitioner’s
rehabilitative efforts, general reputation for truth, and professional
ability. The hearing may be continued from time to time as the
administrative law judge designated in Section 11371 of the
Government Code finds necessary.

(f) The administrative law judge designated in Section 11371
of the Government Code reinstating a registration or modifying a
penalty may recommend the imposition of any terms and conditions
deemed necessary.

(g) No petition shall be considered while the petitioner is under
sentence for any criminal offense, including any period during
which the petitioner is on court-imposed probation or parole. No
petition shall be considered while there is an accusation or petition
to revoke probation pending against the person. The board may
deny without a hearing or argument any petition filed pursuant to
this section within a period of two years from the effective date
of the prior decision following a hearing under this section.

SEC. 10.  

Section 3576.2 is added to the Business and
Professions Code, to read:

3576.2.  

(a) Except as provided in subdivisions (b) and (c), the
board shall revoke the registration of any person who has been
required to register as a sex offender pursuant to Section 290 of
the Penal Code.

(b) This section shall not apply to a person who is required to
register as a sex offender pursuant to Section 290 of the Penal
Code solely because of a misdemeanor conviction under Section
314 of the Penal Code.

(c) This section shall not apply to a person who has been relieved
under Section 290.5 of the Penal Code of his or her duty to register
as a sex offender, or whose duty to register has otherwise been
formally terminated under California law.

SEC. 11.  

Section 3577 of the Business and Professions Code
is amended to read:

3577.  

(a) Each person who applies for registration under this
chapter shall pay into the Contingent Fund of the Medical Board
of California a fee to be fixed by the board at a sum not in excess
of one hundred dollars ($100).

(b) Each person to whom registration is granted under this
chapter shall pay into the Contingent Fund of the Medical Board
of California a fee to be fixed by the board at a sum not in excess
of one hundred dollars ($100).

(c) The registration shall expire after two years. The registration
may be renewed biennially at a fee which shall be paid into the
Contingent Fund of the Medical Board of California to be fixed
by the board at a sum not in excess of one hundred fifty dollars
($150).

begin insert

(d) The fee for monitoring a licensee on probation shall be the
cost of monitoring, as fixed by the board.

end insert begin delete

(d)

end delete

begin insert (e) end insert  The money in the Contingent Fund of the Medical Board of
California that is collected pursuant to this section shall be used
for the administration of this chapter.

SEC. 12.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.