BILL NUMBER: AB 2745 INTRODUCED
BILL TEXT
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
or a physician's and surgeon's licensee 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 appropriate initial or renewal
license fee.
(2) Signs an agreement on a form prescribed by the board in which
the applicant or licensee 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 or licensee
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 either the
physician and surgeon or the facility where the
medical records are located or the care to the deceased patient was
provided, 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. (a) 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:
(a)
(1) 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.
(b)
(2) 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 physician. physician and agreed to
by the board.
(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.
(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.
SEC. 4. Section 2519 of the Business and Professions Code is
amended to read:
2519. The board may suspend or revoke
suspend, revoke, or place on probation 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 such this 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 Division of
Licensing board for the purposes set forth in
subdivision (a) of Section 2512.5. Notwithstanding subdivision
(b), (c), that fee may be collected and
retained by that organization.
(b) The fee for monitoring a licensee on probation shall be the
cost of monitoring, as fixed by the board.
(b)
(c) 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, placed on probation, 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 any provision of
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).
(d) The fee for monitoring a licensee on probation shall be the
cost of monitoring, as fixed by the board.
(d)
(e) 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.