BILL ANALYSIS Ó
AB 2745
Page 1
Date of Hearing: April 19, 2016
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Rudy Salas, Chair
AB 2745
Holden - As Amended April 12, 2016
SUBJECT: Healing arts: licensing and certification.
SUMMARY: Makes a number of changes to the Medical Practice Act
including: specifies that a physician's and surgeon's licensee,
as specified, is authorized to receive the limited license;
authorizes the Medical Board of California (MBC) to require an
independent clinical evaluation before providing a limited or
disability license; authorizes the MBC, during an investigation
of the death of a patient, to provide a written request to a
facility where medical records are located or the care to a
deceased patient was provided; authorizes the MBC to place a
midwife license on probation and establish a fee for monitoring
a licensee on probation; authorizes a person whose midwife
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
MBC for reinstatement or modification of penalty; requires the
revocation of a midwife license for a person required to
register as a sex offender; authorizes a polysomnographic
technician registration to be placed on probation and would
establish a fee for monitoring a registrant on probation;
authorizes a person whose polysomnographic 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 MBC for
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reinstatement or modification of penalty; and requires the
revocation of a research psychoanalyst or polysomnographic
technologist registration for a person required to register as a
sex offender.
EXISTING LAW:
1)Provides for the licensure and regulation of physicians and
surgeons by the MBC. (Business and Professions Code (BPC) §
2004 et seq; 2307; 2232.)
2)Provides for the licensing and regulation of midwives by the
MBC. (BPC § 2512 et seq.)
3)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, and specifies that 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. (Title 17 California Code of
Regulations (CCR) §§ 1315.50; 1315.55; 1315.53)
4)Authorizes the MBC, 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 MBC provides a written
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request to the physician and surgeon that includes a
declaration that the MBC has been unsuccessful in locating or
contacting the deceased patient's beneficiary or personal
representative after reasonable efforts. (BPC § 2225(c)(1))
5)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. (BPC § 3575 et seq.)
6)Requires polysomnographic technologists to apply to and
register with the MBC and to pay specified fees to be fixed by
the MBC at no more than $100 each, and to renew their
registration biennially for a fee of no more than $150. (BPC
§ 3577)
THIS BILL:
1)Specifies that 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:
a) Pays the appropriate initial or renewal license fee.
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b) Signs an agreement on a form prescribed by the MBC 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 MBC.
2)Indicates that the MBC may require the applicant or licensee
to obtain an independent clinical evaluation of his or her
ability to practice medicine safely as a condition of
receiving a limited or a disability license.
3)Requires an agreement for a disability license, as specified,
to additionally be signed by the MBC.
4)Specifies that any person who knowingly provides false
information in a disability license agreement shall be subject
to any sanctions available to the MBC.
5)Authorizes the MBC to deny a physician's and surgeon's
postgraduate training authorization letter for unprofessional
conduct and other violations, as specified.
6)Specifies that in any investigation that involves the death of
a patient, the MBC 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 MBC provides a written request to either the physician
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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 MBC has been unsuccessful
in locating or contacting the deceased patient's beneficiary
or personal representative after reasonable efforts.
7)Authorizes the MBC to suspend, revoke, or place on probation
the license of a midwife for specified acts, including
unprofessional conduct and crimes of dishonesty.
8)Specifies that the fee for the midwife 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 and that fee may be
collected and retained by that organization. The fee for
monitoring a licensee on probation shall be the cost of
monitoring, as fixed by the MBC.
9)Allows a person whose midwife 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, to petition the MBC for reinstatement or
modification of penalty, including modification or termination
of probation.
10)Specifies that 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:
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a) At least three years for reinstatement of a license
surrendered or revoked for unprofessional conduct, except
that the MBC may, for good cause shown, specify in a
revocation order that a petition for reinstatement may be
filed after two years.
b) At least two years for early termination of probation of
three years or more.
c) 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.
11)Indicates that the petition shall state any facts as may be
required by the MBC. 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.
12)Further notes that the petition may be heard by a panel of
the MBC or the MBC may assign the petition to an
administrative law judge. After a hearing on the petition,
the administrative law judge shall provide a proposed decision
to the MBC, which shall be acted upon, as specified.
13)Allows the panel of the MBC or the administrative law judge
hearing the petition to consider all activities of the
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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 finds necessary.
14)Specifies that the administrative law judge reinstating a
license or modifying a penalty may recommend the imposition of
any terms and conditions deemed necessary.
15)Indicates that 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 MBC 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.
16) Permits the MBC to revoke the midwife license of any person
who has been required to register as a sex offender.
17)Specifies that provisions of the bill shall not apply to a
person or licensed midwife 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.
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18)Further specifies that provisions of the bill shall not apply
to a person or licensed midwife 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.
19)Provides that the use of any controlled substance or the use
of any of the dangerous drugs specified in Section 4022, or of
alcoholic beverages, to the extent, or in such a manner as to
be dangerous or injurious to a research psychoanalyst or
polysomnographic technologist registrant, or to any other
person or to the public, or to the extent that this use
impairs the ability of the registrant to practice safely or
more than one misdemeanor or any felony conviction involving
the use, consumption, or self-administration of any of the
substances referred to in this section, or any combination
thereof, constitutes unprofessional conduct. The record of
the conviction is conclusive evidence of this unprofessional
conduct.
20)A plea or verdict of guilty or a conviction following a plea
of nolo contendere is deemed to be a conviction for purposes
of discipline for a research psychoanalyst or polysomnographic
technologist registrant. The MBC may order discipline of the
registrant in accordance with Section 2227 or may order the
denial of the 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
imposition of sentence, irrespective of a subsequent order
under the provisions of Section 1203.4 of the Penal Code
allowing this person to withdraw his or her plea of guilty and
to enter a plea of not guilty, or setting aside the verdict of
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guilty, or dismissing the accusation, complaint, information,
or indictment.
21)Authorizes the MBC to suspend or revoke the registration of a
polysomnographic technologist, polysomnographic technician, or
polysomnographic trainee for unprofessional conduct as
specified.
22)Permits a person whose polysomnographic technologist
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, to petition the MBC for reinstatement or
modification of penalty, including modification or termination
of probation.
23)Specifies that 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:
a) At least three years for reinstatement of a registration
surrendered or revoked for unprofessional conduct, except
that the MBC may, for good cause shown, specify in a
revocation order that a petition for reinstatement may be
filed after two years.
b) At least two years for early termination of probation of
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three years or more.
c) 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.
24)Indicates that the petition shall state any facts as may be
required by the MBC. 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.
25)Permits the petition to be heard by a panel of the MBC. The
MBC may assign the petition to an administrative law judge,
and after a hearing on the petition, the administrative law
judge shall provide a proposed decision to the MBC.
26)Indicates that the panel of the MBC 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 finds necessary.
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27)Specifies that the administrative law judge reinstating a
registration or modifying a penalty may recommend the
imposition of any terms and conditions deemed necessary.
28)Indicates that 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 MBC 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.
29)Permits the MBC to revoke the research psychoanalyst or
polysomnographic technologist registration of any person who
has been required to register as a sex offender pursuant to
Section 290 of the Penal Code.
30)Indicates that provisions of this bill shall not apply to a
person or research psychoanalyst or polysomnographic
technologist registrant 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.
31)Indicates that the provisions of the bill shall not apply to
a person or research psychoanalyst or polysomnographic
technologist registrant who has been relieved under Section
290.5 of the Penal Code of his or her duty to register as a
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sex offender, or whose duty to register has otherwise been
formally terminated under California law.
32)Specifies that the fee for monitoring a licensee on probation
shall be the cost of monitoring, as fixed by the MBC.
33)Makes other technical, updating, and clarifying changes.
FISCAL EFFECT: Unknown. This bill has been keyed fiscal by the
Legislative Counsel.
COMMENTS:
Purpose. This bill is sponsored by the MBC . According to the
author, "[The MBC's] authority consists of licensing and
regulating allied health licensees such as Licensed Midwives,
Research Psychoanalysts and Polysomnographic Technologists and
Trainees. There are also many provisions that apply to
physicians and surgeons that the MBC also applies to health
licensees. Assembly Bill 2745 is a clean-up bill to ensure that
the MBC's authority to perform their duties is clearly defined
and aligned with current law."
Background. Licensing and Regulation of Allied Health
Professionals. The MBC is responsible for licensing and
regulating allied health licensees, including licensed midwives
and polysomnographic technologists, technicians and trainees.
There are certain provisions in the Medical Practice Act that
apply to physicians and surgeons that the MBC also relies upon
when regulating the aforementioned allied health licensees. As
such, the author believes it is necessary to clarify the MBC's
authority to do the following:
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Revoke or deny a license for registered sex offenders;
Allow allied health licensees to petition for license
reinstatement; and,
Allow the MBC to use probation as a disciplinary option
for allied health licenses, and to procure payment for the
costs of probation monitoring.
Limited License. The MBC offers a limited practice license to
new applicants or disabled status licensees who have a
disability and are unable to practice all aspects of medicine
safely. Only new licensees or disabled status licensees can
apply for a limited practice license. Physicians and surgeons
who have disabled license status, and who wish to switch their
license to a limited practice license, do not currently have a
pathway to do so.
Written Records Request. Current law authorizes the MBC to
investigate patient deaths and to copy medical records of the
deceased patient without obtaining the approval of the next of
kin of the deceased patient or a court order. This authority
was granted in order for the MBC to determine if the death was a
result of a physician and surgeon violating the Medical Practice
Act.
Standard protocol is for the MBC to submit a written request to
the physician, declaring that the MBC has been unsuccessful in
contacting the patient's next of kin. However, the MBC
indicates that for certain cases, the records reside with the
facility where care was provided versus the physician who
provided care. This hinders the MBC's ability to obtain records
and proceed with its investigation.
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ARGUMENTS IN SUPPORT:
The Medical Board of California (sponsor) writes in support,
"This bill would clean up existing law to ensure that the MBC's
authority to perform its regulatory oversight of licensees is
clearly defined and aligned with current law. For these
reasons, the MBC is please to sponsor this important bill."
ARGUMENTS IN OPPOSITION:
None on file.
AMENDMENTS:
The bill includes the terminology: "disability license."
However, the current terminology utilized on forms of the MBC is
"disabled status license." In order to be consistent, the bill
should be amended as follows:
On page 8, line 31 strike: disability license and insert:
disabled status license .
The language in the bill refers to polysomnographic technicians
as "licensees," but the proper terminology is "registrant" as
these allied healthcare professionals are registered, not
licensed, with the MBC.
On page 18, line 8 strike: licensee and insert: registrant
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REGISTERED SUPPORT:
Medical Board of California (sponsor)
REGISTERED OPPOSITION:
None on file.
Analysis Prepared by:Le Ondra Clark Harvey Ph.D. / B. & P. /
(916) 319-3301