BILL ANALYSIS Ó
SB 531
Page 1
Date of Hearing: June 23, 2015
ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
Susan Bonilla, Chair
SB 531(Bates) - As Introduced February 26, 2015
SENATE VOTE: 34-0
SUBJECT: Board of Behavioral Sciences.
SUMMARY: Authorizes the Board of Behavioral Sciences (BBS) to
deny without a hearing a request to petition for termination of
probation of a modification of penalty for specified reasons and
permits the BBS to continue disciplinary proceedings regardless
of the licensee's status.
EXISTING LAW:
1)Establishes the BBS within the Department of Consumer Affairs
(DCA), to license and regulate the practice of marriage and
family therapists (LMFTs), professional clinical counselors
(LPCCs), clinical social workers (LCSWs) and educational
psychologists (LEPs). (Business and Professions Code (BPC)
Section 4990 et seq.)
2)States it is the intent of the Legislature that the BBS employ
its resources for all of the following functions: (BPC
Section 4990.18)
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a) The licensure of LMFTs, LCSWs, LPCCs, and LEPs;
b) The development and administration of licensure
examinations and examination procedures consistent with
prevailing standards for the validation and use of
licensing and certification tests, as specified;
c) Enforcement of laws designed to protect the public from
incompetent, unethical, or unprofessional practitioners;
and,
d) Consumer education.
3)Authorizes the BBS to deny an application or suspend or revoke
a license or registration of any of its licensure or
registrant categories. The disciplinary action may include
denial of licensure, or revocation or suspension of the
license or imposition of restrictions on it, as specified.
(BPC Section 4990.38)
THIS BILL:
4)Authorizes the BBS to deny a request to petition for
termination of probation or modification of penalty for the
following reasons:
a) The petitioner has failed to comply with the terms and
conditions of the disciplinary order;
b) The BBS is conducting an investigation of the petitioner
while he or she is on probation;
c) The petitioner has a subsequent arrest that is
substantially related to the qualifications, functions, or
duties of the licensee or registrant and this arrest
occurred while on probation; or,
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d) The petitioner's probations with the BBS is currently
tolled.
5)States that the expiration, cancellation, forfeiture, or
suspension of a license, registration, or other authority to
practice by operation of law or by order or decision of the
BBS or a court of law, the placement of a license on a retired
status, or the voluntary surrender of a license or
registration by a licensee or registrant, of any license or
registration within the BBS's authority does not deprive the
BBS of jurisdiction to commence or proceed with any
investigation of, or action or disciplinary proceeding against
the licensee or registrant or to render a decision suspending
or revoking the license or registration.
FISCAL EFFECT: According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
COMMENTS:
Purpose. This bill is sponsored by the BBS . According to the
author, "[this bill] would streamline and clarify the process
regarding these hearings. In order to save time and expenses for
all parties involved, including the petitioner, this legislation
outlines criteria under which the [BBS] may deny a petition
without a hearing. This includes circumstances where the
petitioner is not in compliance with his or her probation, or
has had a subsequent arrest while on probation.
The second proposed amendment would ensure that the [BBS] is
able to follow-through with disciplinary cases and conduct
investigations, regardless if the license or registration status
of a mental health professional has changed or expired, ensuring
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the accountability of all licensees and registrants. These
clarifications would affect a small population of licensees and
registrants, but provide clarity moving forward with certain
types of enforcement cases."
Background. The BBS regulates four categories of professionals
who perform counseling services including: LMFTs, LCSWs, LPCCs,
and LEPs. In addition to providing licensure to qualified
candidates the BBS also registers marriage and family therapist
interns, associate clinical social workers, professional
clinical counselor interns and continuing education providers.
The BBS is tasked with developing and administering the written
examination for its licensure categories along with
administering the continuing education program to ensure
professional competency. Currently, the BBS regulates
approximately one-hundred thousand licensees, registrants, and
interns.
In addition to its responsibility for licensure and
registrations, the BBS also develops regulatory standards and
conducts an enforcement program to investigate consumer
complaints. As part of that process, the BBS is responsible for
imposing disciplinary actions against licensees and registrants
who violate the law and provides the mechanisms for
reinstatements or modification of specified penalties. This
bill aims to increase the BBS's disciplinary powers by
authorizing the BBS to continue its disciplinary authority
regardless of the status of the license. In addition, this bill
will allow the BBS more discretion in denying a hearing request
for a petitioner who seeks reinstatement or modification of a
penalty if the petitioner is not in compliance with the specific
terms of his or her probation.
Enforcement. Through the enforcement process, the BBS
identifies and takes appropriate action against licensees and
registrants who, through their conduct, expose themselves to
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disciplinary action. The purpose of the disciplinary process is
to ensure quality psychotherapeutic care to the consumers of the
State of California and to preserve high standards of practice
in this jurisdiction.
According to the BBS, all complaints are reviewed by the BBS's
enforcement staff. Depending on the allegations in the
complaint, some complaints may be sent to the DOI for
investigation. If the investigation confirms the alleged
misconduct, the matter may be submitted to the AG's office to
determine whether sufficient evidence exists to pursue
disciplinary action against. There are a variety of acts which
are subject to disciplinary action (revocation, suspension, or
probationary status of a license) such as unprofessional
conduct, sexual misconduct, gross negligence, conviction of a
substantially related crime, substance abuse or use of drugs
with a client, intentionally or recklessly causing harm to a
client, and practicing beyond the scope of the license, among
others.
BPC Section 4990.30 permits a LMFT, marriage and family
therapist intern, LCSW, associate clinical social worker, LPCC,
professional clinical counselor intern, or LEP whose license has
been revoked, suspended or placed on probation to petition the
BBS for reinstatement or modification of the penalty. However,
in order to qualify for a reinstatement or modification of the
penalty, the petitioner must meet the probationary terms as
determined by the BBS. Recently, the BBS has reported that an
increased number of individuals have requested a reinstatement
or modification of a penalty who are not in compliance with the
probationary terms. These requests require the BBS to schedule
a hearing regardless of if the petitioner has met the terms of
his or her probation which costs the BBS staff time and
resources. In order to alleviate the BBS from scheduling a
hearing, even when the petitioner is out of compliance, this
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bill will authorize the BBS to deny a petition for reinstatement
or modification of a penalty without a hearing if: 1) the
petitioner has failed to comply with the terms of his or her
disciplinary order, 2) the BBS is conducting an investigation of
the petitioner while he or she is on probation, 3) the
petitioner has an arrest that is substantially related to the
duties or qualifications of the license, and 4) the petitioner's
probation with the BBS is tolled.
This bill would authorize the BBS to deny, without a hearing, a
petition for termination or modification of a penalty for a
licensee who is not in compliance with his or her probationary
terms. According to the BBS, under their Disciplinary
Guidelines, there are certain things that take place in every
probation case including a statement that if a probationer
violates his or her probation conditions, the BBS may impose
discipline, but only after giving the respondent notice and
opportunity to be heard. If a probationer has violated the
terms or his or her probation, they should receive a notice from
the BBS.
Enforcement Jurisdiction. Another enforcement-related matter
for the BBS is its authority to continue to investigate an
individual who has been the subject of an investigation even
after their license or registration has been expired. The
result of this is that the BBS is unable to continue the
disciplinary process against a registrant or licensee in the
event a disciplinary case has been opened and the registrant or
licensee's license was expired or retired. This bill will allow
the BBS to commence or proceed with any investigation or action
or disciplinary proceeding against the licensee or registrant
regardless of license or registration status.
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This bill will also allow the BBS to continue the disciplinary
process against a licensee or registrant who may have allowed
their license to expire or surrendered their license during a
disciplinary investigation in order to avoid a disciplinary
outcome. According to the BBS, if an incident like this occurs,
the ex-licensee would potentially be able to reapply for
licensure or registration in California or another state without
having to acknowledge the disciplinary outcome. This is because
the BBS does not have the appropriate authority to continue or
commence with disciplinary proceedings if the license or
registration is no longer valid.
Current Related Legislation. AB 923 (Steinorth), of 2015,
expands the Respiratory Care Board's (RCB) enforcement authority
by adding additional causes for adverse licensure actions,
continuing jurisdiction after the loss of a license, expanding
the definition of unprofessional conduct, and authorizing the
RCB to provide notice of a licensee's arrest. STATUS: This bill
is pending in the Assembly Committee on Business and
Professions.
Prior Related Legislation. SB 1575 (Senate Committee on
Business, Professions and Economic Development), Chapter 799,
Statutes of 2012, makes numerous minor and technical changes to
various provisions pertaining to the health-related regulatory
boards within the DCA.
AB 270 (Correa), Chapter 231, Statutes of 2002, changes the
sunset date of the Board of Accountancy (BOA) and the
composition and requirements of board-membership. Requires
specified reporting by licensees regarding certain actions taken
against licensees including convictions, civil judgments, and
settlements, and provides the BOA with the authority to
investigate violations of the law and professional accountancy
standards.
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ARGUMENTS IN SUPPORT:
The BBS writes in support, "This bill makes two amendments to
streamline the [BBS's] enforcement process: 1) it modifies the
[BBS's] requirements for an individual to petition for a
termination of probation or modification of penalty. Under the
proposed amendment, the [BBS] may deny a petition without a
hearing if the petitioner is not in compliance with the terms of
his or her probation; and, 2) it clarifies that the [BBS] has
jurisdiction to investigate and take disciplinary action even if
the status of a license or registration changes or if the
license or registration expires. The goal of the proposed
changes is to increase the clarity and efficiency of the
enforcement process."
ARGUMENTS IN OPPOSITION:
None of file.
POLICY ISSUES:
This bill allows the BBS to deny a petitioner a hearing for a
reduction of penalty or modification of probation under
specified circumstances which relate to the petitioner's
non-compliance of the terms of his or her probation. Under the
BBS's current disciplinary guidelines, a probationer may be
aware of his or her probation violation; however, they may not
understand that the BBS can deny their hearing for termination
or probation or modification of a penalty based on the probation
violation. The author may wish to consider adding a provision
to this bill requiring the BBS to provide a copy of the reasons
why the BBS may deny a hearing for modification or reduction of
penalty at the time the individual accepts the terms of
probation.
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AMENDMENT:
This bill will authorize the BBS to commence or proceed with an
investigation of, or disciplinary proceedings against a licensee
or registrant regardless of their license status. In order to
ensure that this enhanced disciplinary authority is consistent
with the BBS's current authority for disciplinary actions, as
noted in BPC 4990.32, the author may wish to accept the
following amendment which will specify that the BBS's authority
to investigate or continue its disciplinary proceedings against
a person, who is no longer under the BBS's jurisdiction, meets
the same statute of limitations requirements for current
licensees.
On page 2, line 16, after law, insert: but subject to Section
4990.32,
REGISTERED SUPPORT:
Board of Behavioral Sciences (sponsor)
The American Association for Marriage and Family Therapy,
California Division
REGISTERED OPPOSITION:
None on file.
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Analysis Prepared by:Elissa Silva / B. & P. / (916) 319-3301