BILL ANALYSIS
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|Hearing Date:April 22, 2010 |Bill No:SB |
| |1111 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Gloria Negrete McLeod, Chair
Bill No: SB 1111Author:Negrete McLeod
As Amended:April 12, 2010 Fiscal:Yes
SUBJECT: Regulatory boards.
SUMMARY: Enacts the Consumer Health Protection Enforcement Act that
includes various provisions affecting the investigation and
enforcement of disciplinary actions against licensees of healing arts
boards.
Existing law:
1) Establishes the Department of Consumer Affairs (DCA) which oversees
more than 40 boards, bureaus, committees, commissions and other
programs which license and regulate more than 100 businesses and
200 professional categories, including doctors, nurses, dentists,
engineers, architects, contractors, cosmetologists and automotive
repair facilities, and other diverse industries.
2) Establishes the Office of Attorney General (AG) for the prosecution
of cases against licensees of DCA's regulatory boards and bureaus.
3) Establishes the Office of Administrative Hearings charged with
hearing administrative law cases, pursuant to the Administrative
Procedures Act (APA), brought by the AG's Office on behalf of DCA's
regulatory boards and bureaus.
4) Requires specified boards within the DCA to disclose on the
Internet information on their respective licensees, including
information on the status of every license, suspensions and
revocations of licenses issued and other related enforcement
actions.
5) Provides under the Medical Practice Act that the Medical Board of
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California (MBC) shall disclose certain information about
physicians and surgeons, including information on whether the
licensee is in good standing, subject to a temporary restraining
order, interim suspension order, or any other enforcement actions,
as specified.
6) Allows the Director of the DCA to audit and review inquiries,
complaints, and disciplinary proceedings regarding licensees of the
MBC, and the California Board of Podiatric Medicine. Allows the
Director to make recommendations for changes to the disciplinary
system to the appropriate board, the Legislature, or both, and
submit a report to the Legislature on the findings of the audit and
review.
7) Allows an administrative law judge to direct a licensee found to
have committed a violation of the licensing act to pay a sum not to
exceed the reasonable costs of the investigation and enforcement of
the case. States that the costs shall include the amount of
investigative and enforcement costs up to the date of the hearing.
8) Prohibits a board from renewing or reinstating the license of a
licentiate who failed to pay all of the costs ordered, but allows a
board to conditionally renew or reinstate a license for a maximum
of one year for financial hardship.
9) Prohibits the MBC from requesting or obtaining from a physician and
surgeon, investigation and prosecution costs for a disciplinary
proceeding against the licentiate. Allows the MBC to increase fees
accordingly to compensate for any losses that may result from their
inability to seek cost recovery for investigation and prosecution
costs.
10)Allows boards within DCA, except as specified, to establish by
regulation, a system for the issuance to a licensee of a citation
or an administrative fine for violations of applicable licensing
act or regulation. Specifies that in no event shall the fine
assessed exceed $5,000 for each violation. Requires that in
assessing the fine, the board shall give due consideration to the
appropriateness of the amount of the fine with respect to factors
such as the gravity of the violation, the good faith of the
licensee, and the history of previous violations. Provides that a
licensee shall be provided an opportunity to contest the finding of
a violation and the assessment of a fine at a hearing conducted in
accordance with APA.
11)Establishes within the DCA, the Division of Investigation (DOI), to
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investigate alleged misconduct by licensees of boards. Allows the
Director of the DCA to employ such investigators, inspectors, and
deputies as are necessary to investigate and prosecute all
violations of any law. States Legislative intent that inspectors
used by boards are not required to be employees of the DOI, but may
be either employees, or under contract to the boards.
12)Specifies that investigators of the DOI, the MBC and the Dental
Board of California (DBC) shall have the authority and status of
peace officers. Provides that the Board of Registered Nursing
(BRN) may employ personnel as it deems necessary.
13)Allows state departments and agencies to formulate and issue a
decision by settlement, pursuant to an agreement of the parties,
without conducting an adjudicative proceeding, and specifies that
the settlement may be on any terms the parties determine are
appropriate. States that in an adjudicative proceeding to
determine whether an occupational license should be revoked,
suspended, limited, or conditioned, a settlement may not be made
before issuance of the agency pleading. A settlement may be made
before, during, or after the hearing.
14)States that a board or an administrative law judge may issue an
interim suspension order suspending any licentiate or imposing
license restrictions, as specified.
15)Requires a physician and surgeon's certificate to be suspended
automatically during any time that the holder of the certificate is
incarcerated after conviction of a felony, regardless of whether
the conviction has been appealed.
16)States that any physician and surgeon, psychotherapist, alcohol and
drug abuse counselor or any person holding himself or herself out
to be a physician and surgeon, psychotherapist, or alcohol and drug
abuse counselor, who engages in an act of sexual intercourse,
sodomy, oral copulation, or sexual contact with a patient or
client, or with a former patient or client when the relationship
was terminated primarily for the purpose of engaging in those acts,
unless the physician and surgeon, psychotherapist, or alcohol and
drug abuse counselor has referred the patient or client to an
independent and objective physician and surgeon, psychotherapist,
or alcohol and drug abuse counselor recommended by a third-party
physician and surgeon, psychotherapist, or alcohol and drug abuse
counselor for treatment, is guilty of sexual exploitation by a
physician and surgeon, psychotherapist, or alcohol and drug abuse
counselor. Defines sexual contact as sexual intercourse or the
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touching of an intimate part of a patient for the purpose of sexual
arousal, gratification, or abuse.
17)Establishes the Sex Offender Registration Act which requires
specified persons for the rest of his or her life while residing in
California, or while attending school or working in California, to
register, as specified.
18)Prohibits a physician and surgeon from including, or permitting to
include the following in a civil dispute settlement agreement: a
provision that prohibits another party to the dispute from
contacting or cooperating with the MBC; a provision that prohibits
another party to the dispute from filing a complaint with the MBC;
and, a provision that requires another party to the dispute to
withdraw a complaint he or she has filed with the MBC. States that
such provisions are void as against public policy, and its
violation is subject to disciplinary action by the MBC.
19)Provides in the Medical Practice Act that the AG's Office and his
or her investigative agents, and the MBC 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, and may
inspect documents relevant to those investigations according to
specified procedures. Requires that the names of any patients on
those records that are reviewed to remain confidential. Allows any
document relevant to an investigation to be inspected, and copies
may be obtained, where patient consent is given.
20)Specifies, for physicians and surgeons, dentists, and
psychologists, penalties for failure to produce medical records
requested pursuant to a patient's written authorization and a court
order mandating release of a record. Specifies penalties for
health care facilities that fail to produce medical records.
21)Requires any employer of a vocational nurse , psychiatric
technician , or respiratory care therapist to report to the
appropriate board the suspension or termination for cause of any
licensed vocational nurse, psychiatric technician or respiratory
care therapist in its employ. Defines suspension or termination
for cause as suspension or termination from employment for any of
the following reasons: (a) use of controlled substances or
alcohol, as specified; (b) unlawful sale of controlled substances
or other prescription items; (c) patient or client abuse, neglect,
physical harm, or sexual contact with a patient or client; (d)
falsification of medical records; (e) gross negligence or
incompetence and (f) theft from patients or clients, other
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employees, or the employer. Makes failure to report punishable by
an administrative fine not to exceed $10,000 per violation.
22)Requires peer review reporting by a peer review body, as defined,
of specified actions taken against or undertaken by a physician and
surgeon, doctor of podiatric medicine, clinical psychologist,
marriage and family therapist, clinical social worker, or dentist.
23)Allows a board to order a licentiate to be examined by one or more
physicians whenever it appears that any person holding a license,
certificate or permit may be unable to practice his or her
profession safely because the licentiate's ability to practice is
impaired due to mental illness, or physical illness affecting
competency, the licensing agency may order the licentiate to be
examined by one or more physicians and surgeons or psychologists
designated by the agency. The report of the examiners shall be
made available to the licentiate. States that if a licensing
agency determines that its licentiate's ability to practice his or
her profession safely is impaired because the licentiate is
mentally ill, or physically ill affecting competency, the licensing
agency may take action by any one of the following methods:
revoking the licentiate's certificate or license; suspending the
licentiate's right to practice; placing the licentiate on
probation; and taking any other action the licensing agency deems
proper.
24)Provides that a hearing to determine whether a right, authority,
license or privilege should be revoked, suspended, limited or
conditioned shall be initiated by filing an accusation. Defines an
accusation as a written statement of charges which shall set forth
in ordinary and concise language the acts or omissions with which
the respondent is charged.
25)Establishes the federal Health Care Quality Improvement Act,
administered by the U. S. Department of Health and Human Services
to manage the National Practitioner Data Bank and the Healthcare
Integrity and Protection Data Bank which collects and releases
certain information relating to the professional competence and
conduct of health care professionals.
26)Specifies in the Medical Practice Act that the conviction of a
charge violating any federal or state statute or regulation
regulating dangerous drugs or controlled substance constitutes
unprofessional conduct.
27)Requires the clerk of court to report any judgment in excess of
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$30,000 that is related to rendering unprofessional services by
specified licensees; and to transmit felony preliminary hearing
transcript against a physician and surgeon.
28)Requires the district attorney, city attorney, or other prosecuting
agency to notify the MBC, the Osteopathic Medical Board of
California, the California Board of Podiatric Medicine, and the
State Board of Chiropractic Examiners of any filings charging a
felony against a licensee, as specified.
29)Establishes a drug diversion program for osteopathic physicians and
surgeons, registered nurses, dentists, pharmacists, physical
therapists, physician assistants, and veterinarians.
30)Establishes a vertical enforcement and prosecution model for
investigations of cases against physician and surgeons and other
healing arts licensees.
31)Provides for a listing of general provisions applicable to other
boards under the DCA which shall also be applicable to the
Chiropractic Board which are not considered inconsistent with the
Chiropractic Initiative Act.
This bill:
1) Establishes the Consumer Health Protection Enforcement Act. States
Legislative findings and declarations on the need to timely
investigate and prosecute licensed health care professionals who
have violated the law, and the importance of providing healing arts
boards with the regulatory tools and authorities necessary to
reduce the timeframe for investigating and prosecuting violations
of law by healing arts practitioners between 12 and 18 months.
2) Specifies that the term "healing arts boards" includes all of the
following:
a) The Dental Board of California.
b) The Medical Board of California.
c) The State Board of Optometry.
d) The California State Board of Pharmacy.
e) The Board of Registered Nursing.
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f) The Board of Behavioral Sciences.
g) The Board of Vocational Nursing and Psychiatric Technicians of
the State of California.
h) The Respiratory Care Board of California.
i) The Acupuncture Board.
j) The Board of Psychology.
aa) The California Board of Podiatric Medicine.
bb) The Physical Therapy Board of California.
cc) The Physician Assistant Committee of the Medical Board of
California.
dd) The Speech-Language Pathology and Audiology and Hearing
Aid Dispensers Board.
ee) The California Board of Occupational Therapy.
ff) The Osteopathic Medical Board of California.
gg) The Naturopathic Medicine Committee of the Osteopathic
Medical Board of California.
hh) The Dental Hygiene Committee of California.
ii) The Veterinary Medical Board
3) Requires the following entities within DCA to provide on the
Internet information regarding the status of every license issued
by that entity, whether the license is current, expired, cancelled,
or revoked, in accordance with the California Public Records Act.
a) The Board of Registered Nursing.
b) The Board of Vocational Nursing and Psychiatric Technicians.
c) The Veterinary Medical Board of California.
d) The Physical Therapy Board of California.
e) The California State Board of Pharmacy.
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f) The Speech-Language Pathology and Audiology and Hearing Aid
Dispensers Board.
g) The Respiratory Care Board of California.
h) The California Board of Occupational Therapy.
i) The Naturopathic Medicine Committee of the Osteopathic Medical
Board.
j) The Physician Assistant Committee of the Medical Board of
California.
aa) The Dental Hygiene Committee of California.
4) Prohibits the information required to be posted in Item #3) above
from including personal information, including home telephone
number, date of birth, or social security number. Further
prohibits boards from including the licensee's address, but may
include the city and county of the licensee's address of record.
5) Expands the current authority of the Director of the DCA to audit
the MBC, and the California Board of Podiatric Medicine to include
all healing arts boards. Clarifies that the recommendations of the
Director to the healing arts boards pursuant to the audit and
review are for the consideration of the healing arts boards.
Allows a designee of the Director to perform the audit and review.
6) Allows an administrative law judge, in an order issued in
resolution of a disciplinary proceeding before any board that
places a license on probation, to direct a licensee to pay the
board's reasonable costs of probation , as specified. Requires a
board to provide the administrative law judge with a good faith
estimate of the probation monitoring costs.
7) Provides that in determining reasonable costs for purposes of cost
recovery, the administrative law judge shall only consider the
public resources expended pursuant to the investigation,
prosecution and enforcement of the case. Requires an
administrative law judge to provide an explanation as to how the
amount ordered for reasonable costs was determined if the actual
costs were not ordered.
8) Requires that payment for recovery of costs is due and payable in
full 30 days after the effective date of the order, unless the
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licensee and the board have agreed to a payment plan .
9) States that costs of prosecution for purposes of the recovery of
costs, shall include, but not be limited to, costs of attorneys,
expert consultants, witnesses, any administrative filing, and
service fees, and any other costs associated with the prosecution
of the case.
10)Authorizes a board to contract with a collection agency for the
purpose of collecting outstanding fees, fines, or cost recovery
amounts from any person who owes that money to the board.
Authorizes a board to provide the collection agency with the
personal information of that person, as specified. Prohibits the
collection agency from using or releasing personal information for
other purposes. Makes the collection agency liable for the
unauthorized use or disclosure of personal information received or
collected. Prohibits using a collection agency to recover
outstanding fees, fines, or cost recovery amounts until the person
has exhausted all appeals and the decision is final.
11)Allows healing arts boards or committees, for the issuance of a
citation, to hear the appeal for a citation or fine assessment.
States that if a healing arts board or committee chooses to hear
the appeal, two members of that board or committee shall hear the
appeal and issue a citation decision. Requires that one of the two
members be a licensee of the healing arts board or committee.
Specifies that if the healing arts board is a bureau, the Director
of the DCA shall appoint a designee to hear the appeal and issue a
citation decision. States that this hearing is not subject to the
provisions of the APA. Requires a board or committee that chooses
to utilize this appeal process to first adopt regulations providing
for notice and opportunity to be heard. Requires the regulations
to provide the licensee with due process , and describe the detailed
process of the hearing. States that an appeal of the citation
decision may be made through the filing of a Petition for Writ of
Mandate. States that a healing arts board may permit the use of
telephonic hearings, at the discretion of the person cited.
12)States that investigators used by the healing arts boards shall not
be required to be employees of the DOI and the healing arts boards
may contract for investigative services provided by the AG.
13)Establishes within the DOI the Health Quality Enforcement Unit to
investigate complaints against licensees and applicants within the
jurisdiction of the healing arts boards.
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14)Allows the BRN to hire designated investigators with the authority
and status of peace officers. Allows the DOI, the MBC, the DBC,
and the BRN to employ investigators who are not peace officers to
provide investigative services.
15)Allows a healing arts board to delegate to its executive officer or
executive director the authority to adopt a proposed default
decision where an administrative action to revoke a license has
been filed and the licensee has failed to file a notice of defense
or to appear at the hearing and a proposed default decision
revoking the license has been issued.
16)Allows a healing arts board to delegate to its executive officer
the authority to adopt a proposed settlement agreement where an
administrative action to revoke a license has been filed by the
healing arts board and the licensee has agreed to the revocation or
surrender his or her license.
17)Allows a healing arts board to enter into a settlement with a
licensee or applicant in lieu of the issuance of an accusation or
statement of issues against that licensee or applicant. Requires
the settlement to include language identifying the factual basis
for the action being taken and a list of the statutes or
regulations violated. Specifies that a person who enters a
settlement is not precluded from filing a petition, in the
timeframe permitted by law, to modify the terms of the settlement
or petition for early termination of probation, if probation is
part of the settlement. States that any settlement executed
against a licensee shall be considered discipline, and a public
record to be posted on the applicable board's Internet Website.
18)Allows the executive officer of a healing arts board, upon receipt
of evidence that a licensee of a healing arts board has engaged in
conduct that poses an imminent risk of serious harm to the public
health, safety, or welfare, to petition the Director of the DCA to
issue a temporary order that a licensee cease all practice and
activities.
19)Requires the executive officer, to the extent practicable, to
provide telephonic, electronic mail, message, or facsimile written
notice to the licensee of a hearing on the petition at least five
business days prior to the hearing. Specifies that all parties
have the opportunity to present oral or written argument before the
Director. Specifies that after presentation of the evidence, if in
the Director's opinion, the petitioner has established, by a
preponderance of the evidence that an imminent risk of serious harm
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to the public health, safety or welfare exists, the Director may
issue an order that the licensee cease all practice and activities
that require a license by that board.
20)Provides that a cease practice order issued pursuant to Item #18)
above shall be automatically vacated within 90 days of issuance, or
until the healing arts board files a petition for an interim
suspension order and the petition is denied or granted, whichever
occurs first.
21)Indicates that a licensee who fails or refuses to comply with an
order of the Director to cease practice pursuant to Item #18) above
is subject to disciplinary action to revoke or suspend his or her
license by the respective healing arts board, and an administrative
fine assessed by the board not to exceed $25,000.
22)States that upon receipt of new information, the executive officer
for the healing arts board who requested the temporary suspension
order shall review the basis for the license suspension to
determine if the grounds for the suspension continue to exist.
Requires the executive officer to immediately notify the Director
if the executive officer believes that the licensee no longer poses
an imminent risk of serious harm to the public health, safety, or
welfare. Requires the Director to review the information and may
vacate the suspension order, if he or she believes that the
suspension is no longer necessary to protect the public health,
safety, or welfare.
23)Requires any petition and order to cease practice to be displayed
on the Internet Website of the applicable healing arts board, as
specified.
24)States that the hearing is not subject to the APA, but allows a
licensee whose license has been temporarily suspended to petition
for a writ of mandate which shall be heard only in the Superior
Court in and for the Counties of Sacramento, San Francisco, Los
Angeles, or San Diego.
25)Defines imminent risk of serious harm to the public health, safety,
or welfare as a reasonable likelihood that permitting the licensee
to continue to practice will result in serious physical or
emotional injury, unlawful sexual contact, or death to an
individual or individuals within the next 90 days.
26)Requires the automatic suspension of any licensee who is
i ncarcerated after conviction of a felony , regardless of whether
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the conviction has been appealed. Requires the healing arts board
to notify the licensee in writing of the suspension and of his or
her right to elect to have the issue of penalty heard, as
specified.
27)Provides that a decision issued by an administrative law judge that
contains a finding that a licensee or registrant has engaged in any
act of sexual exploitation , as defined, with a patient, or has
committed an act or been convicted of a sex offense as defined,
shall contain an order of revocation. Specifies that the
revocation shall not be stayed by the administrative law judge.
28)Specifies certain requirements for any applicant or licensee who is
required to register as a sex offender.
29)Prohibits a licensee from including the following in settlement
agreements for civil disputes arising from his or her practice:
prohibiting another party to the dispute from contacting or
cooperating with the healing arts board; prohibiting another party
to the dispute from filing a complaint with the healing arts board;
and requiring another party to the dispute to withdraw a complaint
he or she has filed with the healing arts board. Specifies that
any settlement agreement that contains any of these provisions is
void as against public policy, and constitutes unprofessional
conduct.
30)Allows the AG and his or her investigative agents, and a healing
arts board and its investigators and representatives to inquire
into any alleged violation of the laws under the jurisdiction of
the healing arts board or any other federal or state law,
regulation, or rule relevant to the practice regulated by the
healing arts board, whichever is applicable, and may inspect
documents relevant to those investigations in accordance with the
following procedures:
a) Any document relevant to an investigation may be inspected,
and copies may be obtained, where patient consent is given.
b) Any document relevant to the business operations of a
licensee, and not involving medical records attributable to
identifiable patients, may be inspected and copied where
relevant to an investigation of a licensee.
31)Specifies that where certified documents are requested from
licensees in accordance with Item #30) above by the AG, or his or
her agents or deputies, or any board, the documents shall be
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provided within 10 business days of receipt of the request, unless
the licensee is unable to provide the certified documents within
this time period for good cause. States that good cause includes,
but not limited to, physical inability to access the records in the
time allowed due to illness or travel. Makes failure to produce
requested certified documents or copies thereof, after being
informed of the required deadline, unprofessional conduct.
32)States that any provision of law making a communication between a
licensee of a healing arts board and his or her patients a
privileged communication shall not apply to investigations or
proceedings conducted by a healing arts board. Requires the names
of any patients whose records are reviewed to be confidential,
unless specified. States that the authority to examine records of
patients in the office of a licensee is limited to records of
patients who have complained to the healing arts board about that
licensee.
33)Specifies that a licensee who fails or refuses to comply with a
request for the certified medical records of a patient, that is
accompanied by that patient's written authorization for release of
records to a healing arts board, within15 days of receiving the
request and authorization, shall pay to the healing arts board a
civil penalty of up to $1,000 per day for each day that the
documents have not been produced after the 15th day, up to $10,000,
unless the licensee is unable to provide the documents within this
time period for good cause.
34)Requires a health facility to comply with a request for the
certified medical records of a patient that is accompanied by that
patient's written authorization for release of records to a healing
arts board together with a notice citing this section and
describing the penalties for failure to comply with this
requirement. Specifies that failure to provide the authorizing
patient's certified medical records to the healing arts board
within 30 days of receiving the request, authorization, and notice
shall subject the health care facility to a civil penalty, payable
to the healing arts board, of up to one thousand dollars ($1,000)
per day for each day that the documents have not been produced
after the 30th day, up to $10,000, unless the health care facility
is unable to provide the documents within this time period for good
cause. Requires healing arts boards to pay the reasonable costs of
copying the certified medical records, but shall not be required to
make that payment prior to the production of the medical records.
35)States that a licensee who fails or refuses to comply with a court
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order , issued in the enforcement of a subpoena , mandating the
release of records to a healing arts board, shall pay to the
healing arts board a civil penalty of up to $1,000 per day for each
day that the documents have not been produced after the date by
which the court order requires the documents to be produced, up to
$10,000, unless it is determined that the order is unlawful or
invalid. Indicates that any statute of limitations applicable to
the filing of an accusation by the healing arts board shall be
tolled during the period the licensee is out of compliance with the
court order and during any related appeals. Indicates that any
licensee who fails or refuses to comply with a court order, issued
in the enforcement of a subpoena, mandating the release of records
to a board is guilty of a misdemeanor punishable by a fine payable
to the board not to exceed $5,000, as specified. Indicates that
multiple acts by a licensee in violation of this provision is
punishable by a fine not to exceed $5,000 or by imprisonment in a
county jail not exceeding 6 months, or by both that fine and
imprisonment. A failure or refusal of a licensee to comply with a
court order, issued in the enforcement of a subpoena, mandating the
release of records to the healing arts board constitutes
unprofessional conduct and is grounds for suspension or revocation
of his or her license.
36)Provides that a health care facility that fails or refuses to
comply with a court order , issued in the enforcement of a subpoena ,
mandating the release of patient records to a healing arts board,
that is accompanied by a notice citing this requirement and
describing the penalties for failure to comply with this section,
shall pay to the healing arts board a civil penalty of up to $1,000
per day for each day that the documents have not been produced, up
to $10,000, after the date by which the court order requires the
documents to be produced, unless it is determined that the order is
unlawful or invalid. Indicates that any health care facility that
fails or refuses to comply is guilty of a misdemeanor punishable by
a fine payable to the board not to exceed $5,000. Indicates that
multiple acts by a health care facility in violation of this
provision is punishable by a fine not to exceed $5,000, shall be
reported to the State Department of Public Health, and considered
as grounds for disciplinary action with respect to licensure,
including suspension or revocation of the license or certificate.
37)States that imposition of civil penalties for failure to provide
medical records shall be in accordance with the APA, and that any
civil penalties paid to or received by a healing arts board shall
be deposited into the fund administered by the healing arts board.
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38)Defines "certified medical records" as a copy of the patient's
medical records authenticated by the licensee or health care
facility, as appropriate, on a form prescribed by the licensee's
board.
39)Specifies that the provisions requiring the production of medical
records do not apply to a licensee who does not have access to and
control over certified medical records.
40)Requires a state agency, upon receiving a request in writing from a
healing arts board for records, to immediately provide to the
healing arts board all records in the custody of the state agency,
including but not limited to confidential records, medical records,
and records related to closed or open investigations. Specifies
that if a state agency has knowledge that a person it is
investigating is licensed by a healing arts board, the state agency
shall notify the healing arts board that it is conducting an
investigation against one of its licentiates. Requires the
notification of investigation to the healing arts board to include
the name, address, and, if known, the professional licensure type
and license number of the person being investigated and the name
and address or telephone number of a person who can be contacted to
cooperate with the healing arts board in providing any requested
information.
41)Requires all local and state law enforcement agencies, state and
local governments, state agencies, licensed health care facilities,
and employers of a licensee of a healing arts board to provide
records to the healing arts board upon request prior to receiving
payment from the board for the cost of providing the records.
42)Requires any employer of a health care licensee to report to the
board the suspension or termination for cause, or any resignation
in lieu of suspension or termination for cause, of any health care
licensee in its employ within 15 business days, as specified.
Indicates that this reporting requirement does not constitute a
waiver of confidentiality of medical records, and that the
information reported or disclosed shall be kept confidential and
not subject to discovery in civil cases. States that no person
shall incur any civil penalty as a result of making this report.
43)Defines resignation, suspension or termination for cause as any of
the following reasons :
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a) Use of controlled substances or alcohol to the extent that it
impairs the licensee's ability to safely practice.
b) Unlawful sale of a controlled substance or other prescription
items.
c) Patient or client abuse, neglect, physical harm, or sexual
contact with a patient or client.
d) Gross negligence or incompetence.
e) Theft from a patient or client, any other employee, or the
employer.
44)Defines gross negligence for purposes of Item #43) above, as a
substantial departure from the standard of care which, under
similar circumstances, would have ordinarily been exercised by a
competent health care licensee, and which has or could have
resulted in harm to the consumer. An exercise of so slight a
degree of care as to justify the belief that there was a conscious
disregard or indifference for the health, safety, or welfare of the
consumer shall be considered a substantial departure from the above
standard of care.
45)Defines incompetence for purposes of Item #43) above, as the lack
of possession of and the failure to exercise that degree of
learning, skill, care and experience ordinarily possessed by a
responsible health care licensee.
46)States that a willful failure of an employer to make a report
required in Item #42) above is punishable by an administrative fine
not to exceed one hundred thousand dollars ($100,000) per
violation. Defines willful as knowing and intentional violation of
a known legal duty. States that any failure of an employer, other
than willful failure, to make a report required by this section is
punishable by an administrative fine not to exceed $50,000.
47) Requires healing arts boards to report annually, by October 1, to
the DCA and to the Legislature certain information, including but
not limited to, the total number of consumer calls received by the
board, the total number of complaint forms received by the board,
the total number of convictions reported to the board, and the
total number of licensees in diversion or on probation or alcohol
or drug abuse.
48)Provides that on or after July 1, 2013, every healing arts board
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shall post on the Internet specified information in its possession,
custody, or control regarding every licensee for which the board
licenses, including whether or not the licensee or former licensee
is in good standing, subject to a temporary restraining order,
subject to an interim suspension order, subject to a restriction or
cease practice order, as specified, or subject to any of the
enforcement actions, as specified; whether or not the licensee or
former licensee has been subject to discipline by the healing arts
board or by the board of another state or jurisdiction, as
described; any felony conviction of a licensee reported to the
healing arts board; all current accusations filed by the AG's
Office; and any malpractice judgment or arbitration award.
49)Requires the AG's Office to do the following:
a) Serve, or submit to a healing arts board for service, an
accusation within 60 calendar days after receipt from the healing
arts board.
b) Serve, or submit to a healing arts board for service, a
default decision within five days following the time period
allowed for the filing of a notice of defense.
c) Set a hearing date within three days of receiving notice of
defense, unless the healing arts board gives the AG's Office
instruction otherwise.
50)Provides that whenever it appears that an applicant for a license,
certificate, or permit from a healing arts board may be unable to
practice his or her profession safely because the applicant's
ability to practice may be impaired due to mental illness, or
physical illness affecting competency, the healing arts board may
order the applicant to be examined by one or more physicians and
surgeons or psychologists designated by the healing arts board.
States that an applicant's failure to comply with the specified
order authorizes the board to deny an applicant a license,
certificate, or permit. Prohibits a healing arts board from
granting a license, certificate, or permit until it has received
competent evidence of the absence or control of the condition that
caused its action and until it is satisfied that with due regard
for the public health and safety the person may safely practice the
profession for which he or she seeks licensure.
51)States that an applicant for a license, certificate, or permit from
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a healing arts board who is otherwise eligible for that license but
is unable to practice some aspects of his or her profession safely
due to a disability may receive a limited license if he or she does
both of the following:
a) Pays the initial licensure fee.
b) Signs an agreement on a form prescribed by the healing arts
board in which the applicant agrees to limit his or her practice
in the manner prescribed by the healing arts board.
52)Allows a healing arts board to require the applicant described in
Item #51) above to obtain an independent clinical evaluation of his
or her ability to practice safely as a condition of receiving a
limited license. States that any person who knowingly provides
false information in the agreement submitted shall be subject to
any sanctions available to the healing arts board.
53)Requires a healing arts board to report to the National
Practitioner Data Bank (NPDB) and the Healthcare Integrity and
Protection Data Bank (HIPDB) the following information on its
licensees:
a) Any adverse action taken by such licensing authority as a
result of any disciplinary proceeding, including any revocation
or suspension of a license and the length of that suspension, or
any reprimand, censure, or probation.
b) Any dismissal or closure of the proceedings by reason of a
licensee surrendering his or her license or leaving the state.
c) Any other loss of the license of the practitioner or entity,
whether by operation of law, voluntary surrender, or otherwise.
d) Any negative action or finding by the board regarding a
licensee.
54)Requires each healing arts board to conduct a search on the NPDB
and HIPDB prior to granting or renewing a license, certificate, or
permit to an applicant. Allows a healing arts board to charge a
fee to cover the actual cost to conduct the search.
55)States, unless specified, that if a health care licensee possesses
a license or is otherwise authorized to practice in any state other
than California or by any agency of the federal government, and
that license or authority is suspended or revoked outright and is
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reported to the NPDB, the California license of the licensee shall
be suspended automatically for the duration of the suspension or
revocation, unless terminated or rescinded, as provided. Requires
a healing arts board to notify the licensee of the license
suspension and of his or her right to have the issue of penalty
heard, as specified. Allows a healing arts board to set aside the
suspension when it appears to be in the interest of justice, as
specified.
56)Establishes the Emergency Health Care Enforcement Reserve Fund in
the State Treasury, to be administered by the DCA, and provides
that any moneys in the fund shall be used to support the
investigation and prosecution of any matter within the authority of
any of the healing arts boards. States that the DCA, upon
direction of a healing arts board, shall pay out the funds or
approve such payments as deemed necessary from those funds as have
been designated for these purposes. States that the contents of
the Emergency Health Care Enforcement Reserve Fund are those moneys
from the board's individual funds which shall be deposited into the
Emergency Health Care Enforcement Reserve Fund when the amount
within those funds exceeds more than four months operating
expenditures of the individual board. Allows DCA, with approval of
a healing arts board, may loan to another board moneys necessary
for the purpose of this section when it has been established that
insufficient funds exist for that individual board, provided that
the moneys will be repaid.
57)States that if a healing arts board's fund reserve exceeds its
statutory maximum, the board may lower its fees by resolution in
order to reduce its reserves to an amount below its maximum.
58)States the following Legislative findings that there are occasions
when a healing arts board urgently requires additional expenditure
authority in order to fund unanticipated enforcement and litigation
activities. Without sufficient expenditure authority to obtain the
necessary additional resources for urgent litigation and
enforcement matters, the board is unable to adequately protect the
public. Therefore, it is the intent of the Legislature that apart
from and in addition to the expenditure authority that may
otherwise be established, the healing arts boards shall be given
the increase in its expenditure authority in any given current
fiscal year that is authorized by the Department of Finance, as
specified, for costs and services in urgent litigation and
enforcement matters, including, but not limited to, costs for the
services of the AG and the Office of Administrative Hearings.
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59)Provides that upon the request of the DCA, the Department of
Finance may augment the amount available for expenditures to pay
enforcement costs for the services of the AG's Office and the
Office of Administrative Hearings. States that if an augmentation
exceeds 20% of the board's budget for the Attorney General, it may
be made no sooner than 30 days after notification in writing to
chairpersons of the committees in each house of the Legislature
that consider appropriations and the Chairperson of the Joint
Legislative Budget Committee, or no sooner than whatever lesser
time the chairperson of the Joint Legislative Budget Committee may
in each instance determine.
60)States that commission of any act of sexual abuse, misconduct, or
relations with a patient, client, or customer constitutes
unprofessional conduct and grounds for disciplinary action for any
person licensed, and under any initiative act, as specified.
Specifies that the commission of and conviction for any act of
sexual abuse, sexual misconduct, or attempted sexual misconduct,
whether or not with a patient, or conviction of a felony requiring
registration, as specified, shall be considered a crime
substantially related to the qualifications, functions, or duties
of a licensee of a healing arts board.
61)Specifies that the following constitutes unprofessional conduct :
a) The conviction of a charge of violating any federal statute or
regulation or any statute or regulation of this state regulating
dangerous drugs or controlled substances. States that the record
of the conviction is conclusive evidence of the unprofessional
conduct; and that a plea or verdict of guilty or a conviction
following a plea of nolo contendere is deemed to be a conviction.
Allows discipline to be ordered against a licensee, as
specified.
b) A violation of any federal statute or federal regulation or
any of the statutes or regulations of this state regulating
dangerous drugs or controlled substances.
c) The use or prescribing for or administering to himself or
herself of any controlled substance or the use of any of the
dangerous drugs, as specified, or of alcoholic beverages, to the
extent or in such a manner as to be dangerous or injurious to the
licensee, or to any other person or to the public, or to the
extent that the use impairs the ability of the licensee to
practice safely; or any misdemeanor or felony involving the use,
consumption, or self-administration of any of the substances
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referred to in this section, or any combination, thereof. States
that a violation of this provision is a misdemeanor punishable by
a fine of up to $10,000, imprisonment in the county jail of up to
6 months, or both the fine and imprisonment.
62)Makes it unprofessional conduct for any licensee for failure to
comply with the following:
a) Furnish information in a timely manner, as specified.
b) Cooperate and participate in any investigation or other
regulatory or disciplinary proceeding pending against the
licensee. States that this provision shall not be construed to
deprive a licensee of any privilege guaranteed by the Fifth
Amendment to the Constitution of the United States, or any other
constitutional or statutory privileges.
63)Requires a licensee of a healing arts board to submit a written
report of any of the following: The bringing of an indictment or
information charging a felony against the licensee; arrest of the
licensee; conviction of the licensee, including any felony or
misdemeanor; and, any disciplinary action taken by another
licensing entity or authority of this state or of another state.
Requires the report to be made in writing within 30 days; and that
failure to make a report is a public offense punishable by a fine
not to exceed $5,000 and shall constitute unprofessional conduct.
64)Requires a licensee of a healing arts board to identify him or
herself as a licensee of the board to law enforcement and court
officials upon being arrested or charged with a misdemeanor or
felony. Requires healing arts boards to inform licensees of this
requirement.
65)Requires the clerk of the court to do the following:
a) Report to a healing arts board any judgment for a crime
committed or for any death or personal injury in excess of
$30,000, for which the licensee is responsible due to negligence,
error or omission in practice, or rendering unauthorized
professional services.
b) Transmit any felony preliminary hearing transcript concerning
a defendant licensee of a healing arts board.
66)Requires the district attorney, city attorney, other prosecuting
agency, or clerk of the court to notify the appropriate healing
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arts boards if the licensee has been charged with a felony
immediately upon obtaining information that the defendant is a
licensee of the board.
67)Requires the AG's Office to provide reports within 30 days of
subsequent arrests, convictions or other updates of licensees to
healing arts boards.
68)Specifies that it is a public offense, punishable by a fine not to
exceed $100,000 or imprisonment, to engage in any practice
including healing arts practice without a current and valid
license. States that this provision applies to a licensee who
supervises the practice of any person who does not hold a current
and valid license to practice.
69)Sunsets on January 1, 2013, the drug diversion programs of the
following boards: Dental Board of California, Osteopathic Medical
Board of California, Physical Therapy Board of California, Board of
Registered Nursing, Physician Assistant Committee, California State
Board of Pharmacy, and Veterinary Medical Board.
70)Allows any healing arts board to utilize the vertical enforcement
and prosecution model, as specified, for the investigation and
prosecution of some or all of its enforcement actions.
71)States that it is the intent of the Legislature that the DCA shall,
on or before December 31, 2012, establish an enterprise information
technology system for healing arts license information, as
specified.
72)Provides for additional listing of general provisions which are now
applicable to the healing arts boards which shall also be
applicable to the Chiropractic Board which are not considered as
inconsistent with the Chiropractic Initiative Act.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1.Purpose. According to the Department of Consumer Affairs , the
Sponsor of this measure, in recent years, some of DCA's healing arts
boards have been unable to investigate and prosecute consumer
complaints in a timely manner. Some boards have taken an average of
three years or more to investigate and prosecute these cases. This
is an unacceptable timeframe given that the highest priority of
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these boards is the protection of the public. This bill provides
healing arts boards several tools to improve the enforcement process
and ensure patient safety.
2.Background. On July 11, 2009, the Los Angeles Times, in conjunction
with Pro-Publica, a nonprofit investigative news agency, published
an article entitled "When Caregivers Harm: Problem Nurses Stay on
the Job as Patients Suffer," charging that the BRN, which oversees
California's more than 350,000 nurses, often takes years to act on
complaints of egregious misconduct. The article indicated that
nurses with histories of drug abuse, negligence, violence, and
incomptenence continue to provide care, and BRN often took more than
three years on average to investigate and discipline errant nurses.
The article also pointed out that complaints often take a circuitous
route through several clogged bureaucracies; the BRN failed to act
against nurses who have been sanctioned by others and failed to use
its authority to immediately suspend dangerous nurses from
practicing; there were failures in the probation monitoring of
troubled nurses; there is a lack of reporting requirement for
hospitals to report nurses who have been fired or suspended for
harming a patient or other serious misconduct similar to what is
required of vocational nurses, psychiatric technicians and
respiratory care therapists; and, nurses convicted of crimes,
including sex offenses and attempted murder continue to be licensed.
On July 25, 2009, the LA Times published another article on the
failures of BRN's drug diversion program . This article pointed out
that participants in the program continue to practice while
intoxicated, stole drugs from the bedridden and falsified records to
cover their tracks. Moreover, more than half of those participating
in drug diversion did not complete the program, and even those who
were labeled as " public risk " or are considered dangerous to
continue to treat patients did not trigger immediate action or
public disclosure by BRN. The article further pointed out that
because the program is confidential, it is impossible to know how
many enrollees relapse or harm patients. But the article points out
that a review of court and regulatory records filed since 2002, as
well as interviews with diversion participants, regulators and
experts suggests that dozens of nurses have not upheld their end of
the bargain and oversight is lacking . These revelations, including
other articles revealing lengthy enforcement timeframes against
problem nurses who continue to practice and provide care to the
detriment of patients, led Governor Schwarzenegger to replace four
members of the BRN and appoint members to two long-time vacancies.
On July 27, 2009, DCA convened a meeting for the purpose of taking
testimony and evidence relevant to the BRN enforcement program.
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BRN's discussion focused on its proposals that were contained in the
"Enforcement Report On the Board of Registered Nursing." The report
pointed out several barriers to BRN's enforcement process, but
specifically indicated that for the board's diversion program, when
a substance abuse case is referred to the diversion program, the
investigation is placed on hold while the licensee decides if he/she
wants to enter diversion. This practice allows the licensee to
delay final disposition of the case. In addition, there is limited
communication between the diversion program and the enforcement
program which can delay investigation of licensees who are
unsuccessfully diverted and are terminated from the program, and
that the BRN lacks a number of enforcement tools, including the
ability to automatically suspend licensees pending a hearing.
On August 17, 2009, this Committee held an informational hearing
entitled "Creating a Seamless Enforcement Program for Consumer
Boards" and investigated many of the problems pointed out by the LA
Times, as well as others related to the BRN and other healing arts
boards. A Background Paper was prepared for the hearing which
pointed out many of the existing problems and made specific
recommendation for improving the enforcement programs of the healing
arts boards. This bill codifies many of the recommendations listed
in the Background Paper for the informational hearing and well as
others proposed by the Sponsor (DCA).
3.Previous and Similar Legislation.
a) SB 1172 (Negrete McLeod), pending in this Committee, requires
a healing arts board of the DCA to order a licensee to cease
practice if the licensee tests positive for any substance that is
prohibited under the terms of the licensee's probation or
diversion program; allows a healing arts board to adopt
regulation s authorizing the board to order a licensee on
probation or in a diversion program to cease practice for major
violations and when the board orders a licensee to undergo a
clinical diagnostic evaluation pursuant to uniform and specific
standards, as specified.
b) SB 294 (Negrete McLeod), pending in the Assembly Business and
Professions Committee contains similar provisions that are in
this bill. It is anticipated that the current provisions of SB
294 will be amended out at a later date to deal with a different
subject matter.
c) SB 1441 (Ridley-Thomas, Chapter 548, Statutes of 2008),
established within the DCA the Substance Abuse Coordination
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Committee to formulate by January 1, 2010 , uniform standards that
will be used by healing arts boards in dealing with
substance-abusing licensees, whether or not a health care board
operates a diversion program.
4.Specific Enforcement Changes for Healing Arts Boards within this
Measure.
a) Information Required to be Posted on the Internet. Requires
all healing arts boards to disclose the status of every license,
including suspensions and revocations, whether or not the
licensee or former licensee is in good standing, or has been
subject to discipline by the healing arts board or by the board
of another state or jurisdiction.
i) Justification. Currently there are a number of boards,
including healing arts boards, which are required to post the
aforementioned information regarding a licensee. According to
the Sponsor, there appears to be no reason why all healing arts
boards under the DCA should not be subject to the same basic
requirements for disclosure over the Internet that other boards
and bureaus are currently required to disclose to the public.
Much of this information is considered as public information.
One of the issues raised by the LA Times is that the public is
unaware of problem licensees, whether they have had prior
disciplinary action taken against them, or whether their
license is currently in good standing. There were instances in
which the LA Times looked up on the Internet or on the BRN's
Website and never saw prior disciplinary or criminal
convictions of nurses.
ii) Concerns Raised and Response. The American Nurses
Association/California (ANA/C), the California Nurses
Association (CNA), SEIU , and the United Nurses Associations of
California (UNAC) opposes the disclosure of an address of
record on the Internet. The recent amendments addressed this
concern and removed provisions requiring disclosure of
specified health care licensee's address on the Internet. Only
the city or county in which they are located will be provided
on the Internet.
Additionally, the California Dental Association (CDA) opposes
disclosure of pending accusations in which there has not even
been a hearing. CDA states that posting such accusations on
the Internet is unfair and harmful to the practitioner and may
be a violation of their due process rights. This does not
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appear justified. All other healing arts board within the DCA
disclose pending accusations. The lack of disclosure of
disciplinary actions is also one of the criticisms labeled by
the LA Times against the BRN because the lack of disclosure is
inconsistent with public protection. An accusation is a public
record under the Public Records Act (PRA). If a consumer made
a PRA request to the Dental Board about a particular dentist,
DBC would have to disclose any pending accusation. An
accusation means that the complaint/report has been fully
investigated , the investigation is complete , and the prosecutor
(board's EO and the AG's Office) believe that there is "clear
and convincing evidence" of a violation that merits
disciplinary action. An accusation is not a naked complaint.
The filing of the accusation is what turns a confidential
investigation into a matter of public record. The MBC has been
publicly disclosing accusations since 1993. There is no reason
why dentists should be exempted from disclosing accusations
that are already public records. Once investigation is
completed, and accusations are filed, the public must be made
aware of the charges against healing arts licensees.
b) Director's Authority to Audit Enforcement Programs of Health
Boards. Existing law authorizes the Director of DCA to audit and
review, among other things, inquiries and complaints regarding
licensees, dismissals of disciplinary cases, and discipline short
of formal accusation by the MBC and the California Board of
Podiatric Medicine. This bill will additionally authorize the
Director to audit and review the aforementioned activities for
any of the healing arts boards.
i) Justification. As indicated by the Sponsor, there does
not appear to be any reason why the Director should only be
limited to auditing and taking specific actions on behalf of
consumers for the MBC and the Podiatric Board. The Director
should be authorized to audit and review any healing arts
boards as necessary, and allow the Director to make
recommendations for changes to the board's disciplinary or
enforcement system.
ii) Concerns Raised and Response. ANA/C indicates that it
does not support the Director of the DCA making recommendations
of changes to the BRN. Recent amendments provide that the
recommendations of the DCA Director are for consideration of
the boards only and no changes or recommendations are mandated.
c) Cost Recovery for Probation Monitoring and Determination of
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Reasonable Costs. Allows healing arts board to recover
reasonable costs of probation monitoring for a licensee who is
placed on probation by the administrative law judge; and
specifies what an administrative law judge shall consider in
determining reasonable costs.
i) Justification. Originally this provision changed recovery
costs for investigation and prosecution of cases for boards
that were successful in their disciplinary cases from
"reasonable" to "actual" costs for the boards to collect.
Also, it added as an additional cost recovery probation
monitoring costs. As indicated by the Sponsor, while some
boards have explicit statutory authority to recover costs
associated with probation monitoring, not all boards do. Such
a requirement can be made a term of probation without statutory
authority, but the statutory authority will give boards more
explicit authority, lead to quicker resolution of probation
terms, and authorize boards to refuse to renew the license of a
licensee who has not paid probation costs.
ii) Concerns Raised and Response. ANA/C indicates that adding
additional penalties for nurses paying for the prosecution of
cases could prevent nurses from returning to practice, or stop
nurses from defending themselves since they could not afford to
pay for the cost of prosecution and defending themselves. SEIU
opposes requiring individual licensees to pay the costs of
investigation. CNA opposes the provisions allowing licensees
to pay for actual costs of the case and is also concerned about
the high costs of probation monitoring.
Additionally, the Hearing Healthcare Providers of California , the
American Psychiatric Nurses Association , the California
Association of Marriage and Family Therapists , California
Psychiatric Association , California Psychological Association ,
California Society for Addiction Medicine , California Society
for Clinical Social Work and the National Association of Social
Workers (CA Chapter) states that the elimination of a
"reasonable" cost standard and substituting "actual" cost is
alarming and unreasonable.
It should first be noted that all boards are subject to cost
recovery provisions. The only real change, as indicated,
involved changing the standard from collecting reasonable costs
to "actual costs" and including probation monitoring costs.
Recent amendments
deleted the term "actual costs" and retains the current
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"reasonable costs" requirement for cost recovery.
d) Allow Boards to Contract with Collection Agency. Allows a
board to contract with a collection service for the purpose of
collecting outstanding fees, fines, or cost recovery amounts.
i) Justification. As explained by the Sponsor, all of DCA's
boards are authorized to issue administrative citations which
may include an administrative fine to licensees for violations
of law, and to non-licensees for unlicensed activity. However,
most boards come far from ever collecting all administrative
fines due to them. In order to improve effectiveness in
boards' fine collection efforts, the DCA will procure a
contract with a collection agency that can serve all boards.
Legislation is needed to allow the DCA the ability to provide
the collection agency with social security numbers.
ii) Concerns Raised and Response. CDA supports allowing
healing arts boards to contract with collection agencies but
collection agencies should expressly be allowed to negotiate
payment plans with practitioners. The Sponsor indicates it
would work with CDA to address this concern.
e) Allow Health Boards to Hear Appeals of Citations and Fines.
Allows healing arts boards to appoint two members of the board to
conduct a hearing to hear an appeal of the citation decision and
assessment of a fine. The hearing would not be required to be
conducted in accordance with the APA but requires a board that
chooses to utilize this process to first adopt regulations
providing for notice and opportunity to be heard.
i) Justification. According to the Sponsor, all boards are
authorized to issue administrative citations which may include
an order of abatement or a fine of up to $5,000 so long as the
board has regulations in place establishing a system for the
issuance of the citations. Existing law permits a licensee who
is issued a citation to appeal the citation and request a
hearing pursuant to the APA. However, an administrative
hearing can impose a large cost on a board; a board can spend
$8,000 on legal costs to uphold a $600 fine. The Sponsor
believes that allowing two board members would shorten and
streamline the appeals process for citation and fine actions
taken against the licensee.
ii) Concerns Raised and Response. ANA/C states that of the
two board members which would hear cite and fine appeals, one
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of the two members should be a licensee. Recent amendments
require that one of the members must be a licensee.
CNA and SEIU argue that this bill undermines due process.
Additionally, the American Psychiatric Nurses Association , the
California Association of Marriage and Family Therapists ,
California Psychiatric Association , California Psychological
Association , California Society for Addiction Medicine ,
California Society for Clinical Social Work and the National
Association of Social Workers (CA Chapter) state that these
provisions reduce due process standards, and that the hearing
should continue to be conducted pursuant to the APA.
Recent amendments were taken to address certain due process
concerns, including requiring a board to adopt regulations
providing the licensee with due process, including notice and
opportunity to be heard. (It should be noted that an appeal of
the citation decision by board members is still permitted by
allowing the licensee to file a petition for writ of mandate.)
f) Allow Health Boards to Contract for Investigative Services
provided by the Department of Justice. Allows healing arts board
to contract with the Department of Justice to provide
investigative services as determined necessary by the Executive
Officer of a board.
i) Justification. The Sponsor believes that health boards
should be provided with the greatest flexibility in obtaining
investigative services and in completing cases in a timely
manner. By allowing health boards to contract with the
Department of Justice, or to utilize the investigative services
of the DOI, boards will be provided with the broadest
opportunity to move cases forward in a more expeditious manner.
The AG's Office made this recommendation to the Sponsor since
they also believe that more difficult criminal-type cases could
be investigated and prosecuted by their Office.
ii) Concerns Raised and Response. This provision originally
allowed for boards to also contract for investigative services
with the MBC. CNA pointed out that the MBC does not have the
expertise or authority necessary to investigate or regulate
nurses. Recent amendments removed reference to the MBC.
g) Create Within the Division of Investigation a Health Quality
Enforcement Unit. Creates within DOI a special unit titled the
"Health Quality Enforcement Unit" to focus on heath care quality
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cases and to work closely with the AG's Health Quality
Enforcement Section in investigation and prosecution of complex
and varied disciplinary actions against licensees of the various
healing arts boards.
i) Justification. The Sponsor believes that by creating a
Health Quality Enforcement Unit to focus on heath care quality
cases will create expertise in the investigation and
prosecution of complex and varied disciplinary actions against
licensees of the various healing arts boards.
ii) No Concerns Raised.
h) Authority of the Board of Registered Nursing to Hire
Investigators, Nurse Consultants and Other Personnel. Allows the
BRN to hire a certain number of investigators with the authority
and status of peace officers.
i) Justification. It is the opinion of the Sponsor and the
BRN that the BRN could pursue investigations more quickly if
they were able to hire both sworn peace officers and non-sworn
investigators, as well as nurse consultants, and not always
have to rely on the DCA's Division of Investigation.
ii) No Concerns Raised.
i) New Enforcement Article for all Health Care Boards. Lists all
the boards which are considered as a "healing arts boards" within
DCA.
i) Justification. Many of the requirements that now only
apply to the MBC and the Podiatric Board will now have general
application to all healing arts boards by creating a new
article in the B&P Code and including those provisions which
should apply to all healing arts boards. This article will
also include new provisions which will have general application
to all healing arts boards.
ii) No Concerns Raised.
j) Authority for Executive Officers to Adopt Default Decisions
and Stipulated Settlements. Allows a healing arts board to
delegate to the executive officer the authority to adopt a
proposed default decision in an administrative action to revoke a
license if a licensee fails to file a notice of defense, appear
at the hearing, or has agreed to surrender his or her license.
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i) Justification. According to the AG's Office, a majority
of filed cases settle and the receipt of a Notice of Defense
can trigger either settlement discussions or the issuance of a
Default Decision. Stipulated settlements are a more
expeditious and less costly method of case resolution. The
executive officer of the board can provide summary reports of
all settlements to the board and the board can provide constant
review and feedback to the executive officer so that policies
can be established and adjusted as necessary. Also, there have
been instances of undue delays between when a fully-signed
settlement has been forwarded to the board's headquarters and
when it has been placed on the board's agenda for a vote.
Delegating this authority to the executive officer will result
in a final disposition of these matters much more quickly. The
fact that the BRN, for example, has reduced the number of its
annual meetings has only increased the need for this.
According to the Center for Public Interest Law (CPIL), it is
taking the AG too long to prepare a proposed default decision.
In 2004-2005, it was taking the AG almost 6 months to file a
proposed default decision. In 2008-2009 it was down to about
2.5 months. As argued by CPIL, filing a proposed default
decision is "not rocket science" and should only take a matter
of hours.
ii) Concerns Raised and Response. ANA/C supports the ability
of the Executive Officer to revoke a license, but does not
agree that the person cannot come back to the board and request
reconsideration of the terms and conditions. Licensees should
not lose their right to petition for changes just because they
stipulated a settlement or because they failed to appear.
Additionally, CNA states that the Executive Officer should be
explicitly required to report to the board on any actions he or
she took to sign default decisions and settlement agreements
under this new authority. Lastly, CDA requests clarifying
language to ensure that practitioners are still afforded rights
they are entitled to following issuance of a default decision;
and that the executive officers be given the authority to
accept all stipulated settlements on behalf of the board. The
Sponsor indicates that it will work with ANA/C, CNA and CDA to
address these concerns.
The American Psychiatric Nurses Association , the California
Association of Marriage and Family Therapists , California
Psychiatric Association , California Psychological Association ,
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California Society for Addiction Medicine , California Society
for Clinical Social Work and the National Association of Social
Workers (CA Chapter) states that clarification is needed to
ascertain timing and duration of the process, notice to the
licensee, and the nature of the process. The Sponsor indicates
it will work with the organizations to address their concerns.
aa) Authority for Health Boards to Enter Into Stipulated
Settlements Without Filing an Accusation. Authorizes a healing
arts board to enter into a settlement with a licensee or
applicant prior to the board's issuance of an accusation or
statement of issues against the licensee.
i) Justification. According to the Sponsor, the APA requires
a board to file an accusation or statement of issues against a
licensee before the board can reach a stipulated settlement
with the licensee. While many licensees will not agree to a
stipulated settlement without the pressure of a formal
accusation having been filed, boards have experienced licensees
who are willing to agree to a stipulated settlement earlier on
in the investigation stage of the enforcement process.
ii) Concerns Raised and Response. The American Psychiatric
Nurses Association , the California Association of Marriage and
Family Therapists , California Psychiatric Association ,
California Psychological Association , California Society for
Addiction Medicine, California Society for Clinical Social Work
and the National Association of Social Workers (CA Chapter)
indicate that these provisions raise questions about the
possibility and the ability of a board to coerce a settlement
and does not allow for any future modifications of the
stipulation.
Recent amendments would give notice to licensees by requiring the
settlement to include language identifying the factual basis
for the action taken, and a list of the statutes or regulations
violated. In addition, the amendments also allow a licensee to
file a petition to modify the terms of the settlement or
petition for early termination of probation, if probation is
part of the settlement.
bb) Director's Authority to Temporarily Suspend License.
Authorizes the Director of DCA to issue a temporary order to
suspend the license of a licensee for up to 90 days if the
Director receives evidence from a board that the licensee has
engaged in conduct that poses an imminent risk of serious harm to
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public health, safety, or welfare. This provision previously
also allowed for the ability to suspend a license if a licensee
failed to comply with a request to inspect medical records.
i) Justification. According to the Sponsor, under existing
law, the Interim Suspension Order (ISO) process (Section 494 of
the B&P Code) provides boards with an avenue for expedited
suspension of a license when action must be taken swiftly to
protect public health, safety, or welfare. However, the
Sponsor argues that currently the ISO process can take weeks to
months to achieve, allowing licensees who pose a serious risk
to the public to continue to practice for an unacceptable
amount of time. Also the timeframes in which future action
against the licensee must be taken, such as 15 days to
investigate and file an accusation, are unreasonable and
prevents most boards from utilizing the ISO process to
immediately suspend the license of a health care practitioner.
To ensure the public is protected, the Sponsor is proposing
that the Director be given the authority to issue a cease
practice or restricted practice order, upon the request of an
executive officer.
ii) Concerns Raised and Response. CNA states that allowing
suspension by the Director of the DCA without a hearing
violates due process. CNA asserts that it is unclear why the
bill would grant new powers to the Director when the BRN
currently has the authority to temporarily suspend licensees by
issuing an ISO. As indicated above, the ISO process can take
weeks to months to achieve and the time limits on filing an
accusation deter the use of the current ISO process. The order
of the Director for a licensee to cease practice would be in
effect for up to 90 days, giving the board time to gather
further evidence to support a petition for an ISO. This would
allow boards to expeditiously remove licensees from practice if
necessary to protect the public while the investigation
continues forward. The Sponsor indicates, however, that it
will continue to work with CNA to address its concerns.
The American Psychiatric Nurses Association , the California
Association of Marriage and Family Therapists , California
Psychiatric Association , California Psychological Association ,
California Society for Addiction Medicine , California Society
for Clinical Social Work and the National Association of Social
Workers (CA Chapter) state that the failure to produce records
does not justify immediate suspension; the 24-hours hearing
notice is insufficient and there is need to specify a standard
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of evidence. Recent amendments extend the 24-hours notice
provision to five business days, establish a preponderance of
the evidence as a standard; and define imminent risk of serious
harm may address their concerns. Amendments also removed the
ability of the Director to suspend a license because the
licensee failed to comply with a request to inspect medical
records.
cc) Automatic Suspension of License While Incarcerated. Provides
that the license of a licensee shall be suspended automatically
if the licensee is incarcerated after the conviction of a felony,
regardless of whether the conviction has been appealed, and
requires the board to notify the licensee of the suspension and
of his or her right to a specified (due process) hearing.
i) Justification. The Sponsor notes that existing law allows
physicians and surgeons and podiatrists to be suspended while
incarcerated and argues that there is no reason why other
health professionals should not be subject to the same
requirements regarding suspension of their license if they are
convicted of a felony and incarcerated. Automatic license
suspension is needed to prevent health a care professional from
practicing while in prison or while released pending appeal of
a conviction. Years may pass before a convicted licensee's
license can be revoked. According to the LA Times, "in some
cases, nurses with felony records continue to have spotless
licenses even while serving time behind bars." The LA Times
gave examples of at least five nurses who had felony
convictions and yet continued to have a license in good
standing.
ii) No Concerns Raised.
dd) Attempt to Assure that BRN's Fund Will Only be Used for Board
Expenditures.
This bill allows a healing arts board to lower licensing fees by
resolution if that board's fund reserve exceeds its statutory
maximum; allows the Department of Finance, upon the request of
the DCA, to augment the amount available for expenditures to pay
enforcement costs for the services of the Attorney General's
Office and the Office of Administrative Hearings. Further, in
its current form, the bill establishes the Emergency Health Care
Enforcement Reserve Fund in the State Treasury to be administered
by DCA, which would be continuously appropriated to support the
investigation and prosecution of any matter within the authority
of any of the healing arts boards.
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i) Justification. According to the Author, the state of
California is experiencing an unprecedented budget crisis,
which has affected every aspect of state government. In
response, the Governor has issued multiple executive orders
instructing state agencies to reduce personnel expenditures by
implementing a hiring freeze, eliminating overtime, terminating
temporary employees, suspending all personal service contracts,
and implementing a mandatory furlough of state employees. BRN
and other DCA boards are "special fund" agencies in that they
are funded not by the state's General Fund, but by their own
"special funds" consisting of fees paid by licensees. These
licensing fees flow steadily into each special fund account and
are statutorily required to fund the regulatory programs of
their respective boards. Even though the special funds exist
for the sole purpose of supporting their own specified
programs, multiple loans totaling $304.5 million have been
taken from DCA's special funds to augment the General Fund and
balance the state budget. There are currently 14 DCA special
funds with outstanding loans totaling $237.8 million, $159
million of which is due to the Bureau of Automotive Repair.
Two of the boards with outstanding loans have recently found it
necessary to increase their fees; BRN is seeking to increase
its fees effective January 2011, and the Board of Pharmacy
implemented a fee increase in January 2010.
BRN alone funded a $14 million loan to the General Fund and is
still owed $2 million. This money, as the Author argues, could
have been used to augment the BRN's enforcement programs at a
time in which resources for the BRN were seriously needed.
Another factor, as indicated by the Author, is that the Budget
Change Proposals (BCPs) for additional staff positions,
including positions for enforcement, have not been authorized
for various boards. (There is, however, no estimate on the
number of BCPs that were not authorized.) Because of all of
the budget actions to limit program growth, reduce spending,
preserve cash reserves and further salary reductions, the
effect has been of building up cash reserves for special funds,
which could be subject to additional loans in the future.
Also, any additional fee increases as anticipated by the BRN
would also continue to build up cash reserves unless the BRN is
able to spend down their reserves for purposes of increased
enforcement efforts as anticipated by this measure. For this
reason, the Author considers it critical that this measure
address the use of the BRN's funds to deal with increased
enforcement costs so that reserve moneys in the BRN's special
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fund will not revert back to the General Fund by way of a loan.
ii) No Concerns Raised.
ee) Mandatory Revocation for Acts of Sexual Exploitation and
Registration as Sex Offender. States that a decision issued by
an administrative law judge that contains a finding that a health
care practitioner engaged in any act of sexual exploitation, as
defined, or has committed an act of been convicted of a sex
offense, shall contain an order of revocation. The revocation
shall not be stayed by the administrative law judge. Also, adds
a new section that would require the board to deny a license to
an applicant or revoke the license of a licensee who has been
required to register as a sex offender.
i) Justification. The Sponsor argues that the mandatory
revocation of a license for acts of sexual exploitation
currently applies to physician and surgeons, psychologists,
respiratory care therapists, marriage and family therapists,
and clinical social workers. Additionally, there is a
mandatory revocation for any physician and surgeon, dentist,
physical therapist, or psychologist who registers as a sex
offender. There is no reason why these provisions should not
apply to other healing arts boards.
ii) No Concerns Raised.
ff) Prohibition of Gag Clauses in Civil Dispute Settlement
Agreements. Prohibits a licensee from including, or permitting
to be included, any provision in a civil dispute settlement
agreement which would prohibit a person from contacting,
cooperating with or filing a complaint with a board based on any
action arising from his or her practice.
i) Justification. Currently, physicians and surgeons are
prohibited from including gag clauses in civil dispute
settlements. AB 249 (Eng, 2007) would have extended this
prohibition to all healing arts professionals but was vetoed by
the Governor. The Sponsor argues that there is no reason why
other health professionals should not be subject to the same
prohibition which would prevent them from including a "gag
clause" in a malpractice settlement and thus prevent a board
from receiving information about a practitioner who may have
violated the law. The use of gag clauses still persists. Gag
clauses are sometimes used to intimidate injured victims so
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they refuse to testify against a licensee in investigations.
Gag clauses can cause delays and thwart a board's effort to
investigate possible cases of misconduct, thereby preventing
the board from performing its most basic function - protection
of the public. Gag clauses increase costs to taxpayers, delay
action by regulators, and tarnish the reputation of competent
and reputable licensed health professionals. California should
not allow repeat offenders who injure patients to hide their
illegal acts from the authority that grants them their license
to practice as a health care professional.
ii) No Concerns Raised.
gg) Access to Medical Records/Documents Pursuant to Board
Investigations. Authorizes the AG and his or her investigative
agents and healing arts boards to inquire into any alleged
violation of the laws under the board's jurisdiction and to
inspect documents subject to specified procedures. Imposes civil
and criminal penalties for licensees or health facilities for
failure to comply with a patient's medical record request or with
a court order mandating release of record.
i) Justification. Provisions authorizing the AG and its
investigative agents and boards to inquire into any alleged
violations of the laws under the board's jurisdiction and to
inspect documents subject to specified procedures; currently
exists for physicians and surgeons. Furthermore, existing law
requires physicians and surgeons, dentists, and psychologists
to produce medical records accompanied by a patient's written
authorization and pursuant to a court order (subpoena), and
prescribes penalties for failure to produce the records. When
a board or the AG is trying to obtain important documents and
medical records pursuant to a disciplinary action of a
licensee, requirements for obtaining these documents and
records should be consistent with those of other health care
practitioners. Language has been included which protects those
licensees who may not be responsible for medical records or
have no access or control over these records. Also, medical
records can only be obtained under two circumstances: (1) The
patient has given written authorization for release of the
records to a board; and, (2) the board or the AG has sought a
court order and the court has issued a subpoena mandating the
release of records. Under both circumstances penalties would
apply if the records are not supplied by those who have both
possession and control over the records. According to the
Sponsor, there is no reason why the requirement for obtaining
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important medical records and documents pursuant to an
investigation by a board should not uniformly apply to all
healing arts boards.
ii) Concerns Raised and Response. CNA specifies that
licensees should receive the same notice that facilities are
entitled to delineating the penalties for failure to provide
medical records. The Sponsor will work with CNA to address
this issue.
Additionally, CNA states that the provision relieving licensees
of their duty to turn over certified medical records they do
not control, or have access to, is too narrow as there are
other documents and records such as timekeeping, payroll,
staffing records, and electronic tracking that nurses may not
own or control, but may be relevant to an investigation and are
requested. Amendments will be made to this measure to address
this concern. CNA also points out that the exemptions for
communications between licensees and patients from existing
legal confidentiality requirements during investigations or
proceedings raises HIPAA concerns, and should trigger stronger
patient consent requirements. The Sponsor indicates that it
will work with CNA to address these concerns.
The American Psychiatric Nurses Association , the California
Association of Marriage and Family Therapists , California
Psychiatric Association , California Psychological Association ,
California Society for Addiction Medicine , California Society
for Clinical Social Work and the National Association of Social
Workers (CA Chapter) states that this bill permits access to
sensitive psychotherapy records in investigations without
permission of the patient or express written authorization for
waiving confidentiality.
Current law allows the AG's Office or the boards to inspect and
copy medical records where there is patient consent .
Additionally, the provisions allowing disclosures of privileged
communication where patient consent is given currently applies
to physicians and surgeons. The Sponsor's intent in applying
these provisions to all healing arts boards is to give them
consistent tools in obtaining important records and documents
pursuant to an investigation of the licensee, and not to change
existing legal requirements. Those concerned with the issue of
changing the existing legal requirements for obtaining mental
health records should pursue a separate bill and the Sponsor
will assure that those changes would be double-jointed to this
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measure.
Additionally, the American Psychiatric Nurses Association , the
California Association of Marriage and Family Therapists ,
California Psychiatric Association , California Psychological
Association , California Society for Addiction Medicine ,
California Society for Clinical Social Work and the National
Association of Social Workers (CA Chapter) indicate that the
fines and penalties for failure to produce medical records are
excessive. Recent amendments reduced the amount of penalties
for failure to produce medical records so they are consistent
with current law.
hh) Access to Records/Documents from Governmental Agencies.
Requires a state agency, upon receiving a request from a board,
to provide all records in the custody of the agency including but
not limited to confidential reports, medical records and records
related to closed or open investigations.
i) Justification. According to the Sponsor, when a
regulatory program conducts an investigation on one of its
licensees, there can be significant delays caused by the amount
of time it takes to secure records from various state agencies.
This proposal would solve this problem by requiring these
agencies to release information relevant to investigations,
upon the request of a board.
ii) Concerns Raised and Response. The American Psychiatric
Nurses Association , the California Association of Marriage and
Family Therapists , California Psychiatric Association ,
California Psychological Association , California Society for
Addiction Medicine , California Society for Clinical Social Work
and the National Association of Social Workers (CA Chapter)
states that a separate written patient authorization is
necessary when seeking information from another state agency.
The Sponsor states they are willing to further discuss the
consent requirements.
ii) Payment to Agencies for Record/Documents Received. Requires
all local and state law enforcement agencies, state and local
governments, state agencies and licensed health care facilities,
and employers of any licensee of a board to provide records
requested prior to receiving payment from the board.
i) Justification. According to the Sponsor, only a small
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number of external governmental agencies charges boards for
producing records (i.e., Federal courts, several Los Angeles
county agencies). However, under current practices, procedures
involved in receiving approval for and completing the payment
can delay delivery of the requested records.
ii) No Concerns Raised.
jj) Employer of Health Care Practitioner Reporting Requirements.
Requires any employer of a healing arts licensee to report to the
respective board the suspension or termination for cause , as
defined (serious violations of professional practice), of any
health care licensee in its employ.
i) Justification. The Sponsor notes that currently employers
of vocational nurses, psychiatric technicians and respiratory
care therapists are required to report to the respective boards
the suspension or termination for cause of these health care
practitioners. The MBC, the Board of Podiatric Medicine, Board
of Behavioral Sciences, Board of Psychology and the Dental
Board also have more extensive reporting requirements for peer
review bodies and hospitals which are specified in Section 805
of the B&P Code. The Sponsor argues that there is no reason
why the remaining health-related boards should not have similar
reporting requirements for those licensees who have been
suspended or terminated from employment for serious
disciplinary reasons.
ii) Concerns Raised and Response. SEIU is concerned about how
employers may use unsubstantiated charges such as falsification
of records to terminate employment. Recent amendments deleted
falsification of records as a cause for reporting, and defined
gross negligence and incompetence for purposes of reporting.
UNAC states that the timeframe of five days to make the report
may not allow adequate time to thoroughly review and
investigate an incident. The timeframe for making the report
has been extended to 15 business days to address this concern.
Lastly, CNA is concerned with the impact that these reporting
requirements would have on whistleblowers, and other nurses who
are disciplined or terminated by their employers for fulfilling
their duties as patient advocates. CNA also points out that
the bill currently gives more protection to public employees.
Recent amendments provide that no person shall incur a penalty
for making the report.
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The Author further indicates that she will continue to work on
this reporting requirement to ensure that there is fairness in
the reporting process.
aaa) Annual Enforcement Reports by Boards to the Department and
Legislature. Requires healing arts boards to report annually, by
October 1, to the DCA and the Legislature certain information,
including, but not limited to, the total number of consumer calls
received by the board, the total number of complaint forms
received by the board, the total number of convictions reported
to the board, and the total number of licensees in diversion or
on probation for alcohol or drug abuse.
i) Justification. Currently, the MBC reports annually to the
DCA and the Legislature certain enforcement actions taken
against physicians and surgeons. The Sponsor argues that there
is no reason why other health-related boards should not be
subject to the same requirements in submitting an annual
enforcement report both to the DCA and the Legislature.
ii) No Concerns Raised.
bbb) Enforcement Timeframes for the Attorney General's Office.
Requires the AG's Office to serve an accusation within
60-calendar days after receipt of a request for accusation from a
board; serve a default decision within 5 days following the time
period allowed for the filing of a Notice of Defense and to set a
hearing date within three days of receiving a Notice of Defense,
unless instructed otherwise by the board.
i) Justification. According to the Sponsor, there are delays
in the prosecution of cases at the AG's Office that are
contributing to the lengthy enforcement and disciplinary
process that can take on average up to 2 to 3 years. According
to statistics provided by the AG's Office, the average time for
the AG to file an accusation for a board is taking from 5 to 8
months, and to complete prosecution can take on average about
400 days. Concerns have also been raised about the time it
takes the AG to prepare a proposed default decision. The
filing of a default decision is made once a licensee has failed
to file a "notice of defense" when an accusation has been
served on him or her. If the licensee fails to file a notice
of defense within a specified timeframe, he or she is subject
to a default judgment because of a failure to appear or make a
defense of the disciplinary case. In 2004-2005 it was taking
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the AG almost 6 months to file a proposed default decision. In
2008-2009 it was down to about 2.5 months. However, the filing
of a proposed default decision is "not rocket science" and
should only take a matter of days.
ii) Concerns Raised and Response. CDA is concerned that the
proposed shortened timeframes may hinder the licensee's ability
to prepare a defense, and questions whether the AG's Office has
the capacity to meet strict timeline. The Sponsor states that
it will work with CDA, and the AG's Office to resolve these
issues.
ccc) Limited License for Mental Illness or Chemical Dependency.
Grants healing arts boards the authority to provide a limited
license, certificate or permit to an applicant who may be unable
to practice his or her profession safely because of mental or
physical illness. Specifies requirements for the provision of
limited license.
i) Justification. The Sponsor points out that boards lack
the authority to deny a license application or compel an
applicant to submit to a psychological or physical examination
when the applicant's fitness to practice is compromised based
on suspected mental illness or chemical dependency. Boards
have the authority to deny an applicant a license for criminal
convictions, dishonesty, fraud or deceit, or any act if
committed by a licensee would be grounds for disciplinary
action. This proposed language would solidify the Board's
authority to protect the public, given the potential
harm/damage to public safety of a substance abusing licensee or
one with mental illness or other physical illness.
ii) Concerns Raised and Response. ANA/C and CNA believe it is
not necessary to define limited license in statute and that
there are so many places a nurse can work with a physical
disability. SEIU and CNA states that the limited licensure
provisions violates the Americans with Disabilities Act (ADA).
Existing law allows boards to revoke, suspend, place on probation
or take any other appropriate action against a licensee if the
licensee's ability to practice his or her profession safely is
impaired because of mental illness or physical illness
affecting competency. According to the Legislative Counsel,
the ADA prohibits discrimination against disabled persons by
public entities, and that no qualified individual with a
disability shall, by reason of such disability, be excluded
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from participation in or be denied the benefits of the
services, programs, or activities of a public entity, including
a public entity that administers a licensing program (Hason v.
Medical Board of California (2002), 279 F.3d 1167). Instead of
denying licensure of individuals who are impaired due to mental
illness, or physical illness affecting competency, this bill
provides reasonable accommodation through the limited licensure
provisions, after specified conditions are met. This limited
licensure provision is similar to what currently exists for
physicians and surgeons adopted pursuant to AB 1070 (Hill,
Chapter 505, Statutes of 2009).
ddd) Report Licensing Actions and Checking Information Maintained
by the National Practitioner Data Bank (NPDB) and the Healthcare
Integrity and Protection Data Bank (HIPDB). Requires health care
licensing boards to check the NPDB and the HIPDB prior to
renewing the license, certificate or permit. Allows a healing
arts board to charge a fee to cover the actual costs to conduct
the search. Codifies federal requirement of healing arts boards
to report specific enforcement actions taken against health care
practitioners.
i) Justification. According to the Sponsor there is no
reason for boards not to check the NPDB or other national
professional or council databases to find out whether
applicants or licensees have been sanctioned or disciplined by
other states prior to granting or renewing of a license.
For background purposes, the NPDB and HIPDB, managed by the
Health Resources and Services Administration of the U.S.
Department of Health and Human Services, serves as an
electronic repository of information on adverse licensure
actions, certain actions restricting clinical privileges, and
professional society membership actions taken against
physicians, dentists, and other practitioners. The legislation
that led to the creation of the NPDB was enacted because the
U.S. Congress believed that the increasing occurrence of
medical malpractice litigation and the need to improve the
quality of medical care had become nationwide problems that
warranted greater efforts than any individual State could
undertake. The intent is to improve the quality of health care
by encouraging State licensing boards, hospitals and other
health care entities, and professional societies to identify
and discipline those who engage in unprofessional behavior; and
to restrict the ability of incompetent physicians, dentists,
and other health care practitioners to move from State to State
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without disclosure or discovery of previous medical malpractice
payment and adverse action history. The information reported
to these databanks is not public information.
One of the articles published by the LA Times pointed out that
these databanks were missing critical cases, including those
who have harmed patients in California. The LA Times asserted
that there has been sporadic reporting to these databanks, and
state boards, hospitals and other entities could be missing
information necessary to ensure the protection of the public.
ii) Concerns Raised and Response. CDA is concerned about the
amount and the basis for the fee proposed in this section. The
NPDB and the HIPDB databanks are supported by query fees which
could range from $4 to $10. The Sponsor indicates it will
continue to address the issue on query fees.
eee) Misdemeanor for Violation of Article 10.1 - Healing Arts
Licensing Enforcement Act. Makes a violation of any of the above
enforcement provisions a misdemeanor.
i) Justification. Since the provisions in new Article 10.1
relate to similar enforcement provisions within different
Practice Acts, a violation of any of these provisions should
also be a misdemeanor with specific penalties that would be
applicable.
ii) No Concerns Raised.
fff) Conviction of Sexual Misconduct - Substantially Related Crime.
Provides that a conviction of sexual misconduct or a felony
requiring registration as a registered sex offender shall be
considered a crime substantially related to the qualifications,
functions, or duties of a board license.
i) Justification. Existing law provides that for physicians
and surgeons, dentists and other health professionals, a
conviction of sexual misconduct or a felony requiring
registration as a registered sex offender is considered a crime
substantially related to the qualifications, functions, or
duties of a board licensee. The Sponsor argues that there is
no reason why other health professionals who have been
convicted of sexual misconduct, or have been required to
register as a sex offender pursuant to a felony conviction,
should not be subject to the same standard and finding that
such a crime is substantially related to the qualifications,
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functions, or duties of a board licensee.
ii) No Concerns Raised.
ggg) Unprofessional Conduct for Drug Related Offense. Specifies
that a conviction of a charge of violating any federal statutes
or regulations or any statute or regulation of this state,
regulating dangerous drugs or controlled substances, constitutes
unprofessional conduct, and that the record of the conviction is
conclusive evidence of such unprofessional conduct.
i) Justification. The Medical Practice Act provides that a
conviction of a charge of violating any federal statutes or
regulations or any statute or regulation of this state,
regulating dangerous drugs or controlled substances,
constitutes unprofessional conduct, and that the record of the
conviction is conclusive evidence of such unprofessional
conduct. The Sponsor argues that there is no reason why other
health professionals should not be subject to the same
requirements regarding certain drug related offenses which
would be considered as unprofessional conduct on the part of
the practitioner.
ii) No Concerns Raised.
hhh) Unprofessional Conduct for Failure to Cooperate With
Investigation of Board. Specifies that failure to furnish
information in a timely manner to the board or cooperate in any
disciplinary investigation constitutes unprofessional conduct.
i) Justification. This requirement was recommended by the
AG's Office. According to the AG, a significant factor
preventing the timely completion of investigations is the
refusal of some health care practitioners to cooperate with an
investigation of the board. This refusal to cooperate
routinely results in significant scheduling problems and
delays, countless hours wasted serving and enforcing subpoenas,
and delays resulting from the refusal to produce documents or
answer questions during interviews. Other states have long
required their licensees to cooperate with investigations being
conducted by disciplinary authorities. The AG argues that the
enactment of a statutory requirement in California would
significantly reduce the substantial delays that result of a
practitioner's failure to cooperate during a board's
investigation.
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ii) Concerns Raised. The American Psychiatric Nurses
Association , the California Association of Marriage and Family
Therapists , California Psychiatric Association , California
Psychological Association , California Society for Addiction
Medicine , California Society for Clinical Social Work and the
National Association of Social Workers (CA Chapter) states that
the standard in this provision is vague. These provisions were
suggested by the AG's Office, and the Sponsor will continue to
work with the AG's Office and these stakeholders to clarify
these provisions.
iii) Reporting by Licensee of Arrest, Conviction or Disciplinary
Action. Requires a healing arts licensee to submit a written
report for the following reasons: (1) the bringing of an
indictment or information charging a felony against the licensee;
(2) arrest of the licensee; (3) conviction of the licensee of any
felony or misdemeanor; and, (4) any disciplinary action taken by
another healing arts board of this state or of another state or
an agency of the federal government.
i) Justification. Existing law requires a physician and
surgeon, osteopathic physician and surgeon, and a doctor of
podiatric medicine to report to his or her respective board
when there is an indictment or information charging a felony
against the licensee or he or she been convicted of a felony or
misdemeanor. As argued by the Sponsor, there is no reason why
all health professionals should not be subject to the same
reporting requirements as some of the other health
professionals.
ii) Concerns Raised and Response. CNA indicates reporting of
arrests and felony charges raises due process concerns. It
should be noted that this is information which the board will
eventually receive pursuant to fingerprint records maintained
by the Department of Justice on health care practitioners.
This reporting requirement is intended to serve as an early
notification by the licensee to the board so disciplinary
action, if necessary, is not delayed.
jjj) Report of Crime or Personal Injury Judgment by Clerk of Court.
Requires that the clerk of the court provide notice to a healing
arts boards for which the licensee is licensed, if there is a
judgment for a crime committed or for any death or personal
injury in excess of $30,000, for which the licensee is
responsible due to their negligence, error or omission in
practice, or his or her rendering unauthorized professional
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services.
i) Justification. As argued by the Sponsor, there is no
reason the clerk of the court should not report a judgment for
a crime or for personal injury to any of the other healing arts
boards. Most healing arts boards are currently covered under
this provision.
ii) No Concerns Raised.
aaaa)Report of Felony Charges by DA, City Attorney, or Clerk of
Court. Requires that any filings of charges of a felony be
reported to all appropriate healing arts boards for which the
licensee is licensed.
i) Justification. As argued by the Sponsor, there is no
reason why all the other healing arts boards should not receive
notice that charges of a felony have been filed against the
licensee of the board.
ii) No Concerns Raised.
bbbb)Report of Preliminary Hearing Transcript of Felony by Clerk of
Court. Requires that any filings of charges of a felony be
reported to all appropriate healing arts boards for which the
licensee is licensed.
i) Justification. As argued by the Sponsor, there is no
reason why all other healing arts boards should not receive
notice that charges of a felony have been filed against the
licensee of the board.
ii) No Concerns Raised.
cccc)Notification of Future Arrests or Convictions from DOJ.
Requires the Department of Justice to provide reports within 30
days of subsequent arrests, convictions or other updates of
licensees.
i) Justification. According to the Sponsor, while all new
fingerprints are performed electronically, not all records at
the DOJ are kept electronically for licensees who were
fingerprinted in the past. Retrieving non-electronic records
adds unnecessary time to investigations. The DCA is not in a
position to recommend how exactly the DOJ can reduce the amount
of time it takes to complete subsequent arrest and conviction
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notices, but believes that a benchmark should be set. This
would speed up the time it takes to receive some arrest and
conviction notices and will allow boards to take action against
licensees sooner.
ii) No Concerns Raised.
dddd)Unlicensed Practice - Public Crime. Specifies that it is a
public offense, punishable by a fine not to exceed $100,000 or
imprisonment, to engage in any practice, including healing arts
practice, without a current and valid license.
i) Justification. According to the Sponsor, unlicensed
practice presents a serious threat to public health and safety.
However, it can be difficult for a board to get a district
attorney to prosecute these cases criminally because the
penalties are often significantly less than the cost to
prosecute the case. While district attorneys do prosecute the
most egregious cases, the inconsistent prosecution of these
cases diminishes the deterrent effect. If the penalty for
unlicensed practice is substantially increased, the deterrent
will be increased two-fold; not only will the punishment be
more severe, but district attorneys will be more likely to
prosecute these cases.
ii) No Concerns Raised.
eeee)Sunset Dates for Diversion Programs. Provides for a January
1, 2013 sunset date for the diversion programs of the following
healing arts licensees: dentists, osteopathic physicians and
surgeons, physical therapists, registered nurses, physician
assistants, pharmacists and veterinarians.
i) Justification. The sunset of diversion programs will
provide sufficient opportunity for these programs to be
reviewed and audited by the Legislature to assure they are
operating properly and monitoring those practitioners who
participate in these programs.
ii) Concerns Raised and Response. ANA/C , CNA , SEIU , and UNAC
oppose the sunset of the BRN's diversion programs. The
American Psychiatric Nurses Association , the California
Association of Marriage and Family Therapists , California
Psychiatric Association , California Psychological Association ,
California Society for Addiction Medicine , California Society
for Clinical Social Work and the National Association of Social
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Workers (CA Chapter) states that the sunset provisions should
be removed.
According to the Author, there is no intent to eliminate
diversion programs by placing a sunset date on these programs
to assure that prior to their sunset date that the program is
evaluated. It has always been the prerogative of the
Legislature to include sunset dates to provide both oversight
and a thorough review of programs and agencies under the DCA as
a way to provide important changes to these programs or
agencies if needed. The continuation of diversion programs and
extension of their sunset dates will be included as part of any
measure to extend the sunset of their respective boards. This
bill will be amended to change the sunset dates of the
diversion programs to coincide with the sunset dates of the
boards, and allow the Legislature to review the diversion
programs in conjunction with the sunset review of the boards.
ffff)Allow Healing Arts Boards to Utilize the Vertical Enforcement
and Prosecution Model. Expands the use of the vertical
enforcement and prosecution model for cases handled by all other
health boards.
i) Justification. According to the Sponsor, allowing healing
arts boards to utilize the vertical enforcement and prosecution
model that currently applies to physicians and surgeons could
be beneficial especially for complex types of actions.
ii) No Concerns Raised.
gggg)Requirement for a New Information Technology System. Provides
that it is the intent of the Legislature that the DCA shall, on
or before December 31, 2012, establish an enterprise information
technology system necessary to electronically create and update
healing arts license information, track enforcement cases, and
allocate enforcement efforts pertaining to healing arts
licensees.
i) Justification. DCA's current licensing and enforcement
database systems are antiquated and impede the boards'
abilities to meet their program goals and objectives. Over the
past 25 years, these systems have been updated and expanded,
but system design and documentation have deteriorated to such
an extent that it has left the systems unstable and difficult
to maintain. These systems have inadequate performance
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measurement, data quality errors, an inability to quickly adapt
to changing laws and regulations, and a lack of available
public self-service options. According to the Sponsor,
implementation of a replacement system is needed to support
enforcement monitoring, automate manual processes, streamline
processes, and integrate information about licensees. The
Governor's Budget authorizes DCA to redirect existing funds to
begin implementation of this system in FY 2010-2011.
ii) Concerns Raised and Response. CNA believes a new
information technology system is too costly to implement and is
concerned about how the system would be funded. However, as
indicated the Governor's Budget authorizes DCA to redirect
existing funds to begin implementation of this system in FY
2010-2011.
5.Arguments in Support. The California Board of Podiatric Medicine
is in support of this bill and believes this bill provides for
better government and consumer protection for Californians.
6.Author's Amendments to be Taken in Judiciary Committee.
a) Makes the following Technical Amendments:
i) On page 17, delete lines 18-20 and insert:
"The contractual agreement shall provide that the collection
agency shall use or release the personal information only for
the purposes of collecting the outstanding fees, fines, or cost
recovery amounts, and shall provide safeguards, consistent with
the Information Practices Act, to ensure that the personal
information is protected from unauthorized disclosure. A
collection service shall be liable to an individual for
compensatory damages and reasonable attorney's fees and costs
sustained as a result of the unauthorized use or disclosure of
an individual's personal information received or collection
under this section."
ii) On page 25, delete on line 8-10 "in, and for, the Counties
of Sacramento, San Francisco, Los Angeles, or San Diego" and
insert:
"for the county in which the licensee's address of record is
located."
iii) On page 33, line 17, add the following:
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"A healing arts board shall maintain the confidentiality of any
personally identifying information contained in the records
maintained pursuant to this section, and shall not share, sell,
or transfer the information to any third party unless it is
otherwise authorized by state or federal law."
iv) Remove Section 720.38 (on page 40, delete lines 35-40 and
on page 41, delete lines 1-15) to delete the provisions
establishing an Emergency Health Care Enforcement Reserve Fund
which was inadvertently not removed from the bill in previous
amendments.
NOTE : Double-referral to Judiciary Committee (second.)
SUPPORT AND OPPOSITION:
Support:
Department of Consumer Affairs (Sponsor)
California Board of Podiatric Medicine.
Oppose Unless Amended:
American Psychiatric Nurses Association, California Chapter
California Association of Marriage and Family Therapists
California Dental Association
California Psychiatric Association
California Psychological Association
California Society for Addiction Medicine
California Society for Clinical Social Work
California Nurses Association
National Association of Social Workers (CA Chapter)
Service Employees International Union
Opposition:
None on File as of April 13, 2010
Consultant:Rosielyn Pulmano