BILL ANALYSIS �
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|Hearing Date:January 9, 2012 |Bill No:SB |
| |544 |
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SENATE COMMITTEE ON BUSINESS, PROFESSIONS
AND ECONOMIC DEVELOPMENT
Senator Curren D. Price, Jr., Chair
Bill No: SB 544Author:Price
As Amended:January 4, 2012 Fiscal:Yes
SUBJECT: Professions and vocations: regulatory boards
SUMMARY: Enacts the Consumer Health Protection Enforcement Act that
includes various provisions relating to 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.
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5) Provides under the Medical Practice Act that the Medical Board of
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) Establishes within the DCA, the Division of Investigation (DOI), to
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.
8) 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.
9) States that a board or an administrative law judge may issue an
interim suspension order suspending any licentiate or imposing
license restrictions, as specified.
10)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.
11)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,
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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
touching of an intimate part of a patient for the purpose of sexual
arousal, gratification, or abuse.
12)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.
13)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
employees, or the employer. Makes failure to report punishable by
an administrative fine not to exceed $10,000 per violation.
14)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.
15)Provides that a hearing to determine whether a right, authority,
license or privilege should be revoked, suspended, limited or
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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.
16)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.
17)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.
18)Requires the clerk of court to report any judgment in excess of
$30,000 that is related to rendering unprofessional services by
specified licensees; and to transmit felony preliminary hearing
transcript against a physician and surgeon.
19)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.
20)Establishes a drug diversion program for osteopathic physicians and
surgeons, registered nurses, dentists, pharmacists, physical
therapists, physician assistants, and veterinarians.
21)Establishes a vertical enforcement and prosecution model for
investigations of cases against physician and surgeons and other
healing arts licensees.
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.
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2) Prohibits a licensee of a board from including or permitting to be
included any of the following provisions in an agreement to settle
a civil litigation action filed by a consumer arising from the
licensee's practice, whether the agreement is made before or after
the filing of an action:
a) A provision that prohibits another party to the dispute from
contacting or cooperating with the board;
b) A provision that prohibits another party to the dispute from filing
a complaint with the board; or,
c) A provision that requires another party to the dispute to withdraw
a complaint he or she has filed with the board. States that any
agreement that contains any of these provisions is void as against
public policy, and constitutes unprofessional conduct.
3) 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.
4) 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.
5) Establishes within the DOI the Health Quality Enforcement Unit to
investigate complaints against licensees and applicants within the
jurisdiction of the healing arts boards.
6) Requires each healing arts board, within DCA, to report annually to
the DCA and the Legislature, not later than October 1 of each year
on specific information, including information relating to
complaints, accusations filed, citations issued, and number of
disciplinary actions. Sunsets this report requirement on October
1, 2016.
7) Provides 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.
8) Specifies that the following constitutes unprofessional conduct :
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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.
9) 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.
10)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.
11)Requires the district attorney, city attorney, other prosecuting
agency, or clerk of the court to notify the appropriate healing
arts boards if the licensee has been charged with a felony
immediately upon obtaining information that the defendant is a
licensee of the healing arts board.
12)Requires the AG's Office to ensure that subsequent reports and
subsequent disposition information authorized to be issued by any
board, as specified, are submitted to that board within 30 days
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from notification of subsequent arrests, convictions, or other
updates.
13)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 of 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 a notice of
defense, unless the healing arts board gives the AG instruction
otherwise.
14)Requires each healing arts board, the State Board of Chiropractic
Examiners, and the Osteopathic Medical Board of California to query
the federal National Practitioner Data Bank (NPDB) prior to any of
the following:
a) Granting a license to an applicant who is currently residing
in another state.
b) Granting a license to an applicant who is currently or has
ever been licensed as a health care practitioner in California or
another state.
c) Granting a petition for reinstatement of a revoked or
surrendered license.
15)Allows a healing arts board, the State Board of Chiropractic
Examiners, and the Osteopathic Medical Board of California to query
the NPDB prior to issuing any license.
16)Requires a healing arts board to charge a fee to cover the actual
cost to conduct the queries.
17)For specified healing arts boards, 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.
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18)For specified healing arts boards, 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.
19)For specified healing arts boards, 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.
20)For specified healing arts boards, requires the automatic
suspension of any licensee who is i ncarcerated after conviction of
a felony , regardless of whether 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.
21)For specified healing arts boards, 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.
22)For specified healing arts boards, 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.
23)For specified healing arts boards, 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
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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.
24)Defines, for purposes of Item #23) above, resignation, suspension
or termination for cause as any of the following reasons :
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.
25)Defines, for purposes of Item #23) above, gross negligence 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.
26)Defines incompetence for purposes of Item #23) 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.
27)States that a willful failure of an employer to make a report
required in Item #23) 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.
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28)For specified healing arts boards, provides that on or after July
1, 2014, every healing arts board 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.
29) For specified healing arts boards, provides that if a 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, the California license of the licensee shall be suspended
automatically for the duration of the suspension or revocation, as
specified. Requires the specified boards to notify the licensee of
the license suspension and of his or her right to have the issue of
penalty heard, as provided.
30)Specifies that it is the intent of the Legislature, through a
request in 2012 from the Joint Legislative Audit Committee, that
the Bureau of State Audits conduct a thorough performance audit of
the diversion programs for dentists, osteopathic physicians and
surgeons, physical therapists, registered nurses, physician
assistants, veterinary medicine and the Pharmacists Recovery
Program, to evaluate the effectiveness and efficiency of these
programs, and make recommendations regarding the continuation of
these programs and any changes or reforms required to ensure that
specified licensees participating in these programs are
appropriately monitored, and the public is protected from specified
licensees who are impaired due to alcohol or drug abuse or mental
or physical illness. The audit shall be completed by January 1,
2014. The specified boards and their staff shall cooperate with
the audit, and the boards shall provide data, information, and case
files as requested by the auditor to perform all of its duties.
The provision of confidential data, information, and case files by
the boards to the auditor shall not constitute a waiver of any
exemption from disclosure or discovery or of any confidentiality
protection or privilege otherwise provided by law that is
applicable to the data, information, or case files. Provides that
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it is the intent of the Legislature that the audit shall be paid
for with funds from each of the boards that administer the
diversion programs.
FISCAL EFFECT: Unknown. This bill has been keyed "fiscal" by
Legislative Counsel.
COMMENTS:
1. Purpose. The Author is the Sponsor of this measure. The Author
states that this bill provides healing arts boards several tools to
improve their enforcement process and ensure patient safety.
According to the author, some of DCA's healing arts boards have
been unable to investigate and prosecute consumer complaints in a
timely manner, and are taking an average of three years or more to
investigate and prosecute these cases. The author points out that
this is an unacceptable timeframe given that the highest priority
of these boards is the protection of the public.
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 incompetence 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
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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.
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
recommendations 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 other recommendations proposed by
the DCA.
3.Previous Legislation. SB 1111 (Negrete McLeod) of 2010, contained a
number of the provisions that are codified in this bill. SB 1111
failed passage in this Committee.
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4.The Following Provisions have General Application to All the Healing
Arts Boards.
a) Prohibition of Gag Clauses in Civil Litigation Action.
Prohibits a healing arts 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.
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. There is no
reason why other healing arts 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 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
healing arts professional.
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 Medical Board of California (MBC) and
the California Board of Podiatric Medicine. This bill allows the
Director to audit and review the aforementioned activities for
any of the healing arts boards. The Director may make
recommendations for changes to the disciplinary system to the
appropriate board, the Legislature, or both, for their
consideration.
Justification. 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
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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.
c) Allow Health Boards to Contract for Investigative Services
provided by the Department of Justice. Allows a healing arts
board to contract with the Department of Justice to provide
investigative services as determined necessary by the Executive
Officer.
Justification. Healing arts boards should be provided with the
greatest flexibility in obtaining investigative services and in
completing cases in a timely manner. By allowing healing arts
boards to contract with the Department of Justice, or to utilize
the investigative services of the DOI, they will be provided with
the broadest opportunity to move cases forward in a more
expeditious manner. The AG's Office made this recommendation
since it also believes that more difficult criminal-type cases
could be investigated and prosecuted by their Office.
d) Create Within the Division of Investigation (DOI) a Health
Quality Enforcement Unit. Creates within DOI a special unit
titled the "Health Quality Enforcement Unit" to focus on health
care quality 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.
Justification. Creating a Health Quality Enforcement Unit to focus
on health 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.
e) 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.
Justification. Currently, the MBC reports annually to the DCA and
the Legislature certain enforcement actions taken against
physicians and surgeons. There is no reason why other healing
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arts boards should not be subject to the same requirements in
submitting an annual enforcement report both to the DCA and the
Legislature.
f) Conviction of Sexual Misconduct - Substantially Related Crime.
Provides that a conviction of sexual misconduct shall be
considered a crime substantially related to the qualifications,
functions, or duties of a board licensee.
Justification. Existing law provides that for physicians and
surgeons, dentists and other health professionals, a conviction
of sexual misconduct is considered a crime substantially related
to the qualifications, functions, or duties of a board licensee.
There is no reason why other health professionals who have been
convicted of sexual misconduct should not be subject to the same
standard and finding that such a crime is substantially related
to the qualifications, functions, or duties of a board licensee.
g) Unprofessional Conduct for Drug Related Conviction. 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.
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. 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.
h) 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.
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
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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.
i) Report of Crime or Personal Injury Judgment by Clerk of Court.
Requires that the clerk of the court provide notice to a healing
arts board 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
services.
Justification. 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.
j) 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.
Justification. 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.
aa) 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.
Justification. 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.
bb) Notification of Subsequent Reports and Subsequent
Disposition Information by DOJ. Requires the Department of
Justice to provide notification within 30 days of subsequent
reports and subsequent disposition information or other updates
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of licensees to boards.
Justification. 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 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.
cc) 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.
Justification. 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 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.
dd) Checking Information Maintained by the National
Practitioner Data Bank (NPDB) and the Healthcare Integrity and
Protection Data Bank (HIPDB). Requires healing arts boards to
check the NPDB and the HIPDB under the following conditions: (1)
Prior to granting a license to an applicant who is currently
residing in another state; (2) Granting a license to an applicant
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who is currently or has ever been licensed as a health care
practitioner in California or another state; (3) Granting a
petition for reinstatement of a revoked or surrendered license.
Allows a healing arts board to query the NPDB prior to issuing
any license. Allows a healing arts board to charge a fee to
cover the actual costs to conduct the search.
Justification. 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
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.
ee) Allow Healing Arts Boards to Utilize the Vertical
Enforcement and Prosecution Model. Authorizes the use of the
vertical enforcement and prosecution model for cases handled by
other health boards.
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Justification. 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.
5.The Following Provisions Have Been Placed Into Individual Practice
Acts of Healing Arts Boards.
a) Allow Executive Officers (EO) 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. Require
the EO to report to the board the number of default decisions and
stipulated settlements adopted. Requires that a stipulated
settlement give notice to licensees, to include language
identifying the factual basis for the action taken, and a list of
the statutes or regulations violated. Allows 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.
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 EO 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
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is "not rocket science" and should only take a matter of hours.
Pertains to the Following Boards: This provision will affect the
following healing arts boards under their specific Practice Act:
Dental Board of California
Dental Hygiene Committee within the Dental Board
of California
Speech-Language Pathology and Audiology and
Hearing Aid Dispensers Board
The California Board of Occupational Therapy
Physical Therapy Board of California
Board of Registered Nursing
Board of Vocational Nursing and Psychiatric
Technicians
Psychology Board of California
The State Board of Optometry
The Physician Assistant Committee within the
Medical Board of California
The Naturopathic Medicine Committee within the
Osteopathic Medical Board
Respiratory Care Board of California
California State Board of Pharmacy
The Veterinary Medical Board
The Acupuncture Board
The Board of Behavioral Sciences
b) Automatic Suspension of License While Incarcerated.
Provides that the license of a healing arts 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.
Justification. Existing law allows physicians and surgeons and
podiatrists to be suspended while incarcerated and there is no
reason why other healing arts 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 a healing
arts licensee 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. There have been
instances in which health practitioners had felony records and
yet continued to have spotless licenses even while serving time
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behind bars.
Pertains to the Following Boards: This provision will affect the
following healing arts boards under their specific Practice
Act:
Dental Board of California
Dental Hygiene Committee within the Dental Board
of California
Speech-Language Pathology and Audiology and
Hearing Aid Dispensers Board
The California Board of Occupational Therapy
Physical Therapy Board of California
Board of Registered Nursing
Board of Vocational Nursing and Psychiatric
Technicians
The State Board of Optometry
The Physician Assistant Committee within the
Medical Board of California
The Naturopathic Medicine Committee within the
Osteopathic Medical Board
Respiratory Care Board of California
California State Board of Pharmacy
The Veterinary Medical Board
The Acupuncture Board
The Board of Behavioral Sciences
c) Mandatory Revocation for Sexual Acts and Registration as
Sex Offender. States that a decision issued by an
administrative law judge that contains a finding that a healing
arts practitioner engaged in any act of sexual contact with a
patient, or any finding that the licensee has committed a sex
offense, as defined, shall contain an order of revocation.
Justification. 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. There is
no reason why these provisions should not apply to other
healing arts licensees.
Pertains to the Following Boards: This provision will affect the
following healing arts boards under their specific Practice
Act:
Dental Board of California
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Dental Hygiene Committee within the Dental Board
of California
Medical Board of California (Sex Offense
Provision Only)
Speech-Language Pathology and Audiology and
Hearing Aid Dispensers Board
The California Board of Occupational Therapy
Physical Therapy Board of California
Board of Registered Nursing
Board of Vocational Nursing and Psychiatric
Technicians
The State Board of Psychology (Sex Offense
Provision Only)
The State Board of Optometry
The Physician Assistant Committee within the
Medical Board of California
The Naturopathic Medicine Committee within the
Osteopathic Medical Board
Respiratory Care Board of California
California State Board of Pharmacy
The Veterinary Medical Board
The Acupuncture Board
The Board of Behavioral Sciences
d) 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), or resignation in lieu of suspension or termination,
of any healing arts licensee in its employ. Requires the
information reported to be confidential and not subject to
discovery in civil cases, and to include the facts and
circumstances of the suspension, termination or resignation.
Requires a healing arts board to investigate the circumstances
underlying the report within 30 days to determine if an interim
suspension order or temporary restraining order should be
issued.
Justification. 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
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Code. There is no reason why the remaining healing arts boards
should not have similar reporting requirements for those
licensees who have been suspended or terminated from employment
for serious disciplinary reasons.
Pertains to the Following Boards: This provision will affect the
following healing arts boards under their specific Practice
Act:
Dental Hygiene Committee within the Dental Board
of California
Speech-Language Pathology and Audiology and
Hearing Aid Dispensers Board
The California Board of Occupational Therapy
Physical Therapy Board of California
The State Board of Optometry
The Physician Assistant Committee within the
Medical Board of California
The Naturopathic Medicine Committee within the
Osteopathic Medical Board
The Veterinary Medical Board
The Acupuncture Board
The Board of Behavioral Sciences
e) Information Provided on the Internet. Requires 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. Prohibits the disclosure of personal
information, including home telephone number, date of birth, or
social security number.
Justification. Although a number of boards, including healing
arts boards, are required to post the aforementioned
information regarding a licensee, there are other healing arts
boards that do not. One of the issues which has been raised by
the media 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.
They cited instances in which they looked up on the Internet,
or on the particular health board's Website and never saw prior
disciplinary or criminal convictions of the health care
practitioner. This provision ensures the uniformity of
information about the status of licensees that are posted on
the Internet.
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Pertains to the Following Boards: This provision will affect the
following healing arts boards under their specific Practice
Act:
Dental Board of California
Dental Hygiene Committee within the Dental Board
of California
Speech-Language Pathology and Audiology and
Hearing Aid Dispensers Board
The California Board of Occupational Therapy
Physical Therapy Board of California
Board of Registered Nursing
Board of Vocational Nursing and Psychiatric
Technicians
The State Board of Psychology
The State Board of Optometry
The Physician Assistant Committee within the
Medical Board of California
The Naturopathic Medicine Committee within the
Osteopathic Medical Board
Respiratory Care Board of California
California State Board of Pharmacy
The Veterinary Medical Board
The Acupuncture Board
The Board of Behavioral Sciences
f) Automatic Suspension of License if Another State or Agency
Revokes of Suspends the Licensee. Requires the automatic
suspension of a licensee if another regulatory/licensing
authority of this state, another state or an agency of the
federal government suspends or revokes the license of a healing
arts practitioner. Specifies due process provisions.
Justification. There are certain health boards which require
automatic suspension of a license base on the action taken by
another jurisdiction or state. To further protect consumers,
all health care boards should be allowed to automatically
suspend the license of anyone whose license with the federal,
state, or another regulatory agency has been suspended or
revoked.
Pertains to the Following Boards: This provision will affect the
following healing arts boards under their specific Practice
Act:
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Dental Board of California
Dental Hygiene Committee within the Dental Board
of California
Speech-Language Pathology and Audiology and
Hearing Aid Dispensers Board
The California Board of Occupational Therapy
Physical Therapy Board of California
Board of Registered Nursing
Board of Vocational Nursing and Psychiatric
Technicians
The State Board of Psychology
The State Board of Optometry
The Physician Assistant Committee within the
Medical Board of California
The Naturopathic Medicine Committee within the
Osteopathic Medical Board
Respiratory Care Board of California
California State Board of Pharmacy
The Veterinary Medical Board
The Acupuncture Board
The Board of Behavioral Sciences
g) 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.
Justification. 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.
Pertains to the Following Boards: This provision will affect the
following healing arts boards under their specific Practice
Act:
Dental Board of California
Dental Hygiene Committee within the Dental Board
of California
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Medical Board of California
Osteopathic Medical Board of California
Speech-Language Pathology and Audiology and
Hearing Aid Dispensers Board
The California Board of Occupational Therapy
Physical Therapy Board of California
Board of Registered Nursing
Board of Vocational Nursing and Psychiatric
Technicians
The State Board of Psychology
The State Board of Optometry
The Physician Assistant Committee within the
Medical Board of California
The Naturopathic Medicine Committee within the
Osteopathic Medical Board
Respiratory Care Board of California
California State Board of Pharmacy
The Acupuncture Board
The Board of Behavioral Sciences
h) Bureau of State Audits Review of the Dentistry Diversion
Program, Osteopathic Physician and Surgeon Diversion Program,
Physical Therapy Diversion Program, Registered Nursing
Diversion Program, Pharmacists Recovery Program, Physician
Assistant Diversion Program, and Veterinary Medicine Diversion
Program.
Justification. To ensure full implementation of SB 1441
standards and address problems encountered with the Maximus
audit and drug testing requirements, this audit ensures that
the above diversion programs are protecting the public and
rehabilitating licensees.
1. Arguments in Opposition. The California Psychological Association
(CPA) has taken an oppose position on this bill:
a) Allow EOs to Adopt Default Decisions and Stipulated
Settlements . CPA is concern about rearranging the balance of
power and diluting the due process rights afforded to
practitioners, and these provisions represent a diminution in the
duties and responsibilities of the appointed board.
b) Unprofessional Conduct for Failure to Cooperate with
Investigation of Board . CPA states that there are no standards
on what constitutes "to cooperate."
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c) Access to Medical Records . The January 4, 2012 version of
this bill deleted these provisions.
2. Oppose Unless Amended. The California Psychiatric Association and
the California Society of Addiction Medicine has taken an oppose
unless amended position on this measure:
a) Access to Records/Documents from Governmental Agencies . The
January 4, 2012 version of this bill deleted these provisions.
b) Payment to Agencies for Record/Documents Received . The
January 4, 2012 version of this bill deleted these provisions.
c) Prohibition of Gag Clauses in Civil Litigation Action .
Although raised as a concern, these provisions already apply to
physicians and surgeons.
d) Conviction of Sexual Misconduct . Although raised as a
concern, these provisions already apply to physicians and
surgeons.
e) Unprofessional Conduct for Drug Related Offenses . Although
raised as a concern, these provisions already apply to physicians
and surgeons.
f) Limited License for a Licensee who may be Impaired . The
January 4, 2012 version of this bill deleted these provisions.
g) Unlicensed Practice - Public Crime . The provisions relating
to a licensed supervisor have been deleted .
h) Employer Reporting Requirements . Although raised as a
concern, physicians and surgeons already have peer review
reporting requirements under Section 805 of the Business and
Professions Code.
3. Oppose Unless Amended to Prior Version of the Bill. The California
Nurses Association (CNA) took an oppose unless amended position on
some of prior provisions of this bill. The following reflects the
issues raised by CNA and amendments made to SB 544:
a) Access to records . CNA states that the bill's proposal to
require state agencies, state and local governments, law
enforcement agencies, health care facilities, and employers to
turn over records pertaining to licensees is broad, and raises
privacy concerns. The January 4, 2012 version of this bill
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deleted these provisions.
b) Reporting of Charges . CNA is concern that licensees are being
required to report charges to the board, particularly when there
is not a subsequent conviction as this raises due process
concerns. The January 4, 2012 version of this bill deleted these
provisions.
c) Use of Alcohol and Unprofessional Conduct . CNA's concern is
how this bill will be implemented. The January 4, 2012 version
of this bill deleted these provisions.
d) Restricted or limited license . CNA states it is unclear as to
how or why the board would implement a limited or restricted
license for registered nurses. The January 4, 2012 version of
this bill deleted these provisions.
e) Required Actions Against Sex offenders . CNA states it is
unclear why this bill would give a sex offender who is required
to be a sex offender because of a misdemeanor conviction
�of indecent exposure] an exemption from the requirement to deny
licensure application, or to revoke licensure. The January 4,
2012 version of this bill deleted these provisions.
f) Internet Disclosures . These provisions are overly broad, the
necessity of the postings is unclear, and the disclosures would
be punitive and unfair toward licensees. The January 4, 2012
version of this bill requires disclosure of felony convictions.
g) Attorney General Timeframes . It is unclear if the timelines
are realistic and can actually be implemented. The January 4,
2012 version retained this provision, but the Committee is
meeting with the AG's Office to clarify the timeframes.
h) Supervising Unlicensed Practice . As employees, registered
nurses generally do not make decisions on the hiring of other
nurses, and do not generally have control over who the employer
requires a nurse to supervise. CNA states that this language
should be amended to apply to facilities or independent
practitioners who employ persons unlawfully engaging in
unlicensed practice, or who knowingly aid and abet unlicensed
practice. The January 4, 2012 version of this bill deleted these
provisions.
NOTE: This bill is double referred to Senate Judiciary Committee.
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SUPPORT AND OPPOSITION:
Support : None on file as of January 4, 2012
Oppose Unless Amended:
California Nurses Association
California Psychiatric Association
California Society of Addiction Medicine
Oppose :
California Psychological Association
Consultant: Rosielyn Pulmano