BILL NUMBER: SB 1378 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Hancock
FEBRUARY 24, 2012
An act to amend Section 1798.200 of, and to add Section 1798.203
to, the Health and Safety Code, relating to emergency medical
services.
LEGISLATIVE COUNSEL'S DIGEST
SB 1378, as introduced, Hancock. Emergency medical services:
personnel.
Existing law, the Emergency Medical Services System and the
Prehospital Emergency Medical Care Personnel Act, establishes the
Emergency Medical Services Authority (EMSA) and provides for the
certification of emergency medical technicians through the issuance
of certificates, including EMT-I and EMT-II certificates, by local
entities, known as local EMS agencies, which are designated by
counties. Existing law also permits public safety agencies, for
public safety personnel, and the State Board of Fire Services, for
fire safety personnel, to issue EMT-I certificates.
Existing law requires the EMSA to establish EMT-I and EMT-II
certification and disciplinary guidelines. Existing law authorizes an
EMT-I or EMT-II employer or medical director of a local EMS agency
to investigate and discipline those EMT-I and EMT-II employees who
commit specified acts. Existing law provides that the medical
director of a local EMS agency or the EMSA may deny, suspend, or
revoke certificates issued under these provisions, or may place a
certificate holder on probation, upon the occurrence of any of
specified events. Violation of the act is a misdemeanor.
This bill would revise and recast the disciplinary provisions
regarding EMT-I and EMT-II certificate holders and the reasons for
denying a certificate, as specified, and would authorize a local EMS
agency to issue a probationary EMT-I or EMT-II certificate.
By imposing new duties upon local officials and changing the
definition of a crime, this bill would create a state-mandated local
program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1798.200 of the Health and Safety Code is
amended to read:
1798.200. (a) (1) (A) Except as provided in paragraph (2), an
employer of an EMT-I or EMT-II may conduct investigations, as
necessary, and take disciplinary action against an EMT-I or EMT-II
who is employed by that employer for conduct in violation of
subdivision (c) (d) . The employer
shall notify the medical director of the local EMS agency that has
jurisdiction in the county in which the alleged violation occurred
within three days when an allegation has been validated as a
potential violation of subdivision (c) (d)
.
(B) Each employer of an EMT-I or EMT-II employee shall notify the
medical director of the local EMS agency that has jurisdiction in the
county in which a violation related to subdivision (c)
(d) occurred within three days after the EMT-I
or EMT-II is terminated or suspended for a disciplinary cause, the
EMT-I or EMT-II resigns following notification of an impending
investigation based upon evidence that would indicate the existence
of a disciplinary cause, or the EMT-I or EMT-II is removed from
EMT-related duties for a disciplinary cause after the completion of
the employer's investigation.
(C) At the conclusion of an investigation, the employer of an
EMT-I or EMT-II may develop and implement, in accordance with the
guidelines for disciplinary orders, temporary suspensions, and
conditions of probation adopted pursuant to Section 1797.184, a
disciplinary plan for the EMT-I or EMT-II. Upon adoption of the
disciplinary plan, the employer shall submit that plan to the local
EMS agency within three working days. The employer's disciplinary
plan may include a recommendation that the medical director of the
local EMS agency consider taking action against the holder's
certificate pursuant to paragraph (3).
(2) If an EMT-I or EMT-II is not employed by an ambulance service
licensed by the Department of the California Highway Patrol or a
public safety agency or if that ambulance service or public safety
agency chooses not to conduct an investigation pursuant to paragraph
(1) for conduct in violation of subdivision (c)
(d) , the medical director of a local EMS agency shall
conduct the investigations, and, upon a determination of disciplinary
cause, take disciplinary action as necessary against the EMT-I or
EMT-II. At the conclusion of these investigations, the medical
director shall develop and implement, in accordance with the
recommended guidelines for disciplinary orders, temporary orders, and
conditions of probation adopted pursuant to Section 1797.184, a
disciplinary plan for the EMT-I or EMT-II. The medical director's
disciplinary plan may include action against the holder's certificate
pursuant to paragraph (3).
(3) The medical director of the local EMS agency may, upon a
determination of disciplinary cause and in accordance with
regulations for disciplinary processes adopted pursuant to Section
1797.184, deny, suspend, or revoke any EMT-I or EMT-II certificate
issued under this division, or may place any EMT-I or EMT-II
certificate holder on probation, upon the finding by that medical
director of the occurrence of any of the actions listed in
subdivision (c) (d) and the occurrence
of one of the following:
(A) The EMT-I or EMT-II employer, after conducting an
investigation, failed to impose discipline for the conduct under
investigation, or the medical director makes a determination that the
discipline imposed was not according to the guidelines for
disciplinary orders and conditions of probation and the conduct of
the EMT-I or EMT-II certificate holder constitutes grounds for
disciplinary action against the certificate.
(B) Either the employer of an EMT-I or EMT-II further determines,
after an investigation conducted under paragraph (1), or the medical
director determines after an investigation conducted under paragraph
(2), that the conduct requires disciplinary action against the
certificate.
(4) The medical director of the local EMS agency, after
consultation consulting with the employer of an
EMT-I or EMT-II and making a determination that permitting the
certificate holder to continue to engage in the certified activity
without restriction would pose an imminent threat to the public
health or safety , may either temporarily suspend
, prior to a hearing, any EMT-I or EMT-II
certificate or both EMT-I and EMT-II certificates upon a
determination that both of the following conditions have been met:
(A) The certificate holder has engaged in acts or omissions that
constitute grounds for revocation of the EMT-I or EMT-II certificate.
(B) Permitting
the certificate holder to continue to engage in
the certified activity without restriction would pose an imminent
threat to the public health or safety or place any
EMT-I or EMT-II certificate holder on probation .
(5) If the medical director of the local EMS agency temporarily
suspends a certificate pursuant to paragraph (3) or (4) ,
the local EMS agency shall notify the certificate holder's
employer and the certificate holder , in writing,
that his or her EMT-I or EMT-II certificate is suspended and shall
identify the reasons therefor. Within three working days of the
initiation of the suspension by the local EMS agency, the agency and
employer shall jointly investigate the allegation in order for the
agency to make a determination of the continuation of the temporary
suspension. All investigatory information not otherwise protected by
law held by the agency and employer shall be shared between the
parties via facsimile transmission or overnight mail relative to the
decision to temporarily suspend. The local EMS agency shall decide,
within 15 calendar days, whether to serve the certificate holder with
an accusation pursuant to Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code. If the
certificate holder files a notice of defense, the hearing shall be
held within 30 days of the local EMS agency's receipt of the notice
of defense. The temporary suspension order shall be deemed vacated if
the local EMS agency fails to make a final determination on the
merits within 15 days after the administrative law judge renders the
proposed decision.
(6) The medical director of the local EMS agency shall refer, for
investigation and discipline, any complaint received on an EMT-I or
EMT-II to the relevant employer within three days of receipt of the
complaint, pursuant to subparagraph (A) of paragraph (1) of
subdivision (a).
(7) Notwithstanding any other provision of this section, the
medical director of a local EMS agency shall, in accordance with
regulations for disciplinary processes adopted pursuant to Section
1797.184, deny an application or revoke an EMT-I or EMT-II
certificate upon a finding that an applicant or certificate holder
has been convicted of any offense described in paragraph (1) of
subdivision (d). A written notice of the denial or intent to revoke a
certificate shall be sent by certified mail to the applicant or
certificate holder and employer, as appropriate. The written notice
shall notify the applicant or certificate holder of all of the
following:
(A) The reasons for the determination, including an evaluation of
evidence of rehabilitation submitted by the applicant or certificate
holder, if any.
(B) The criteria relating to rehabilitation in subdivision (e).
(C) If the decision was based on the applicant's or certificate
holder's prior criminal conviction, an explanation as to how the
prior criminal conviction is substantially related to the
qualifications, functions, or duties of prehospital personnel.
(D) If the denial of a certificate is due at least in part to the
applicant's state or federal criminal history record, the local EMS
agency shall include with the notice a copy of the applicant's
criminal history record if the applicant makes a written request to
the medical director of the local EMS agency for a copy, specifying
an address to which it is to be sent. The state or federal criminal
history record shall not be modified or altered from its form or
content as provided by the Department of Justice. The criminal
history record shall be provided in a manner that protects the
confidentiality and privacy of the applicant's criminal history
record and the criminal history record shall not be made available by
the local EMS agency to any employer.
(8) If an application is denied, the local EMS agency shall retain
a copy of the applicant's written request for a copy of his or her
criminal history record and a copy of the response sent to the
applicant, which shall include the date and the address to which the
response was sent. The local EMS agency shall make this information
available upon request by the Department of Justice or the Federal
Bureau of Investigation.
(b) The authority may deny, suspend, or revoke any EMT-P license
issued under this division, or may place any EMT-P license issued
under this division, or may place any EMT-P licenseholder on
probation upon the finding by the director of the occurrence of any
of the actions listed in subdivision (c). Proceedings against any
EMT-P license or licenseholder shall be held in accordance with
Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of
Title 2 of the Government Code.
(c) Any For purposes of subdivision (b),
any of the following actions shall be considered evidence of a
threat to the public health and safety and may result in the denial,
suspension, or revocation of a certificate or
license issued under this division, or in the placement on probation
of a certificate holder or licenseholder under
this division:
(1) Fraud in the procurement of any certificate or license under
this division.
(2) Gross negligence.
(3) Repeated negligent acts.
(4) Incompetence.
(5) The commission of any fraudulent, dishonest, or corrupt act
that is substantially related to the qualifications, functions, and
duties of prehospital personnel.
(6) Conviction of any crime which is substantially related to the
qualifications, functions, and duties of prehospital personnel. The
record of conviction or a certified copy of the record shall be
conclusive evidence of the conviction.
(7) Violating or attempting to violate directly or indirectly, or
assisting in or abetting the violation of, or conspiring to violate,
any provision of this division or the regulations adopted by the
authority pertaining to prehospital personnel.
(8) Violating or attempting to violate any federal or state
statute or regulation that regulates narcotics, dangerous drugs, or
controlled substances.
(9) Addiction to, the excessive use of, or the misuse of,
alcoholic beverages, narcotics, dangerous drugs, or controlled
substances.
(10) Functioning outside the supervision of medical control in the
field care system operating at the local level, except as authorized
by any other license or certification.
(11) Demonstration of irrational behavior or occurrence of a
physical disability to the extent that a reasonable and prudent
person would have reasonable cause to believe that the ability to
perform the duties normally expected may be impaired.
(12) Unprofessional conduct exhibited by any of the following:
(A) The mistreatment or physical abuse of any patient resulting
from force in excess of what a reasonable and prudent person trained
and acting in a similar capacity while engaged in the performance of
his or her duties would use if confronted with a similar
circumstance. Nothing in this section shall be deemed to prohibit an
EMT-I, EMT-II, or EMT-P from assisting a peace officer, or a peace
officer who is acting in the dual capacity of peace officer and
EMT-I, EMT-II, or EMT-P, from using that force that is reasonably
necessary to effect a lawful arrest or detention.
(B) The failure to maintain confidentiality of patient medical
information, except as disclosure is otherwise permitted or required
by law in Part 2.6 (commencing with Section 56) of Division 1 of the
Civil Code.
(C) The commission of any sexually related offense specified under
Section 290 of the Penal Code.
(d) (1) For
purposes of subdivision (a), any of the following shall result in the
denial or revocation of an EMT-I or EMT-II certificate issued under
this division:
(A) A conviction under Section 261, 262, 264.1, 273a, or 273ab,
subdivision (c), (d), (f), or (g) of Section 286, subdivision (a) or
(b) of Section 288, subdivision (c), (d), (f), or (g) of Section
288a, Section 289, subdivision (a) of Section 311.1, subdivision (b)
or (c) of Section 311.2, subdivision (d) of Section 311.3,
subdivision (a) or (c) of Section 311.4, subdivision (a) of Section
311.10, or subdivision (a) or (b) of Section 311.11 of the Penal
Code, or a conviction for any other offense for which a person is
required to register under subdivision (c) of Section 290 of the
Penal Code, or for a felony offense in which the victim is an
out-of-hospital patient or a patient or resident of a health
facility, as defined in Section 1250, that includes abuse, neglect,
theft from, or financial exploitation of, a person entrusted to the
care or protection of the applicant.
(B) A felony conviction under Section 273d or subdivision (b) of
Section 368 of the Penal Code.
(2) For purposes of subdivision (a), any of the following actions
may result in the denial, suspension, or revocation of a certificate
issued under this division or in the placement on probation of a
certificate holder under this division:
(A) Fraud in the procurement of any certificate under this
division.
(B) Gross negligence.
(C) Repeated negligent acts.
(D) Incompetence.
(E) The commission of any fraudulent, dishonest, or corrupt act
that is substantially related to the qualifications, functions, and
duties of prehospital personnel.
(F) A felony conviction for a violent or serious offense that is
not specified in paragraph (1), but is specified in subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7 of the Penal
Code, unless any of the following conditions apply:
(i) The person was convicted of an offense and has obtained a
certificate of rehabilitation under Chapter 3.5 (commencing with
Section 4852.01) of Title 6 of Part 3 of the Penal Code or the
information or accusation against him or her has been dismissed
pursuant to Section 1203.4 or 1203.4a of the Penal Code.
(ii) The person has previously disclosed the fact of each
conviction to the local EMS agency, and the local EMS agency has made
a determination in accordance with subdivision (e) that the
conviction does not disqualify the applicant from certification.
(iii) At least 10 years have elapsed from the date of conviction
for, or incarceration following, the underlying offense, whichever is
later.
(G) Conviction of a crime in another state that, if committed or
attempted in this state, would have been punishable as one or more of
the crimes set forth in this paragraph, unless evidence of
rehabilitation comparable to that set forth in clause (i), (ii), or
(iii) of subparagraph (F) is provided.
(H) An untreated addiction to, the excessive use of, or the misuse
of, alcoholic beverages, narcotics, dangerous drugs, or controlled
substances.
(I) Functioning outside the supervision of medical control in the
field care system operating at the local level, except as authorized
by any other license or certification.
(J) Demonstration of irrational behavior or occurrence of a
physical disability to the extent that a reasonable and prudent
person would have reasonable cause to believe that the ability to
perform the duties normally expected may be impaired.
(K) Unprofessional conduct exhibited by either of the following:
(i) The mistreatment or physical abuse of any patient resulting
from force in excess of what a reasonable and prudent person trained
and acting in a similar capacity while engaged in the performance of
his or her duties would use if confronted with a similar
circumstance. Nothing in this section shall be deemed to prohibit an
EMT-I, EMT-II, or EMT-P from assisting a peace officer, or a peace
officer who is acting in the dual capacity of peace officer and
EMT-I, EMT-II, or EMT-P, from using that force that is reasonably
necessary to effect a lawful arrest or detention.
(ii) The failure to maintain confidentiality of patient medical
information, except as disclosure is otherwise permitted or required
by law in Part 2.6 (commencing with Section 56) of Division 1 of the
Civil Code.
(e) (1) In determining whether to deny an application for a
certificate for any of the acts described in paragraph (2) of
subdivision (d), the medical director of the local EMS agency shall
take into consideration the following factors:
(A) The nature and seriousness of the conduct or crime under
consideration and its relationship to the person's employment duties
and responsibilities.
(B) Activities since conviction, including employment or
participation in therapy or education, that would indicate changed
behavior.
(C) The time that has elapsed since the commission of the conduct
or offense referred to in subparagraph (A) and the number of
offenses.
(D) The extent to which the person has complied with any terms of
parole, probation, restitution, or any other sanction lawfully
imposed against the person.
(E) Any rehabilitation evidence, including character references,
submitted by the person.
(F) Employment history and current employer recommendations.
(G) Circumstances surrounding the commission of the offense that
would demonstrate the unlikelihood of repetition.
(H) The granting by the Governor of a full and unconditional
pardon.
(I) A certificate of rehabilitation from a superior court.
(2) In determining whether to deny an application for a
certificate for any of the acts described in subdivision (d), the
medical director of a local EMS agency shall not take into
consideration either one the following:
(A) A record of arrest without a conviction, unless the local EMS
agency investigates the incident and secures evidence, whether or not
related to the incident of arrest, that is admissible in an
administrative hearing to establish conduct by the person that may
reasonably pose a serious threat to the public health and safety. The
agency may obtain any arrest or conviction records or reports from
any law enforcement agency as necessary to the performance of its
duties to inspect, license, and investigate these arrests.
(B) A juvenile adjudication, unless the local EMS agency
establishes that the person may reasonably pose a threat to the
public health and safety.
(d)
(f) The information shared among EMT-I,
EMT-II, and EMT-P employers, medical directors of local EMS agencies,
the authority, and EMT-I and EMT-II certifying entities shall be
deemed to be an investigative communication that is exempt from
public disclosure as a public record pursuant to subdivision (f) of
Section 6254 of the Government Code. A formal disciplinary action
against an EMT-I, EMT-II, or EMT-P shall be considered a public
record available to the public, unless otherwise protected from
disclosure pursuant to state or federal law.
(e)
(g) For purposes of this section, "disciplinary cause"
means an act that is substantially related to the qualifications,
functions, and duties of an EMT-I, EMT-II, or EMT-P and is evidence
of a threat to the public health and safety described in
subdivision (c) .
SEC. 2. Section 1798.203 is added to the Health and Safety Code,
to read:
1798.203. (a) The medical director of the local EMS agency may
issue a probationary EMT-I or EMT-II certificate, with specific terms
and conditions, to any applicant who has violated any provision of
this chapter, but who has met all other requirements for
certification and who has successfully completed the examination for
certification within four years of the date of issuance of the
initial certificate.
(b) Specific terms and conditions for a probationary certificate
may include, but are not limited to, the following:
(1) Continuing medical, psychiatric, or psychological treatment.
(2) Ongoing participation in a specified rehabilitation program.
(3) Abstention from the use of alcohol or drugs.
(4) Compliance with this chapter.
(c) (1) Notwithstanding any other provision of law, and for
purposes of this section, when deciding whether to issue a
probationary certificate, the local EMS agency shall request that an
applicant with a dismissed conviction provide proof of that dismissal
and shall give special consideration to an applicant whose
conviction has been dismissed pursuant to Section 1203.4 or 1203.4a
of the Penal Code.
(2) The medical director of a local EMS agency shall also take
into account and consider any other reasonable documents or
individual character references provided by the applicant that may
serve as evidence of rehabilitation, as deemed appropriate by the
agency.
(d) The medical director of the local EMS agency may modify or
terminate the terms and conditions imposed on the probationary
certificate upon receipt of a petition from the applicant or
certificate holder.
(e) For purposes of issuing a probationary certificate to a
qualified new applicant, the local EMS agency shall develop standard
terms of probation that shall include, but shall not be limited to,
the following:
(1) A three-year limit on the individual probationary certificate.
(2) A process to obtain a standard certificate for applicants who
were issued a probationary certificate.
(3) Supervision requirements.
(4) Compliance and quarterly reporting requirements.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution for
certain costs that may be incurred by a local agency or school
district because, in that regard, this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of the
Government Code, or changes the definition of a crime within the
meaning of Section 6 of Article XIII B of the California
Constitution.
However, if the Commission on State Mandates determines that this
act contains other costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division 4 of
Title 2 of the Government Code.