BILL ANALYSIS �
AB 2131
Page 1
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
AB 2131 (Morrell) - As Amended: April 2, 2014
SUBJECT : Pharmacy licenses: letters of reprimand.
SUMMARY : Permits the Board of Pharmacy (BOP) to issue a
pharmacist or pharmacy technician license concurrently with a
public letter of reprimand for those applicants who have
committed minor violations that BOP deems not to merit a license
denial or probationary license. Specifically, this bill :
1)Permits BOP to issue a license to an applicant who has
committed minor violations that BOP deems, in its discretion,
to not merit the denial of a license or require probationary
status under existing law, and may concurrently issue a public
letter of reprimand.
2)Requires that the letter of reprimand be in writing and
describe in detail the nature and facts of the violation,
including a reference to the statutes or regulations violated.
3)Requires the letter of reprimand to inform the licensee that
within 30 days of service of the letter of reprimand the
licensee may do either of the following:
a) Submit a written request to the BOP's executive officer
(EO) for an office conference to contest the letter of
reprimand; and,
i) Requires the EO or his or her designee to hold an
office conference with the licensee and the licensee's
legal counsel or authorized representative, if any,
within 30 days of receipt of the request. Unless so
authorized by the EO or his or her designee, no
individual other than the legal counsel or authorized
representative of the licensee may accompany the licensee
to the office conference;
ii) Permits the licensee to submit to the EO, or his or
her designee, declarations and documents pertinent to the
subject matter of the letter of reprimand prior to or at
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the office conference;
iii) States that the office conference is intended to be
an informal proceeding and is not subject to the
provisions of the Administrative Procedure Act (APA) and
formal hearing requirements, as specified;
iv) Permits the EO, or his or her designee, to affirm,
modify, or withdraw the letter of reprimand. Requires
that within 14 calendar days from the date of the office
conference, the EO, or his or her designee, to personally
serve or send by certified mail a written decision to the
licensee's address of record. States that this decision
shall be deemed the final administrative decision
concerning the letter of reprimand;
v) Permits judicial review of the decision by filing a
petition for a writ of mandate, as specified, within 30
days of the date the decision was personally served or
sent by certified mail. States that the judicial review
shall determine whether or not there was a prejudicial
abuse of discretion in the issuance of the letter of
reprimand; or,
b) The licensee may accept the letter of reprimand without
challenge. Requires BOP to inform the licensee that the
letter of reprimand shall be purged after three years if no
letter of admonishment, citation, notice of correction, or
disciplinary action is initiated by BOP within those three
years.
4)Requires that the letter of reprimand be served upon the
licensee personally or by certified mail at the applicant's
address of record with BOP. If the applicant is served by
certified mail, service shall be effective upon deposit in the
United States mail.
5)Requires that a public letter of reprimand issued concurrently
with a license be purged three years from the date of issuance
if no letter of admonishment, citation, notice of correction,
or disciplinary action is initiated by BOP during the three
year period.
6)Requires that a public letter of reprimand be disclosed to an
inquiring member of the public and be posted on the board's
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Internet Web site.
7)States that nothing in this bill shall be construed to affect
the BOP's authority to issue an unrestricted license.
EXISTING LAW :
1)Establishes BOP to administer and enforce the Pharmacy Law.
(Business and Professions Code (BPC) Section 4001)
2)Permits BOP to refuse a license to any applicant guilty of
unprofessional conduct. (BPC 4300)
3)Permits BOP, in its sole discretion, to issue a probationary
license to any applicant for a license who is guilty of
unprofessional conduct and who has met all other requirements
for licensure. Permits BOP to issue the license subject to
any terms or conditions not contrary to public policy
including, but not limited to, the following:
a) Medical or psychiatric evaluation;
b) Continuing medical or psychiatric treatment;
c) Restriction of type or circumstances of practice;
d) Continuing participation in a BOP-approved
rehabilitation program;
e) Abstention from the use of alcohol or drugs;
f) Random fluid testing for alcohol or drugs; or,
g) Compliance with laws and regulations governing the
practice of pharmacy. (BPC 4300)
4)Permits BOP to initiate disciplinary proceedings to revoke or
suspend any probationary certificate of licensure for any
violation of the terms and conditions of probation. Upon
satisfactory completion of probation, BOP must convert the
probationary license to a regular license, free of conditions.
(BPC 4300)
5)Requires all BOP disciplinary proceedings to be conducted in
accordance with the APA and formal hearing process, as
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specified. (BPC 4300)
6)Permits a licensee to contest an order of correction and
letter of admonishment through an informal office conference,
and allows any person or entity served with a citation, as
specified, to appeal to BOP for an APA hearing and an office
conference. (BPC 4083, 4315; California Code of Regulations
1775.4)
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of this bill . This bill would allow BOP to issue a
pharmacist or pharmacy technician license and concurrently
issue a public letter of reprimand for cases in which there
have been violations not significant enough to warrant a
license denial. This step would allow the BOP to put the
licensee, and potential employers, on notice that there was a
question about the licensee's qualifications, while still
permitting an otherwise qualified applicant to practice. The
letter would remain public for three years and be expunged if
there were no interim disciplinary actions. This bill is
sponsored by BOP.
2)Author's statement . According to the author's office,
"Assembly Bill 2131 would allow the board to issue a license
concurrently with a Letter of Reprimand. The board believes
that by issuing a Letter of Reprimand concurrent with a
license, the individual would receive the privilege of the
license, while the letter of reprimand serves to protect the
public and provide notice to an employer of facts and
violations about the new licensee. A Letter of Reprimand would
also allow the board to document a licensee's history
regarding an event that may have happened many years ago, when
considering a disciplinary action for misconduct during the
first three years of licensure."
3)Probationary licenses . Current law affords a procedure for
BOP to award a probationary license with practice conditions
in lieu of a full license. However, that process is
considered formal discipline and requires a full investigation
and formal hearing, which takes 12-18 months to complete. AB
2131 creates an abridged process that would allow BOP to grant
a license to an applicant whose case may not be significant
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enough to result in a probationary license or license denial,
but places a flag on the licensee's license due to prior
behavior. BOP estimates that if this bill passes, this option
will likely be used less than a dozen times per year. Current
law affords the Medical Board of California a similar process
for both the probationary license and public letter of
reprimand.
4)Office conference . This bill states that the letter of
reprimand is intended to be an informal proceeding and is not
subject to the APA or formal hearing process. The applicant
is allowed to appeal the letter, however, via an "office
conference."
An office conference allows the applicant and his or her legal
counsel or authorized representative to meet with BOP's EO, or
his or her designee, and dispute the issuance of the public
letter of reprimand. The applicant is allowed to present
declarations and documents in support of his or her case, and
the EO, or his or her representative, makes a decision within
14 calendar days of the hearing.
If the applicant disputes the decision, he or she may file a
writ of mandate, which is a process by which a court without a
jury hears a final decision of an administrative body. BOP
uses the office conference for other lesser violations, such
as a letter of admonishment (for minor violations of the
Pharmacy Law) and order of correction (a directive to change
practices), and as a tandem appeal for formal citations.
5)Arguments in support . BOP writes, "[AB] 2131 would authorize
[BOP] to issue a letter of reprimand, which would describe in
detail the nature and facts of an individual's violations.
[AB] 2131 would provide the individual the right to contest
the Letter of Reprimand, would specify the process and
timeframe for the contesting of the letter, and would require
that a letter of reprimand be purged three years from the date
of issuance.
"[BOP] believes that [AB] 2131 would serve to protect public
by licensing individuals who meet minimum qualifications for
licensure, but also by documenting and making available
information regarding an individual's past so that employers
can make informed decisions as to those they are hiring."
AB 2131
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6)Prior legislation . AB 1045 (Chapter 302, Statutes of 2013)
Required patients to be notified as soon as possible within 12
hours of a recall notice for a sterile compounded drug, and
required the automatic cancellation, suspension, or revocation
of a California pharmacy license if an out-of-state pharmacy's
home state license is canceled, suspended, or revoked.
REGISTERED SUPPORT / OPPOSITION :
Support
Board of Pharmacy (sponsor)
California Pharmacists Association
Opposition
None on file.
Analysis Prepared by : Sarah Huchel / B.,P. & C.P. / (916)
319-3301