BILL ANALYSIS �
SB 960
Page 1
Date of Hearing: June 17, 2014
ASSEMBLY COMMITTEE ON BUSINESS, PROFESSIONS AND CONSUMER
PROTECTION
Susan A. Bonilla, Chair
SB 960 (Morrell) - As Amended: May 28, 2014
SENATE VOTE : 36-0
SUBJECT : Pharmacy
SUMMARY : Authorizes the Board of Pharmacy (BOP) to issue a
letter of admonishment (LOA) to an applicant who has committed a
violation that BOP deems worthy of caution, but does not merit a
license denial or probationary status. Specifically, this bill :
1)Authorizes the BOP's executive officer (EO), or his or her
designee, to issue an LOA concurrently with a license to an
applicant who has committed any violation of law BOP deems, in
its discretion, does not merit the denial of a license or
require probationary status.
2)Requires the LOA to inform the applicant that within 30 days
of service of the order of admonishment, the applicant may do
either of the following:
a) Submit a written request for an office conference to the
executive officer of the board to contest the letter of
admonishment, according to the following procedures:
i) Upon a timely request, the EO, or his or her
designee, shall hold an office conference with the
applicant or his or her legal counsel or authorized
representative. Unless so authorized by the EO, or his or
her designee, no individual other than the applicant's
legal counsel or authorized representative may accompany
the applicant to the office conference;
ii) Prior to or at the office conference, the applicant
may submit declarations and documents pertinent to the
subject matter of the LOA to the EO;
iii) The office conference is intended to be an informal
proceeding and shall not be subject to the Administrative
SB 960
Page 2
Procedure Act or provisions regarding formal hearings;
iv) The EO, or his or her designee, may affirm, modify,
or withdraw the LOA. Within 14 calendar days from the
date of the office conference, the EO, or his or her
designee, shall personally serve or send by certified
mail BOP's written decision to the applicant's address of
record. This decision shall be deemed the final
administrative decision concerning the LOA; and,
v) Judicial review of the decision may be had by filing
a petition for a writ of mandate within 30 days of the
date the decision was personally served or sent by
certified mail. The judicial review shall extend to the
question of whether or not there was a prejudicial abuse
of discretion in the issuance of the letter of
admonishment; or,
b) Comply with the letter of admonishment and submit a
written corrective action plan to the EO documenting
compliance. If an office conference is not requested,
compliance with the LOA shall not constitute an admission
of the violation noted in the letter of admonishment.
3)Requires the LOA to be served upon the applicant personally or
by certified mail at his or her address of record. If the
applicant is served by certified mail, service shall be
effective upon deposit in the United States mail.
4)Requires the applicant to maintain and have readily available
a copy of the LOA and corrective action plan, if any, for at
least three years from the date of issuance.
5)Prohibits the issuance of an LOA from being construed as a
disciplinary action or discipline for purposes of licensure or
the reporting of discipline for licensure.
EXISTING LAW :
1) Establishes the Pharmacy Law which provides for the licensure
and regulation of pharmacies, pharmacists and wholesalers of
dangerous drugs or devices by BOP. (Business and Professions
Code (BPC) Sections 4000 et seq.)
2) Requires BOP, upon receipt of an application for licensure
SB 960
Page 3
and appropriate fee, to investigate whether the applicant is
qualified for the license being sought, including all matters
directly related to the issuance of a license that may affect
the public welfare. (BPC 4207 (a))
3) Permits BOP 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. (BPC 4300)
4) Requires BOP, immediately upon the denial of any application
for a license, to notify the applicant in writing and
authorizes the applicant, within 10 days after the notice of
denial, to present a written petition for a license. (BPC
4310)
5) Authorizes BOP to issue an LOA to a licensee for failing to
comply with provisions of the BPC, Pharmacy Law, and
regulations, directing the licensee to come into compliance.
Sets forth the requirements for issuance of an LOA by BOP and
options for a recipient related to an office conference with
BOP staff, including:
a) A requirement that the letter be in writing and
describe in detail the nature and facts of the violation,
including a reference to the statutes or regulations
violated;
b) A requirement that a letter to be served upon a
licensee personally or by certified mail at the
applicant's address of record with the Board;
c) Provides that a letter inform the licensee that within
30 days of receipt of the letter, the licensee may either
submit a written request for an office conference to
contest the letter or may accept the letter without
challenge;
d) Outlines requirements for the office conference, if
requested by a licensee, to specify that:
i) Within 30 days of receipt of a request for
an office conference, a representative of BOP must
hold an office conference with the licensee and the
SB 960
Page 4
licensee's legal counsel or authorized
representative, if any. Specifies that unless
authorized by the EO, or his or her designee, any
individual other than the legal counsel or
authorized representative of the licensee may not
accompanying the licensee to the office conference;
ii) The licensee is authorized to submit
declarations and documents pertinent to the subject
matter of the LOA;
iii) The office conference is intended to be an
informal proceeding that is not subject to the
Administrative Procedures Act;
iv) The BOP representative may affirm, modify,
or withdraw the LOA and, within 14 calendar days
from the date of the office conference, the BOP
representative shall personally serve or send by
certified mail to the licensee's address of record a
written decision which will be deemed the final
administrative decision concerning the LOA;
v) Judicial review of the decision may be had
by filing a petition for a writ of mandate within 30
days of the date the decision was personally served
or sent by certified mail. The judicial review shall
extend to the question of whether or not there was a
prejudicial abuse of discretion in the issuance of
the letter; and,
vi) Requires the licensee to maintain and have
available the letter and any corrective action plan
for at least three years from the date of issuance
of the letter. (BPC 4315)
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of this bill . This bill allows BOP to issue an LOA to
an applicant who has committed a violation that BOP deems
worthy of caution, but does not merit a license denial or
probationary status, as specified. By expanding the use of
LOAs to include applicants for licensure, this bill will
SB 960
Page 5
reduce the costs associated with the formal investigatory and
hearing process necessary for a probationary license, while
still preserving public safety and granting the applicant full
licensure. This bill is sponsored by BOP.
2)Author's statement . According to the author's office, "In
fiscal year 2012/2013, the [BOP] received more than 15,000
applications from individuals. Of these, an average of less
than one percent was denied licensure; however, the denial of
pharmacy technicians averaged 1.15%. Each applicant's
individual circumstances are considered when making a
licensing decision. An individual denied licensure has the
right to appeal the board's decision through a formal appeal
process, which can be costly for the applicant as well as for
the [BOP].
"Senate Bill 960 would allow the [BOP] to issue a license
concurrently with a Letter of Admonishment. The [BOP]
believes that by issuing a Letter of Admonishment with a
license, the individual would receive the privilege of the
license, while the letter would serve to protect the public
and provide notice to an employer of facts and violations
about the new licensee.
"Existing law authorizes the [BOP] to issue a Letter of
Admonishment to a licensee that fails to comply with the law
and outlines a process through which the licensee may object
to the letter. This bill extends authority to the board to
use the Letter of Admonishment as a tool in issuing a
license."
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 and
costs approximately $4,000.
This bill creates an abridged process that would allow BOP to
grant a license to an applicant whose case may not be
significant enough to result in a probationary license or
license denial, but places a flag on the licensee's license
due to prior behavior. Current law affords the Medical Board
of California a similar process for both the probationary
license and public letter of reprimand.
SB 960
Page 6
BOP estimates that if this bill passes, this option will
likely be used less than a dozen times per year.
1)Existing LOA law . Existing law currently allows BOP to issue
an LOA to a licensee for failing to comply with provisions of
the BPC, Pharmacy Law, or regulations. This bill adds the
ability to issue an LOA to an applicant, as well. However,
this bill prohibits the issuance of an LOA to an applicant
from being construed as a disciplinary action or discipline
for purposes of licensure or the reporting of discipline for
licensure, as it is for licensees.
1)Office conference . This bill states that the LOA 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 LOA. 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.
2)Arguments in support . The Board of Pharmacy writes, "This
bill would provide [BOP] with an additional tool to ensure
public protection. Upon receipt of an application for a
license, [BOP] conducts a thorough investigation to determine
whether the individual is qualified for the license being
sought. We investigate all matters related to the issuance of
the license that may affect the public welfare, to include a
review of an individual's criminal history record information
to determine prior arrests and convictions within and outside
of California. [BOP] also requires information about prior
administrative actions taken by any regulatory agency against
SB 960
Page 7
an applicant. Sometimes information gained from this
background review shows serious violations in the individual's
past.
"When considering the appropriate action when making a
licensing decision, [BOP] recognizes that some violations -
while serious - may not be sufficient or are so old that [BOP]
may have difficulty sustaining a denial of the license.
"[SB] 960 would authorize [BOP] to issue [an LOA], which would
describe the nature and facts of an individual's violations.
[SB 960] would provide the individual the right to contest the
[LOA] and specify the process and timeframe for the contesting
of the [LOA], and would require that a letter of admonishment
be purged three years from the date of issuance."
3)Suggested technical amendments . The following suggested
amendments represent clarifying grammatical fixes.
On page 2, line 29, after "the," add "licensee's or
applicant's" and delete "his or her"
On page 3, line 8, delete "with" and add "'s" to board.
According to BOP, a corrective action plan is not always
necessary or required. The following amendment will clarify
this in the bill.
On page 3, line 19, after "plan" add ", if necessary,"
4)Related legislation . AB 2131 (Morrell) of 2014 was a very
similar measure sponsored by BOP, modeled after the Medical
Board of California's letter of reprimand. However, the
bill's author moved to the Senate, and the language of AB 2131
was amended into SB 960 to use a LOA instead of a letter of
reprimand. AB 2131 is currently in Senate Business,
Professions, and Consumer Protection Committee, with no plans
for a hearing.
REGISTERED SUPPORT / OPPOSITION :
Support
California Board of Pharmacy (sponsor)
California Pharmacists Association
SB 960
Page 8
Opposition
None on file.
Analysis Prepared by : Sarah Huchel / B.,P. & C.P. / (916)
319-3301