Bill Text: CA SB1195 | 2015-2016 | Regular Session | Amended
Bill Title: Professions and vocations: board actions.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2016-11-30 - Died on the inactive file. [SB1195 Detail]
Download: California-2015-SB1195-Amended.html
BILL NUMBER: SB 1195 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 1, 2016
AMENDED IN SENATE APRIL 6, 2016
INTRODUCED BY Senator Hill
FEBRUARY 18, 2016
An act to amend Sections 109, 116, 153, 307, 313.1, 2708, 4800,
4804.5, 4825.1, 4830, and 4846.5
4846.5, 4904, and 4905 of, and to add
Sections 4826.3, 4826.5, 4826.7, 109.5,
4826.5, 4848.1, and 4853.7 to, the Business and Professions
Code, and to amend Sections 825, 11346.5, 11349, and 11349.1
825 and 11346.5 of the Government Code,
relating to professional regulation, and making an
appropriation therefor. regulations.
LEGISLATIVE COUNSEL'S DIGEST
SB 1195, as amended, Hill. Professions and vocations: board
actions: competitive impact. actions.
(1) Existing law provides for the licensure and regulation of
various professions and vocations by boards within the Department of
Consumer Affairs, and authorizes those boards to adopt regulations to
enforce the laws pertaining to the profession and vocation for which
they have jurisdiction. Existing law makes decisions of any board
within the department pertaining to setting standards, conducting
examinations, passing candidates, and revoking licenses final, except
as specified, and provides that those decisions are not subject to
review by the Director of Consumer Affairs. Existing law authorizes
the director to audit and review certain inquiries and complaints
regarding licensees, including the dismissal of a disciplinary case.
Existing law requires the director to annually report to the
chairpersons of certain committees of the Legislature information
regarding findings from any audit, review, or monitoring and
evaluation. Existing law authorizes the director to contract for
services of experts and consultants where necessary. Existing law
requires regulations, except those pertaining to examinations and
qualifications for licensure and fee changes proposed or promulgated
by a board within the department, to comply with certain requirements
before the regulation or fee change can take effect, including that
the director is required to be notified of the rule or regulation and
given 30 days to disapprove the regulation. Existing law prohibits a
rule or regulation that is disapproved by the director from having
any force or effect, unless the director's disapproval is overridden
by a unanimous vote of the members of the board, as specified.
This bill would instead authorize the director, upon his or her
own initiative, and require the director, upon the request of
a consumer or licensee, the board making the
decision or the Legislature, to review a
any nonministerial market- sensitive decision
or other action, except as specified, of a board within the
department to determine whether it unreasonably restrains
trade furthers state law and to approve,
disapprove, request further information, or modify the
board decision or action, as specified. The bill would require the
director to issue and post on the department's Internet
Web site his or her final written decision and the reasons for the
decision within 90 days from receipt of the request of a
consumer or licensee. request for review or the
director's decision to review the board decision. The bill would
prohibit the executive officer of any board, committee, or commission
within the department from being an active licensee of any
profession that board, committee, or commission regulates. The
bill would, commencing on March 1, 2017, require the director to
annually report to the chairs of specified committees of the
Legislature information regarding the director's disapprovals,
modifications, or findings from any audit, review, or monitoring and
evaluation. The bill would authorize the director to seek, designate,
employ, or contract for the services of independent antitrust
experts for purposes of reviewing board actions for unreasonable
restraints on trade. The bill would also require the director to
review and approve any regulation promulgated by a board within the
department, as specified. The bill would authorize the
director to modify any regulation as a condition of approval, and to
disapprove a regulation because it would have an impermissible
anticompetitive effect. The bill would authorize the
director, for a spec ified period of time, to approve,
disapprove, or require modification of a proposed rule or regulation
on the ground that it does not further state law.
The bill would prohibit any rule or regulation from having any force
or effect if the director does not approve the regulation
because it has an impermissible anticompetitive effect.
rule or regulation and prohibits any rule or regulation that is
not approved by the director from being submitted to the Office of
Administrative Law.
(2) Existing law, until January 1, 2018, provides for the
licensure and regulation of registered nurses by the Board of
Registered Nursing, which is within the Department of Consumer
Affairs, and requires the board to appoint an executive officer who
is a nurse currently licensed by the board.
This bill would instead prohibit the executive officer from being
a licensee of the board.
(3) The Veterinary Medicine Practice Act provides for the
licensure and registration of veterinarians and registered veterinary
technicians and the regulation of the practice of veterinary
medicine by the Veterinary Medical Board, which is within the
Department of Consumer Affairs, and authorizes the board to appoint
an executive officer, as specified. Existing law repeals the
provisions establishing the board and authorizing the board to
appoint an executive officer as of January 1, 2017. That act exempts
certain persons from the requirements of the act, including a
veterinarian employed by the University of California or the Western
University of Health Sciences while engaged in the performance of
specified duties. That act requires all premises where veterinary
medicine, dentistry, and surgery is being practiced to register with
the board. That act requires all fees collected on behalf of the
board to be deposited into the Veterinary Medical Board Contingent
Fund, which continuously appropriates fees deposited into the fund.
That act makes a violation of any provision of the act punishable as
a misdemeanor.
This bill would extend the operation of the board and the
authorization of the board to appoint an executive officer to January
1, 2021. The bill would authorize a veterinarian and
or registered veterinary technician who is under
the direct supervision of a licensed veterinarian
with a current and active license to compound a
drug for anesthesia, the prevention, cure, or relief of a
wound, fracture, bodily injury, or disease of an animal in a premises
currently and actively registered with the board, as specified. The
bill would authorize the California State Board of Pharmacy and the
board to ensure compliance with these requirements.
animal use pursuant to federal law and regulations promulgated by the
board and would require those regulations to, at a minimum, address
the storage of drugs, the level and type of supervision required for
compounding drugs by a registered veterinary technician, and the
equipment necessary for safe compounding of drugs. The bill
would instead require veterinarians engaged in the practice of
veterinary medicine employed by the University of California or by
the Western University of Health Sciences while
and engaged in the performance of specified duties to be
licensed as a veterinarian in the state or hold
be issued a university license issued by the
board. license, as specified. The bill would
require an applicant authorize an individual
to apply for and be issued a university license
to meet if he or she meets certain
requirements, including that the applicant passes a
specified exam. paying an application and license fee.
The bill would require a university license, among other things, to
automatically cease to be valid upon termination or cessation of
employment by the University of California or the Western
University of Health Sciences. The bill would also prohibit a
premise registration that is not renewed within 5 years after its
expiration from being renewed, restored, reissued, or reinstated;
however, the bill would authorize a new premise registration to be
issued to an applicant if no fact, circumstance, or condition exists
that would justify the revocation or suspension of the registration
if the registration was issued and if specified fees are paid.
By requiring additional persons to be licensed and pay
certain fees that would go into a continuously appropriated fund,
this bill would make an appropriation. This bill would
provide that the Veterinary Medical Board Contingent Fund is
available for expenditure only upon an appropriation by the
Legislature. By requiring additional persons to be licensed
under the act that were previously exempt, this bill would expand the
definition of an existing crime and would, therefore, result in a
state-mandated local program.
(4) Existing law, The Government Claims
Act, except as provided, requires a public entity to pay any
judgment or any compromise or settlement of a claim or action against
an employee or former employee of the public entity if the employee
or former employee requests the public entity to defend him or her
against any claim or action against him or her for an injury arising
out of an act or omission occurring within the scope of his or her
employment as an employee of the public entity, the request is made
in writing not less than 10 days before the day of trial, and the
employee or former employee reasonably cooperates in good faith in
the defense of the claim or action. That act prohibits the
payment of punitive or exemplary damages by a public entity, except
as specified.
This bill would require a public entity to pay a judgment or
settlement for treble damage antitrust awards against a member of a
regulatory board for an act or omission occurring within the scope of
his or her employment as a member of a regulatory board. The
bill would specify that treble damages awarded pursuant to a
specified federal law for violation of another federal law
are not punitive or exemplary damages within the Government Claims
Act.
(5) The Administrative Procedure Act governs the procedure for the
adoption, amendment, or repeal of regulations by state agencies and
for the review of those regulatory actions by the Office of
Administrative Law. That act requires the review by the
office to follow certain standards, including, among others,
necessity, as defined. That act requires an agency
proposing to adopt, amend, or repeal a regulation to prepare a notice
to the public that includes specified information, including
reference to the authority under which the regulation is proposed.
This bill would add competitive impact, as defined, as an
additional standard for the office to follow when reviewing
regulatory actions of a state board on which a controlling number of
decisionmakers are active market participants in the market that the
board regulates, and requires the office to, among other things,
consider whether the anticompetitive effects of the proposed
regulation are clearly outweighed by the public policy merits. The
bill would authorize the office to designate, employ, or contract for
the services of independent antitrust or applicable economic experts
when reviewing proposed regulations for competitive impact. The bill
would require state boards on which a controlling number of
decisionmakers are active market participants in the market that the
board regulates, when preparing the public notice, to additionally
include a statement that the agency has evaluated the impact of the
regulation on competition and that the effect of the regulation is
within a clearly articulated and affirmatively expressed state law or
policy. also require a board within the Department of
Consumer Affairs to submit a statement to the office that the
Director of Consumer Affairs has reviewed the proposed
regulation and determined that the proposed regulation furthers state
law.
(6) 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 no reimbursement is required by this
act for a specified reason.
Vote: majority. Appropriation: yes no
. Fiscal committee: yes. State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 109 of the Business and Professions Code is
amended to read:
109. (a) The director decisions of any of
the boards comprising the department with respect to passing
candidates and revoking or otherwise imposing discipline on licenses
shall not be subject to review by the director and are final within
the limits provided by this code that are applicable to the
particular board.
(b) The director may initiate an
investigation of any allegations of misconduct in the preparation,
administration, or scoring of an examination which is administered by
a board, or in the review of qualifications which are a part of the
licensing process of any board. A request for investigation shall be
made by the director to the Division of Investigation through the
chief of the division or to any law enforcement agency in the
jurisdiction where the alleged misconduct occurred.
(b) (1)
(1) The director may intervene in any matter
of any board where an investigation by the Division of Investigation
discloses probable cause to believe that the conduct or activity of
a board, or its members or employees
employees, constitutes a violation of criminal law.
(2) The term "intervene," as used in paragraph (1) of this
section may include, but is not limited to, an application for
a restraining order or injunctive relief as specified in Section
123.5, or a referral or request for criminal prosecution. For
purposes of this section, the director shall be deemed to have
standing under Section 123.5 and shall seek representation of the
Attorney General, or other appropriate counsel in the event of a
conflict in pursuing that action.
(c) The director may, upon his or her own initiative, and shall,
upon request by a consumer or licensee, the
board making the decision or the Legislature, review any
nonministerial market -sensitive board action
or decision or other action to determine whether it
unreasonably restrains trade. Such a review shall proceed as follows:
by the board to determine whether it furthers state
law. Market-sensitive actions or decisions are those that create
barriers to market participation and restrict competition including,
but not limited to, examination passage scores, advertising
restrictions, price regulation, enlarging or restricting
scope of practice qualifications for licensure, and a pattern or
program of disciplinary actions affecting multiple individuals that
creates barriers to market participation. If the board action or
decision is determined to be a market-sensitive action or decision,
the director shall review the board action or decision to determine
whether that action or decision furthers a clearly articulated and
affirmatively expressed state policy. Review under this subdivision
shall serve to cease implementation of the market-sensitive action or
decision until the review is finalized and the action or decision is
found to further state law.
(1) The director shall assess whether the action or decision
reflects a clearly articulated and affirmatively expressed state law.
If the director determines that the action or decision does not
reflect a clearly articulated and affirmatively expressed state law,
the director shall disapprove the board action or decision and it
shall not go into effect.
(2) If the action or decision is a reflection of clearly
articulated and affirmatively expressed state law, the director shall
assess whether the action or decision was the result of the board's
exercise of ministerial or discretionary judgment. If the director
finds no exercise of discretionary judgment, but merely the direct
application of statutory or constitutional provisions, the director
shall close the investigation and review of the board action or
decision.
(3) If the director concludes under paragraph (2) that the board
exercised discretionary judgment, the director shall review the board
action or decision as follows:
(A) The
(1) Any review by the director
under this subdivision shall conduct
include a full substantive review of the board
action or decision using based upon all
the relevant facts, data, market conditions,
facts in the record provided by the board and any
additional information provided by the director, which may include
data, public comment, studies, or other documentary evidence
pertaining to the market impacted by the board's
action or decision and determine whether the anticompetitive
effects of the action or decision are clearly outweighed by the
benefit to the public. The director may seek, designate, employ, or
contract for the services of independent antitrust or economic
experts pursuant to Section 307. These experts shall not be active
participants in the market affected by the board action or decision.
decision.
(B) If the board action or decision was not previously subject to
a public comment period, the director shall release the subject
matter of his or her investigation for a 30-day public comment period
and shall consider all comments received.
(C) If the director determines that the action or decision
furthers the public protection mission of the board and the impact on
competition is justified, the director may approve the action or
decision.
(D) If the director determines that the action furthers the public
protection mission of the board and the impact on competition is
justified, the director may approve the action or decision. If the
director finds the action or decision does not further the public
protection mission of the board or finds that the action or decision
is not justified, the director shall either refuse to approve it or
shall modify the action or decision to ensure that any restraints of
trade are related to, and advance, clearly articulated state law or
public policy.
(2) The director shall take one of the following actions:
(A) Approve the action or decision upon determination that it
furthers state law.
(B) Disapprove the action or decision if it does not further state
law. If the director disapproves the board action or decision, the
director may recommend modifications to the board action or decision,
which, if adopted, shall not become effective until final approval
by the director pursuant to this subdivision.
(C) Modify the action or decision to ensure that it furthers state
law.
(D) Request further information from the board if the record
provided is insufficient to make a determination that the action or
decision furthers state law. Upon submission of further information
from the board and any information provided by the director, the
director shall make a final determination to approve, disapprove, or
modify the board's action or decision.
(4)
(d) The director shall issue, and post on the
department's Internet Web site, his or her final written decision
approving, modifying, or disapproving on
the board action or decision with an explanation of
the reasons that action or decision does or does not further
state law and the rationale behind the director's
decision within 90 days from receipt of the request from a
consumer or licensee. board's or Legislature's request
for review or the director's decision to review the board action or
decision. Notwithstanding any other law, the decision of the
director shall be final, except if the state or federal constitution
requires an appeal of the director's decision.
(d)
(e) The review set forth in paragraph (3) of
subdivision (c) shall not apply when an individual
seeks to the review of any
disciplinary action or other action pertaining
solely to that individual. any other sanction or
citation imposed by a board upon a licensee.
(e)
( f) The director shall report to the Chairs
of the Senate Business, Professions, and Economic Development
Committee and the Assembly Business and Professions Committee
annually, commencing March 1, 2017, regarding his or her
disapprovals, modifications, or findings from any audit, review, or
monitoring and evaluation conducted pursuant to this section. That
report shall be submitted in compliance with Section 9795 of the
Government Code.
(f) If the director has already reviewed a board action or
decision pursuant to this section or Section 313.1, the director
shall not review that action or decision again.
(g) This section shall not be construed to affect, impede, or
delay any disciplinary actions of any board.
SEC. 2. Section 109.5 is added to the
Business and Professions Code , to read:
109.5. The executive officer of any board, committee, or
commission within the department shall not be an active licensee of
any profession that board, committee, or commission regulates.
SEC. 2. SEC. 3. Section 116 of the
Business and Professions Code is amended to read:
116. (a) The director may audit and review, upon his or her own
initiative, or upon the request of a consumer or licensee, inquiries
and complaints regarding licensees, dismissals of disciplinary cases,
the opening, conduct, or closure of investigations, informal
conferences, and discipline short of formal accusation by any board
or bureau within the department.
(b) The director shall report to the Chairs of the Senate
Business, Professions, and Economic Development Committee and the
Assembly Business and Professions Committee annually, commencing
March 1, 2017, regarding his or her findings from any audit, review,
or monitoring and evaluation conducted pursuant to this section. This
report shall be submitted in compliance with Section 9795 of the
Government Code.
SEC. 3. SEC. 4. Section 153 of the
Business and Professions Code is amended to read:
153. The director may investigate the work of the several boards
in his or her department and may obtain a copy of all
records and full and complete data in all official matters in
possession of the boards, their members, officers, or employees.
SEC. 4. SEC. 5. Section 307 of the
Business and Professions Code is amended to read:
307. The director may contract for the services of experts and
consultants where necessary to carry out this chapter and may provide
compensation and reimbursement of expenses for those experts and
consultants in accordance with state law.
SEC. 5. SEC. 6. Section 313.1 of the
Business and Professions Code is amended to read:
313.1. (a) Notwithstanding any other law to the contrary, no rule
or regulation and no fee change proposed or promulgated by any of
the boards, commissions, or committees within the department, shall
take effect pending compliance with this section.
(b) The director shall be formally notified of and shall review,
in accordance with the requirements of Article 5 (commencing with
Section 11346) of Chapter 3.5 of Part 1 of Division 3 of Title 2 of
the Government Code, the requirements in subdivision (c) of Section
109, and this section, all of the following:
(1) All notices of proposed action, any modifications and
supplements thereto, and the text of proposed regulations.
(2) Any notices of sufficiently related changes to regulations
previously noticed to the public, and the text of proposed
regulations showing modifications to the text.
(3) Final rulemaking records.
(4) All relevant facts, facts in the
rulemaking record, which may include data, public comments,
market conditions, studies, or other documentary
evidence pertaining to the market impacted by the proposed
regulation. This information shall be included in the written
decision of the director required under paragraph (4) of subdivision
(c) of Section 109. proposed regulation to determine w
hether it furthers state law. If the regulation does not
further state law, it shall not be approved.
(c) The submission of all notices and final rulemaking records to
the director and the director's approval, as authorized by this
section, shall be a precondition to the filing of any rule or
regulation with the Office of Administrative Law. The Office of
Administrative Law shall have no jurisdiction to review a rule or
regulation subject to this section until after the director's review
and approval. The filing of any document with the Office of
Administrative Law shall be accompanied by a certification that the
board, commission, or committee has complied with the requirements of
this section.
(d) Following the receipt of any final rulemaking record subject
to subdivision (a), the director shall have the authority for a
period of 30 days to approve approve,
disapprove, or require modification of a proposed rule or
regulation or disapprove a proposed rule or regulation
on the ground that it is injurious to the public health,
safety, or welfare, welfare or
has an impermissible anticompetitive effect. The director may modify
a rule or regulation as a condition of approval. Any modifications
to regulations by the director shall be subject to a 30-day public
comment period before the director issues a final decision regarding
the modified regulation. If the director does not approve the rule or
regulation within the 30-day period, the rule or regulation shall
not be submitted to the Office of Administrative Law and the rule or
regulation shall have no effect. does not further
state law. If the director does not approve the rule or
regulation within the 30-day period, the rule or regulation shall not
be submitted to the Office of Administrative Law and the rule or
regulation shall have no effect.
(e) Final rulemaking records shall be filed with the director
within the one-year notice period specified in Section 11346.4 of the
Government Code. If necessary for compliance with this section, the
one-year notice period may be extended, as specified by this
subdivision.
(1) In the event that the one-year notice period lapses during the
director's 30-day review period, or within 60 days following the
notice of the director's disapproval, it may be extended for a
maximum of 90 days.
(2) If the director approves the final rulemaking record, the
board, commission, or committee shall have five days from the receipt
of the record from the director within which to file it with the
Office of Administrative Law.
(3) If the director disapproves a rule or regulation, it shall
have no force or effect unless, within 60 days of the notice
of disapproval, (A) the disapproval is overridden by a unanimous
vote of the members of the board, commission, or committee, and (B)
the board, commission, or committee files the final rulemaking record
with the Office of Administrative Law in compliance with this
section and the procedures required by Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code. This paragraph shall not apply to any decision disapproved by
the director under subdivision (c) of Section 109.
effect.
(f) This section shall not be construed to prohibit the
director from affirmatively approving a proposed rule, regulation,
or fee change at any time within the 30-day period after it has been
submitted to him or her, in which event it shall become effective
upon compliance with this section and the procedures required by
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code.
SEC. 6. SEC. 7. Section 2708 of the
Business and Professions Code is amended to read:
2708. (a) The board shall appoint an executive officer who shall
perform the duties delegated by the board and who shall be
responsible to it for the accomplishment of those duties.
(b) The executive officer shall not be a licensee under this
chapter and shall possess other qualifications as determined by the
board.
(c) The executive officer shall not be a member of the board.
(d) This section shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 7. SEC. 8. Section 4800 of the
Business and Professions Code is amended to read:
4800. (a) There is in the Department of Consumer Affairs a
Veterinary Medical Board in which the administration of this chapter
is vested. The board consists of the following members:
(1) Four licensed veterinarians.
(2) One registered veterinary technician.
(3) Three public members.
(b) This section shall remain in effect only until January 1,
2021, and as of that date is repealed.
(c) Notwithstanding any other law, the repeal of this section
renders the board subject to review by the appropriate policy
committees of the Legislature. However, the review of the board shall
be limited to those issues identified by the appropriate policy
committees of the Legislature and shall not involve the preparation
or submission of a sunset review document or evaluative
questionnaire.
SEC. 8. SEC. 9. Section 4804.5 of
the Business and Professions Code is amended to read:
4804.5. (a) The board may appoint a person exempt from civil
service who shall be designated as an executive officer and who shall
exercise the powers and perform the duties delegated by the board
and vested in him or her by this chapter.
(b) This section shall remain in effect only until January 1,
2021, and as of that date is repealed.
SEC. 9. Section 4825.1 of the Business and
Professions Code is amended to read:
4825.1. These definitions shall govern the construction of this
chapter as it applies to veterinary medicine.
(a) "Diagnosis" means the act or process of identifying or
determining the health status of an animal through examination and
the opinion derived from that examination.
(b) "Animal" means any member of the animal kingdom other than
humans, and includes fowl, fish, and reptiles, wild or domestic,
whether living or dead.
(c) "Food animal" means any animal that is raised for the
production of an edible product intended for consumption by humans.
The edible product includes, but is not limited to, milk, meat, and
eggs. Food animal includes, but is not limited to, cattle (beef or
dairy), swine, sheep, poultry, fish, and amphibian species.
(d) "Livestock" includes all animals, poultry, aquatic and
amphibian species that are raised, kept, or used for profit. It does
not include those species that are usually kept as pets such as dogs,
cats, and pet birds, or companion animals, including equines.
(e) "Compounding," for the purposes of veterinary medicine, shall
have the same meaning given in Section 1735 of Title 16 of the
California Code of Regulations, except that every reference therein
to "pharmacy" and "pharmacist" shall be replaced with "veterinary
premises" and "veterinarian," and except that only a licensed
veterinarian or a licensed registered veterinarian technician under
direct supervision of a veterinarian may perform compounding and
shall not delegate to or supervise any part of the performance of
compounding by any other person.
SEC. 10. Section 4826.3 is added to the
Business and Professions Code, to read:
4826.3. (a) Notwithstanding Section 4051, a veterinarian or
registered veterinarian technician under the direct supervision of a
veterinarian with a current and active license may compound a drug
for anesthesia, the prevention, cure, or relief of a wound, fracture,
bodily injury, or disease of an animal in a premises currently and
actively registered with the board and only under the following
conditions:
(1) Where there is no FDA-approved animal or human drug that can
be used as labeled or in an appropriate extralabel manner to properly
treat the disease, symptom, or condition for which the drug is being
prescribed.
(2) Where the compounded drug is not available from a compounding
pharmacy, outsourcing facility, or other compounding supplier in a
dosage form and concentration to appropriately treat the disease,
symptom, or condition for which the drug is being prescribed.
(3) Where the need and prescription for the compounded medication
has arisen within an established veterinarian-client-patient
relationship as a means to treat a specific occurrence of a disease,
symptom, or condition observed and diagnosed by the veterinarian in a
specific animal that threatens the health of the animal or will
cause suffering or death if left untreated.
(4) Where the quantity compounded does not exceed a quantity
demonstrably needed to treat a patient with which the veterinarian
has a current veterinarian-client-patient relationship.
(5) Except as specified in subdivision (c), where the compound is
prepared only with commercially available FDA-approved animal or
human drugs as active ingredients.
(b) A compounded veterinary drug may be prepared from an
FDA-approved animal or human drug for extralabel use only when there
is no approved animal or human drug that, when used as labeled or in
an appropriate extralabel manner will, in the available dosage form
and concentration, treat the disease, symptom, or condition.
Compounding from an approved human drug for use in food-producing
animals is not permitted if an approved animal drug can be used for
compounding.
(c) A compounded veterinary drug may be prepared from bulk drug
substances only when:
(1) The drug is compounded and dispensed by the veterinarian to
treat an individually identified animal patient under his or her
care.
(2) The drug is not intended for use in food-producing animals.
(3) If the drug contains a bulk drug substance that is a component
of any marketed FDA-approved animal or human drug, there is a change
between the compounded drug and the comparable marketed drug made
for an individually identified animal patient that produces a
clinical difference for that individually identified animal patient,
as determined by the veterinarian prescribing the compounded drug for
his or her patient.
(4) There are no FDA-approved animal or human drugs that can be
used as labeled or in an appropriate extralabel manner to properly
treat the disease, symptom, or condition for which the drug is being
prescribed.
(5) All bulk drug substances used in compounding are manufactured
by an establishment registered under Section 360 of Title 21 of the
United States Code and are accompanied by a valid certificate of
analysis.
(6) The drug is not sold or transferred by the veterinarian
compounding the drug, except that the veterinarian shall be permitted
to administer the drug to a patient under his or her care or
dispense it to the owner or caretaker of an animal under his or her
care.
(7) Within 15 days of becoming aware of any product defect or
serious adverse event associated with any drug compounded by the
veterinarian from bulk drug substances, the veterinarian shall report
it to the federal Food and Drug Administration on Form FDA 1932a.
(8) In addition to any other requirements, the label of any
veterinary drug compounded from bulk drug substances shall indicate
the species of the intended animal patient, the name of the animal
patient, and the name of the owner or caretaker of the patient.
(d) Each compounded veterinary drug preparation shall meet the
labeling requirements of Section 4076 and Sections 1707.5 and 1735.4
of Title 16 of the California Code of Regulations, except that every
reference therein to "pharmacy" and "pharmacist" shall be replaced by
"veterinary premises" and "veterinarian," and any reference to
"patient" shall be understood to refer to the animal patient. In
addition, each label on a compounded veterinary drug preparation
shall include withdrawal and holding times, if needed, and the
disease, symptom, or condition for which the drug is being
prescribed. Any compounded veterinary drug preparation that is
intended to be sterile, including for injection, administration into
the eye, or inhalation, shall in addition meet the labeling
requirements of Section 1751.2 of Title 16 of the California Code of
Regulations, except that every reference therein to "pharmacy" and
"pharmacist" shall be replaced by "veterinary premises" and
"veterinarian," and any reference to "patient" shall be understood to
refer to the animal patient.
(e) Any veterinarian, registered veterinarian technician who is
under the direct supervision of a veterinarian, and veterinary
premises engaged in compounding shall meet the compounding
requirements for pharmacies and
pharmacists stated by the provisions of Article 4.5
(commencing with Section 1735) of Title 16 of the California Code of
Regulations, except that every reference therein to "pharmacy" and
"pharmacist" shall be replaced by "veterinary premises" and
"veterinarian," and any reference to "patient" shall be understood to
refer to the animal patient:
(1) Section 1735.1 of Title 16 of the California Code of
Regulations.
(2) Subdivisions (d),(e), (f), (g), (h), (i), (j), (k), and (l) of
Section 1735.2 of Title 16 of the California Code of Regulations.
(3) Section 1735.3 of Title 16 of the California Code of
Regulations, except that only a licensed veterinarian or registered
veterinarian technician may perform compounding and shall not
delegate to or supervise any part of the performance of compounding
by any other person.
(4) Section 1735.4 of Title 16 of the California Code of
Regulations.
(5) Section 1735.5 of Title 16 of the California Code of
Regulations.
(6) Section 1735.6 of Title 16 of the California Code of
Regulations.
(7) Section 1735.7 of Title 16 of the California Code of
Regulations.
(8) Section 1735.8 of Title 16 of the California Code of
Regulations.
(f) Any veterinarian, registered veterinarian technician under the
direct supervision of a veterinarian, and veterinary premises
engaged in sterile compounding shall meet the sterile compounding
requirements for pharmacies and pharmacists under Article 7
(commencing with Section 1751) of Title 16 of the California Code of
Regulations, except that every reference therein to "pharmacy" and
"pharmacist" shall be replaced by "veterinary premises" and
"veterinarian," and any reference to "patient" shall be understood to
refer to the animal patient.
(g) The California State Board of Pharmacy shall have authority
with the board to ensure compliance with this section and shall have
the right to inspect any veterinary premises engaged in compounding,
along with or separate from the board, to ensure compliance with this
section. The board is specifically charged with enforcing this
section with regard to its licensees.
SEC. 11. Section 4826.5 is added to the
Business and Professions Code, to read:
4826.5. Failure by a licensed veterinarian, registered
veterinarian technician, or veterinary premises to comply with the
provisions of this article shall be deemed unprofessional conduct and
constitute grounds for discipline.
SEC. 12. Section 4826.7 is added to the
Business and Professions Code, to read:
4826.7. The board may adopt regulations to implement the
provisions of this article.
SEC. 10. Section 4826.5 is added to the
Business and Professions Code , to read:
4826.5. Notwithstanding any other law, a licensed veterinarian or
a registered veterinary technician under the supervision of a
licensed veterinarian may compound drugs for animal use pursuant to
Section 530 of Title 21 of the Code of Federal Regulations and in
accordance with regulations promulgated by the board. The regulations
promulgated by the board shall, at a minimum, address the storage of
drugs, the level and type of supervision required for compounding
drugs by a registered veterinary technician, and the equipment
necessary for the safe compounding of drugs. Any violation of the
regulations adopted by the board pursuant to this section shall
constitute grounds for an enforcement or disciplinary action.
SEC. 13. SEC. 11. Section 4830 of the
Business and Professions Code is amended to read:
4830. (a) This chapter does not apply to:
(1) Veterinarians while serving in any armed branch of the
military service of the United States or the United States Department
of Agriculture while actually engaged and employed in their official
capacity.
(2) Regularly licensed veterinarians in actual consultation from
other states.
(3) Regularly licensed veterinarians actually called from other
states to attend cases in this state, but who do not open an office
or appoint a place to do business within this state.
(4) Students in the School of Veterinary Medicine of the
University of California or the College of Veterinary Medicine of the
Western University of Health Sciences who participate in diagnosis
and treatment as part of their educational experience, including
those in off-campus educational programs under the direct supervision
of a licensed veterinarian in good standing, as defined in paragraph
(1) of subdivision (b) of Section 4848, appointed by the University
of California, Davis, or the Western University of Health Sciences.
(5) A veterinarian who is employed by the Meat and Poultry
Inspection Branch of the California Department of Food and
Agriculture while actually engaged and employed in his or her
official capacity. A person exempt under this paragraph shall not
otherwise engage in the practice of veterinary medicine unless he or
she is issued a license by the board.
(6) Unlicensed personnel employed by the Department of Food and
Agriculture or the United States Department of Agriculture when in
the course of their duties they are directed by a veterinarian
supervisor to conduct an examination, obtain biological specimens,
apply biological tests, or administer medications or biological
products as part of government disease or condition monitoring,
investigation, control, or eradication activities.
(b) (1) For purposes of paragraph (3) of subdivision (a), a
regularly licensed veterinarian in good standing who is called from
another state by a law enforcement agency or animal control agency,
as defined in Section 31606 of the Food and Agricultural Code, to
attend to cases that are a part of an investigation of an alleged
violation of federal or state animal fighting or animal cruelty laws
within a single geographic location shall be exempt from the
licensing requirements of this chapter if the law enforcement agency
or animal control agency determines that it is necessary to call the
veterinarian in order for the agency or officer to conduct the
investigation in a timely, efficient, and effective manner. In
determining whether it is necessary to call a veterinarian from
another state, consideration shall be given to the availability of
veterinarians in this state to attend to these cases. An agency,
department, or officer that calls a veterinarian pursuant to this
subdivision shall notify the board of the investigation.
(2) Notwithstanding any other provision of this chapter, a
regularly licensed veterinarian in good standing who is called from
another state to attend to cases that are a part of an investigation
described in paragraph (1) may provide veterinary medical care for
animals that are affected by the investigation with a temporary
shelter facility, and the temporary shelter facility shall be exempt
from the registration requirement of Section 4853 if all of the
following conditions are met:
(A) The temporary shelter facility is established only for the
purpose of the investigation.
(B) The temporary shelter facility provides veterinary medical
care, shelter, food, and water only to animals that are affected by
the investigation.
(C) The temporary shelter facility complies with Section 4854.
(D) The temporary shelter facility exists for not more than 60
days, unless the law enforcement agency or animal control agency
determines that a longer period of time is necessary to complete the
investigation.
(E) Within 30 calendar days upon completion of the provision of
veterinary health care services at a temporary shelter facility
established pursuant to this section, the veterinarian called from
another state by a law enforcement agency or animal control agency to
attend to a case shall file a report with the board. The report
shall contain the date, place, type, and general description of the
care provided, along with a listing of the veterinary health care
practitioners who participated in providing that care.
(c) For purposes of paragraph (3) of subdivision (a), the board
may inspect temporary facilities established pursuant to this
section.
SEC. 14. SEC. 12. Section 4846.5 of
the Business and Professions Code is amended to read:
4846.5. (a) Except as provided in this section, the board shall
issue renewal licenses only to those applicants that have completed a
minimum of 36 hours of continuing education in the preceding two
years.
(b) (1) Notwithstanding any other law, continuing education hours
shall be earned by attending courses relevant to veterinary medicine
and sponsored or cosponsored by any of the following:
(A) American Veterinary Medical Association (AVMA) accredited
veterinary medical colleges.
(B) Accredited colleges or universities offering programs relevant
to veterinary medicine.
(C) The American Veterinary Medical Association.
(D) American Veterinary Medical Association recognized specialty
or affiliated allied groups.
(E) American Veterinary Medical Association's affiliated state
veterinary medical associations.
(F) Nonprofit annual conferences established in conjunction with
state veterinary medical associations.
(G) Educational organizations affiliated with the American
Veterinary Medical Association or its state affiliated veterinary
medical associations.
(H) Local veterinary medical associations affiliated with the
California Veterinary Medical Association.
(I) Federal, state, or local government agencies.
(J) Providers accredited by the Accreditation Council for
Continuing Medical Education (ACCME) or approved by the American
Medical Association (AMA), providers recognized by the American
Dental Association Continuing Education Recognition Program (ADA
CERP), and AMA or ADA affiliated state, local, and specialty
organizations.
(2) Continuing education credits shall be granted to those
veterinarians taking self-study courses, which may include, but are
not limited to, reading journals, viewing video recordings, or
listening to audio recordings. The taking of these courses shall be
limited to no more than six hours biennially.
(3) The board may approve other continuing veterinary medical
education providers not specified in paragraph (1).
(A) The board has the authority to recognize national continuing
education approval bodies for the purpose of approving continuing
education providers not specified in paragraph (1).
(B) Applicants seeking continuing education provider approval
shall have the option of applying to the board or to a
board-recognized national approval body.
(4) For good cause, the board may adopt an order specifying, on a
prospective basis, that a provider of continuing veterinary medical
education authorized pursuant to paragraph (1) or (3) is no longer an
acceptable provider.
(5) Continuing education hours earned by attending courses
sponsored or cosponsored by those entities listed in paragraph (1)
between January 1, 2000, and January 1, 2001, shall be credited
toward a veterinarian's continuing education requirement under this
section.
(c) Every person renewing his or her license issued pursuant to
Section 4846.4, or any person applying for relicensure or for
reinstatement of his or her license to active status, shall submit
proof of compliance with this section to the board certifying that he
or she is in compliance with this section. Any false statement
submitted pursuant to this section shall be a violation subject to
Section 4831.
(d) This section shall not apply to a veterinarian's first license
renewal. This section shall apply only to second and subsequent
license renewals granted on or after January 1, 2002.
(e) The board shall have the right to audit the records of all
applicants to verify the completion of the continuing education
requirement. Applicants shall maintain records of completion of
required continuing education coursework for a period of four years
and shall make these records available to the board for auditing
purposes upon request. If the board, during this audit, questions
whether any course reported by the veterinarian satisfies the
continuing education requirement, the veterinarian shall provide
information to the board concerning the content of the course; the
name of its sponsor and cosponsor, if any; and specify the specific
curricula that was of benefit to the veterinarian.
(f) A veterinarian desiring an inactive license or to restore an
inactive license under Section 701 shall submit an application on a
form provided by the board. In order to restore an inactive license
to active status, the veterinarian shall have completed a minimum of
36 hours of continuing education within the last two years preceding
application. The inactive license status of a veterinarian shall not
deprive the board of its authority to institute or continue a
disciplinary action against a licensee.
(g) Knowing misrepresentation of compliance with this article by a
veterinarian constitutes unprofessional conduct and grounds for
disciplinary action or for the issuance of a citation and the
imposition of a civil penalty pursuant to Section 4883.
(h) The board, in its discretion, may exempt from the continuing
education requirement any veterinarian who for reasons of health,
military service, or undue hardship cannot meet those requirements.
Applications for waivers shall be submitted on a form provided by the
board.
(i) The administration of this section may be funded through
professional license and continuing education provider fees. The fees
related to the administration of this section shall not exceed the
costs of administering the corresponding provisions of this section.
(j) For those continuing education providers not listed in
paragraph (1) of subdivision (b), the board or its recognized
national approval agent shall establish criteria by which a provider
of continuing education shall be approved. The board shall initially
review and approve these criteria and may review the criteria as
needed. The board or its recognized agent shall monitor, maintain,
and manage related records and data. The board may impose an
application fee, not to exceed two hundred dollars ($200) biennially,
for continuing education providers not listed in paragraph (1) of
subdivision (b).
(k) (1) Beginning January 1, 2018, a licensed veterinarian who
renews his or her license shall complete a minimum of one credit hour
of continuing education on the judicious use of medically important
antimicrobial drugs every four years as part of his or her continuing
education requirements.
(2) For purposes of this subdivision, "medically important
antimicrobial drug" means an antimicrobial drug listed in Appendix A
of the federal Food and Drug Administration's Guidance for Industry
#152, including critically important, highly important, and important
antimicrobial drugs, as that appendix may be amended.
SEC. 15. SEC. 13. Section 4848.1 is
added to the Business and Professions Code, to read:
4848.1. (a) A veterinarian engaged in the practice of veterinary
medicine, as defined in Section 4826, employed by the University of
California while and engaged in the
performance of duties in connection with the School of Veterinary
Medicine or employed by the Western University of Health Sciences
while and engaged in the performance of
duties in connection with the College of Veterinary Medicine shall
be licensed in California or shall hold
issued a university license issued by the board.
pursuant to this section or hold a license to practice
veterinary medicine in this state.
(b) An applicant is eligible to hold
individual may apply for and be issued a university license if
all of the following are satisfied:
(1) The applicant He or she is
currently employed by the University of California or Western
University of Health Sciences Sciences,
as defined in subdivision (a).
(2) Passes He or she passes an
examination concerning the statutes and regulations of the Veterinary
Medicine Practice Act, administered by the board, pursuant to
subparagraph (C) of paragraph (2) of subdivision (a) of Section 4848.
(3) Successfully He or she
successfully completes the approved educational curriculum
described in paragraph (5) of subdivision (b) of Section 4848 on
regionally specific and important diseases and conditions.
(4) He or she completes and submits the application specified by
the board and pays the application fee, pursuant to subdivision (g)
of Section 4905, and the initial license fee, pursuant to subdivision
(h) of Section 4905.
(c) A university license:
(1) Shall be numbered as described in Section 4847.
(2) Shall automatically cease to be valid upon
termination or cessation of employment by the University
of California or by the Western University of Health Sciences.
(3) Shall be subject to the license renewal provisions in Section
4846.4. 4846.4 and the payment of the renewal
fee pursuant to subdivision (i) of Section 4905.
(4) Shall be subject to denial, revocation, or suspension pursuant
to Sections 4875 and 4883. 480, 4875, and
4883.
(5) Authorizes the holder to practice veterinary medicine only at
the educational institution described in subdivision (a) and any
locations formally affiliated with those institutions.
(d) An individual who holds a university license is exempt from
satisfying the license renewal requirements of Section 4846.5.
SEC. 16. SEC. 14. Section 4853.7 is
added to the Business and Professions Code, to read:
4853.7. A premise registration that is not renewed within five
years after its expiration may not be renewed and shall not be
restored, reissued, or reinstated thereafter. However, an application
for a new premise registration may be submitted and obtained if both
of the following conditions are met:
(a) No fact, circumstance, or condition exists that, if the
premise registration was issued, would justify its revocation or
suspension.
(b) All of the fees that would be required for the initial premise
registration are paid at the time of application.
SEC. 15. Section 4904 of the Business
and Professions Code is amended to read:
4904. All fees collected on behalf of the board and all receipts
of every kind and nature shall be reported each month for the month
preceding to the State Controller and at the same time the entire
amount shall be paid into the State Treasury and shall be credited to
the Veterinary Medical Board Contingent Fund. This contingent fund
shall be available, upon appropriation by the Legislature,
for the use of the Veterinary Medical Board and out of it
and not otherwise shall be paid all expenses of the board.
Board.
SEC. 16. Section 4905 of the Business
and Professions Code is amended to read:
4905. The following fees shall be collected by the board and
shall be credited to the Veterinary Medical Board Contingent Fund:
(a) The fee for filing an application for examination shall be set
by the board in an amount it determines is reasonably necessary to
provide sufficient funds to carry out the purpose of this chapter,
not to exceed three hundred fifty dollars ($350).
(b) The fee for the California state board examination shall be
set by the board in an amount it determines is reasonably necessary
to provide sufficient funds to carry out the purpose of this chapter,
not to exceed three hundred fifty dollars ($350).
(c) The fee for the Veterinary Medicine Practice Act examination
shall be set by the board in an amount it determines reasonably
necessary to provide sufficient funds to carry out the purpose of
this chapter, not to exceed one hundred dollars ($100).
(d) The initial license fee shall be set by the board not to
exceed five hundred dollars ($500) except that, if the license is
issued less than one year before the date on which it will expire,
then the fee shall be set by the board at not to exceed two hundred
fifty dollars ($250). The board may, by appropriate regulation,
provide for the waiver or refund of the initial license fee where the
license is issued less than 45 days before the date on which it will
expire.
(e) The renewal fee shall be set by the board for each biennial
renewal period in an amount it determines is reasonably necessary to
provide sufficient funds to carry out the purpose of this chapter,
not to exceed five hundred dollars ($500).
(f) The temporary license fee shall be set by the board in an
amount it determines is reasonably necessary to provide sufficient
funds to carry out the purpose of this chapter, not to exceed two
hundred fifty dollars ($250).
(g) The fee for filing an application for a university license
shall be one hundred twenty-five dollars ($125), which may be revised
by the board in regulation but shall not exceed three hundred fifty
dollars ($350).
(h) The initial license fee for a university license shall be two
hundred ninety dollars ($290), which may be revised by the board in
regulation but shall not exceed five hundred dollars ($500).
(i) The biennial renewal fee for a university license shall be two
hundred ninety dollars ($290), which may be revised by the board in
regulation but shall not exceed five hundred dollars ($500).
(g)
(j) The delinquency fee shall be set by the board, not
to exceed fifty dollars ($50).
(h)
(k) The fee for issuance of a duplicate license is
twenty-five dollars ($25).
(i)
(l) Any charge made for duplication or other services
shall be set at the cost of rendering the service, except as
specified in subdivision (h). (k).
(j)
( m) The fee for failure to report a change
in the mailing address is twenty-five dollars ($25).
(k)
(n) The initial and annual renewal fees for
registration of veterinary premises shall be set by the board in an
amount not to exceed four hundred dollars ($400) annually.
(l)
( o) If the money transferred from the
Veterinary Medical Board Contingent Fund to the General Fund pursuant
to the Budget Act of 1991 is redeposited into the Veterinary Medical
Board Contingent Fund, the fees assessed by the board shall be
reduced correspondingly. However, the reduction shall not be so great
as to cause the Veterinary Medical Board Contingent Fund to have a
reserve of less than three months of annual authorized board
expenditures. The fees set by the board shall not result in a
Veterinary Medical Board Contingent Fund reserve of more than 10
months of annual authorized board expenditures.
SEC. 17. Section 825 of the Government Code is amended to read:
825. (a) Except as otherwise provided in this section, if an
employee or former employee of a public entity requests the public
entity to defend him or her against any claim or action against him
or her for an injury arising out of an act or omission occurring
within the scope of his or her employment as an employee of the
public entity and the request is made in writing not less than 10
days before the day of trial, and the employee or former employee
reasonably cooperates in good faith in the defense of the claim or
action, the public entity shall pay any judgment based thereon or any
compromise or settlement of the claim or action to which the public
entity has agreed.
If the public entity conducts the defense of an employee or former
employee against any claim or action with his or her reasonable
good-faith cooperation, the public entity shall pay any judgment
based thereon or any compromise or settlement of the claim or action
to which the public entity has agreed. However, where the public
entity conducted the defense pursuant to an agreement with the
employee or former employee reserving the rights of the public entity
not to pay the judgment, compromise, or settlement until it is
established that the injury arose out of an act or omission occurring
within the scope of his or her employment as an employee of the
public entity, the public entity is required to pay the judgment,
compromise, or settlement only if it is established that the injury
arose out of an act or omission occurring in the scope of his or her
employment as an employee of the public entity.
Nothing in this section authorizes a public entity to pay that
part of a claim or judgment that is for punitive or exemplary
damages.
(b) Notwithstanding subdivision (a) or any other provision of law,
a public entity is authorized to pay that part of a judgment that is
for punitive or exemplary damages if the governing body of that
public entity, acting in its sole discretion except in cases
involving an entity of the state government, finds all of the
following:
(1) The judgment is based on an act or omission of an employee or
former employee acting within the course and scope of his or her
employment as an employee of the public entity.
(2) At the time of the act giving rise to the liability, the
employee or former employee acted, or failed to act, in good faith,
without actual malice and in the apparent best interests of the
public entity.
(3) Payment of the claim or judgment would be in the best
interests of the public entity.
As used in this subdivision with respect to an entity of state
government, "a decision of the governing body" means the approval of
the Legislature for payment of that part of a judgment that is for
punitive damages or exemplary damages, upon recommendation of the
appointing power of the employee or former employee, based upon the
finding by the Legislature and the appointing authority of the
existence of the three conditions for payment of a punitive or
exemplary damages claim. The provisions of subdivision (a) of Section
965.6 shall apply to the payment of any claim pursuant to this
subdivision.
The discovery of the assets of a public entity and the
introduction of evidence of the assets of a public entity shall not
be permitted in an action in which it is alleged that a public
employee is liable for
punitive or exemplary damages.
The possibility that a public entity may pay that part of a
judgment that is for punitive damages shall not be disclosed in any
trial in which it is alleged that a public employee is liable for
punitive or exemplary damages, and that disclosure shall be grounds
for a mistrial.
(c) Except as provided in subdivision (d), if the provisions of
this section are in conflict with the provisions of a memorandum of
understanding reached pursuant to Chapter 10 (commencing with Section
3500) of Division 4 of Title 1, the memorandum of understanding
shall be controlling without further legislative action, except that
if those provisions of a memorandum of understanding require the
expenditure of funds, the provisions shall not become effective
unless approved by the Legislature in the annual Budget Act.
(d) The subject of payment of punitive damages pursuant to this
section or any other provision of law shall not be a subject of meet
and confer under the provisions of Chapter 10 (commencing with
Section 3500) of Division 4 of Title 1, or pursuant to any other law
or authority.
(e) Nothing in this section shall affect the provisions of Section
818 prohibiting the award of punitive damages against a public
entity. This section shall not be construed as a waiver of a public
entity's immunity from liability for punitive damages under Section
1981, 1983, or 1985 of Title 42 of the United States Code.
(f) (1) Except as provided in paragraph (2), a public entity shall
not pay a judgment, compromise, or settlement arising from a claim
or action against an elected official, if the claim or action is
based on conduct by the elected official by way of tortiously
intervening or attempting to intervene in, or by way of tortiously
influencing or attempting to influence the outcome of, any judicial
action or proceeding for the benefit of a particular party by
contacting the trial judge or any commissioner, court-appointed
arbitrator, court-appointed mediator, or court-appointed special
referee assigned to the matter, or the court clerk, bailiff, or
marshal after an action has been filed, unless he or she was counsel
of record acting lawfully within the scope of his or her employment
on behalf of that party. Notwithstanding Section 825.6, if a public
entity conducted the defense of an elected official against such a
claim or action and the elected official is found liable by the trier
of fact, the court shall order the elected official to pay to the
public entity the cost of that defense.
(2) If an elected official is held liable for monetary damages in
the action, the plaintiff shall first seek recovery of the judgment
against the assets of the elected official. If the elected official's
assets are insufficient to satisfy the total judgment, as determined
by the court, the public entity may pay the deficiency if the public
entity is authorized by law to pay that judgment.
(3) To the extent the public entity pays any portion of the
judgment or is entitled to reimbursement of defense costs pursuant to
paragraph (1), the public entity shall pursue all available creditor'
s remedies against the elected official, including garnishment, until
that party has fully reimbursed the public entity.
(4) This subdivision shall not apply to any criminal or civil
enforcement action brought in the name of the people of the State of
California by an elected district attorney, city attorney, or
attorney general.
(g) Notwithstanding subdivision (a), a public entity shall pay for
a judgment or settlement for treble damage antitrust awards against
a member of a regulatory board for an act or omission occurring
within the scope of his or her employment as a member of a regulatory
board.
(h) Treble damages awarded pursuant to the federal Clayton Act
(Sections 12 to 27 of Title 15 of, and Sections 52 to 53 of Title 29
of, the United States Code) for a violation of the federal Sherman
Act (Sections 1 to 6, 6a, and 7 of Title 15 of the United States
Code) are not punitive or exemplary damages under the Government
Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of
the Government Code) for purposes of this section.
SEC. 18. Section 11346.5 of the Government Code is amended to
read:
11346.5. (a) The notice of proposed adoption, amendment, or
repeal of a regulation shall include the following:
(1) A statement of the time, place, and nature of proceedings for
adoption, amendment, or repeal of the regulation.
(2) Reference to the authority under which the regulation is
proposed and a reference to the particular code sections or other
provisions of law that are being implemented, interpreted, or made
specific.
(3) An informative digest drafted in plain English in a format
similar to the Legislative Counsel's digest on legislative bills. The
informative digest shall include the following:
(A) A concise and clear summary of existing laws and regulations,
if any, related directly to the proposed action and of the effect of
the proposed action.
(B) If the proposed action differs substantially from an existing
comparable federal regulation or statute, a brief description of the
significant differences and the full citation of the federal
regulations or statutes.
(C) A policy statement overview explaining the broad objectives of
the regulation and the specific benefits anticipated by the proposed
adoption, amendment, or repeal of a regulation, including, to the
extent applicable, nonmonetary benefits such as the protection of
public health and safety, worker safety, or the environment, the
prevention of discrimination, the promotion of fairness or social
equity, and the increase in openness and transparency in business and
government, among other things.
(D) An evaluation of whether the proposed regulation is
inconsistent or incompatible with existing state regulations.
(4) Any other matters as are prescribed by statute applicable to
the specific state agency or to any specific regulation or class of
regulations.
(5) A determination as to whether the regulation imposes a mandate
on local agencies or school districts and, if so, whether the
mandate requires state reimbursement pursuant to Part 7 (commencing
with Section 17500) of Division 4.
(6) An estimate, prepared in accordance with instructions adopted
by the Department of Finance, of the cost or savings to any state
agency, the cost to any local agency or school district that is
required to be reimbursed under Part 7 (commencing with Section
17500) of Division 4, other nondiscretionary cost or savings imposed
on local agencies, and the cost or savings in federal funding to the
state.
For purposes of this paragraph, "cost or savings" means additional
costs or savings, both direct and indirect, that a public agency
necessarily incurs in reasonable compliance with regulations.
(7) If a state agency, in proposing to adopt, amend, or repeal any
administrative regulation, makes an initial determination that the
action may have a significant, statewide adverse economic impact
directly affecting business, including the ability of California
businesses to compete with businesses in other states, it shall
include the following information in the notice of proposed action:
(A) Identification of the types of businesses that would be
affected.
(B) A description of the projected reporting, recordkeeping, and
other compliance requirements that would result from the proposed
action.
(C) The following statement: "The (name of agency) has made an
initial determination that the (adoption/amendment/repeal) of this
regulation may have a significant, statewide adverse economic impact
directly affecting business, including the ability of California
businesses to compete with businesses in other states. The (name of
agency) (has/has not) considered proposed alternatives that would
lessen any adverse economic impact on business and invites you to
submit proposals. Submissions may include the following
considerations:
(i) The establishment of differing compliance or reporting
requirements or timetables that take into account the resources
available to businesses.
(ii) Consolidation or simplification of compliance and reporting
requirements for businesses.
(iii) The use of performance standards rather than prescriptive
standards.
(iv) Exemption or partial exemption from the regulatory
requirements for businesses."
(8) If a state agency, in adopting, amending, or repealing any
administrative regulation, makes an initial determination that the
action will not have a significant, statewide adverse economic impact
directly affecting business, including the ability of California
businesses to compete with businesses in other states, it shall make
a declaration to that effect in the notice of proposed action. In
making this declaration, the agency shall provide in the record
facts, evidence, documents, testimony, or other evidence upon which
the agency relies to support its initial determination.
An agency's initial determination and declaration that a proposed
adoption, amendment, or repeal of a regulation may have or will not
have a significant, adverse impact on businesses, including the
ability of California businesses to compete with businesses in other
states, shall not be grounds for the office to refuse to publish the
notice of proposed action.
(9) A description of all cost impacts, known to the agency at the
time the notice of proposed action is submitted to the office, that a
representative private person or business would necessarily incur in
reasonable compliance with the proposed action.
If no cost impacts are known to the agency, it shall state the
following:
"The agency is not aware of any cost impacts that a representative
private person or business would necessarily incur in reasonable
compliance with the proposed action."
(10) A statement of the results of the economic impact assessment
required by subdivision (b) of Section 11346.3 or the standardized
regulatory impact analysis if required by subdivision (c) of Section
11346.3, a summary of any comments submitted to the agency pursuant
to subdivision (f) of Section 11346.3 and the agency's response to
those comments.
(11) The finding prescribed by subdivision (d) of Section 11346.3,
if required.
(12) (A) A statement that the action would have a significant
effect on housing costs, if a state agency, in adopting, amending, or
repealing any administrative regulation, makes an initial
determination that the action would have that effect.
(B) The agency officer designated in paragraph (15) shall make
available to the public, upon request, the agency's evaluation, if
any, of the effect of the proposed regulatory action on housing
costs.
(C) The statement described in subparagraph (A) shall also include
the estimated costs of compliance and potential benefits of a
building standard, if any, that were included in the initial
statement of reasons.
(D) For purposes of model codes adopted pursuant to Section 18928
of the Health and Safety Code, the agency shall comply with the
requirements of this paragraph only if an interested party has made a
request to the agency to examine a specific section for purposes of
estimating the costs of compliance and potential benefits for that
section, as described in Section 11346.2.
(13) If the regulatory action is submitted by a state
board on which a controlling number of decisionmakers are active
market participants in the market the board regulates, a statement
that the adopting agency has evaluated the impact of the proposed
regulation on competition, and that the proposed regulation furthers
a clearly articulated and affirmatively expressed state law to
restrain competition. board within the Department of
Consumer Affairs, a statement that the Director of Consumer Affairs
has reviewed the proposed regulation and determined that the proposed
regulation furthers state law.
(14) A statement that the adopting agency must determine that no
reasonable alternative considered by the agency or that has otherwise
been identified and brought to the attention of the agency would be
more effective in carrying out the purpose for which the action is
proposed, would be as effective and less burdensome to affected
private persons than the proposed action, or would be more cost
effective to affected private persons and equally effective in
implementing the statutory policy or other provision of law. For a
major regulation, as defined by Section 11342.548, proposed on or
after November 1, 2013, the statement shall be based, in part, upon
the standardized regulatory impact analysis of the proposed
regulation, as required by Section 11346.3, as well as upon the
benefits of the proposed regulation identified pursuant to
subparagraph (C) of paragraph (3).
(15) The name and telephone number of the agency representative
and designated backup contact person to whom inquiries concerning the
proposed administrative action may be directed.
(16) The date by which comments submitted in writing must be
received to present statements, arguments, or contentions in writing
relating to the proposed action in order for them to be considered by
the state agency before it adopts, amends, or repeals a regulation.
(17) Reference to the fact that the agency proposing the action
has prepared a statement of the reasons for the proposed action, has
available all the information upon which its proposal is based, and
has available the express terms of the proposed action, pursuant to
subdivision (b).
(18) A statement that if a public hearing is not scheduled, any
interested person or his or her duly authorized representative may
request, no later than 15 days prior to the close of the written
comment period, a public hearing pursuant to Section 11346.8.
(19) A statement indicating that the full text of a regulation
changed pursuant to Section 11346.8 will be available for at least 15
days prior to the date on which the agency adopts, amends, or
repeals the resulting regulation.
(20) A statement explaining how to obtain a copy of the final
statement of reasons once it has been prepared pursuant to
subdivision (a) of Section 11346.9.
(21) If the agency maintains an Internet Web site or other similar
forum for the electronic publication or distribution of written
material, a statement explaining how materials published or
distributed through that forum can be accessed.
(22) If the proposed regulation is subject to Section 11346.6, a
statement that the agency shall provide, upon request, a description
of the proposed changes included in the proposed action, in the
manner provided by Section 11346.6, to accommodate a person with a
visual or other disability for which effective communication is
required under state or federal law and that providing the
description of proposed changes may require extending the period of
public comment for the proposed action.
(b) The agency representative designated in paragraph (15) of
subdivision (a) shall make available to the public upon request the
express terms of the proposed action. The representative shall also
make available to the public upon request the location of public
records, including reports, documentation, and other materials,
related to the proposed action. If the representative receives an
inquiry regarding the proposed action that the representative cannot
answer, the representative shall refer the inquiry to another person
in the agency for a prompt response.
(c) This section shall not be construed in any manner that results
in the invalidation of a regulation because of the alleged
inadequacy of the notice content or the summary or cost estimates, or
the alleged inadequacy or inaccuracy of the housing cost estimates,
if there has been substantial compliance with those requirements.
SEC. 19. Section 11349 of the Government Code
is amended to read:
11349. The following definitions govern the interpretation of
this chapter:
(a) "Necessity" means the record of the rulemaking proceeding
demonstrates by substantial evidence the need for a regulation to
effectuate the purpose of the statute, court decision, or other
provision of law that the regulation implements, interprets, or makes
specific, taking into account the totality of the record. For
purposes of this standard, evidence includes, but is not limited to,
facts, studies, and expert opinion.
(b) "Authority" means the provision of law which permits or
obligates the agency to adopt, amend, or repeal a regulation.
(c) "Clarity" means written or displayed so that the meaning of
regulations will be easily understood by those persons directly
affected by them.
(d) "Consistency" means being in harmony with, and not in conflict
with or contradictory to, existing statutes, court decisions, or
other provisions of law.
(e) "Reference" means the statute, court decision, or other
provision of law which the agency implements, interprets, or makes
specific by adopting, amending, or repealing a regulation.
(f) "Nonduplication" means that a regulation does not serve the
same purpose as a state or federal statute or another regulation.
This standard requires that an agency proposing to amend or adopt a
regulation must identify any state or federal statute or regulation
which is overlapped or duplicated by the proposed regulation and
justify any overlap or duplication. This standard is not intended to
prohibit state agencies from printing relevant portions of enabling
legislation in regulations when the duplication is necessary to
satisfy the clarity standard in paragraph (3) of subdivision (a) of
Section 11349.1. This standard is intended to prevent the
indiscriminate incorporation of statutory language in a regulation.
(g) "Competitive impact" means that the record of the rulemaking
proceeding or other documentation demonstrates that the regulation is
authorized by a clearly articulated and affirmatively expressed
state law, that the regulation furthers the public protection mission
of the state agency, and that the impact on competition is justified
in light of the applicable regulatory rationale for the regulation.
SEC. 20. Section 11349.1 of the Government Code
is amended to read:
11349.1. (a) The office shall review all regulations adopted,
amended, or repealed pursuant to the procedure specified in Article 5
(commencing with Section 11346) and submitted to it for publication
in the California Code of Regulations Supplement and for transmittal
to the Secretary of State and make determinations using all of the
following standards:
(1) Necessity.
(2) Authority.
(3) Clarity.
(4) Consistency.
(5) Reference.
(6) Nonduplication.
(7) For those regulations submitted by a state board on which a
controlling number of decisionmakers are active market participants
in the market the board regulates, the office shall review for
competitive impact.
In reviewing regulations pursuant to this section, the office
shall restrict its review to the regulation and the record of the
rulemaking except as directed in subdivision (h). The office shall
approve the regulation or order of repeal if it complies with the
standards set forth in this section and with this chapter.
(b) In reviewing proposed regulations for the criteria in
subdivision (a), the office may consider the clarity of the proposed
regulation in the context of related regulations already in
existence.
(c) The office shall adopt regulations governing the procedures it
uses in reviewing regulations submitted to it. The regulations shall
provide for an orderly review and shall specify the methods,
standards, presumptions, and principles the office uses, and the
limitations it observes, in reviewing regulations to establish
compliance with the standards specified in subdivision (a). The
regulations adopted by the office shall ensure that it does not
substitute its judgment for that of the rulemaking agency as
expressed in the substantive content of adopted regulations.
(d) The office shall return any regulation subject to this chapter
to the adopting agency if any of the following occur:
(1) The adopting agency has not prepared the estimate required by
paragraph (6) of subdivision (a) of Section 11346.5 and has not
included the data used and calculations made and the summary report
of the estimate in the file of the rulemaking.
(2) The agency has not complied with Section 11346.3.
"Noncompliance" means that the agency failed to complete the economic
impact assessment or standardized regulatory impact analysis
required by Section 11346.3 or failed to include the assessment or
analysis in the file of the rulemaking proceeding as required by
Section 11347.3.
(3) The adopting agency has prepared the estimate required by
paragraph (6) of subdivision (a) of Section 11346.5, the estimate
indicates that the regulation will result in a cost to local agencies
or school districts that is required to be reimbursed under Part 7
(commencing with Section 17500) of Division 4, and the adopting
agency fails to do any of the following:
(A) Cite an item in the Budget Act for the fiscal year in which
the regulation will go into effect as the source from which the
Controller may pay the claims of local agencies or school districts.
(B) Cite an accompanying bill appropriating funds as the source
from which the Controller may pay the claims of local agencies or
school districts.
(C) Attach a letter or other documentation from the Department of
Finance which states that the Department of Finance has approved a
request by the agency that funds be included in the Budget Bill for
the next following fiscal year to reimburse local agencies or school
districts for the costs mandated by the regulation.
(D) Attach a letter or other documentation from the Department of
Finance which states that the Department of Finance has authorized
the augmentation of the amount available for expenditure under the
agency's appropriation in the Budget Act which is for reimbursement
pursuant to Part 7 (commencing with Section 17500) of Division 4 to
local agencies or school districts from the unencumbered balances of
other appropriations in the Budget Act and that this augmentation is
sufficient to reimburse local agencies or school districts for their
costs mandated by the regulation.
(4) The proposed regulation conflicts with an existing state
regulation and the agency has not identified the manner in which the
conflict may be resolved.
(5) The agency did not make the alternatives determination as
required by paragraph (4) of subdivision (a) of Section 11346.9.
(6) The office decides that the record of the rulemaking
proceeding or other documentation for the proposed regulation does
not demonstrate that the regulation is authorized by a clearly
articulated and affirmatively expressed state law, that the
regulation does not further the public protection mission of the
state agency, or that the impact on competition is not justified in
light of the applicable regulatory rationale for the regulation.
(e) The office shall notify the Department of Finance of all
regulations returned pursuant to subdivision (d).
(f) The office shall return a rulemaking file to the submitting
agency if the file does not comply with subdivisions (a) and (b) of
Section 11347.3. Within three state working days of the receipt of a
rulemaking file, the office shall notify the submitting agency of any
deficiency identified. If no notice of deficiency is mailed to the
adopting agency within that time, a rulemaking file shall be deemed
submitted as of the date of its original receipt by the office. A
rulemaking file shall not be deemed submitted until each deficiency
identified under this subdivision has been corrected.
(g) Notwithstanding any other law, return of the regulation to the
adopting agency by the office pursuant to this section is the
exclusive remedy for a failure to comply with subdivision (c) of
Section 11346.3 or paragraph (10) of subdivision (a) of Section
11346.5.
(h) The office may designate, employ, or contract for the services
of independent antitrust or applicable economic experts when
reviewing proposed regulations for competitive impact. When reviewing
a regulation for competitive impact, the office shall do all of the
following:
(1) If the Director of Consumer Affairs issued a written decision
pursuant to subdivision (c) of Section 109 of the Business and
Professions Code, the office shall review and consider the decision
and all supporting documentation in the rulemaking file.
(2) Consider whether the anticompetitive effects of the proposed
regulation are clearly outweighed by the public policy merits.
(3) Provide a written opinion setting forth the office's findings
and substantive conclusions under paragraph (2), including, but not
limited to, whether rejection or modification of the proposed
regulation is necessary to ensure that restraints of trade are
related to and advance the public policy underlying the applicable
regulatory rationale.
SEC. 21. SEC. 19. No
reimbursement is required by this act pursuant to Section 6 of
Article XIII B of the California Constitution because the only costs
that may be incurred by a local agency or school district will be
incurred because 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.
